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Page 1 CIV 180815 CIV DS1821328 CASEEN 082602
I
I
I I
Scanned Document Coversheet
System Code
CIV
Case Number
DS1821328
CaseType
CIV
A c on code
casEEN
Action Date
08 15 18
ActionTime
Action
Seq
Printed
by
THIS COVERSHEET IS FOR COURT
PURPOSES ONLY AND THIS IS NOT
A PART OF THE OFFICIAL RECORD
8 26
YOU WILL NOT BE CHARGED FOR
0002
TH I S PAG E
ESTAR
Complaint and Party information entered
l
NEW FILEPage 2 2
3
Joseph Wangler Esq SBN 296901
The Law Offices of Marc Grossman APC
100 N Euclid Ave Second Floor
Upfand CA 92176
Ph 909 949 0119
Fx 909 949 0119
Joe@wefight4you com
SUPER
i L
IORCOURTOFCALIFOR
COUNTYOFSANBERNARDIN
iA
N BERiVARDINO DISTRICT
I
AU
5 201
4
5
for Plaintiff
MARC GROSSMAN
BY
Attorney
ED
J
y
y
6
SUPERIOR COURT OF CALlFORNIA
COUNTY OF SAN BERNARDINO
g
MARC GROSSMAN
an
individual
v
5
6i
CASE NO
10
Plai ntiff
x
a
11
COMPLAINT FOR DAMAGES AND
12
DECLARATORY RELIEF
13
v
x
4
fp
a
i
TESLA INC V1 HICH WILL DO
BUSINESS IN CAE IFORNIAAS TESLA
MOTORS INC and DOES 1 10
1
CODE
15
Defendants
W
VIOI ATION OF BUS
2
PROF
17200
DECLARATORY RELIEF FOR
16
v
UNENFORCEABLE LIQUIDATED
17
DAMAGES PR
w
i
VISION
18
19
20
21
22
BY
23
24
25
26
27
28
1
COMPLAINT
fqXPage 3 Plaintiff MARC GROSSMAN
alleges as
follows
j
PARTIES
2
Plaintiff MARC GROSSMAN
1
hereafter
GROSSMAN
is now and at all
3
times relevant herein was an individual residing in the city of Upland in San Bemardino
4
5
County in the state of California
Defendant TESLA INC WHICH WILL DO BUSINESS IN CALIFORNIA AS
2
6
TESLA MOTORS INC
7
times mentioned herein was a Delaware corporation doing business in California as
g
TESLA MOT
9
hereafter
on information and belief is now and at all
ESLA
RS INC
Plaintiff is ignorant af the true names and capacities of defendanfs sued
3
herein as DOES 1 through 10 inclusive and therefore sues these defendants by such
fictitious names Plainti F will amend this petition to allege their true names and
Z
11
capacities when ascertained Plaintiff is informed and believes and thereon alleges that
each of these fictitiously named defendants is responsible in some manner for the acts
O c
and occurrences herein alleged
C
14
N
s O
1
a
W
r
x
zN
c
5
x
16
v
7
18
19
Plaintiff is informed and believes and thereon alleges that each of the
4
defendants herein was at all times relevant to this action the agent employee
representing partner or joint venture of the remaining defendants and was acting within
the course and scope af that re ationship Plaintiff is further informed and believes and
thereon alleges that each of the defendants herein gave consent to ratified and
authorized the acts alleged herein to each of the remaining defendants
JURISDICTION AND VENUE
20
Venue is proper in this Court TESLA was doing business in California
5
21
The contract at issue was entered inta in San Bernardino Gounty
22
23
STATEMENT OF FACTS
6
On October 23 2015 GROSSMAN entered into a contract wi h TESLA
24
wherein GROSSMAN would lease a new Tesla Model S aufiomobile from TESLA The
25
contract was entered into and the terms were accepted electronically by both parties via
Zg
fhe teslamotors com website
27
28
7
depasit
at
The agreement included terms requiring GROSSMAN to pay a 2 500 00
signing
GROSSMAN
paid
fihe
2 50Q 0
2
COMPLAINT
depositPage 4 8
The agreement was confirmed by TESLA via an email sent to
GROSSMAN The email stated that the order will be considered confirmed on October
2
30th for the
purposes of
3
Leasing
Estimate
9
The
4
factory
913 57
of
agreement
planning
The agreement also included a Tesla
5 150 72 due at delivery
per month and
further
thafi TESLA
states
to the
3
we submit your
j
will submit your order
5
TESLA
6
order for production your Order Payment becomes earned and non refundable
factory
10
7
for
production one week after
the Order Date
When
On the morning of October 30 2015 TESLA sent an email to
g
GR
9
When confirmed the Tesla factory will begin sourcing parts to manufacture your Model
10
SSMAN stating
Your order will be automatically confirmed on October 30th
S
11
On October 31
2015 TESLA
sent an email
11
to GROSSMAN stating
For
the purposes of factory planning we have begun sourcing parts for your Model S
U1
2
12
O
13
a
C
N
On November 20 2015 twenty eight days after the contract was entered
grian Demers identified as a TESLA Delivery Experience Specialist hereinafter
DEMERS
sent an email to GROSSMAN and for the first time asked GROSSMAN to
s 0
5
a
a
w
apply for
leasing TESLA
sent an email wifih
the
The
Your Model S has begun
subject
line
Your Model S
Time To
l
16
5
vU
yE
7
19
Apply
for Tesla
Leasing
email stated
production
It is
now time to Submit a Leasing Application
13
GROSSMAN applied for TESLA s leasing program later that week
14
On November 30 2015 thirty eight days after the contract was entered
Jeff Russell
identified
as a
TESLA Senior Credit Specialist
hereinafter
RUSSELL
20
sent an email
to GROSSMAN stating
your application for Tesla l easing inancing
21
unfortunately has
not
been
approved
soon as you are able so we can
23
24
we recommend reaching out with questions as
i
22
determine
next steps
before
your order goes
production
15
On December 1 2015 GR SSMAN wrote back to RUSSELL offerin J to
further stating
25
add a co signor and
2g
difference I m happy to work with your lender If not I will just move on if you are not
27
If
you
think
additional information might make a
able to accomplish this lease
16
28
j
into
Communications by email continued between RUSSELL and
GROSSMAN wherein RUSSELI asked about tax liens on GROSSMAN s credit report
3
COMPLAINT
IPage 5 ON December 12 2015 GROSSMAN wrote to RUSSELL expiaining tha he believed
the tax liens were in a repayment plan
2
17
On December 22 2015 GROSSMAN
wrote
to RUSSELL stating
I ve
j
3
discovered
4
out
we re
in between deals
on our tax
liens
so
I don t think this is going to
work
Please let me know how I gef my deposit back
18
On
January
11
2d16 GROSSMAN
wrote
to RUSSELL stating
lf there is
6
anything more I can do to find financing let me know Given that I have a new tax lien
7
and that I ve discovered E ve fallen out on my payment plan on my priar tax lien I doubt
g
that it is possible for anyone to finance me Please respand fio my request for a refund
9
If you think I ve not exhausted financing efforts let me know I think it is clear that
fl
further effort would be futile
19
11
On January 12 2016 GROSSMAN received a call from a person
identified only as Kimberly from TESLA GROSSMAN advised her that due to special
12
circumstances he is unable to obtain financing despite his good faith efforts Kimberly
O
13
z
14
H
r0
r
x 15
said she was only authorized to refuse a refund and that she would send GROSSMAN
an email with contact info for a person at the next level who GROSSMAN could talk to
GROSSMAN never received any such email
1
x
20
16
r
a
7
On January 13 2016 GROSSMAN emailed DEMERS confrming the
conversation with Kimberly and thaf she had not sent him the email with the contact
information GROSSMAN
19
to
about
this
I have
concluded
Please provide information for whom I can speak
sent numerous emails
regarding this aiready
GROSSMAN
received no response from DEMERS
2a
FIRST CAUSE OF ACTION
21
Violation
22
23
24
25
2g
27
of
Bus
Prof Code
17200
Against atl Defendants
21
Plaintiff re alleges and incorporates herein by reference alI of the
allegations set forth in paragraphs 1 through 20 as though fully se forth herein
22
TESLA took GR
SSMAN
s
2 500 00 deposit with a promise that
GROSSMAN could cancel the deposit within one week and get a refiund and that after
fhat week GROSSMAN could not get a refund
28
4
COMPLAINT
iPage 6 i
1
TESLA then unfairly manipulated the timing of the denial of his lease so
23
2
that TESLA could allege a breach of contract by GROSSMAN and keep his 2 500 00
deposit
3
TESLA easily could have de ermined that GROSSMAN would not qualify
24
4
for financing or for a lease within the first week because GROSSMAN s credit report
was instantiy accessible at any time during the first week of the agreement or even
6
before TESLA offered fihe contract ta GROSSMAN
g
9
TESLA s unfair scheme was to have GROSSMAN agree to put a deposit
25
7
down for a car and to enter into a contract to buy or lease the car GRQSSMAN had to
agree
that
after one week
the
2 500 00 deposit was lost as liquidated damages Then
TESLA would wait until after the deposit was locked in and only then would TESLA
11
make a credit decision about approving or denying GROSSMAN s lease
26
After having manipulated GROSSMAN by waiting until the deposit was
12
1
locked in before making a credit decisian TESL A kept GR SSMAN s money in a
13
F
r
27
r
j W
a
W
V U
process that is unfair to GROSSMAN and to all consumers
5
7
16
v
7
X
18
9
By reason af TESLA s fraudulent deceptive unfair and wrongful conduct
as herein alleged TESLA has violated California Business and Professions Code
17200 et seq by consummating an unlav rful unfair and raudu lent business practice
designed to deprive GR
28
SSMAN of
2 540 00
By re aso n of the fo r ego i n g G R O S S M AN has s uffe red an d co nt i nu es to
suffer damages in a sum which is as yet not ascertained Plaintiff will ask leave of court
to amend his Complaint when the true nature and extent of his damages have been
20
ascertained
21
SEC4ND CAUSE OF ACTiON
22
Declaratory Relief for Unenforceable Liquidated Damages Provision
23
24
25
2g
2
28
i
Against all Defendants
29
Plaintiff re alleges and incorporates herein by reference all of the
allegations set
30
forth in
TESLA
s
paragraphs
through 28 as though
liquidated damages
fully
provision states as
set
forth herein
follows
Cancellation Default Because your Vehicle is custom ordered we incur significant
costs in starting production of your Vehicle We also incur significant costs for
remarketing and reselling the Vehicle if you cancel or default in this Agreement As a
5
COMPLAINT
i
fPage 7 result your Order Payment is non refundable once your order is sent fio the Tesla
2
Factory You acknowledge that the Order Paymenfi amount is a fair and reasonable
estimate of the actual damages that we have incurred or may incur costs that are
3
otherwise impracticable or extremely difficult to determine We will credit your Order
4
Payment toward the final
purchase pric
of the Vehicle You acknowledge that this
5
Order Payment and this Agreement are not made or entered into in anfiicipation of or
6
pending any conditional sale contract
TESLA acted in bad faith by practicing a scheme whereby it delayed its
31
7
g
decision to provide or not provide financing until GROSSMAN s deposit was locked in
9
by the Liquidated Damages provision
There is no basis for damages of any kind GROSSMAN did not default or
32
10
breach the
Z
contract
and was at all
times ready to
perform
his
abligations under
the
i
contract and made good faith efforts to do so It was TESLA who decided not to exfiend
12
x
financing TESLA s actions do not put GROSSMAN in breach Instead the contract
Should be rescinded and TESLA shoufd return GROSSMAN s deposit
14
H
f 0
c
W
13
5
15
x 16
v
zSw
7
w
Even if GROSSMAN had breached the contract which he did not fihe
33
liquidated damages provision of the contract is unenforceable because TESLA did not
incur any damages In tru th TE S LA sel ls tens of t housan ds af their Model S and the
only real customization is for standardized vehicle colors interior trim wheel size etc
TESLA did not by any stretch build a car just for GROSSMAN
Although TES LA claimed in its initial emails to GROSSMAN that the order
34
1g
would
be
confirmed on
October 3a 2015 for
purposes
of
factory
planning
RUSSELL s
2Q
email on
November 30 2015
stated
21
soon as you are able so we can
we recommend reaching out with questions as
determine
next steps
before
your order goes
22
production
23
35
i
into
i
emphasis added
Even if TESLA had begun factory planning for GROSSMAN s vehicle
24
TESLA suffered no damages because those resources could be directly transferred to
25
another vehic e because the amount of customization of the Model S is limifed to
26
standardized finishes and trims RUSSELL s email of November 30 2015 confirms that
i
27
28
the vehicle had not yet gone into production at a time after TESLA had denied financing
to GROSSMAN
6
CONlPLAINTPage 8 36
2
Because of TES1 A s bad faith and its fack of basis for damages and
because of the lack of default or breach by GR SSMAN TESLA s liquidated damages
provision should be declared and is unenforceable
3
37
4
GROSSMAN s deposit TESLA has heretofore refused to refund GROSSMAN s deposit
38
6
Far all the above mentioned reasons TESLA should refund
There exists a substantial controversy of sufficient immediacy and reality
to warrant the issuance of a declaratory judgment
39
7
A judicial declaration
pursuant
to Cal
a
Civ Proc Code
1060 is necessa
g
and appropriate at this time so that Plaintiff s rights under the Agreement may be
9
determined with cer ainfiy
PRAYER FOR RELIEF
HEREFORE Plaintiff prays for judgment and declaratory relief as follows
11
N THE FIRST CAUSE OF ACTION
12
v
E
f
o
For damages in the amount of
2
For
14
3
For punitive damages according to proof
15
4
Post judgment interest as allowed by law
13
a
v
1
r
v aa x
x 16
w
pre
2 500 00
judgment interest from November 30 2015
ON THE SECOND CAUSE
F ACTI
at
10
per annum
N
O U
5
X
8
1
19
A judgment stating that the Liquidated Damages provision in the
Agreemenfi is void il egal and because TESLA acted in bad faith that the provision as
a whole is unenforceable
ON ALL CAUSES OF ACTION
20
6
For reasonable casts and attorneys fees incurred to the full extent
21
available by law
22
7
23
lll
24
lll
25
lll
26
1
27
28
For such other and further reiief as the Court may deem just and proper
j
I
ll
1
I
7
COMPI AINTPage 9 DEMAND FOR A JURY TRIAL
Plaintiff
2
hereby
demands trial
by jury
on all
issues triabie
I
by jury
i
i
3
i
4
DATED
5
l
THE LAW OFFICES O
ARC GROSSMAN
APC
6
7
BY
8
J
9
eph Wangler Esq
torney for Plaintiff
10
11
12
O
13
a
X
14
f
OexN
W
15
x 16
v
X
i
7
7
p
w 1
19
20
21
22
i
23
I
24
i
25
26
27
I
28
8
COMPLAINT
PDF Page 1
PlainSite Cover Page
PDF Page 2
CIV 180815 CIV DS1821328 CASEEN 082602
I
I
I I
Scanned Document Coversheet
System Code
CIV
Case Number
DS1821328
CaseType
CIV
A c on code
casEEN
Action Date
08 15 18
ActionTime
Action
Seq
Printed
by
THIS COVERSHEET IS FOR COURT
PURPOSES ONLY AND THIS IS NOT
A PART OF THE OFFICIAL RECORD
8 26
YOU WILL NOT BE CHARGED FOR
0002
TH I S PAG E
ESTAR
Complaint and Party information entered
l
NEW FILE
PDF Page 3
2
3
Joseph Wangler Esq SBN 296901
The Law Offices of Marc Grossman APC
100 N Euclid Ave Second Floor
Upfand CA 92176
Ph 909 949 0119
Fx 909 949 0119
Joe@wefight4you com
SUPER
i L
IORCOURTOFCALIFOR
COUNTYOFSANBERNARDIN
iA
N BERiVARDINO DISTRICT
I
AU
5 201
4
5
for Plaintiff
MARC GROSSMAN
BY
Attorney
ED
J
y
y
6
SUPERIOR COURT OF CALlFORNIA
COUNTY OF SAN BERNARDINO
g
MARC GROSSMAN
an
individual
v
5
6i
CASE NO
10
Plai ntiff
x
a
11
COMPLAINT FOR DAMAGES AND
12
DECLARATORY RELIEF
13
v
x
4
fp
a
i
TESLA INC V1 HICH WILL DO
BUSINESS IN CAE IFORNIAAS TESLA
MOTORS INC and DOES 1 10
1
CODE
15
Defendants
W
VIOI ATION OF BUS
2
PROF
17200
DECLARATORY RELIEF FOR
16
v
UNENFORCEABLE LIQUIDATED
17
DAMAGES PR
w
i
VISION
18
19
20
21
22
BY
23
24
25
26
27
28
1
COMPLAINT
fqX
PDF Page 4
Plaintiff MARC GROSSMAN
alleges as
follows
j
PARTIES
2
Plaintiff MARC GROSSMAN
1
hereafter
GROSSMAN
is now and at all
3
times relevant herein was an individual residing in the city of Upland in San Bemardino
4
5
County in the state of California
Defendant TESLA INC WHICH WILL DO BUSINESS IN CALIFORNIA AS
2
6
TESLA MOTORS INC
7
times mentioned herein was a Delaware corporation doing business in California as
g
TESLA MOT
9
hereafter
on information and belief is now and at all
ESLA
RS INC
Plaintiff is ignorant af the true names and capacities of defendanfs sued
3
herein as DOES 1 through 10 inclusive and therefore sues these defendants by such
fictitious names Plainti F will amend this petition to allege their true names and
Z
11
capacities when ascertained Plaintiff is informed and believes and thereon alleges that
each of these fictitiously named defendants is responsible in some manner for the acts
O c
and occurrences herein alleged
C
14
N
s O
1
a
W
r
x
zN
c
5
x
16
v
7
18
19
Plaintiff is informed and believes and thereon alleges that each of the
4
defendants herein was at all times relevant to this action the agent employee
representing partner or joint venture of the remaining defendants and was acting within
the course and scope af that re ationship Plaintiff is further informed and believes and
thereon alleges that each of the defendants herein gave consent to ratified and
authorized the acts alleged herein to each of the remaining defendants
JURISDICTION AND VENUE
20
Venue is proper in this Court TESLA was doing business in California
5
21
The contract at issue was entered inta in San Bernardino Gounty
22
23
STATEMENT OF FACTS
6
On October 23 2015 GROSSMAN entered into a contract wi h TESLA
24
wherein GROSSMAN would lease a new Tesla Model S aufiomobile from TESLA The
25
contract was entered into and the terms were accepted electronically by both parties via
Zg
fhe teslamotors com website
27
28
7
depasit
at
The agreement included terms requiring GROSSMAN to pay a 2 500 00
signing
GROSSMAN
paid
fihe
2 50Q 0
2
COMPLAINT
deposit
PDF Page 5
8
The agreement was confirmed by TESLA via an email sent to
GROSSMAN The email stated that the order will be considered confirmed on October
2
30th for the
purposes of
3
Leasing
Estimate
9
The
4
factory
913 57
of
agreement
planning
The agreement also included a Tesla
5 150 72 due at delivery
per month and
further
thafi TESLA
states
to the
3
we submit your
j
will submit your order
5
TESLA
6
order for production your Order Payment becomes earned and non refundable
factory
10
7
for
production one week after
the Order Date
When
On the morning of October 30 2015 TESLA sent an email to
g
GR
9
When confirmed the Tesla factory will begin sourcing parts to manufacture your Model
10
SSMAN stating
Your order will be automatically confirmed on October 30th
S
11
On October 31
2015 TESLA
sent an email
11
to GROSSMAN stating
For
the purposes of factory planning we have begun sourcing parts for your Model S
U1
2
12
O
13
a
C
N
On November 20 2015 twenty eight days after the contract was entered
grian Demers identified as a TESLA Delivery Experience Specialist hereinafter
DEMERS
sent an email to GROSSMAN and for the first time asked GROSSMAN to
s 0
5
a
a
w
apply for
leasing TESLA
sent an email wifih
the
The
Your Model S has begun
subject
line
Your Model S
Time To
l
16
5
vU
yE
7
19
Apply
for Tesla
Leasing
email stated
production
It is
now time to Submit a Leasing Application
13
GROSSMAN applied for TESLA s leasing program later that week
14
On November 30 2015 thirty eight days after the contract was entered
Jeff Russell
identified
as a
TESLA Senior Credit Specialist
hereinafter
RUSSELL
20
sent an email
to GROSSMAN stating
your application for Tesla l easing inancing
21
unfortunately has
not
been
approved
soon as you are able so we can
23
24
we recommend reaching out with questions as
i
22
determine
next steps
before
your order goes
production
15
On December 1 2015 GR SSMAN wrote back to RUSSELL offerin J to
further stating
25
add a co signor and
2g
difference I m happy to work with your lender If not I will just move on if you are not
27
If
you
think
additional information might make a
able to accomplish this lease
16
28
j
into
Communications by email continued between RUSSELL and
GROSSMAN wherein RUSSELI asked about tax liens on GROSSMAN s credit report
3
COMPLAINT
I
PDF Page 6
ON December 12 2015 GROSSMAN wrote to RUSSELL expiaining tha he believed
the tax liens were in a repayment plan
2
17
On December 22 2015 GROSSMAN
wrote
to RUSSELL stating
I ve
j
3
discovered
4
out
we re
in between deals
on our tax
liens
so
I don t think this is going to
work
Please let me know how I gef my deposit back
18
On
January
11
2d16 GROSSMAN
wrote
to RUSSELL stating
lf there is
6
anything more I can do to find financing let me know Given that I have a new tax lien
7
and that I ve discovered E ve fallen out on my payment plan on my priar tax lien I doubt
g
that it is possible for anyone to finance me Please respand fio my request for a refund
9
If you think I ve not exhausted financing efforts let me know I think it is clear that
fl
further effort would be futile
19
11
On January 12 2016 GROSSMAN received a call from a person
identified only as Kimberly from TESLA GROSSMAN advised her that due to special
12
circumstances he is unable to obtain financing despite his good faith efforts Kimberly
O
13
z
14
H
r0
r
x 15
said she was only authorized to refuse a refund and that she would send GROSSMAN
an email with contact info for a person at the next level who GROSSMAN could talk to
GROSSMAN never received any such email
1
x
20
16
r
a
7
On January 13 2016 GROSSMAN emailed DEMERS confrming the
conversation with Kimberly and thaf she had not sent him the email with the contact
information GROSSMAN
19
to
about
this
I have
concluded
Please provide information for whom I can speak
sent numerous emails
regarding this aiready
GROSSMAN
received no response from DEMERS
2a
FIRST CAUSE OF ACTION
21
Violation
22
23
24
25
2g
27
of
Bus
Prof Code
17200
Against atl Defendants
21
Plaintiff re alleges and incorporates herein by reference alI of the
allegations set forth in paragraphs 1 through 20 as though fully se forth herein
22
TESLA took GR
SSMAN
s
2 500 00 deposit with a promise that
GROSSMAN could cancel the deposit within one week and get a refiund and that after
fhat week GROSSMAN could not get a refund
28
4
COMPLAINT
i
PDF Page 7
i
1
TESLA then unfairly manipulated the timing of the denial of his lease so
23
2
that TESLA could allege a breach of contract by GROSSMAN and keep his 2 500 00
deposit
3
TESLA easily could have de ermined that GROSSMAN would not qualify
24
4
for financing or for a lease within the first week because GROSSMAN s credit report
was instantiy accessible at any time during the first week of the agreement or even
6
before TESLA offered fihe contract ta GROSSMAN
g
9
TESLA s unfair scheme was to have GROSSMAN agree to put a deposit
25
7
down for a car and to enter into a contract to buy or lease the car GRQSSMAN had to
agree
that
after one week
the
2 500 00 deposit was lost as liquidated damages Then
TESLA would wait until after the deposit was locked in and only then would TESLA
11
make a credit decision about approving or denying GROSSMAN s lease
26
After having manipulated GROSSMAN by waiting until the deposit was
12
1
locked in before making a credit decisian TESL A kept GR SSMAN s money in a
13
F
r
27
r
j W
a
W
V U
process that is unfair to GROSSMAN and to all consumers
5
7
16
v
7
X
18
9
By reason af TESLA s fraudulent deceptive unfair and wrongful conduct
as herein alleged TESLA has violated California Business and Professions Code
17200 et seq by consummating an unlav rful unfair and raudu lent business practice
designed to deprive GR
28
SSMAN of
2 540 00
By re aso n of the fo r ego i n g G R O S S M AN has s uffe red an d co nt i nu es to
suffer damages in a sum which is as yet not ascertained Plaintiff will ask leave of court
to amend his Complaint when the true nature and extent of his damages have been
20
ascertained
21
SEC4ND CAUSE OF ACTiON
22
Declaratory Relief for Unenforceable Liquidated Damages Provision
23
24
25
2g
2
28
i
Against all Defendants
29
Plaintiff re alleges and incorporates herein by reference all of the
allegations set
30
forth in
TESLA
s
paragraphs
1 through 28 as though
liquidated damages
fully
provision states as
set
forth herein
follows
Cancellation Default Because your Vehicle is custom ordered we incur significant
costs in starting production of your Vehicle We also incur significant costs for
remarketing and reselling the Vehicle if you cancel or default in this Agreement As a
5
COMPLAINT
i
f
PDF Page 8
result your Order Payment is non refundable once your order is sent fio the Tesla
2
Factory You acknowledge that the Order Paymenfi amount is a fair and reasonable
estimate of the actual damages that we have incurred or may incur costs that are
3
otherwise impracticable or extremely difficult to determine We will credit your Order
4
Payment toward the final
purchase pric
of the Vehicle You acknowledge that this
5
Order Payment and this Agreement are not made or entered into in anfiicipation of or
6
pending any conditional sale contract
TESLA acted in bad faith by practicing a scheme whereby it delayed its
31
7
g
decision to provide or not provide financing until GROSSMAN s deposit was locked in
9
by the Liquidated Damages provision
There is no basis for damages of any kind GROSSMAN did not default or
32
10
breach the
Z
contract
and was at all
times ready to
perform
his
abligations under
the
i
contract and made good faith efforts to do so It was TESLA who decided not to exfiend
12
x
financing TESLA s actions do not put GROSSMAN in breach Instead the contract
Should be rescinded and TESLA shoufd return GROSSMAN s deposit
14
H
f 0
c
W
13
5
15
x 16
v
zSw
7
w
Even if GROSSMAN had breached the contract which he did not fihe
33
liquidated damages provision of the contract is unenforceable because TESLA did not
incur any damages In tru th TE S LA sel ls tens of t housan ds af their Model S and the
only real customization is for standardized vehicle colors interior trim wheel size etc
TESLA did not by any stretch build a car just for GROSSMAN
Although TES LA claimed in its initial emails to GROSSMAN that the order
34
1g
would
be
confirmed on
October 3a 2015 for
purposes
of
factory
planning
RUSSELL s
2Q
email on
November 30 2015
stated
21
soon as you are able so we can
we recommend reaching out with questions as
determine
next steps
before
your order goes
22
production
23
35
i
into
i
emphasis added
Even if TESLA had begun factory planning for GROSSMAN s vehicle
24
TESLA suffered no damages because those resources could be directly transferred to
25
another vehic e because the amount of customization of the Model S is limifed to
26
standardized finishes and trims RUSSELL s email of November 30 2015 confirms that
i
27
28
the vehicle had not yet gone into production at a time after TESLA had denied financing
to GROSSMAN
6
CONlPLAINT
PDF Page 9
36
2
Because of TES1 A s bad faith and its fack of basis for damages and
because of the lack of default or breach by GR SSMAN TESLA s liquidated damages
provision should be declared and is unenforceable
3
37
4
GROSSMAN s deposit TESLA has heretofore refused to refund GROSSMAN s deposit
38
6
Far all the above mentioned reasons TESLA should refund
There exists a substantial controversy of sufficient immediacy and reality
to warrant the issuance of a declaratory judgment
39
7
A judicial declaration
pursuant
to Cal
a
Civ Proc Code
1060 is necessa
g
and appropriate at this time so that Plaintiff s rights under the Agreement may be
9
determined with cer ainfiy
PRAYER FOR RELIEF
HEREFORE Plaintiff prays for judgment and declaratory relief as follows
11
N THE FIRST CAUSE OF ACTION
12
v
E
f
o
For damages in the amount of
2
For
14
3
For punitive damages according to proof
15
4
Post judgment interest as allowed by law
13
a
v
1
r
v aa x
x 16
w
pre
2 500 00
judgment interest from November 30 2015
ON THE SECOND CAUSE
F ACTI
at
10
per annum
N
O U
5
X
8
1
19
A judgment stating that the Liquidated Damages provision in the
Agreemenfi is void il egal and because TESLA acted in bad faith that the provision as
a whole is unenforceable
ON ALL CAUSES OF ACTION
20
6
For reasonable casts and attorneys fees incurred to the full extent
21
available by law
22
7
23
lll
24
lll
25
lll
26
1
27
28
For such other and further reiief as the Court may deem just and proper
j
I
ll
1
I
7
COMPI AINT
PDF Page 10
DEMAND FOR A JURY TRIAL
Plaintiff
2
hereby
demands trial
by jury
on all
issues triabie
I
by jury
i
i
3
i
4
DATED
5
l
THE LAW OFFICES O
ARC GROSSMAN
APC
6
7
BY
8
J
9
eph Wangler Esq
torney for Plaintiff
10
11
12
O
13
a
X
14
f
OexN
W
15
x 16
v
X
i
7
7
p
w 1
19
20
21
22
i
23
I
24
i
25
26
27
I
28
8
COMPLAINT
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