LEONARDO BALTER, AN INDIVIDUAL v. TESLA MOTORS INC., A CORPORATION et al Document 1

Superior Court of California, County of San Francisco
Case No. CGC 22 599664
Filed May 17, 2022

CONTRACT/WARRANTY, COMPLAINT (TRANSACTION ID # 100164362) FILED BY PLAINTIFF LEONARDO BALTER, AN INDIVIDUAL AS TO DEFENDANT TESLA MOTORS INC., A CORPORATION DOES 1 TO 10, INCLUSIVE NO SUMMONS ISSUED, JUDICIAL COUNCIL CIVIL CASE COVER SHEET NOT FILED CASE MANAGEMENT CONFERENCE SCHEDULED FOR OCT-19-2022 PROOF OF SERVICE DUE ON JUL-18-2022 CASE MANAGEMENT STATEMENT DUE ON SEP-26-2022

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Page 1
ELECTRONICALLY
1 NEALE & FHIMA APC
FILED
2 AARON D. FHIMA, ESQ. (SBN 296408)
2 aaron@nealefhima.com
3 TATE C. CASEY, ESQ. (SBN 295294)
3 tatecasey@nealefhima.com
4 34188 Pacific Coast Highway
4 Dana Point, CA 5 Telephone: (949) 661-5 Facsimile: (949) 661-6 Attorneys for Plaintiff,
7 LEONARDO BALTER
Superior Court of California,
County of San Francisco
05/17/
Clerk of the Court
BY: LAURA SIMMONS
Deputy Clerk

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO

LEONARDO BALTER, an individual,
Plaintiff,

v.
CGC-22-
Case No.:
COMPLAINT FOR VIOLATION OF THE
SONG-BEVERLY CONSUMER
WARRANTY ACT
TESLA MOTORS INC., a corporation,
16 and DOES 1 to 10, inclusive,
Defendants.

Plaintiff, LEONARDO BALTER (“Plaintiff”), alleges a cause of action against Defendant,

TESLA MOTORS INC. (“Defendant”), as follows:

1. Plaintiff is, and at all times mentioned herein was, a competent adult.

2. Plaintiff is informed and believes and thereupon alleges that Defendant is a corporation that

does business throughout the state of California.
3. The true names and capacities of Defendant DOES 1 TO 10, INCLUSIVE,

whether individual, corporate, associate or otherwise, are unknown to Plaintiff at the time of the

filing of this Complaint, and Plaintiff therefore sues said Defendants by such fictitious names and

will ask leave of court to amend this Complaint to show said Defendants true names and capacities

when the same have been ascertained. Plaintiff is informed and believes and thereupon alleges

COMPLAINT FOR VIOLATION OF THE SONG-BEVERLY CONSUMER WARRANTY ACT
Page 2
that each of the Defendants designated as a Doe is, in some manner, factually and legally

responsible for the events and happenings surrounding the incident as herein set forth and said

Defendants thereby directly and proximately caused injury and harm to Plaintiff.

4. On or about April 10, 2021, Plaintiff leased a new 2020 Tesla Model Y, VIN:

5YJYGDEF5LF000097, (“Subject Vehicle”) from Defendant in Alameda, California.


5. Plaintiff is a “buyer” under the Song-Beverly Consumer Warranty Ave, Civil Code § et seq. (the “Act”).
6. The Subject Vehicle is a new motor vehicle that was purchased primarily for personal,
family, or household purposes or it is a new motor vehicle with a gross vehicle weight under

10,000 pounds that was purchased or used primarily for business purposes by an entity to which

not more than five motor vehicles are registered in this state. The Subject Vehicle is a “new motor

vehicle” under the Act.

7. Defendant manufactures, assembles, or produces consumer goods. Defendant is a
“manufacturer” under the Act.

8. Defendant is engaged in the business of distributing or selling consumer goods at retail.

9. Upon Plaintiff’s purchase of the Subject Vehicle, Defendant issued an express warranty to

Plaintiff, which Defendant undertook to preserve or maintain the utility or performance of the

Subject Vehicle.

10. Defendant’s express warranty was integral to Plaintiff’s purchase of the Subject Vehicle.

11. Since purchasing the Subject Vehicle, Plaintiff has delivered the Subject Vehicle for repair

to Defendant or its authorized repair facility(s) no less than three (3) times for repair of

nonconformity(s) to warranty, including, but not limited to defect(s) which have manifested in:

repeated illumination of the “Coolant Low” warning light, repeated loss of coolant, coolant leak.

Said nonconformity(s) have substantially impaired the vehicle’s use, value, and/or safety to

Plaintiff.

12. On each occasion Plaintiff delivered the Subject Vehicle for repair to Defendant or its

authorized repair facility(s), the vehicle was returned to Plaintiff without properly repairing the

nonconformity(s).

COMPLAINT FOR VIOLATION OF THE SONG-BEVERLY CONSUMER WARRANTY ACT
Page 3
13. Defendant or its authorized repair facility(s) have failed to service or repair the Subject

Vehicle to warranty after a reasonable number of attempts; begin repairs within a reasonable time;

and/or complete repairs within thirty (30) days so as to conform to the applicable warranties.


14. The Subject Vehicle was not fit for the ordinary purposes for which such goods are used and
was not of the same quality as those generally acceptable in the trade.
15. The implied warranty of merchantability means and includes that the goods will

comply with each of the following requirements: (1) they would pass without objection in the trade

under the contract description; (2) they are fit for the ordinary purposes for which such goods are

used; (3) they are adequately contained, packaged, and labeled; and (4) they conform to the promises

or affirmations of fact made on the container or label.
16. Defendant breached the implied warranty of merchantability. Plaintiff is entitled to revoke
acceptance of the Subject Vehicle under the Act.
17. By Defendant failing to repair the nonconformity(s) as alleged above, or to make restitution
or to replace the Subject Vehicle, Defendant is in violation of its obligation under the Act.
18. Plaintiff is informed and believes and thereupon alleges that Defendant’s refusal to replace

the vehicle or make restitution to Plaintiff was willful and not the result of a good faith and

reasonable belief that the facts imposing said statutory obligation were absent.

19. Pursuant to the Act, Plaintiff is entitled to restitution in an amount equal to the actual price

paid or payable by Plaintiff and collateral charges such as sales tax, license fees, registration fees,

and other official fees less an amount directly attributable to use by Plaintiff prior to the time Plaintiff

first delivered the vehicle for repair.

20. Plaintiff is entitled to recover incidental, consequential, and general damages, including, but
not limited to, reasonable repair, towing, and rental car costs actually incurred by Plaintiff.
21. Plaintiff is entitled to recover a civil penalty up to two times the amount of actual damages
for Defendant’s willful refusal to comply with its statutory obligations under the Act.
22. Plaintiff is entitled to recover a sum equal to the aggregate amount of costs and expenses

including attorney’s fees based on actual time expended and reasonably incurred in connection with

the commencement and prosecution of this action.

COMPLAINT FOR VIOLATION OF THE SONG-BEVERLY CONSUMER WARRANTY ACT
Page 4
PLAINTIFF PRAYS FOR JUDGMENT AGAINST DEFENDANT AS FOLLOWS:

1.
For actual damages, including collateral charges, and incidental, consequential, and

general damages. To date, such damages include, but are not limited to, in amounts according to

proof, down payment, monthly payments to date, plus vehicle registration, additional monthly

finance payments, vehicle loan payoff, repair expense(s), rental expenses, expenses inadvertently

omitted herein, and other future expenses reasonably incurred by Plaintiff in connection with this

action;

2.
For a civil penalty under the Act, equal up to two times the amount of actual damages;

3.
For rescission of the contract and restitution of consideration;

4.
For prejudgment interest on said sum from date of rescission;

5.
For attorney’s fees and costs of suit reasonably incurred in connection with the

commencement and prosecution of this action; and
6.
For such other and further relief as the court deems proper.

Dated: May 16,
NEALE & FHIMA, LLP
By:
Aaron D. Fhima, Esq.
Tate C. Casey, Esq.
Attorneys for Plaintiff,
LEONARDO BALTER

COMPLAINT FOR VIOLATION OF THE SONG-BEVERLY CONSUMER WARRANTY ACT
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