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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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 ACTPage 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 ACTPage 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 ACTPage 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
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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PlainSite Cover Page
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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 92629
5 Telephone: (949) 661-1007
5 Facsimile: (949) 661-3619
6
6 Attorneys for Plaintiff,
7 LEONARDO BALTER
Superior Court of California,
County of San Francisco
05/17/2022
Clerk of the Court
BY: LAURA SIMMONS
Deputy Clerk
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IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF SAN FRANCISCO
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LEONARDO BALTER, an individual,
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Plaintiff,
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v.
CGC-22-599664
Case No.:
COMPLAINT FOR VIOLATION OF THE
SONG-BEVERLY CONSUMER
WARRANTY ACT
15
15
TESLA MOTORS INC., a corporation,
16 and DOES 1 to 10, inclusive,
16
17
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Defendants.
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Plaintiff, LEONARDO BALTER (“Plaintiff”), alleges a cause of action against Defendant,
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TESLA MOTORS INC. (“Defendant”), as follows:
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1. Plaintiff is, and at all times mentioned herein was, a competent adult.
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2. Plaintiff is informed and believes and thereupon alleges that Defendant is a corporation that
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does business throughout the state of California.
3. The true names and capacities of Defendant DOES 1 TO 10, INCLUSIVE,
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whether individual, corporate, associate or otherwise, are unknown to Plaintiff at the time of the
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filing of this Complaint, and Plaintiff therefore sues said Defendants by such fictitious names and
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will ask leave of court to amend this Complaint to show said Defendants true names and capacities
28
when the same have been ascertained. Plaintiff is informed and believes and thereupon alleges
28
1
COMPLAINT FOR VIOLATION OF THE SONG-BEVERLY CONSUMER WARRANTY ACT
PDF Page 3
1
that each of the Defendants designated as a Doe is, in some manner, factually and legally
2
responsible for the events and happenings surrounding the incident as herein set forth and said
3
Defendants thereby directly and proximately caused injury and harm to Plaintiff.
1
2
3
4
4. On or about April 10, 2021, Plaintiff leased a new 2020 Tesla Model Y, VIN:
5
5YJYGDEF5LF000097, (“Subject Vehicle”) from Defendant in Alameda, California.
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5
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5. Plaintiff is a “buyer” under the Song-Beverly Consumer Warranty Ave, Civil Code § 1790
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
10
10,000 pounds that was purchased or used primarily for business purposes by an entity to which
11
11
not more than five motor vehicles are registered in this state. The Subject Vehicle is a “new motor
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vehicle” under the Act.
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7. Defendant manufactures, assembles, or produces consumer goods. Defendant is a
“manufacturer” under the Act.
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8. Defendant is engaged in the business of distributing or selling consumer goods at retail.
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16
9. Upon Plaintiff’s purchase of the Subject Vehicle, Defendant issued an express warranty to
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Plaintiff, which Defendant undertook to preserve or maintain the utility or performance of the
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Subject Vehicle.
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10. Defendant’s express warranty was integral to Plaintiff’s purchase of the Subject Vehicle.
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11. Since purchasing the Subject Vehicle, Plaintiff has delivered the Subject Vehicle for repair
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to Defendant or its authorized repair facility(s) no less than three (3) times for repair of
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22
nonconformity(s) to warranty, including, but not limited to defect(s) which have manifested in:
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repeated illumination of the “Coolant Low” warning light, repeated loss of coolant, coolant leak.
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Said nonconformity(s) have substantially impaired the vehicle’s use, value, and/or safety to
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25
Plaintiff.
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12. On each occasion Plaintiff delivered the Subject Vehicle for repair to Defendant or its
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authorized repair facility(s), the vehicle was returned to Plaintiff without properly repairing the
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nonconformity(s).
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COMPLAINT FOR VIOLATION OF THE SONG-BEVERLY CONSUMER WARRANTY ACT
PDF Page 4
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13. Defendant or its authorized repair facility(s) have failed to service or repair the Subject
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Vehicle to warranty after a reasonable number of attempts; begin repairs within a reasonable time;
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and/or complete repairs within thirty (30) days so as to conform to the applicable warranties.
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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
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comply with each of the following requirements: (1) they would pass without objection in the trade
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8
under the contract description; (2) they are fit for the ordinary purposes for which such goods are
99
used; (3) they are adequately contained, packaged, and labeled; and (4) they conform to the promises
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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
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16
the vehicle or make restitution to Plaintiff was willful and not the result of a good faith and
17
17
reasonable belief that the facts imposing said statutory obligation were absent.
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19. Pursuant to the Act, Plaintiff is entitled to restitution in an amount equal to the actual price
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paid or payable by Plaintiff and collateral charges such as sales tax, license fees, registration fees,
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and other official fees less an amount directly attributable to use by Plaintiff prior to the time Plaintiff
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first delivered the vehicle for repair.
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22
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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
27
27
including attorney’s fees based on actual time expended and reasonably incurred in connection with
28
the commencement and prosecution of this action.
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COMPLAINT FOR VIOLATION OF THE SONG-BEVERLY CONSUMER WARRANTY ACT
PDF Page 5
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PLAINTIFF PRAYS FOR JUDGMENT AGAINST DEFENDANT AS FOLLOWS:
2
2
1.
For actual damages, including collateral charges, and incidental, consequential, and
3
general damages. To date, such damages include, but are not limited to, in amounts according to
4
proof, down payment, monthly payments to date, plus vehicle registration, additional monthly
5
finance payments, vehicle loan payoff, repair expense(s), rental expenses, expenses inadvertently
6
omitted herein, and other future expenses reasonably incurred by Plaintiff in connection with this
7
action;
3
4
5
6
7
8
8
2.
For a civil penalty under the Act, equal up to two times the amount of actual damages;
99
3.
For rescission of the contract and restitution of consideration;
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10
4.
For prejudgment interest on said sum from date of rescission;
11
11
5.
For attorney’s fees and costs of suit reasonably incurred in connection with the
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13
commencement and prosecution of this action; and
6.
For such other and further relief as the court deems proper.
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14
15
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Dated: May 16, 2022
NEALE & FHIMA, LLP
By:
Aaron D. Fhima, Esq.
Tate C. Casey, Esq.
Attorneys for Plaintiff,
LEONARDO BALTER
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COMPLAINT FOR VIOLATION OF THE SONG-BEVERLY CONSUMER WARRANTY ACT