Page 1
Roy Koletsky, Esq., SBN Misoo Choi, Esq., SBN KOLETSKY, MANCINI, FELDMAN & MORROW
3460 Wilshire Blvd., Suite Los Angeles, CA Telephone: (213) 427-Fax: (213) 427-Email: rak@kmfm.com; mchoi@kmfm.com
Attorney for Plaintiff JEONGHYUN JO
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF ALAMEDA - HAYWARD HALL OF JUSTICE
JEONGHYUN JO, an individual,
Plaintiff,
l
Case No.:
COMPLAINT FOR:
1. VIOLATION OF SUBDIVISION (d) OF
CIVIL CODE SECTION 1793.2;
VS.
TESLA MOTORS, INC., A Delaware
Corporation; and DOES 1 through 50,
inclusive;
2. VIOLATION OF SUBDIVISION (b) OF
CIVIL CODE SECTION 1793.2;
Defendants.
3. VIOLATION OF SUBDIVISION (a)(3) OF
CIVIL CODE SECTION 1793.2;
4. BREACH OF EXPRESS WARRANTY
UNDER THE SONG BEVERLY
WARRANTY ACT, CIVIL CODE SECTION
1791.2 SUBDIVISION (a); SECTION 1794;
5. BREACH OF IMPLIED WARRANTY OF
MERCHANTABILITY UNDER THE SONGBEVERLY WARRANTY ACT, CIVIL CODE
SECTION 1791.1; SECTION
DEMAND FOR JURY TRIAL
- 1COMPLAINT FOR VIOLATIONS OF STATUTORY OBLIGATIONSPage 2
TO THE HONORABLE COURT AND DEFENDANTS HEREIN:
COMES NOW Plaintiff JEONGHYUN JO, an individual, (hereinafter referred to as
"Plaintiff'), for causes of action against Defendants, TESLA MOTORS, INC. (hereinafter
"Manufacturer" or "Defendant TESLA"), and DOES 1 through 50, inclusive, as follows:
PARTIES
1.
JEONGHYUN JO.
2.
Plaintiff, is, and at all times mentioned herein was, a resident of the County of
Santa Clara, State of California.
3.
As used m this Complaint, the word "Plaintiff' shall refer to Plaintiff,
As used in this Complaint, the word "Defendant" shall refer to all Defendants
named in this Complaint.
4.
Defendant TESLA is, and at all times mentioned herein was, a corporation
organized and in existence under the laws of the State of Delaware and registered with the
California Department of Corporations to conduct business in the State of California. Defendant
is, and at all times mentioned herein was, engaged in the design, manufacture, construction,
assembly, marketing, sale, and distribution of automobiles, motor vehicles and other related
components and services in Alameda County.
5.
Plaintiff is ignorant of the true names and/or capacities, whether individual,
corporate, associate, or otherwise, of defendants DOES 1 through 50, inclusive, and each of
them. Plaintiff will amend this Complaint and state the true names and/or capacities of said
fictitiously named defendants when the same have been ascertained.
GENERAL ALLEGATIONS
6.
On or about March 13, 2022, in exchange for valuable consideration, Plaintiff
purchased a 2022 Tesla Model Y (hereinafter "Vehicle"), manufactured and/or distributed by
Defendant TESLA, with corresponding Vehicle Identification Number 7SAYGDEF0NF400817.
Plaintiff purchased the vehicle from Tesla Motors Inc., an authorized Tesla dealership located in
Fremont, California.
-2-
COMPLAINT FOR VIOLATIONS OF STATUTORY OBLIGATIONSPage 3
7.
civil penalties exceeds $25,000.
8.
purposes.
9.
The total amount paid and payable, incidental and consequential damages and
Plaintiff purchased the Vehicle primarily for personal, family, or household
Plaintiff purchased the Vehicle from a person or entity in the business of
manufacturing, distributing, or selling consumer goods at retail.
10.
In connection with the purchase of the Vehicle, Plaintiff received an express
written warranty in which Defendant undertook to preserve or maintain the utility or
performance of the Vehicle or to provide compensation if there is a failure in utility or
1o performance for a specified period of time. The warranty provided, in relevant part, that in the
event a defect developed with the Vehicle during the warranty period, Plaintiff could deliver
the Vehicle for repair services to Defendant's representative and the Vehicle would be repaired.
11.
After Plaintiff took possession of the Vehicle and during the warranty period, the
Vehicle contained or developed defects, listed below, that substantially impair the use, safety,
and/or value of the Vehicle.
12.
including, but not limited to the following:
a.
Exterior Trim - Spoiler misalignment and after multiple attempts to
service it, replacing the spoiler it has yet to be repaired successfully;
b.
During the warranty period, the Vehicle contained or developed defects,
and any additional complaints made by Plaintiff, whether or not they are
contained in the records or on any repair orders.
13.
The defects listed above violate the express written warranties issued by
Defendant, as well as the implied warranty of merchantability.
14.
Plaintiff provided Defendant and its representatives m this state sufficient
opportunity to service or repair the Vehicle.
15.
Defendant and its representatives in this state were unable and/or failed to service
or repair the Vehicle within a reasonable number of attempts.
-3COMPLAINT FOR VIOLATIONS OF STATUTORY OBLIGATIONSPage 4 16.
Vehicle.
17.
Said defects could not have been discovered by Plaintiff prior to Plaintiff's
acceptance of the Vehicle.
18.
Said defects have substantially impaired the safety, use and/or value of the
Plaintiff has been and will continue to be financially damaged due to Defendant's
failure to comply with the provisions of the express and implied warranties.
FIRST CAUSE OF ACTION
BY PLAINTIFF AGAINST DEFENDANT TESLA ONLY
VIOLATION OF SUBDIVISION (d) OF CIVIL CODE SECTION 1793.
19.
Plaintiff re-alleges and incorporates herein by reference each and every allegation
and statement contained in paragraphs 1 through 18, inclusive, of the General Allegations,
above.
20.
Plaintiff presented the Vehicle for repair to Defendant and its representatives in
this state for various defects that substantially impair the safety, use and/or value of the Vehicle.
21.
Defendant and its representatives in this state have been unable to service o
repair the Vehicle to conform to the applicable express warranties after a reasonable number o
opportunities. Despite this fact, Defendant failed to promptly replace the Vehicle or make
restitution to Plaintiff as required by Civil Code section 1793.2, subdivision (d) and Civil Code
section 1794, subdivision (a).
22.
Plaintiff has been damaged by Defendant's failure to comply with its obligations
pursuant to Civil Code section 1793.2, subdivision (d), and therefore brings this Cause o
Action pursuant to Civil Code section 1794.
23.
Defendant's failure to comply with its obligations under Civil Code sectio
1793.2, subdivision (d) was willful, in that Defendant and its representative were aware tha
they were unable to service or repair the Vehicle to conform to the applicable express
warranties after a reasonable number of repair attempts, yet Defendant failed and refused to
promptly replace the Vehicle or make restitution. Accordingly, Plaintiff is entitled to a civil
-4-
COMPLAINT FOR VIOLATIONS OF STATUTORY OBLIGATIONSPage 5
penalty of two times Plaintiffs actual damages pursuant to Civil Code section 1794,
subdivision (c).
24.
Defendant does not maintain a qualified third-party dispute resolution process
which substantially complies with Civil Code section 1793.22. Accordingly, Plaintiff is entitled
to a civil penalty of two times Plaintiffs actual damages pursuant to Civil Code section 1794,
subdivision (e).
25.
Plaintiff seeks civil penalties pursuant to section 1794, subdivisions (c), and (e) in
the alternative and does not seek to cumulate civil penalties, as provided in Civil Code section
1794, subdivision (e)(5).
SECOND CAUSE OF ACTION
BY PLAINTIFF AGAINST DEFENDANT TESLA ONLY
VIOLATION OF SUBDIVISION (b) OF CIVIL CODE SECTION 1793.
26.
Plaintiff re-alleges and incorporates herein by reference each and every allegation
and statement contained in paragraphs 1 through 25, inclusive, of the General Allegations,
above.
27.
Although Plaintiff presented the Vehicle to Defendant's representative in this
state, Defendant and its representative failed to commence the service or repairs within a
reasonable time and failed to service or repair the Vehicle so as to conform to the applicable
warranties within 30 days, in violation of Civil Code section 1793 .2, subdivision (b). Plaintiff
did not extend the time for completion of repairs beyond the 30-day requirement.
28.
Plaintiff has been damaged by Manufacturer's failure to comply with its
obligations pursuant to Civil Code section 1793 .2(b), and therefore brings this Cause of Action
pursuant to Civil Code section 1794.
29.
Plaintiff has rightfully rejected and/or justifiably revoked acceptance of the
Vehicle, and has exercised a right to cancel the sale. By serving this Complaint, Plaintiff does so
again.
1794(b)(1 ), including the entire purchase price. In the alternative, Plaintiff seeks the remedies
Accordingly, Plaintiff seeks the remedies provided in California Civil Code section
-5COMPLAINT FOR VIOLATIONS OF STATUTORY OBLIGATIONSPage 6
set forth in California Civil Code section 1794(b)(2), including the diminution in value of the
Vehicle resulting
from its defects. Plaintiff believes that, at the present time, the Vehicle's value is de minimis.
30.
Defendant's failure to comply with its obligations under Civil Code section
1793 .2(b) was willful, in that Defendant and its representative were aware that they were
obligated to service or repair the Vehicle to conform to the applicable express warranties within
30 days, yet they failed to do so. Accordingly, Plaintiff is entitled to a civil penalty of two times
Plaintiffs actual damages pursuant to Civil Code section l 794(c).
THIRD CAUSE OF ACTION
1O
BY PLAINTIFF AGAINST DEFENDANT TESLA ONLY
VIOLATION OF SUBDIVISION (a)(3) OF CIVIL CODE SECTION 1793.
31.
Plaintiff re-alleges and incorporates herein by reference each and every allegation
and statement contained in paragraphs 1 through 30, inclusive, of the General Allegations,
above.
32.
In violation of Civil Code section 1793.2, subdivision (a)(3), Defendant failed to
make available to its authorized service and repair facilities sufficient service literature an
replacement parts to effect repairs during the express warranty period.
damaged by Defendant's failure to comply with its obligations pursuant to Civil Code sectio
1793.2(a)(3), and therefore brings this Cause of Action pursuant to Civil Code section 1794.
33.
Plaintiff has bee
Defendant's failure to comply with its obligations under Civil Code sectio
1793.2, subdivision (a)(3) was wilful, in that Defendant knew of its obligation to provide
literature and replacement parts sufficient to allow its repair facilities to effect repairs during the
warranty period, yet Defendant failed to take any action to correct its failure to comply with th
law. Accordingly, Plaintiff is entitled to a civil penalty of two times Plaintiffs actual damages;
pursuant to Civil Code section 1794(c).
FOURTH CAUSE OF ACTION
BY PLAINTIFF AGAINST DEFENDANT TESLA ONLY
-6-
COMPLAINT FOR VIOLATIONS OF STATUTORY OBLIGATIONSPage 7
BREACH OF EXPRESS WRITTEN WARRANTY
Plaintiff re-alleges and incorporates herein by reference each and every allegation
and statement contained in paragraphs 1 through 33, inclusive, of the General Allegations,
above.
35.
In accordance with Defendant's warranty, Plaintiff delivered the Vehicle to
Defendant's representative in this state to perform warranty repairs. Plaintiff did so within
reasonable time. Each time Plaintiff delivered the Vehicle, Plaintiff notified Defendant and its
representative of the characteristics of the defects. However, the representative failed to repai
1o the Vehicle, breaching the terms of the written warranty on each occasion.
36.
Plaintiff has been damaged by Defendant's failure to comply with its obligations
under the express warranty, and therefore brings this Cause of Action pursuant to Civil Code
section 1794.
37.
Defendant's failure to comply with its obligations under the express warranty was
willful, in that Defendant and its authorized representative were aware that they were obligated
to repair the Defects, but they intentionally refused to do so. Accordingly, Plaintiff is entitled to
a civil penalty of two times of Plaintiffs actual damages pursuant to Civil Code section 1794(c).
FIFTH CAUSE OF ACTION
BY PLAINTIFF AGAINST DEFENDANT TESLA ONLY
BREACH OF THE IMPLIED WARRANTY OF MERCHANTABILITY
CIVIL CODE SECTION 1791.1; SECTION
38.
Plaintiff re-alleges and incorporates herein by reference each and every allegation
and statement contained in paragraphs 1 through 37, inclusive, of the General Allegations,
above.
39.
Pursuant to Civil Code section 1792, the sale of the Vehicle was accompanied by
Defendant's implied warranty of merchantability. Pursuant to Civil Code section 1791.1, the
-7COMPLAINT FOR VIOLATIONS OF STATUTORY OBLIGATIONSPage 8
duration of the implied warranty is coextensive in duration with the duration of the express
written warranty provided by Defendant, except that the duration is not to exceed one-year.
40.
Pursuant to Civil Code section 1791.1 (a), the implied warranty of
merchantability means and includes that the Vehicle will comply with each of the following
requirements:
description; (2) The Vehicle is fit for the ordinary purposes for which such goods are used; (3)
The Vehicle is adequately contained, packaged, and labelled; (4) The Vehicle will conform to the
promises or affirmations of fact made on the container or label.
41.
(1) The Vehicle will pass without objection in the trade under the contract
On or about March 13, 2022, or within one-year thereafter, the Vehicle contained
1o or developed the defects set forth above. The existence of each of these defects constitutes a
breach of the implied warranty because the Vehicle (1) does not pass without objection in the
trade under the contract description, (2) is not fit for the ordinary purposes for which such goods
are used, (3) is not adequately contained, packaged, and labelled, and (4) does not conform to the
promises or affirmations of fact made on the container or label.
42.
Plaintiff has been damaged by Defendant's failure to comply with its obligations
under the implied warranty, and therefore brings this Cause of Action pursuant to Civil Code
section 1794.
PRAYER
PLAINTIFF PRAYS for judgment against Defendant as follows:
a.
For Plaintiffs actual damages in the amount according to proof at trial;
b.
For restitution;
C.
For a civil penalty in the amount of two times Plaintiffs actual damages
pursuant to Civil Code section 1794, subdivision (c) or (e);
d.
For any consequential and incidental damages;
e.
For costs of the suit and Plaintiffs reasonable attorneys' fees pursuant to
Civil Code section 1794, subdivision (d);
-8-
COMPLAINT FOR VIOLATIONS OF STATUTORY OBLIGATIONSPage 9
f.
For prejudgment interest at the legal rate; and
g.
For such other relief as the Court may deem proper.
DEMAND FOR JURY TRIAL
Plaintiff hereby demands a jury trial on all causes of action asserted herein.
Dated: January 19,
KOLETSKY, MANCINI, FELDMAN & MORROW LLP
By:
Roy A. ~
Misoo Choi, Esq.
Attorney for Plaintiff,
JEONGHYUN JO
-9COMPLAINT FOR VIOLATIONS OF STATUTORY OBLIGATIONS
PDF Page 1
PlainSite Cover Page
PDF Page 2
5
Roy Koletsky, Esq., SBN 105938
Misoo Choi, Esq., SBN 276218
KOLETSKY, MANCINI, FELDMAN & MORROW
3460 Wilshire Blvd., Suite 800
Los Angeles, CA 90010
Telephone: (213) 427-2350
Fax: (213) 427-2366
Email: rak@kmfm.com; mchoi@kmfm.com
6
Attorney for Plaintiff JEONGHYUN JO
1
2
3
4
7
8
9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
FOR THE COUNTY OF ALAMEDA - HAYWARD HALL OF JUSTICE
11
12
JEONGHYUN JO, an individual,
Plaintiff,
13
14
l5
16
Case No.:
COMPLAINT FOR:
1. VIOLATION OF SUBDIVISION (d) OF
CIVIL CODE SECTION 1793.2;
VS.
TESLA MOTORS, INC., A Delaware
Corporation; and DOES 1 through 50,
inclusive;
2. VIOLATION OF SUBDIVISION (b) OF
CIVIL CODE SECTION 1793.2;
17
Defendants.
18
19
20
21
22
23
24
3. VIOLATION OF SUBDIVISION (a)(3) OF
CIVIL CODE SECTION 1793.2;
4. BREACH OF EXPRESS WARRANTY
UNDER THE SONG BEVERLY
WARRANTY ACT, CIVIL CODE SECTION
1791.2 SUBDIVISION (a); SECTION 1794;
5. BREACH OF IMPLIED WARRANTY OF
MERCHANTABILITY UNDER THE SONGBEVERLY WARRANTY ACT, CIVIL CODE
SECTION 1791.1; SECTION 1794
25
26
DEMAND FOR JURY TRIAL
27
28
- 1COMPLAINT FOR VIOLATIONS OF STATUTORY OBLIGATIONS
PDF Page 3
1
TO THE HONORABLE COURT AND DEFENDANTS HEREIN:
2
COMES NOW Plaintiff JEONGHYUN JO, an individual, (hereinafter referred to as
3
"Plaintiff'), for causes of action against Defendants, TESLA MOTORS, INC. (hereinafter
4
"Manufacturer" or "Defendant TESLA"), and DOES 1 through 50, inclusive, as follows:
5
6
7
8
9
PARTIES
1.
JEONGHYUN JO.
2.
12
Plaintiff, is, and at all times mentioned herein was, a resident of the County of
Santa Clara, State of California.
3.
11
As used m this Complaint, the word "Plaintiff' shall refer to Plaintiff,
As used in this Complaint, the word "Defendant" shall refer to all Defendants
named in this Complaint.
4.
Defendant TESLA is, and at all times mentioned herein was, a corporation
13
organized and in existence under the laws of the State of Delaware and registered with the
14
California Department of Corporations to conduct business in the State of California. Defendant
15
is, and at all times mentioned herein was, engaged in the design, manufacture, construction,
16
assembly, marketing, sale, and distribution of automobiles, motor vehicles and other related
17
components and services in Alameda County.
18
5.
Plaintiff is ignorant of the true names and/or capacities, whether individual,
19
corporate, associate, or otherwise, of defendants DOES 1 through 50, inclusive, and each of
20
them. Plaintiff will amend this Complaint and state the true names and/or capacities of said
21
fictitiously named defendants when the same have been ascertained.
GENERAL ALLEGATIONS
22
23
6.
On or about March 13, 2022, in exchange for valuable consideration, Plaintiff
24
purchased a 2022 Tesla Model Y (hereinafter "Vehicle"), manufactured and/or distributed by
25
Defendant TESLA, with corresponding Vehicle Identification Number 7SAYGDEF0NF400817.
26
Plaintiff purchased the vehicle from Tesla Motors Inc., an authorized Tesla dealership located in
27
Fremont, California.
28
-2-
COMPLAINT FOR VIOLATIONS OF STATUTORY OBLIGATIONS
PDF Page 4
1
2
7.
civil penalties exceeds $25,000.
3
8.
4
purposes.
5
9.
6
7
The total amount paid and payable, incidental and consequential damages and
Plaintiff purchased the Vehicle primarily for personal, family, or household
Plaintiff purchased the Vehicle from a person or entity in the business of
manufacturing, distributing, or selling consumer goods at retail.
10.
In connection with the purchase of the Vehicle, Plaintiff received an express
8
written warranty in which Defendant undertook to preserve or maintain the utility or
9
performance of the Vehicle or to provide compensation if there is a failure in utility or
1o performance for a specified period of time. The warranty provided, in relevant part, that in the
11
event a defect developed with the Vehicle during the warranty period, Plaintiff could deliver
12
the Vehicle for repair services to Defendant's representative and the Vehicle would be repaired.
13
11.
After Plaintiff took possession of the Vehicle and during the warranty period, the
14
Vehicle contained or developed defects, listed below, that substantially impair the use, safety,
15
and/or value of the Vehicle.
16
17
12.
including, but not limited to the following:
a.
18
19
22
23
24
25
26
27
Exterior Trim - Spoiler misalignment and after multiple attempts to
service it, replacing the spoiler it has yet to be repaired successfully;
b.
20
21
During the warranty period, the Vehicle contained or developed defects,
and any additional complaints made by Plaintiff, whether or not they are
contained in the records or on any repair orders.
13.
The defects listed above violate the express written warranties issued by
Defendant, as well as the implied warranty of merchantability.
14.
Plaintiff provided Defendant and its representatives m this state sufficient
opportunity to service or repair the Vehicle.
15.
Defendant and its representatives in this state were unable and/or failed to service
or repair the Vehicle within a reasonable number of attempts.
28
-3COMPLAINT FOR VIOLATIONS OF STATUTORY OBLIGATIONS
PDF Page 5
16.
1
2
Vehicle.
17.
3
4
Said defects could not have been discovered by Plaintiff prior to Plaintiff's
acceptance of the Vehicle.
18.
5
6
Said defects have substantially impaired the safety, use and/or value of the
Plaintiff has been and will continue to be financially damaged due to Defendant's
failure to comply with the provisions of the express and implied warranties.
7
FIRST CAUSE OF ACTION
8
BY PLAINTIFF AGAINST DEFENDANT TESLA ONLY
9
VIOLATION OF SUBDIVISION (d) OF CIVIL CODE SECTION 1793.2
19.
Plaintiff re-alleges and incorporates herein by reference each and every allegation
11
and statement contained in paragraphs 1 through 18, inclusive, of the General Allegations,
12
above.
13
14
15
20.
Plaintiff presented the Vehicle for repair to Defendant and its representatives in
this state for various defects that substantially impair the safety, use and/or value of the Vehicle.
21.
Defendant and its representatives in this state have been unable to service o
16
repair the Vehicle to conform to the applicable express warranties after a reasonable number o
17
opportunities. Despite this fact, Defendant failed to promptly replace the Vehicle or make
18
restitution to Plaintiff as required by Civil Code section 1793.2, subdivision (d) and Civil Code
19
section 1794, subdivision (a).
20
22.
Plaintiff has been damaged by Defendant's failure to comply with its obligations
21
pursuant to Civil Code section 1793.2, subdivision (d), and therefore brings this Cause o
22
Action pursuant to Civil Code section 1794.
23
23.
Defendant's failure to comply with its obligations under Civil Code sectio
24
1793.2, subdivision (d) was willful, in that Defendant and its representative were aware tha
25
they were unable to service or repair the Vehicle to conform to the applicable express
26
warranties after a reasonable number of repair attempts, yet Defendant failed and refused to
27
promptly replace the Vehicle or make restitution. Accordingly, Plaintiff is entitled to a civil
28
-4-
COMPLAINT FOR VIOLATIONS OF STATUTORY OBLIGATIONS
PDF Page 6
1
penalty of two times Plaintiffs actual damages pursuant to Civil Code section 1794,
2
subdivision (c).
24.
3
Defendant does not maintain a qualified third-party dispute resolution process
4
which substantially complies with Civil Code section 1793.22. Accordingly, Plaintiff is entitled
5
to a civil penalty of two times Plaintiffs actual damages pursuant to Civil Code section 1794,
6
subdivision (e).
25.
7
Plaintiff seeks civil penalties pursuant to section 1794, subdivisions (c), and (e) in
8
the alternative and does not seek to cumulate civil penalties, as provided in Civil Code section
9
1794, subdivision (e)(5).
10
SECOND CAUSE OF ACTION
11
BY PLAINTIFF AGAINST DEFENDANT TESLA ONLY
12
VIOLATION OF SUBDIVISION (b) OF CIVIL CODE SECTION 1793.2
26.
13
Plaintiff re-alleges and incorporates herein by reference each and every allegation
14
and statement contained in paragraphs 1 through 25, inclusive, of the General Allegations,
15
above.
27.
16
Although Plaintiff presented the Vehicle to Defendant's representative in this
17
state, Defendant and its representative failed to commence the service or repairs within a
18
reasonable time and failed to service or repair the Vehicle so as to conform to the applicable
19
warranties within 30 days, in violation of Civil Code section 1793 .2, subdivision (b). Plaintiff
20
did not extend the time for completion of repairs beyond the 30-day requirement.
28.
21
Plaintiff has been damaged by Manufacturer's failure to comply with its
22
obligations pursuant to Civil Code section 1793 .2(b), and therefore brings this Cause of Action
23
pursuant to Civil Code section 1794.
29.
24
Plaintiff has rightfully rejected and/or justifiably revoked acceptance of the
25
Vehicle, and has exercised a right to cancel the sale. By serving this Complaint, Plaintiff does so
26
again.
27
1794(b)(1 ), including the entire purchase price. In the alternative, Plaintiff seeks the remedies
Accordingly, Plaintiff seeks the remedies provided in California Civil Code section
28
-5COMPLAINT FOR VIOLATIONS OF STATUTORY OBLIGATIONS
PDF Page 7
1
set forth in California Civil Code section 1794(b)(2), including the diminution in value of the
2
Vehicle resulting
3
from its defects. Plaintiff believes that, at the present time, the Vehicle's value is de minimis.
30.
4
Defendant's failure to comply with its obligations under Civil Code section
5
1793 .2(b) was willful, in that Defendant and its representative were aware that they were
6
obligated to service or repair the Vehicle to conform to the applicable express warranties within
7
30 days, yet they failed to do so. Accordingly, Plaintiff is entitled to a civil penalty of two times
8
Plaintiffs actual damages pursuant to Civil Code section l 794(c).
9
THIRD CAUSE OF ACTION
1O
BY PLAINTIFF AGAINST DEFENDANT TESLA ONLY
11
VIOLATION OF SUBDIVISION (a)(3) OF CIVIL CODE SECTION 1793.2
12
31.
Plaintiff re-alleges and incorporates herein by reference each and every allegation
13
and statement contained in paragraphs 1 through 30, inclusive, of the General Allegations,
14
above.
15
32.
In violation of Civil Code section 1793.2, subdivision (a)(3), Defendant failed to
16
make available to its authorized service and repair facilities sufficient service literature an
17
replacement parts to effect repairs during the express warranty period.
18
damaged by Defendant's failure to comply with its obligations pursuant to Civil Code sectio
19
1793.2(a)(3), and therefore brings this Cause of Action pursuant to Civil Code section 1794.
20
33.
Plaintiff has bee
Defendant's failure to comply with its obligations under Civil Code sectio
21
1793.2, subdivision (a)(3) was wilful, in that Defendant knew of its obligation to provide
22
literature and replacement parts sufficient to allow its repair facilities to effect repairs during the
23
warranty period, yet Defendant failed to take any action to correct its failure to comply with th
24
law. Accordingly, Plaintiff is entitled to a civil penalty of two times Plaintiffs actual damages;
25
pursuant to Civil Code section 1794(c).
26
FOURTH CAUSE OF ACTION
27
BY PLAINTIFF AGAINST DEFENDANT TESLA ONLY
28
-6-
COMPLAINT FOR VIOLATIONS OF STATUTORY OBLIGATIONS
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1
BREACH OF EXPRESS WRITTEN WARRANTY
2
CIVIL CODE SECTION 1791.2 SUBDIVISION (a); SECTION 1794
34.
3
Plaintiff re-alleges and incorporates herein by reference each and every allegation
4
and statement contained in paragraphs 1 through 33, inclusive, of the General Allegations,
5
above.
35.
6
In accordance with Defendant's warranty, Plaintiff delivered the Vehicle to
7
Defendant's representative in this state to perform warranty repairs. Plaintiff did so within
8
reasonable time. Each time Plaintiff delivered the Vehicle, Plaintiff notified Defendant and its
9
representative of the characteristics of the defects. However, the representative failed to repai
1o the Vehicle, breaching the terms of the written warranty on each occasion.
36.
11
Plaintiff has been damaged by Defendant's failure to comply with its obligations
12
under the express warranty, and therefore brings this Cause of Action pursuant to Civil Code
13
section 1794.
37.
14
Defendant's failure to comply with its obligations under the express warranty was
15
willful, in that Defendant and its authorized representative were aware that they were obligated
16
to repair the Defects, but they intentionally refused to do so. Accordingly, Plaintiff is entitled to
17
a civil penalty of two times of Plaintiffs actual damages pursuant to Civil Code section 1794(c).
18
FIFTH CAUSE OF ACTION
19
BY PLAINTIFF AGAINST DEFENDANT TESLA ONLY
20
BREACH OF THE IMPLIED WARRANTY OF MERCHANTABILITY
21
CIVIL CODE SECTION 1791.1; SECTION 1794
38.
22
Plaintiff re-alleges and incorporates herein by reference each and every allegation
23
and statement contained in paragraphs 1 through 37, inclusive, of the General Allegations,
24
above.
25
26
39.
Pursuant to Civil Code section 1792, the sale of the Vehicle was accompanied by
Defendant's implied warranty of merchantability. Pursuant to Civil Code section 1791.1, the
27
28
-7COMPLAINT FOR VIOLATIONS OF STATUTORY OBLIGATIONS
PDF Page 9
1
duration of the implied warranty is coextensive in duration with the duration of the express
2
written warranty provided by Defendant, except that the duration is not to exceed one-year.
3
40.
Pursuant to Civil Code section 1791.1 (a), the implied warranty of
4
merchantability means and includes that the Vehicle will comply with each of the following
5
requirements:
6
description; (2) The Vehicle is fit for the ordinary purposes for which such goods are used; (3)
7
The Vehicle is adequately contained, packaged, and labelled; (4) The Vehicle will conform to the
8
promises or affirmations of fact made on the container or label.
9
41.
(1) The Vehicle will pass without objection in the trade under the contract
On or about March 13, 2022, or within one-year thereafter, the Vehicle contained
1o or developed the defects set forth above. The existence of each of these defects constitutes a
11
breach of the implied warranty because the Vehicle (1) does not pass without objection in the
12
trade under the contract description, (2) is not fit for the ordinary purposes for which such goods
13
are used, (3) is not adequately contained, packaged, and labelled, and (4) does not conform to the
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promises or affirmations of fact made on the container or label.
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42.
Plaintiff has been damaged by Defendant's failure to comply with its obligations
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under the implied warranty, and therefore brings this Cause of Action pursuant to Civil Code
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section 1794.
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PRAYER
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PLAINTIFF PRAYS for judgment against Defendant as follows:
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a.
For Plaintiffs actual damages in the amount according to proof at trial;
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b.
For restitution;
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C.
For a civil penalty in the amount of two times Plaintiffs actual damages
pursuant to Civil Code section 1794, subdivision (c) or (e);
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d.
For any consequential and incidental damages;
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e.
For costs of the suit and Plaintiffs reasonable attorneys' fees pursuant to
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Civil Code section 1794, subdivision (d);
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COMPLAINT FOR VIOLATIONS OF STATUTORY OBLIGATIONS
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f.
For prejudgment interest at the legal rate; and
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g.
For such other relief as the Court may deem proper.
DEMAND FOR JURY TRIAL
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Plaintiff hereby demands a jury trial on all causes of action asserted herein.
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Dated: January 19, 2023
KOLETSKY, MANCINI, FELDMAN & MORROW LLP
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By:
Roy A. ~
Misoo Choi, Esq.
Attorney for Plaintiff,
JEONGHYUN JO
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-9COMPLAINT FOR VIOLATIONS OF STATUTORY OBLIGATIONS