Page 1
Brian K. Cline, State Bar No. brian@clineapc.com
CLINE, APC
7855 Ivanhoe Avenue, Suite La Jolla, California 858.373.
Attorneys for Plaintiff
SUPERIOR COURT OF CALIFORNIA, COUNTY OF ALAMEDA
OAKLAND - RENÉ C. DAVIDSON COURTHOUSE
BENJAMIN LYNCH,
)
)
Plaintiff,
)
)
vs.
)
)
TESLA MOTORS, INC., and DOE )
through DOE 10 inclusive,
)
)
Defendants,
)
)
)
)
______________________________________ )
Case No.
COMPLAINT FOR VIOLATION OF
THE SONG-BEVERLY CONSUMER
WARRANTY ACT
Plaintiff alleges:
1.
Plaintiff BENJAMIN LYNCH (hereinafter “Plaintiff”) is, and at all times
mentioned herein was, a competent adult.
2.
Plaintiff is informed and believes and thereupon alleges that defendant
TESLA MOTORS, INC., is a corporation.
3.
Defendants DOE 1 through DOE 10 inclusive are sued herein pursuant
to California Code of Civil Procedure §474.
DOE 1 through DOE 10 are each
independently, or as a representative of another defendant in this suit, responsible in
some manner for the causes of action set forth herein and the damages sustained by
Plaintiff.
COMPLAINT FOR VIOLATION OF THE SONG-BEVERLY CONSUMER WARRANTY ACTPage 2
4.
Plaintiff
purchased,
the
subject
Tesla
Model
Y,
VIN:
7SAYGDEE3NF534597 (“the subject vehicle”) from Defendant’s authorized sales
facility, at retail, in the state of California. The subject vehicle is a new motor vehicle
that was bought 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 bought 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
5.
Defendant is engaged in the business of distributing or selling new motor
vehicles and/or consumer goods at retail. Defendant is a “distributor” under the Act.
Plaintiff is a “buyer” under the Act.
6.
Defendant manufactures, assembles, or produces new motor vehicles
and/or consumer goods. Defendant is a “manufacturer” under the Act.
7.
Defendant issued an “express warranty” to Plaintiff in which, inter alia,
Defendant undertook to preserve or maintain the utility or performance of the subject
vehicle. Said warranty was an integral factor in Plaintiff’s decision to purchase the
subject vehicle.
8.
The subject vehicle has suffered from nonconformity(s) to warranty,
including, but not limited to, defect(s) which have manifested in fit and finish concerns,
misalignment of body paneling, failure of the door seal(s), misalignment of the subject
vehicle door(s), wind intrusion and/or abnormal wind noise, misalignment of the
Said nonconformity(s) have substantially impaired the vehicle’s use, value, or safety
to Plaintiff.
9.
Plaintiff has delivered the vehicle to Defendant or its authorized repair
facility(s) for repair of said nonconformity(s). Defendant or its authorized repair
facility(s) have failed to service or repair the subject vehicle to warranty after a
reasonable number of attempts.
COMPLAINT FOR VIOLATION OF THE SONG-BEVERLY CONSUMER WARRANTY ACTPage 3
10.
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. Defendant breached the implied warranty of merchantability and implied
warranty of fitness. Plaintiff is entitled to revoke acceptance of the subject vehicle
under the Act.
11.
Although Plaintiff presented the vehicle to Defendant or its authorized
repair facility(s) for repair of said nonconformity(s). Defendant or its authorized repair
facility(s) failed to commence the service or repairs within a reasonable time an failed
to service or repair the vehicle so as to conform to the applicable warranties within
days, in violation of Civil Code section 1793.2, subdivision (b). Plaintiff did not extend
the time for completion of repair(s) beyond the 30-day requirement.
12.
Defendant has not replaced the vehicle or otherwise made restitution to
Plaintiff pursuant to its obligations under the Act.
13.
Plaintiff is informed and believes and thereupon alleges that Defendant’s
refusal to replace the vehicle or make restitution to Plaintiff was wilful and not the
result of a good faith and reasonable belief that the facts imposing said statutory
obligation were absent.
14.
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.
15.
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.
16.
Plaintiff is entitled to recover a civil penalty up to two times the amount
of actual damages for Defendant’s wilful refusal to comply with its statutory
obligations under the Act.
COMPLAINT FOR VIOLATION OF THE SONG-BEVERLY CONSUMER WARRANTY ACTPage 4
17.
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.
WHEREFORE, Plaintiff prays judgment against Defendant as follows:
1.
For actual damages, including collateral charges, and incidental,
consequential, and general damages; and
2.
For a civil penalty up to two times the amount of actual damages; and
3.
For rescission of the contract and restitution of consideration; and
4.
For interest on said sum from date of rescission to date of judgment
herein; and
5.
For attorney’s fees based on actual time expended and reasonably
incurred in connection with the commencement and prosecution of this
action; and
6.
prosecution of this action; and
For costs of suit incurred in connection with the commencement and
7.
For such other and further relief as the court deems proper.
DATED: May 15,
CLINE, APC
Attorneys for Plaintiff
By:
_________________________
Brian K. Cline
COMPLAINT FOR VIOLATION OF THE SONG-BEVERLY CONSUMER WARRANTY ACT
PDF Page 1
PlainSite Cover Page
PDF Page 2
1
2
3
Brian K. Cline, State Bar No. 246747
brian@clineapc.com
CLINE, APC
7855 Ivanhoe Avenue, Suite 400
La Jolla, California 92037
858.373.9337
4
5
Attorneys for Plaintiff
6
7
8
SUPERIOR COURT OF CALIFORNIA, COUNTY OF ALAMEDA
9
OAKLAND - RENÉ C. DAVIDSON COURTHOUSE
10
11
12
13
14
15
16
17
BENJAMIN LYNCH,
)
)
Plaintiff,
)
)
vs.
)
)
TESLA MOTORS, INC., and DOE 1
)
through DOE 10 inclusive,
)
)
Defendants,
)
)
)
)
______________________________________ )
Case No.
COMPLAINT FOR VIOLATION OF
THE SONG-BEVERLY CONSUMER
WARRANTY ACT
18
19
20
21
22
23
24
Plaintiff alleges:
1.
Plaintiff BENJAMIN LYNCH (hereinafter “Plaintiff”) is, and at all times
mentioned herein was, a competent adult.
2.
Plaintiff is informed and believes and thereupon alleges that defendant
TESLA MOTORS, INC., is a corporation.
3.
Defendants DOE 1 through DOE 10 inclusive are sued herein pursuant
25
to California Code of Civil Procedure §474.
DOE 1 through DOE 10 are each
26
independently, or as a representative of another defendant in this suit, responsible in
27
some manner for the causes of action set forth herein and the damages sustained by
28
Plaintiff.
1
COMPLAINT FOR VIOLATION OF THE SONG-BEVERLY CONSUMER WARRANTY ACT
PDF Page 3
1
4.
Plaintiff
purchased,
the
subject
2022
Tesla
Model
Y,
VIN:
2
7SAYGDEE3NF534597 (“the subject vehicle”) from Defendant’s authorized sales
3
facility, at retail, in the state of California. The subject vehicle is a new motor vehicle
4
that was bought primarily for personal, family, or household purposes or it is a new
5
motor vehicle with a gross vehicle weight under 10,000 pounds that was bought or used
6
primarily for business purposes by an entity to which not more than five motor vehicles
7
are registered in this state. The subject vehicle is a “new motor vehicle” under the
8
Song-Beverly Consumer Warranty Act, Civil Code §§1790 et seq (“the Act”).
9
5.
Defendant is engaged in the business of distributing or selling new motor
10
vehicles and/or consumer goods at retail. Defendant is a “distributor” under the Act.
11
Plaintiff is a “buyer” under the Act.
12
13
14
6.
Defendant manufactures, assembles, or produces new motor vehicles
and/or consumer goods. Defendant is a “manufacturer” under the Act.
7.
Defendant issued an “express warranty” to Plaintiff in which, inter alia,
15
Defendant undertook to preserve or maintain the utility or performance of the subject
16
vehicle. Said warranty was an integral factor in Plaintiff’s decision to purchase the
17
subject vehicle.
18
8.
The subject vehicle has suffered from nonconformity(s) to warranty,
19
including, but not limited to, defect(s) which have manifested in fit and finish concerns,
20
misalignment of body paneling, failure of the door seal(s), misalignment of the subject
21
vehicle door(s), wind intrusion and/or abnormal wind noise, misalignment of the
22
subject vehicle window(s) and/or window(s ) system, and interior upholstery failure.
23
Said nonconformity(s) have substantially impaired the vehicle’s use, value, or safety
24
to Plaintiff.
25
9.
Plaintiff has delivered the vehicle to Defendant or its authorized repair
26
facility(s) for repair of said nonconformity(s). Defendant or its authorized repair
27
facility(s) have failed to service or repair the subject vehicle to warranty after a
28
reasonable number of attempts.
2
COMPLAINT FOR VIOLATION OF THE SONG-BEVERLY CONSUMER WARRANTY ACT
PDF Page 4
1
10.
The subject vehicle was not fit for the ordinary purposes for which such
2
goods are used and was not of the same quality as those generally acceptable in the
3
trade. Defendant breached the implied warranty of merchantability and implied
4
warranty of fitness. Plaintiff is entitled to revoke acceptance of the subject vehicle
5
under the Act.
6
11.
Although Plaintiff presented the vehicle to Defendant or its authorized
7
repair facility(s) for repair of said nonconformity(s). Defendant or its authorized repair
8
facility(s) failed to commence the service or repairs within a reasonable time an failed
9
to service or repair the vehicle so as to conform to the applicable warranties within 30
10
days, in violation of Civil Code section 1793.2, subdivision (b). Plaintiff did not extend
11
the time for completion of repair(s) beyond the 30-day requirement.
12
13
14
12.
Defendant has not replaced the vehicle or otherwise made restitution to
Plaintiff pursuant to its obligations under the Act.
13.
Plaintiff is informed and believes and thereupon alleges that Defendant’s
15
refusal to replace the vehicle or make restitution to Plaintiff was wilful and not the
16
result of a good faith and reasonable belief that the facts imposing said statutory
17
obligation were absent.
18
14.
Pursuant to the Act, Plaintiff is entitled to restitution in an amount equal
19
to the actual price paid or payable by Plaintiff and collateral charges such as sales tax,
20
license fees, registration fees, and other official fees less an amount directly
21
attributable to use by Plaintiff prior to the time Plaintiff first delivered the vehicle for
22
repair.
23
15.
Plaintiff is entitled to recover incidental, consequential, and general
24
damages, including, but not limited to, reasonable repair, towing, and rental car costs
25
actually incurred by Plaintiff.
26
16.
Plaintiff is entitled to recover a civil penalty up to two times the amount
27
of actual damages for Defendant’s wilful refusal to comply with its statutory
28
obligations under the Act.
3
COMPLAINT FOR VIOLATION OF THE SONG-BEVERLY CONSUMER WARRANTY ACT
PDF Page 5
1
17.
Plaintiff is entitled to recover a sum equal to the aggregate amount of
2
costs and expenses including attorney’s fees based on actual time expended and
3
reasonably incurred in connection with the commencement and prosecution of this
4
action.
5
WHEREFORE, Plaintiff prays judgment against Defendant as follows:
6
1.
For actual damages, including collateral charges, and incidental,
consequential, and general damages; and
7
8
2.
For a civil penalty up to two times the amount of actual damages; and
9
3.
For rescission of the contract and restitution of consideration; and
10
4.
For interest on said sum from date of rescission to date of judgment
herein; and
11
12
5.
For attorney’s fees based on actual time expended and reasonably
13
incurred in connection with the commencement and prosecution of this
14
action; and
15
6.
prosecution of this action; and
16
17
18
For costs of suit incurred in connection with the commencement and
7.
For such other and further relief as the court deems proper.
DATED: May 15, 2023
CLINE, APC
Attorneys for Plaintiff
19
20
By:
_________________________
Brian K. Cline
21
22
23
24
25
26
27
28
4
COMPLAINT FOR VIOLATION OF THE SONG-BEVERLY CONSUMER WARRANTY ACT