Page 1
MFS Legal, Inc.
Neal F. Morrow III (SBN 295497)
Joseph D. Steward III (SBN 337385)
Michael J. Avila (SBN 337521)
5318 East 2nd Street #Long Beach, CA Tel: (562) 379-Email: lawclerk@calemonlawteam.com (contact)
eservice@calemonlawteam.com (documents)
Attorneys for Plaintiff
LINDY Y. YARBOROUGH
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF ALAMEDA
LINDY Y. YARBOROUGH,
COMPLAINT FOR DAMAGES AND
INJUNCTIVE RELIEF
Plaintiff,
Case No.:
vs.
TESLA, INC., a corporation; and DOES through 10, inclusive,
Defendants.
(1) VIOLATION OF THE SONGBEVERLY CONSUMER WARRANTY
ACT BREACH OF EXPRESS
WARRANTY
(2) VIOLATION OF THE SONGBEVERLY CONSUMER WARRANTY
ACT BREACH OF IMPLIED
WARRANTY
(3) VIOLATION OF BUSINESS AND
PROFESSIONS CODE § (4) NEGLIGENT REPAIR
Plaintiff, LINDY Y. YARBOROUGH, an individual alleges as follows:
1. Plaintiff is an individual residing in the City of ELK GROVE, County of SACRAMENTO,
and the State of CALIFORNIA.
2.
Defendant TESLA, INC. is registered to do business in the State of CALIFORNIA.
3.
Defendant is and was a corporation, doing business in the State of California.
4.
Plaintiff does not know the true names and capacities, whether corporate, partnership,
associate, individual, or otherwise of Defendants issued herein as Does 1 through 10, inclusive,
under the provisions of section 474 of the California Code of Civil Procedure. Defendant Does PLAINTIFF’S COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF Page 2
through 10, inclusive, are in some manner responsible for the acts, occurrences and
transactions set forth herein, and are legally liable to Plaintiff. Plaintiff will seek leave to amend this
Complaint to set forth the true names and capacities of the fictitiously named Defendant together
with appropriate charging allegations when ascertained.
5.
All acts of corporate employees as alleged were authorized or ratified by an officer,
director or managing agent of the corporate employer.
6.
Each Defendant whether actually or fictitiously named herein, was the principal, agent
(actual or ostensible) or employee of each other Defendant and in acting as such principal or within
the course and scope of such employment or agency, took some part in the acts and omissions
hereinafter set forth by reason of which each Defendant is liable to Plaintiff for the relief prayed for
herein.
7.
On JULY 18, 2020, Plaintiff acquired a 2020 TESLA Y, VIN:
5YJYGDEE3LF008819 ("vehicle").
FIRST CAUSE OF ACTION
(VIOLATION OF THE SONG-BEVERLY CONSUMER WARRANTY ACT)
BREACH OF EXPRESS WARRANTIES
AGAINST ALL DEFENDANTS
8. Plaintiff incorporates herein by reference each and every allegation contained in the
preceding and succeeding paragraphs as though herein fully restated and realleged.
9. Plaintiff is a “buyer” as defined by Cal. Civ. Code § 1791(b).
10. The vehicle is a “consumer good” as defined by Cal. Civ. Code § 1791(a).
11. Defendant TESLA, INC. is a “warrantor” as contemplated by Ca. Civ. Code § 1795.
12. Defendant is a "manufacturer" and/or "distributor" under the Act.
13. Plaintiff’s acquisition of the Vehicle was a sale as defined by Cal. Civ. Code §1791(n).
14. Defendants violated the Song-Beverly Consumer Warranty Act by failing to conform
the Vehicle to the express written warranties within a reasonable number of repair attempts or
within the warranty periods, and by failing to promptly replace the vehicle or make restitution to
Plaintiff.
PLAINTIFF’S COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF Page 3
15. The defects, malfunctions, and nonconformities that were presented to Defendant’s
authorized repair facilities multiple times and substantially impair the use, value, and/or safety
of the Vehicle.
16. Pursuant to Cal. Civ. Code §1793.2(d), Defendants must refund the price of the Vehicle
to Plaintiff.
17. Pursuant to Cal. Civ. Code § 1794(a), Plaintiff is entitled to restitution.
18. As a direct and proximate result of said violations of the Song-Beverly Act, Plaintiff has
sustained and continues to sustain, actual, incidental, and consequential damages in the
approximate amount of the purchase price according to proof at trial.
19. The failure of Defendants to comply with the Song-Beverly Act was willful in that they
had actual knowledge of the Vehicle’s defects, malfunctions, and nonconformities, knew of its
legal duties under the warranty act, but repeatedly refused to make necessary repairs and/or
provide compensation to the plaintiff.
20. Pursuant to Cal. Civ. Code §1794(c), Plaintiff is entitled to a civil penalty of two times
the amount of Plaintiff’s actual damages.
21. Pursuant to Cal. Civ. Code §1794(d), Plaintiff is entitled to attorney’s fees and expenses
reasonably incurred in connection with this action.
SECOND CAUSE OF ACTION
BREACH OF IMPLIED WARRANTY (SONG BEVERLY)
AGAINST ALL DEFENDANTS
22. Plaintiff incorporates all preceding paragraphs as if set forth at length below.
23. Pursuant to Cal. Civ. Code §1792, the Vehicle was accompanied by each Defendants’
implied warranty that the goods are merchantable.
24. Pursuant to Cal. Civ. Code §1793, and because of the existence of the express warranty,
Defendants may not disclaim, limit, or modify the implied warranties provided by the Song-
Beverly – Act.
///
///
PLAINTIFF’S COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF Page 4
25. Defendants breached the implied warranty of merchantability as stated in Cal. Civ. Code
§1791.1 and 1792 in the vehicle has malfunctions, and nonconformities render the Vehicle unfit
for the ordinary purposes for which it is used, and it would not pass without objection in the trade.
26. Pursuant to Cal. Civ. Code §1794(a), Plaintiff is entitled to restitution.
27. As a direct and proximate result of the breach of the implied warranty of merchantability,
Plaintiff has sustained and continues to sustain, actual, incidental, and consequential damages in
the approximate amount of the purchase price according to proof at trial.
28. As a direct and proximate result of said violations of the Song-Beverly Act, Plaintiff has
sustained and continues to sustain, actual, incidental, and consequential damages in the
approximate amount of the purchase price according to proof at trial.
29. Pursuant to Cal. Civ. Code §1794(d), Plaintiff is entitled to attorney’s fees and expenses
reasonably incurred in connection with this action.
30. Plaintiff is a "buyer" of consumer goods under the Act.
THIRD CAUSE OF ACTION
VIOLATION OF BUSINESS AND PROFESSIONS CODE SECTION
AGAINST ALL DEFENDANTS
31. Plaintiff incorporates all preceding paragraphs as if set forth at length below.
32. Plaintiff and Defendants are each “person[s]” as defined by California Business &
Professions Code § 17201. California Bus. & Prof. Code § 17204 authorizes a private
right of action on both an individual and representative basis.
33. “Unfair competition” is defined by Business and Professions Code Section § 17200 as
encompassing several types of business “wrongs,” many of which are at issue here:
(1) an “unlawful” business act or practice,
(2) an “unfair” business act or practice,
(3) a “fraudulent” business act or practice, and
(4) “unfair, deceptive, untrue or misleading advertising.”
34. The definitions in § 17200 are drafted in the disjunctive, meaning that each of these
“wrongs” operates independently from the others.
PLAINTIFF’S COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF Page 5
35. Plaintiff has no speedy adequate remedy at law and damages would not adequately
compensate her for the ongoing wrongs committed by Defendants.
36. By and through Defendant’s conduct alleged in further detail above and herein,
Defendants engaged in conduct which constitutes (a) unlawful and (b) unfair business
practices prohibited by Bus. & Prof. Code § 17200 et seq.
“UNLAWFUL” PRONG
37. As a result of Defendants’ acts and practices described herein, Defendants have violated
California’s Unfair Competition Law, Business & Professions Code §§ 17200 et seq.,
which provides a cause of action for an “unlawful” business act or practice perpetrated on
members of the California public.
38. Plaintiff alleges that Cal. Bus. & Prof. Code §§ 17200 et seq. prohibits the “unlawful”
Defendant conduct described previously and in greater detail herein throughout the
complaint and that Plaintiff has suffered injury in fact as a result of Defendants’
“unlawful” conduct.
Specifically, Defendant TESLA, INC. intentionally placed the Subject Vehicle, with
defective components, into the stream of commerce. They knew the components and the
Subject Vehicle suffered from defects which substantially affected the vehicle’s value and
safety, including issues with body alignment, latches on parts that keep the vehicle sealed
from the elements and persons who may try to enter the vehicle, faulty windows, and other
various issues. The issues that affected the Subject Vehicle were extensive and
Manufacturer knew these defects existed and intentionally sold defective vehicles to the
general public.
Defendant was well aware of the highly defective components in this Subject Vehicle.
Defendant intentionally failed to properly diagnose the issues in the Subject Vehicle.
Defendant installed remanufactured and or reconditioned components, that were not of the
same quality as the OEM components. Defendant also installed components, which it knew
were defective and would not correct the mechanical issues exhibited in the Subject Vehicle.
PLAINTIFF’S COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF Page 6
Defendant performed negligent repairs because they knew the Manufacturer was unlikely to
reimburse them for multiple repairs due to the same underlying issue.
39. Defendants have other reasonably available alternatives to further its legitimate business
interest, other than the conduct described above.
40. Plaintiff reserves the right to allege other violations of law, which constitute other
unlawful business practices or acts, as such conduct is ongoing and continues to this date.
“UNFAIR” PRONG
41. Defendants’ actions and representations constitute an “unfair” business act or practice
under § 17200 in that Defendant’s conduct is substantially injurious to consumers, offends
public policy, and is immoral, unethical, oppressive, and unscrupulous as the gravity of
the conduct outweighs any alleged benefits attributable to such conduct. Without
limitation, it is an unfair business act or practice for Defendants to knowingly or
negligently:
(1) fail to provide repair facilities to service vehicles to conform to the express
warranties reasonably close to where Plaintiff’s vehicle is sold;
(2) provide their authorized repair facilities service and repair literature to allow
them to conform the vehicles to the express warranties;
(3) inform consumers of their warranty rights on their repair orders;
(4) pay their authorized repair facilities for work done under the express warranty;
(5) Trying to coerce Plaintiff and other members of the public to sign
confidentiality clauses.
42. At a date presently unknown to Plaintiff, within four years of the filing of this action, and
as set forth above, Defendants have committed acts of unfair competition as defined by
Cal. Bus. & Prof. Code §§ 17200 et seq., as alleged further detail above and herein.
43. Plaintiff could not have reasonably avoided the injury suffered herein. Plaintiff reserves
the right to allege further conduct that constitutes other unfair business acts or practices.
Such conduct is ongoing and continues to this date, as Defendants continue to violate the
provisions of the Song-Beverly Act.
PLAINTIFF’S COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF Page 7 “FRAUDULENT” PRONG
44. California Business & Professions Code § 17200 prohibits any “fraudulent ... business act
or practice.” In order to prevail under the “fraudulent” prong of the UCL, a consumer must
allege that the fraudulent business practice was likely to deceive members of the public.
45. The test for “fraud” as contemplated by California Business and Professions Code §
is whether the public is likely to be deceived. Unlike common law fraud, a §
violation can be established even if no one was actually deceived, relied upon the
fraudulent practice, or sustained any damage.
46. Here, consumers are likely to be deceived by the acts described above in this complaint.
47. California consumers, including Plaintiff, were never informed of their rights pursuant to
the Song-Beverly Acts standards.
48. In addition, Defendants’ oral misrepresentations also deceived Plaintiff to believe that
Plaintiff would receive a benefit by purchasing a Vehicle from them under warranty.
49. Despite the passage of time, Plaintiff has received no such benefit from the warranty of the
vehicle.
50. Plaintiff is entitled to injunctive relief to bring Defendants in conformity with the law.
51. Plaintiff is further entitled to preliminary relief to enforce Defendants compliance with its
legal obligations during the pendency of the within action as Plaintiff has both no adequate
remedy at law, has and continues to suffer irreparable injury, and damages would be
completely inadequate.
FOURTH CAUSE OF ACTION
Negligent Repair
(Against Defendant )
52. Plaintiff incorporates all preceding paragraphs as if set forth at length below.
53. Plaintiff delivered the Subject Vehicle to Defendant for repair on numerous occasions.
54. Defendant owed a duty to Plaintiff to use ordinary care and skill in storage, preparation,
and repair of the Subject Vehicle in accordance with industry standards.
PLAINTIFF’S COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF Page 8 55. Defendant -breached its duty to Plaintiff to use ordinary care and skill by failing to
properly store, prepare and repair of the Subject Vehicle in accordance with industry
standards.
56. Defendant 's negligence and its breach of the duties owed to Plaintiff was a proximate
cause of Plaintiff’s damages.
WHEREFORE, PLAINTIFF PRAYS FOR RELIEF AS FOLLOWS:
(1)
A declaration that the sales contract is rescinded;
(2)
A declaration that Defendants have been given a reasonable number of repair
attempts and/or days to conform the Vehicle to the warranty;
(3)
Actual damages of $60,177.78 according to proof;
(4)
Consequential and incidental damages according to proof;
(5)
Restitution of all consideration given by Plaintiff and or paid out toward the
Vehicle;
(6)
Civil Penalties under the Song-Beverly Act in the amount of two times actual
damages;
(8)
Reasonable attorney’s fees according to statute and contract;
(9)
Prejudgment interest at the highest maximum legal rate;
(10)
A temporary restraining order and/or preliminary injunction;
(11)
Costs and expenses reasonably incurred in connection with this action;
(12)
An order requiring Defendants to account for all monies that they have received
as a result of the acts and practices found to constitute unfair competition
pursuant to Cal. Bus. & Prof. Code §§ 17200 et.seq.;
(13)
An order requiring Defendants to abstain from any further acts and practices
found to constitute unfair competition pursuant to Cal. Bus. & Prof. Code
§§17200 et. seq.;
///
///
PLAINTIFF’S COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF Page 9
(14)
Such other relief as the Court deems just and proper.
DATED: July 11,
MFS Legal, Inc.
______________________________________
Michael J. Avila
Attorney for Plaintiff
PLAINTIFF’S COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF
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PlainSite Cover Page
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MFS Legal, Inc.
Neal F. Morrow III (SBN 295497)
Joseph D. Steward III (SBN 337385)
Michael J. Avila (SBN 337521)
5318 East 2nd Street #490
Long Beach, CA 90803
Tel: (562) 379-2654
Email: lawclerk@calemonlawteam.com (contact)
eservice@calemonlawteam.com (documents)
Attorneys for Plaintiff
LINDY Y. YARBOROUGH
7
SUPERIOR COURT OF THE STATE OF CALIFORNIA
8
COUNTY OF ALAMEDA
9
10
11
LINDY Y. YARBOROUGH,
12
15
COMPLAINT FOR DAMAGES AND
INJUNCTIVE RELIEF
Plaintiff,
13
14
Case No.:
vs.
TESLA, INC., a corporation; and DOES 1
through 10, inclusive,
16
Defendants.
17
18
19
(1) VIOLATION OF THE SONGBEVERLY CONSUMER WARRANTY
ACT BREACH OF EXPRESS
WARRANTY
(2) VIOLATION OF THE SONGBEVERLY CONSUMER WARRANTY
ACT BREACH OF IMPLIED
WARRANTY
(3) VIOLATION OF BUSINESS AND
PROFESSIONS CODE § 17200
(4) NEGLIGENT REPAIR
20
21
22
23
24
25
26
27
28
Plaintiff, LINDY Y. YARBOROUGH, an individual alleges as follows:
1. Plaintiff is an individual residing in the City of ELK GROVE, County of SACRAMENTO,
and the State of CALIFORNIA.
2.
Defendant TESLA, INC. is registered to do business in the State of CALIFORNIA.
3.
Defendant is and was a corporation, doing business in the State of California.
4.
Plaintiff does not know the true names and capacities, whether corporate, partnership,
associate, individual, or otherwise of Defendants issued herein as Does 1 through 10, inclusive,
under the provisions of section 474 of the California Code of Civil Procedure. Defendant Does 1
PLAINTIFF’S COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF
1
PDF Page 3
1
through 10, inclusive, are in some manner responsible for the acts, occurrences and
2
transactions set forth herein, and are legally liable to Plaintiff. Plaintiff will seek leave to amend this
3
Complaint to set forth the true names and capacities of the fictitiously named Defendant together
4
with appropriate charging allegations when ascertained.
5
6
7
5.
All acts of corporate employees as alleged were authorized or ratified by an officer,
director or managing agent of the corporate employer.
6.
Each Defendant whether actually or fictitiously named herein, was the principal, agent
8
(actual or ostensible) or employee of each other Defendant and in acting as such principal or within
9
the course and scope of such employment or agency, took some part in the acts and omissions
10
hereinafter set forth by reason of which each Defendant is liable to Plaintiff for the relief prayed for
11
herein.
12
13
7.
On JULY 18, 2020, Plaintiff acquired a 2020 TESLA Y, VIN:
5YJYGDEE3LF008819 ("vehicle").
14
FIRST CAUSE OF ACTION
15
(VIOLATION OF THE SONG-BEVERLY CONSUMER WARRANTY ACT)
16
BREACH OF EXPRESS WARRANTIES
17
AGAINST ALL DEFENDANTS
18
19
8. Plaintiff incorporates herein by reference each and every allegation contained in the
preceding and succeeding paragraphs as though herein fully restated and realleged.
20
9. Plaintiff is a “buyer” as defined by Cal. Civ. Code § 1791(b).
21
10. The vehicle is a “consumer good” as defined by Cal. Civ. Code § 1791(a).
22
11. Defendant TESLA, INC. is a “warrantor” as contemplated by Ca. Civ. Code § 1795.
23
12. Defendant is a "manufacturer" and/or "distributor" under the Act.
24
13. Plaintiff’s acquisition of the Vehicle was a sale as defined by Cal. Civ. Code §1791(n).
25
14. Defendants violated the Song-Beverly Consumer Warranty Act by failing to conform
26
the Vehicle to the express written warranties within a reasonable number of repair attempts or
27
within the warranty periods, and by failing to promptly replace the vehicle or make restitution to
28
Plaintiff.
PLAINTIFF’S COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF
2
PDF Page 4
1
15. The defects, malfunctions, and nonconformities that were presented to Defendant’s
2
authorized repair facilities multiple times and substantially impair the use, value, and/or safety
3
of the Vehicle.
16. Pursuant to Cal. Civ. Code §1793.2(d), Defendants must refund the price of the Vehicle
4
5
to Plaintiff.
6
17. Pursuant to Cal. Civ. Code § 1794(a), Plaintiff is entitled to restitution.
7
18. As a direct and proximate result of said violations of the Song-Beverly Act, Plaintiff has
8
sustained and continues to sustain, actual, incidental, and consequential damages in the
9
approximate amount of the purchase price according to proof at trial.
10
19. The failure of Defendants to comply with the Song-Beverly Act was willful in that they
11
had actual knowledge of the Vehicle’s defects, malfunctions, and nonconformities, knew of its
12
legal duties under the warranty act, but repeatedly refused to make necessary repairs and/or
13
provide compensation to the plaintiff.
20. Pursuant to Cal. Civ. Code §1794(c), Plaintiff is entitled to a civil penalty of two times
14
15
the amount of Plaintiff’s actual damages.
21. Pursuant to Cal. Civ. Code §1794(d), Plaintiff is entitled to attorney’s fees and expenses
16
17
reasonably incurred in connection with this action.
18
SECOND CAUSE OF ACTION
19
BREACH OF IMPLIED WARRANTY (SONG BEVERLY)
20
AGAINST ALL DEFENDANTS
21
22. Plaintiff incorporates all preceding paragraphs as if set forth at length below.
22
23. Pursuant to Cal. Civ. Code §1792, the Vehicle was accompanied by each Defendants’
23
implied warranty that the goods are merchantable.
24. Pursuant to Cal. Civ. Code §1793, and because of the existence of the express warranty,
24
25
Defendants may not disclaim, limit, or modify the implied warranties provided by the Song-
26
Beverly – Act.
27
///
28
///
PLAINTIFF’S COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF
3
PDF Page 5
1
25. Defendants breached the implied warranty of merchantability as stated in Cal. Civ. Code
2
§1791.1 and 1792 in the vehicle has malfunctions, and nonconformities render the Vehicle unfit
3
for the ordinary purposes for which it is used, and it would not pass without objection in the trade.
4
26. Pursuant to Cal. Civ. Code §1794(a), Plaintiff is entitled to restitution.
5
27. As a direct and proximate result of the breach of the implied warranty of merchantability,
6
Plaintiff has sustained and continues to sustain, actual, incidental, and consequential damages in
7
the approximate amount of the purchase price according to proof at trial.
8
9
10
11
12
13
28. As a direct and proximate result of said violations of the Song-Beverly Act, Plaintiff has
sustained and continues to sustain, actual, incidental, and consequential damages in the
approximate amount of the purchase price according to proof at trial.
29. Pursuant to Cal. Civ. Code §1794(d), Plaintiff is entitled to attorney’s fees and expenses
reasonably incurred in connection with this action.
30. Plaintiff is a "buyer" of consumer goods under the Act.
14
THIRD CAUSE OF ACTION
15
VIOLATION OF BUSINESS AND PROFESSIONS CODE SECTION 17200
16
AGAINST ALL DEFENDANTS
17
31. Plaintiff incorporates all preceding paragraphs as if set forth at length below.
18
32. Plaintiff and Defendants are each “person[s]” as defined by California Business &
19
Professions Code § 17201. California Bus. & Prof. Code § 17204 authorizes a private
20
right of action on both an individual and representative basis.
21
33. “Unfair competition” is defined by Business and Professions Code Section § 17200 as
22
encompassing several types of business “wrongs,” many of which are at issue here:
23
(1) an “unlawful” business act or practice,
24
(2) an “unfair” business act or practice,
25
(3) a “fraudulent” business act or practice, and
26
(4) “unfair, deceptive, untrue or misleading advertising.”
27
28
34. The definitions in § 17200 are drafted in the disjunctive, meaning that each of these
“wrongs” operates independently from the others.
PLAINTIFF’S COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF
4
PDF Page 6
1
2
3
35. Plaintiff has no speedy adequate remedy at law and damages would not adequately
compensate her for the ongoing wrongs committed by Defendants.
36. By and through Defendant’s conduct alleged in further detail above and herein,
4
Defendants engaged in conduct which constitutes (a) unlawful and (b) unfair business
5
practices prohibited by Bus. & Prof. Code § 17200 et seq.
“UNLAWFUL” PRONG
6
7
37. As a result of Defendants’ acts and practices described herein, Defendants have violated
8
California’s Unfair Competition Law, Business & Professions Code §§ 17200 et seq.,
9
which provides a cause of action for an “unlawful” business act or practice perpetrated on
10
members of the California public.
11
38. Plaintiff alleges that Cal. Bus. & Prof. Code §§ 17200 et seq. prohibits the “unlawful”
12
Defendant conduct described previously and in greater detail herein throughout the
13
complaint and that Plaintiff has suffered injury in fact as a result of Defendants’
14
“unlawful” conduct.
15
Specifically, Defendant TESLA, INC. intentionally placed the Subject Vehicle, with
16
defective components, into the stream of commerce. They knew the components and the
17
Subject Vehicle suffered from defects which substantially affected the vehicle’s value and
18
safety, including issues with body alignment, latches on parts that keep the vehicle sealed
19
from the elements and persons who may try to enter the vehicle, faulty windows, and other
20
various issues. The issues that affected the Subject Vehicle were extensive and
21
Manufacturer knew these defects existed and intentionally sold defective vehicles to the
22
general public.
23
Defendant was well aware of the highly defective components in this Subject Vehicle.
24
Defendant intentionally failed to properly diagnose the issues in the Subject Vehicle.
25
Defendant installed remanufactured and or reconditioned components, that were not of the
26
same quality as the OEM components. Defendant also installed components, which it knew
27
were defective and would not correct the mechanical issues exhibited in the Subject Vehicle.
28
PLAINTIFF’S COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF
5
PDF Page 7
1
Defendant performed negligent repairs because they knew the Manufacturer was unlikely to
2
reimburse them for multiple repairs due to the same underlying issue.
3
4
5
39. Defendants have other reasonably available alternatives to further its legitimate business
interest, other than the conduct described above.
40. Plaintiff reserves the right to allege other violations of law, which constitute other
6
unlawful business practices or acts, as such conduct is ongoing and continues to this date.
7
“UNFAIR” PRONG
8
9
41. Defendants’ actions and representations constitute an “unfair” business act or practice
under § 17200 in that Defendant’s conduct is substantially injurious to consumers, offends
10
public policy, and is immoral, unethical, oppressive, and unscrupulous as the gravity of
11
the conduct outweighs any alleged benefits attributable to such conduct. Without
12
limitation, it is an unfair business act or practice for Defendants to knowingly or
13
negligently:
14
(1) fail to provide repair facilities to service vehicles to conform to the express
15
warranties reasonably close to where Plaintiff’s vehicle is sold;
16
(2) provide their authorized repair facilities service and repair literature to allow
17
them to conform the vehicles to the express warranties;
18
(3) inform consumers of their warranty rights on their repair orders;
19
(4) pay their authorized repair facilities for work done under the express warranty;
20
(5) Trying to coerce Plaintiff and other members of the public to sign
21
confidentiality clauses.
22
42. At a date presently unknown to Plaintiff, within four years of the filing of this action, and
23
as set forth above, Defendants have committed acts of unfair competition as defined by
24
Cal. Bus. & Prof. Code §§ 17200 et seq., as alleged further detail above and herein.
25
43. Plaintiff could not have reasonably avoided the injury suffered herein. Plaintiff reserves
26
the right to allege further conduct that constitutes other unfair business acts or practices.
27
Such conduct is ongoing and continues to this date, as Defendants continue to violate the
28
provisions of the Song-Beverly Act.
PLAINTIFF’S COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF
6
PDF Page 8
“FRAUDULENT” PRONG
1
2
44. California Business & Professions Code § 17200 prohibits any “fraudulent ... business act
3
or practice.” In order to prevail under the “fraudulent” prong of the UCL, a consumer must
4
allege that the fraudulent business practice was likely to deceive members of the public.
5
45. The test for “fraud” as contemplated by California Business and Professions Code § 17200
6
is whether the public is likely to be deceived. Unlike common law fraud, a § 17200
7
violation can be established even if no one was actually deceived, relied upon the
8
fraudulent practice, or sustained any damage.
9
10
11
12
13
14
15
46. Here, consumers are likely to be deceived by the acts described above in this complaint.
47. California consumers, including Plaintiff, were never informed of their rights pursuant to
the Song-Beverly Acts standards.
48. In addition, Defendants’ oral misrepresentations also deceived Plaintiff to believe that
Plaintiff would receive a benefit by purchasing a Vehicle from them under warranty.
49. Despite the passage of time, Plaintiff has received no such benefit from the warranty of the
vehicle.
16
50. Plaintiff is entitled to injunctive relief to bring Defendants in conformity with the law.
17
51. Plaintiff is further entitled to preliminary relief to enforce Defendants compliance with its
18
legal obligations during the pendency of the within action as Plaintiff has both no adequate
19
remedy at law, has and continues to suffer irreparable injury, and damages would be
20
completely inadequate.
21
FOURTH CAUSE OF ACTION
22
Negligent Repair
23
(Against Defendant )
24
52. Plaintiff incorporates all preceding paragraphs as if set forth at length below.
25
53. Plaintiff delivered the Subject Vehicle to Defendant for repair on numerous occasions.
26
54. Defendant owed a duty to Plaintiff to use ordinary care and skill in storage, preparation,
27
and repair of the Subject Vehicle in accordance with industry standards.
28
PLAINTIFF’S COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF
7
PDF Page 9
55. Defendant -breached its duty to Plaintiff to use ordinary care and skill by failing to
1
2
properly store, prepare and repair of the Subject Vehicle in accordance with industry
3
standards.
56. Defendant 's negligence and its breach of the duties owed to Plaintiff was a proximate
4
cause of Plaintiff’s damages.
5
6
7
WHEREFORE, PLAINTIFF PRAYS FOR RELIEF AS FOLLOWS:
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(1)
A declaration that the sales contract is rescinded;
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(2)
A declaration that Defendants have been given a reasonable number of repair
attempts and/or days to conform the Vehicle to the warranty;
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(3)
Actual damages of $60,177.78 according to proof;
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(4)
Consequential and incidental damages according to proof;
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(5)
Restitution of all consideration given by Plaintiff and or paid out toward the
Vehicle;
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(6)
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Civil Penalties under the Song-Beverly Act in the amount of two times actual
damages;
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(8)
Reasonable attorney’s fees according to statute and contract;
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(9)
Prejudgment interest at the highest maximum legal rate;
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(10)
A temporary restraining order and/or preliminary injunction;
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(11)
Costs and expenses reasonably incurred in connection with this action;
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(12)
An order requiring Defendants to account for all monies that they have received
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as a result of the acts and practices found to constitute unfair competition
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pursuant to Cal. Bus. & Prof. Code §§ 17200 et.seq.;
(13)
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An order requiring Defendants to abstain from any further acts and practices
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found to constitute unfair competition pursuant to Cal. Bus. & Prof. Code
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§§17200 et. seq.;
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PLAINTIFF’S COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF
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(14)
Such other relief as the Court deems just and proper.
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DATED: July 11, 2023
MFS Legal, Inc.
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______________________________________
Michael J. Avila
Attorney for Plaintiff
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PLAINTIFF’S COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF
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