Complaint Unlimited Fee AppliesCal. Super. - 6th Dist.March 29, 2021QL'II.I.¢4_\RR0W.LLP UI-PUJN N 10 11 12 13 '14 :15 16 17 18 19 20 21 22 23 24 25 26 27 28 E-FILED 3/29/2021 12:00 AM QUILL & ARROW, LLP Kevin Y. Jacobson, Esq. (SBN 320532) gLeggriogrcéoothrt Of CA Renia Zadourian, Esq. (SBN 331252) County Of Santa Clar’a Athena Nguyen, Esq. (SBN 33 1265) 21 CV381 41 6 10900 Wilshire Boulevard, Suite 300 Reviewed By: M Vu Los Angeles, CA, 90024 Telephone: (3 10) 933-4271 Facsimile: (3 10) 889-0645 E-mail: kiacobson@quillarrowlaw.com rzadourian@quillarrowlaw.com anguven@quillarrowlaw.com e-service@quillarrowlaw.com Attorney for Plaintiff, DAVID JR MORALES SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA _ _ _ 21CV381416 DAVID JR MORALES, an 1nd1V1dual, C35? N05 . , _ Unllmlted Jurlsdlctlon Plaintiff: COMPLAINT VS- 1. VIOLATION 0F SONG-BEVERLY ACT - BREACH OF EXPRESS GENERAL MOTORS LLC, a Delaware WARRANTY Limited Liability Company, and DOES 1 2. VIOLATION 0F SONG_BEVERLY through 10, inclusive, ACT - BREACH 0F IMPLIED WARRANTY 3. VIOLATION OF THE SONG- DeffindantS- BEVERLY ACT SECTION 1793.2 COMPLAINT QL'II.I.2.4;\RRow-LLP “- \ l \|\\ \II-VK 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff, DAVID JR MORALES, an individual, alleges as follows against Defendants GENERAL MOTORS LLC, a Delaware Limited Liability Company (“GENERAL MOTORS LLC”), and DOES 1 through 10 inclusive, 0n information and belief, formed after a reasonable inquiry under the circumstances: DEMAND FOR JURY TRIAL 1. Plaintiff, DAVID JR MORALES, hereby demands trial by jury in this action. GENERAL ALLEGATIONS 2. Plaintiff, DAVID JR MORALES, is an individual residing in the City 0f San Jose, State of California. 3. Defendant GENERAL MOTORS LLC is a Delaware Limited Liability Company operating and doing business in the State 0f California. 4. These causes of action arise out 0f the warranty obligations of GENERAL MOTORS LLC in connection With a vehicle purchased by Plaintiff and for which GENERAL MOTORS LLC issued a written warranty. 5. Plaintiff does not know the true names and capacities, whether corporate, partnership, associate, individual, 0r otherwise 0f Defendant issued herein as Does 1 through 10, inclusive, under the provisions of section 474 0f the California Code of Civil Procedure. Defendant Does 1 through 10, inclusive, are in some manner responsible for the acts, occurrences, and transactions set forth herein, and are legally liable t0 Plaintiff. Plaintiff will seek leave t0 amend this Complaint to set forth the true names and capacities of the fictitiously named Defendant, together with appropriate charging allegations, when ascertained. 6. A11 acts of corporate employees as alleged were authorized or ratified by an officer, director, or managing agent of the corporate employer. 7. Each Defendant, whether actually 0r fictitiously named herein, was the principal, agent (actual or ostensible), or employee of each other Defendant, and in acting as such principal 0r within the course and scope 0f such employment 0r agency, took some part in the acts and omissions hereinafter set forth by reason 0fWhich each Defendant is liable to Plaintiff for the relief prayed for herein. /// _2_ COMPLAINT QL'II.I.2.4;\RRow-LLP “- \ l \|\\ \II-VK 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8. On July 6, 2017, Plaintiff purchased a new 2017 Chevrolet Silverado, having VIN No. 3GCUKSEC2HG277136 ("the Subject Vehicle”). Express warranties accompanied the sale of the Subject Vehicle to Plaintiff by Which GENERAL MOTORS LLC undertook to preserve 0r maintain the utility or performance of Plaintiff’s vehicle or to provide compensation if there was a failure in such utility 0r performance. 9. The Subject Vehicle was delivered to Plaintiff with serious defects and nonconformities to warranty and developed other serious defects and nonconformities to warranty including, but not limited to, the engine, transmission, electrical, and structural system defects. 10. Plaintiff hereby revokes acceptance of the sales contract. 11. Pursuant t0 the Song-Beverly Consumer Warranty Act (hereinafter the "Act") Civil Code sections 1790 et seq. the Subject Vehicle constitutes "consumer goods” used primarily for family 0r household purposes, and Plaintiff has used the vehicle primarily for those purposes. 12. Plaintiff is a "buyer" of consumer goods under the Act. 13. Defendant GENERAL MOTORS LLC is a "manufacturer" and/or “distributor" under the Act. 14. Plaintiff hereby demands trial by jury in this action. FIRST CAUSE 0F ACTION Violation 0f the Song-Beverly Act - Breach 0f Express Warranty 15. Plaintiff incorporates herein by reference each and every allegation contained in the preceding and succeeding paragraphs as though herein fully restated and re-alleged. 16. Express warranties accompanied the sale of the vehicle t0 Plaintiff by which GENERAL MOTORS LLC, undertook t0 preserve or maintain the utility 0r performance of Plaintiff” s vehicle or to provide compensation if there was a failure in such utility or performance. 17. The Subject Vehicle was delivered to Plaintiff With serious defects and nonconformities to warranty and developed other serious defects and nonconformities to warranty including, but not limited t0, engine, transmission, electrical, and structural system defects. 18. Pursuant t0 the Song-Beverly Consumer Warranty Act (hereinafter the "Act") Civil Code sections 1790 et seq. the vehicle constitutes "consumer goods” used primarily for family or household purposes, and Plaintiff has used the Subj ect Vehicle primarily for those purposes. _ 3 _ COMPLAINT QL'II.I.2.4;\RRow-LLP nx- \ l \|\\ \II-VK 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19. Plaintiff is the "buyer" of consumer goods under the Act. 20. Defendant GENERAL MOTORS LLC is a "manufacturer" and/or “distributor" under the Act. 21. The foregoing defects and nonconformities t0 warranty manifested themselves in the Subject Vehicle within the applicable express warranty period. The nonconformities substantially impair the use, value, and/or safety 0f the vehicle. 22. Plaintiff delivered the vehicle to an authorized GENERAL MOTORS LLC repair facility for repair of the nonconformities. 23. Defendant was unable to conform Plaintiff’s vehicle t0 the applicable express after a reasonable number of repair attempts. 24. Notwithstanding Plaintiff” s entitlement, Defendant GENERAL MOTORS LLC has failed to either promptly replace the new motor vehicle or t0 promptly make restitution in accordance with the Song-Beverly Act. 25. By failure of Defendant t0 remedy the defects as alleged above, or to issue a refund 0r replacement vehicle, Defendant is in breach 0f its obligations under the Song-Beverly Act. 26. Under the Act, Plaintiff is entitled to reimbursement of the price paid for the vehicle less that amount directly attributable to use by the Plaintiff prior to the first presentation 0f the nonconformities. 27. Plaintiff is entitled to all incidental, consequential, and general damages resulting from Defendant’s failure to comply With its obligations under the Song-Beverly Act. 28. Plaintiff is entitled under the Song-Beverly Act to recover as part 0f the judgment a sum equal to the aggregate amount 0f costs and expenses, including attorney's fees, reasonably incurred in connection With the commencement and prosecution of this action. 29. Because Defendant willfully violated the Song-Beverly Act, Plaintiff is entitled in addition to the amounts recovered, a civil penalty ofup to two times the amount of actual damages for GENERAL MOTORS LLC’s willful failure to comply with its responsibilities under the Act. /// /// /// _4_ COMPLAINT QL'II.I.2.4;\RRow-LLP “- \ l \|\\ \II-VK 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SECOND CAUSE OF ACTION Violation 0f the Song-Beverly Act - Breach 0f Implied Warranty 30. Plaintiff incorporates herein by reference each and every allegation contained in the preceding and succeeding paragraphs as though herein fully restated and re-alleged. 3 1. GENERAL MOTORS LLC and its authorized dealership at which Plaintiff purchased the subject vehicle had reason to know the purpose of the Subject Vehicle at the time of sale 0fthe subject vehicle. The sale ofthe Subject Vehicle was accompanied by implied warranties provided for under the law. 32. Among other warranties, the sale of the Subject Vehicle was accompanied by an implied warranty that the Subj ect vehicle was merchantable pursuant t0 Civil Code section 1792. 33. The Subject Vehicle was not fit for the ordinary purpose for which such goods are used because it was equipped With one 0r more defective vehicle systems/components. 34. The Subject Vehicle did not measure up to the promises or facts stated on the container or label because it was equipped with one or more defective vehicle systems/components. 35. The Subject Vehicle was not 0f the same quality as those generally accepted in the trade because it was sold with one 0r more defective vehicle systems/components which manifested as engine, transmission, electrical, and structural system defects. 36. Upon information and belief, the defective vehicle systems and components were present at the time 0f sale of the Subj ect Vehicle; thus, extending the duration of any implied warranty under Mexia v. Rinker Boat C0., Inc. (2009) 174 Cal.App.4th 1297, 1304-1305 and other applicable laws. 37. Plaintiff is entitled to justifiably revoke acceptance of the subject vehicle under Civil Code, section 1794, et seq. 38. Plaintiff hereby revokes acceptance of the Subj ect Vehicle. 39. Plaintiff is entitled to replacement or reimbursement pursuant to Civil Code, section 1794, et seq. 40. Plaintiff is entitled t0 rescission 0fthe contract pursuant t0 Civil Code, section 1794, et seq. and Commercial Code, section 271 1. /// _5_ COMPLAINT QL'II.I.2.4;\RRow-LLP nx- \ l \|\\ \II-VK 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 41. Plaintiff is entitled to recover any incidental, consequential, and/or “cover” damages under Commercial Code, sections 271 1, 2712, and Civil Code, section 1794, et seq. THIRD CAUSE 0F ACTION Violation of the Song-Beverly Act Section 1793.2(b) 42. Plaintiff incorporates herein by reference each and every allegation contained in the preceding and succeeding paragraphs as though herein fully restated and re-alleged. 43. Pursuant to Civil Code, section 1793.2, subdivision (a) a manufacturer that sells consumer goods in California, for Which it has made an express warranty, shall maintain service and repair facilities or designate and authorize independent service and repair facilities to carry out the terms of those warranties. 44. Pursuant t0 Civil Code, section 1793.2, subdivision (b), when service and repair of goods are necessary because they d0 not conform With the applicable express warranties, service and repair shall be commenced Within a reasonable time by the manufacturer 0r its representative. 45. Civil Code, section 1793.2, subdivision (b) fithher states that goods shall be serviced 0r repaired so as to conform to the applicable warranties within 30 days and/or Within a reasonable time. 46. The sale 0f the Subject Vehicle was accompanied by express warranties, including a warranty guaranteeing that the subj ect vehicle was safe to drive and not equipped With defective parts, including the electrical system. 47. Plaintiff delivered the subject vehicle to GENERAL MOTORS LLC’s authorized service representatives 0n multiple occasions. The subject vehicle was delivered for repairs of defects, which amount to nonconformities to the express warranties that accompanied the sale 0f the subj ect vehicle. 48. Defendant’s authorized facilities did not conform the Subject Vehicle t0 warranty Within 30-days and/or commence repairs Within a reasonable time and GENERAL MOTORS LLC has failed t0 tender the subject vehicle back t0 Plaintiff in conformance with its warranties within the timeframes set forth in Civil Code section 1793.2(b). 49. Plaintiff is entitled t0 justifiably revoke acceptance 0f the subject vehicle under Civil Code, section 1794, et seq. _ 6 _ COMPLAINT Ql'll.l,t%x\RR0W’0LLP nx- \ I \|\\ \IIUX 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 50. Plaintiff hereby revokes acceptance 0f the subj ect vehicle. 5 1. Plaintiff is entitled to replacement or reimbursement pursuant to Civil Code, section 1794, et seq. 52. Plaintiff is entitled to rescission 0f the contract pursuant t0 Civil Code section 1794, et seq. and Commercial Code, section 271 1. 53. Plaintiff is entitled to recover any “cover” damages under Commercial Code sections 271 1, 27 12, and Civil Code, section 1794, et seq. 54. Plaintiff is entitled to recover all incidental and consequential damages pursuant t0 1794 et seq and Commercial Code sections, 271 1, 27 12, and 2713 et seq. 55. Plaintiff is entitled in addition to the amounts recovered, a civil penalty 0fup to two times the amount 0f actual damages in that GENERAL MOTORS LLC has willfully failed to comply With its responsibilities under the Act. PRAYER FOR RELIEF WHEREFORE, Plaintiff prays for judgment against Defendants, as follows: 1. For general, special, and actual damages according to proof at trial; 2. For rescission of the purchase contract and restitution of all monies expended; 3. For diminution in value; 4. For incidental and consequential damages according to proof at trial; 5. For civil penalty in the amount of two times Plaintiffs’ actual damages; 6. For prejudgment interest at the legal rate; 7. For reasonable attorney's fees and costs 0f suit; and For such other and further relief as the Court deems just and proper under the circumstances. Dated: March 28 2021 QUILL & ARROW, LLP Attorneys o P intiff, DAVID JR MORALES _7_ COMPLAINT
