Amended Complaint Filed No FeeCal. Super. - 6th Dist.April 1, 2021KOOOQQU‘I-PUJNr-t NNNNNNNNNb-tr-tv-Ib-tr-tt-tt-tr-tt-tt-t OONQUl-RUJNHOKDOOQONM-RWNHO 21 CV381457 Santa Clara - Civil Elizabeth L. Kolar, Esq. (SBN 168935) ElectroniFally Filed Tami s. Crosby, Esq. (SBN 129021) by Superlor Court of CA, Jon C. Abramson, Esq. (SBN 318506) county 0f santa Clara; KOLAR & ASSOCIATES, 0n 5/24/2021 2:36 PM A LAW CORPORATION Reviewed By: A. Rodriguez 12241 Newport Avenue case #21 CV381 457 Santa Ana, California 92705 EnveloPe: 6507603 Tel ; (714) 544-0041 Fax : (714) 544-0051 E-Mail: jon@k01arandassociates.com Attorneys for Plaintiff, AUTO COMPANY XXII, INC. DBA MERCEDES-BENZ OF SAN JOSE SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA - OLD COURTHOUSE AUTO COMPANY XXII, INC. dba ) Case No.: 21CV381457 MERCEDES-BENZ OF SAN JOSE, ) ) For all purposes assigned to: Plaintiff, ) Judge: Socrates P. Manoukiani ) Dept: 20 vs. ) ) FIRST AMENDED COMPLAINT FOR: MARIAH CHRISTIAN GOMEZ, TEAM ) BUILDERS, Inc. and DOES 1 through 10, ) 1. Breach 0f Contract inclusive, ) 2. Intentional Misrepresentation ) 3. False Promise Defendants. ) 4. Negligent Misrepresentation ) 5. Declaratory Relief ) g Unlimited Civil Case ) Complaint Filed: 04/01/2021 ) COMES NOW, Plaintiff, AUTO COMPANY XXII, INC. dba MERCEDES-BENZ OF SAN JOSE (hereinafter “MB San Jose” 0r “Plaintiff’), for causes and actions against Defendants, MARIAH CHRISTIAN GOMEZ (hereinafter “Gomez”), TEAM BUILDERS, Inc. (hereinafter “Team Builders”) and DOES 1 through 10, and alleges as follows: GENERAL ALLEGATIONS 1. MB San Jose is, and at all times mentioned was, a Corporation organized under the laws 0f the State 0f California authorized t0 conduct business in the county of Santa Clara, California, and subj ect t0 the jurisdiction 0f this Court. -1- FIRST AMENDED COMPLAINT \OOOQQU‘I-PUJNH NNNNNNNNNt-th-tt-tt-ti-tt-tt-ti-tt-tt-t OONONU‘I-PUJNt-‘OKOOOflQUl-PWNHO 2. MB San Jose is informed and believes and thereon alleges that Defendant, Gomez, is and at all times herein mentioned was, a resident of Santa Clara, California. As explained more fully below, Gomez voluntarily came t0 MB San Jose in Santa Clara, California, entered into a lease agreement whereby Gomez was given possession 0f vehicle in exchange for a drive off payment and the promise to make future payments, but provided a check that bounced due to insufficient funds. As such, Gomez is subj ect t0 the jurisdiction 0f this Court. 3. MB San Jose is informed and believes and hereon alleges that Team Builders is a corporation authorized to conduct business in California, and subject to the jurisdiction 0f this Court. 4. A11 acts 0f Team Builders’ employees, agents, and/or representatives as hereinafter alleged, were authorized 0r ratified by the owners 0r managing agents 0f Team Builders. 5. A11 actions performed by Defendants at all times herein mentioned were performed in Santa Clara County, California, and subj ect t0 the jurisdiction of this Court. 6. MB San Jose is ignorant of the true names and capacities of the Defendants sued herein as DOES 1-10, inclusive, and therefore sues these Defendants by such fictitious names. MB San Jose Will amend this Complaint t0 allege their true names and capacities when ascertained. MB San Jose is informed and believes and thereon alleges that each 0f the fictitiously named Defendants are responsible in some manner for the occurrences herein alleged, and that the MB San Jose’s damages as herein alleged were proximately caused by their conduct. 7. MB San Jose is informed and believes and thereon alleges that, at all times herein mentioned, Defendants Gomez, Team Builders and DOES 1-10, inclusive, have sufficient contacts, and were and now are either duly authorized t0 d0 and/or are doing business in, 0r were residents of, the State 0f California. FACTUAL ALLEGATIONS 8. MB San Jose hereby re-alleges the allegations contained above, as though fully set forth herein. _ 2 _ FIRST AMENDED COMPLAINT \OOOQQU‘I-PUJNH NNNNNNNNNt-th-tt-tt-ti-tt-tt-ti-tt-tt-t OONONU‘I-PUJNt-‘OKOOOflQUl-PWNHO 9. MB San Jose is a car dealership located in San Jose, California. 10. On or about December 30, 2020, Gomez executed a California Motor Vehicle Lease Agreement (the “Lease Agreement”) t0 lease a new 2020 Mercedes-Benz S-Class VIN W1KUG8DB5LA531898 (the “Vehicle”) from MB San Jose. Attached hereto as Exhibit “1” is a true and correct copy of the Lease Agreement. As part of the consideration for this Lease Agreement, Gomez agreed t0 make a $25,000.00 drive off payment for the Vehicle. (See Exhibit 1, Section 5.) Gomez attempted t0 make this payment through a check drawn 0n the bank account of her corporation, Team Builders. 11. MB San Jose is informed and believes and thereon alleges that according t0 Team Builders’ Statement 0f Information filed With the California Secretary 0f State, that Gomez is listed as the Chief Executive Officer, Secretary, and Chief Financial Officer 0f Team Builders. MB San Jose is therefore informed and believes and thereon alleges that Team Builders consented t0 Gomez making the drive off payment with a check drawn 0n Team Builders’ bank account and consented t0 be bound t0 the Lease Agreement thereby. 12. However, Gomez’s check t0 cover the drive off payment bounced due t0 insufficient funds in the account. On or about March 1, 2021, MB San Jose sent Gomez a Demand Letter informing her 0f the bounced check and demanding that she make the agreed-on payment Within 10 days and warning her of the penalties for passing a bad check under California Civil Code § 1719. 13. As 0f the date 0f filing this lawsuit, Gomez has still not responded t0 the Demand Letter, nor has she made the agreed 0n $25,000.00 drive offpayment. 14. On or about December 30, 2020, Gomez took delivery of the Vehicle based on her execution 0f the Lease Agreement, her promise t0 make the drive off payment, and MB San Jose’s reliance 0n Gomez’s material representations t0 its ultimate detriment. 15. MB San Jose has performed all of the terms and conditions of the Lease Agreement including giving Gomez possession 0f the Vehicle. / / / / / / -3- FIRST AMENDED COMPLAINT \OOOQQU‘I-PUJNH NNNNNNNNNt-th-tt-tt-ti-tt-tt-ti-tt-tt-t OONONU‘I-PUJNt-‘OKOOOflQUl-PWNHO FIRST CAUSE OF ACTION BREACH OF CONTRACT AGAINST GOMEZ, TEAM BUILDERS AND DOES 1-10 16. MB San Jose hereby re-alleges the allegations contained above, as though fully set forth herein. 17. The elements of Breach of Contract are: (1) MB San Jose and Gomez entered into a contract; (2) MB San Jose did all, 0r substantially all, 0f the significant things the contract required it t0 d0; (3) all conditions required by the contract for Gomez’s performance occurred; (4) Gomez failed t0 do something the contract required her t0 do; (5) MB San Jose was harmed; and (6) Gomez’s breach 0f contract was a substantial factor in causing MB San Jose’s harm. (Judicial Council ofCalifomia Civil Jury Instructions (2020) (“CACI”), N0. 303.) 18. On or about December 30, 2020, MB San Jose MB San Jose entered into a Lease Agreement With Gomez, wherein MB San Jose provided Gomez with possession 0f the Vehicle. Under the Lease Agreement, and by taking possession of the Vehicle, Gomez agreed she would pay $25,000.00 at lease signing as a drive off payment. As such, MB San Jose and Gomez entered into a contract. 19. MB San Jose performed all of its requirements under the Lease Agreement, including providing Gomez with possession of the Vehicle. Thus, MB San Jose did all, 0r substantially all, 0f the significant things the contract required it t0 d0. 20. On or about December 30, 2020, Gomez took delivery 0f the Vehicle based on her execution 0f the Lease Agreement, her promise t0 make the drive off payment, and MB San Jose’s reliance 0n Gomez’s material representations t0 its ultimate detriment. As such, all conditions required by the contract for Gomez’s performance occurred. 21. Gomez agreed t0 make a $25,000.00 drive off payment for the Vehicle. (See Exhibit 1, Section 5.) Gomez attempted to make this payment through a check drawn on the bank account of her corporation, Team Builders. Team Builders consented to Gomez making this payment and binding it to the Lease Agreement. However, Gomez’s check t0 cover the drive off payment bounced due to insufficient funds in the account. MB San Jose sent Gomez a Demand -4- FIRST AMENDED COMPLAINT \OOOQQU‘I-PUJNH NNNNNNNNNt-th-tt-tt-ti-tt-tt-ti-tt-tt-t OONONU‘I-PUJNt-‘OKOOOflQUl-PWNHO Letter demanding payment, but as 0f the date of filing this lawsuit, Gomez has still not responded t0 the Demand Letter, nor has she or Team Builders made the agreed 0n $25,000.00 drive off payment. As such, Gomez and Team Builders have failed to d0 something the contract required them t0 d0. 22. MB San Jose has not been paid the $25,000.00 due at signing for the lease 0f the Vehicle under the Lease Agreement. Further, MB San Jose has been forced to hire counsel to send the Demand Letter and pursue this lawsuit. The Lease Agreement specifically provides in Section 23(b) “Events 0f Default” that Gomez and Team Builders “...will be in default if: (1) you fail t0 make any payment when due. .. (2) you break any promise 0r conditions in the lease 0r any other agreement with us...” Further, Section 23(0) “Remedies for Default” specifically provides that “You agree that in the event we hire an attorney t0 collect any amount due 0r enforce any right or remedy under this lease, you shall pay our attorney fees and court costs.” Thus, MB San Jose is entitled t0 its attorneys’ fees and costs. 23. As a result 0f Gomez, Team Builders, and DOES 1-10’s breach, MB San Jose has suffered consequential, incidental and compensatory damages in the amount 0f at least $25,000.00 arising from Gomez and Team Builders’ failure t0 pay the drive off payment due at lease signing. MB San Jose is also entitled t0 attorney’s fees based 0n the terms 0f the Lease Agreement. SECOND CAUSE OF ACTION INTENTIONAL MISREPRESENTATION AGAINST DEFENDANTS GOMEZ, TEAM BUILDERS, AND DOES 1-10, INCLUSIVE 24. MB San Jose hereby re-alleges the allegations contained above, as though fully set forth herein. 25. The elements 0f Intentional Misrepresentation are: (1) Gomez represented t0 MB San Jose a fact was true; (2) Gomez’s representation was false; (3) Gomez knew the representation was false When she made it, or she made the representation recklessly and without regard for its truth; (4) Gomez intended MB San Jose rely 0n the representation; (5) MB San Jose reasonably relied 0n Gomez’s representation; (6) MB San Jose was harmed; and (7) MB -5- FIRST AMENDED COMPLAINT \OOOQQU‘I-PUJNH NNNNNNNNNt-th-tt-tt-ti-tt-tt-ti-tt-tt-t OONONU‘I-PUJNt-‘OKOOOflQUl-PWNHO San Jose’s reliance on Gomez’s representation was a substantial factor in causing its harm. (CACI N0. 1900.) Further, under California Law, a cause of action for fraud must be plead With specificity. The complaint must set forth the representations made, When they were made, where they were made, how they were made, and by What means they were made. 26. On 0r about December 30, 2020, MB San Jose and Gomez entered into the Lease Agreement t0 lease the Vehicle t0 Gomez. (Exhibit 1.) By executing the Lease Agreement and taking possession 0f the Vehicle, Gomez agreed, as set forth in the Lease Agreement, that Gomez would pay MB San Jose $25,000.00 due on signing in cash by way of a check. (Exhibit 1, Section 5.) Further, Gomez gave MB San Jose a check for $25,000.00 drawn 0n the bank account 0f her corporation, Team Builders. Team Builders consented t0 Gomez making this payment. Thus, Gomez and Team Builders represented as true t0 MB San Jose that they had funds t0 cover the $25,000.00 drive offpayment and that the check would not bounce. 27. However, despite the fact that Gomez and Team Builders had just made this representation and MB San Jose had already given Gomez possession 0f the Vehicle, Gomez and Team Builders’ check bounced due t0 insufficient funds. $25,000.00 is not so small a sum that Gomez and Team Builders could reasonably argue they did not know the bank account had insufficient funds. Any reasonable person would have verified their bank account had available funds before writing such a large check. Gomez and Team Builders knowingly and intentionally provided MB San Jose with a check that would not clear due to insufficient funds. As such, Gomez and Team Builders’ representations were false and they knew they were false or were reckless With regard t0 the truth because Gomez and Team Builders knowingly and intentionally gave MB San Jose a check drawn on an account they knew had insufficient funds. 28. Gomez signed the Lease Agreement 0n December 30, 2020 and kept possession 0f the Vehicle. (Exhibit 1.) Further, Gomez and Team Builders gave MB San Jose a check for the drive off payment for the Vehicle. As such, Gomez and Team Builders intended MB San Jose t0 rely 0n their representations in the Lease Agreement and the check. Further, despite request from MB San Jose, Gomez has still not paid the $25,000.00 drive off payment due at signing. MB San Jose and Gomez were entering into the Lease Agreement and MB San Jose had -6- FIRST AMENDED COMPLAINT \OOOQQU‘I-PUJNH NNNNNNNNNt-th-tt-tt-ti-tt-tt-ti-tt-tt-t OONONU‘I-PUJNt-‘OKOOOflQUl-PWNHO n0 reason to doubt Gomez and Team Builders or any representations they made through the Lease Agreement and check. As such, MB San Jose reasonably relied on the representations made by Gomez and Team Builders. 29. MB San Jose has been damaged, financially and otherwise as a direct result 0f Gomez and Team Builders’ material misrepresentations and its detrimental reliance 0n said material misrepresentations. Further, MB San Jose has not been paid the $25,000.00 it is owed. MB San Jose alleges 0n information and belief this conduct was malicious and undertaken With the express intent by Gomez, Team Builders, and DOES 1-10 to intentionally defraud MB San Jose, trick MB San Jose into entering into the Lease Agreement, and cause monetary harm t0 MB San Jose. As such, MB San Jose has been harmed and MB San Jose’s reliance 0n Gomez and Team Builders’ representations were a substantial factor in causing its harm. MB San Jose has been damaged in an amount to be determined at trial, but at least $25,000.00, plus fees and costs, With said damages falling Within the subject matter and amount jurisdiction 0f this Court. 30. As such, MB San Jose has established: the representations made [the Lease Agreement and check]; when the representations were made [On or about December 30, 2020]; Where the representations were made [at MB San Jose MB San Jose’s location]; how the representations were made [through the Lease Agreement and providing the check]; and by What means the representations were made [through the Lease Agreement and the Check]. 31. Further Gomez and Team Builders engaged in these activities intentionally and maliciously, which would be considered “fraud” and “despicable” under California Civil Code § 3294. Thus, in addition t0 compensatory damages, MB San Jose is entitled t0 punitive damages against Gomez, Team Builders, and DOES 1-10 according t0 proof and pursuant to California Civil Code § 3294. THIRD CAUSE 0F ACTION FALSE PROMISE AGAINST DEFENDANTS GOMEZ, TEAM BUILDERS, AND DOES 1-10, INCLUSIVE 32. MB San Jose hereby re-alleges the allegations contained above, as though fully set forth herein. -7- FIRST AMENDED COMPLAINT \OOOQQU‘I-PUJNH NNNNNNNNNt-th-tt-tt-ti-tt-tt-ti-tt-tt-t OONONU‘I-PUJNt-‘OKOOOflQUl-PWNHO 33. The elements 0f False Promise are: (1) Gomez made a promise t0 MB San Jose; (2) Gomez did not intend to perform this promise When she made it; (3) Gomez intended MB San Jose rely 0n this promise; (4) MB San Jose reasonably relied 0n Gomez’s promise; (5) Gomez did not perform the promised act; (6) MB San Jose was harmed; and (7) MB San Jose’s reliance 0n Gomez’s promise was a substantial factor in causing its harm. (CACI N0. 1902.) Further, under California Law, a cause of action for fraud must be plead With specificity. The complaint must set forth the representations made, when they were made, Where they were made, how they were made, and by what means they were made. 34. On 0r about December 30, 2020, MB San Jose and Gomez entered into the Lease Agreement t0 lease the Vehicle t0 Gomez. (Exhibit 1.) By executing the Lease Agreement and taking possession of the Vehicle, Gomez promised, as set forth in the Lease Agreement, that Gomez would pay MB San Jose $25,000.00 due 0n signing in cash by way 0f a check. (Exhibit 1, Section 5.) Further, Gomez gave MB San Jose a check for $25,000.00 drawn 0n the bank account 0f her corporation, Team Builders. Team Builders consented to Gomez making this payment. Thus, Gomez and Team Builders made a promise to MB San Jose that they had funds to cover the $25,000.00 drive offpayment and that the check would not bounce. 35. However, despite the fact Gomez and Team Builders had just made this promise, and MB San Jose had already given Gomez possession 0f the Vehicle, Gomez and Team Builders’ check bounced due t0 insufficient funds. $25,000.00 is not so small a sum that Gomez and Team Builders could reasonably argue they did not know the bank account had insufficient funds. Any reasonable person would have verified their bank account had available funds before writing such a large check. Gomez and Team Builders intentionally provided MB San Jose with a check that would not clear due t0 insufficient funds. This proves Gomez and Team Builders made promises in the Lease Agreement and the check they never intended t0 perform because the ink had barely even dried 0n the check before it was rejected by Team Builders’ bank for insufficient funds. 36. Gomez signed the Lease Agreement 0n December 30, 2020 and kept possession of the Vehicle. (Exhibit 1.) Further, Gomez and Team Builders gave MB San Jose a check for -8- FIRST AMENDED COMPLAINT \OOOQQU‘I-PUJNH NNNNNNNNNt-th-tt-tt-ti-tt-tt-ti-tt-tt-t OONONU‘I-PUJNt-‘OKOOOflQUl-PWNHO the drive off payment for the Vehicle. As such, Gomez and Team Builders intended MB San Jose t0 rely 0n their representations in the Lease Agreement. Further, despite request from MB San Jose, Gomez has still not paid the $25,000.00 drive offpayment due at signing. MB San Jose and Gomez were entering into the Lease Agreement MB San Jose had n0 reason t0 doubt Gomez and Team Builders 0r any representations they made through the Lease Agreement and check. As such, MB San Jose reasonably relied on the representations made by Gomez and Team Builders. 37. As laid out above, Gomez gave MB San Jose a check that she knew or should have known was drawn 0n an Team Builders’ account that had insufficient funds t0 cover the $25,000.00 drive off payment. Further, despite demand by MB San Jose, Gomez has still not paid. As such, Gomez and Team Builders did not perform the promised act. 38. MB San Jose has been damaged, financially and otherwise as a direct result 0f Gomez’s false promises and its detrimental reliance 0n said false promises. Further, MB San Jose has not been paid the $25,000.00 it is owed. MB San Jose alleges 0n information and belief this conduct was malicious and undertaken With the express intent by Gomez and DOES 1-10 to intentionally defraud MB San Jose, trick MB San Jose into entering into the Lease Agreement, and cause monetary harm t0 MB San Jose. As such, MB San Jose has been harmed and MB San Jose’s reliance 0n Gomez’s representations was a substantial factor in causing its harm. MB San Jose has been damaged in an amount t0 be determined at trial, but at least $25,000.00, plus fees and costs, With said damages falling within the subject matter and amount jurisdiction 0f this Court. 39. As such, MB San Jose has established: the representations made [the Lease Agreement]; when the representations were made [On 0r about December 30, 2020]; where the representations were made [at MB San Jose MB San Jose’s location]; how the representations were made [through the Lease Agreement and providing the check]; and by what means the representations were made [through the Lease Agreement and the check]. 40. Further Gomez engaged in these activities intentionally and maliciously, which would be considered “fraud” and “despicable” under California Civil Code § 3294. Thus, in -9- FIRST AMENDED COMPLAINT \OOOQQU‘I-PUJNH NNNNNNNNNt-th-tt-tt-ti-tt-tt-ti-tt-tt-t OONONU‘I-PUJNt-‘OKOOOflQUl-PWNHO addition t0 compensatory damages, MB San Jose is entitled t0 punitive damages against Gomez and DOES 1-10 according to proof and pursuant t0 California Civil Code § 3294. FOURTH CAUSE OF ACTION NEGLIGENT MISREPRESENTATION AGAINST GOMEZ, TEAM BUILDERS, AND DOES 1-10 41. MB San Jose hereby re-alleges the allegations contained above, as though fully set forth herein. 42. The elements of Negligent Misrepresentation are: (1) Gomez represented to MB San Jose a fact was true; (2) Gomez’s representation was not true; (3) Gomez had n0 reasonable grounds for believing the representation was true when she made it; (4) Gomez intended MB San Jose rely 0n this representation; (5) MB San Jose reasonably relied 0n Gomez’s representation; (6) MB San Jose was harmed; and (7) MB San Jose’s reliance 0n Gomez’s representation was a substantial factor in causing its harm. (CACI N0. 1903.) Further, under California Law, a cause 0f action for fraud must be plead With specificity. The complaint must set forth the representations made, When they were made, Where they were made, how they were made, and by what means they were made. 43. On 0r about December 30, 2020, MB San Jose and Gomez entered into the Lease Agreement t0 lease the Vehicle to Gomez. (Exhibit 1.) By executing the Lease Agreement and taking possession of the Vehicle, Gomez agreed, as set forth in the Lease Agreement, that Gomez would pay MB San Jose $25,000.00 due on signing in cash by way 0f a check. (Exhibit 1, Section 5.) Further, Gomez gave MB San Jose a check for $25,000.00 drawn on the bank account 0f her corporation, Team Builders. Team Builders consented to Gomez making this payment. Thus, Gomez and Team Builders represented as true t0 MB San Jose that she they had funds t0 cover the $25,000.00 drive offpayment and that the check would not bounce. 44. However, despite the fact that Gomez and Team Builders had just made this representation and MB San Jose had already given Gomez possession 0f the Vehicle, Gomez and Team Builders’ check bounced due t0 insufficient funds. $25,000.00 is not so small a sum that Gomez and Team Builders could reasonably argue they did not know the bank account had -10- FIRST AMENDED COMPLAINT \OOOQQU‘I-PUJNH NNNNNNNNNt-th-tt-tt-ti-tt-tt-ti-tt-tt-t OONONU‘I-PUJNt-‘OKOOOflQUl-PWNHO insufficient funds. Any reasonable person would have verified their bank account had available funds before writing such a large check. Gomez and Team Builders negligently provided MB San Jose with a check that would not clear due to insufficient funds. As such, Gomez and Team Builders’ representations were false and they had n0 reasonable grounds for believing the representations were true When they made them because after signing the Lease Agreement and providing the check for the drive off payment, the check almost immediately bounced due t0 insufficient funds. 45. Gomez signed the Lease Agreement 0n December 30, 2020 and kept possession of the Vehicle. (Exhibit 1.) Further, Gomez and Team Builders gave MB San Jose a check for the drive off payment for the Vehicle. As such, Gomez and Team Builders intended MB San Jose t0 rely 0n their representations in the Lease Agreement and the check. Further, despite request from MB San Jose, Gomez has still not paid the $25,000.00 drive off payment due at signing. MB San Jose and Gomez were entering into the Lease Agreement and MB San Jose had no reason to doubt Gomez and Team Builders or any representations they made through the Lease Agreement and check. As such, MB San Jose reasonably relied 0n the representations made by Gomez and Team Builders. 46. MB San Jose has been damaged, financially and otherwise as a direct result of Gomez and Team Builders’ material misrepresentations and its detrimental reliance 0n said material misrepresentations. Further, MB San Jose has not been paid the $25,000.00 it is owed. As such, MB San Jose has been harmed and MB San Jose’s reliance 0n Gomez and Team Builders’ representations was a substantial factor in causing its harm. MB San Jose has been damaged in an amount to be determined at trial, but at least $25,000.00, plus fees and costs, with said damages falling Within the subject matter and amount jurisdiction of this Court. 47. As such, MB San Jose has established: the representations made [the Lease Agreement and check]; When the representations were made [On or about December 30, 2020]; where the representations were made [at MB San Jose MB San Jose’s location]; how the representations were made [through the Lease Agreement and providing the check]; and by What means the representations were made [through the Lease Agreement and the check]. -11- FIRST AMENDED COMPLAINT \OOOQQU‘I-PUJNH NNNNNNNNNt-th-tt-tt-ti-tt-tt-ti-tt-tt-t OONONU‘I-PUJNt-‘OKOOOflQUl-PWNHO FIFTH CAUSE OF ACTION DECLARATORY RELIEF AGAINST GOMEZ, TEAM BUILDERS, AND DOES 1-10 48. MB San Jose hereby re-alleges the allegations contained above, as though fully set forth herein. 49. An actual controversy exists between MB San Jose and Defendants relating t0 their legal rights and duties arising out 0f the Lease Agreement and bounced check. A declaration 0f rights and duties as to the responsibilities of MB San Jose and Defendants is appropriate at this time in order t0 permit MB San Jose t0 ascertain its rights and duties with respect to the incident complained 0f. N0 adequate remedy exists at law, by which respective rights and responsibilities 0fMB San Jose and Defendants can be ascertained. 50. Accordingly, pursuant t0 California Code 0f Civil Procedure § 1060, MB San Jose requests that the Court order a declaration 0f rights and duties as t0 the Lease Agreement and Check, including the following claims for relief: (a) A Court Order setting forth the rights, duties and liabilities 0f the parties hereto; and (b) A Court Order that Gomez, Team Builders, and DOES 1-10 are liable for the $25,000.00 drive offpayment. WHEREFORE, MB San Jose prays for the Judgment against Defendants as follows: 1. For compensatory damages in an amount t0 make MB San Jose Whole but in n0 event less than $25,000.00, according t0 proof; 2. For an order setting out the duties and liabilities of the parties hereto; 3. For general damages, according t0 proof; 4. For incidental and consequential damages, according t0 proof; 5. For punitive and statutory damages where available, according t0 proof; 6. For reasonable attorneys’ fees and costs 0f suit, according t0 proof; / / / / / / _ 12 _ FIRST AMENDED COMPLAINT \OOOQQU‘I-PUJNH NNNNNNNNNt-th-tt-tt-ti-tt-tt-ti-tt-tt-t OONONU‘I-PUJNt-‘OKOOOflQUl-PWNHO 7. For pre-judgement interest at the contractual 0r legal rate, whichever is greater, according to proof; and 8. For such other and further relief as the Court may deem just and proper. DATED: May 24, 2021 KOLAR & ASSOCIATES, A LAW CORPORATION By; mW ELIZABETH L. KOLAR, ESQ. TAMI s. CROSBY, ESQ. JON C. ABRAMSON, ESQ. Attorneys for Plaintiff, AUTO COMPANY XXII, INC. DBA MERCEDES-BENZ OF SAN JOSE F :\abacuslaw\Docs\MIS-2 1 024\P-202 1_04_27.FAC.docx -13- FIRST AMENDED COMPLAINT
