Complaint

Cal. Super. - 3rd Dist.July 31, 2017

35 . 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CONSUMER LEGAL SERVICES, P.C. Christopher M. Lovasz, Esq. (SBN 303120) Michael C. Yu, Esq. (SBN 293833) FIELED 2330 Long Beach Boulevard saperiel cers, 2 asians Long Beach, California 90806 Telephone: (562) 424-3293 JUL 31 2017 Facsimile: (562) 595-1849 Jake Chatters mMacutive Officer & Clerk By: M. Anderson, Deputy Attorneys for Plaintiff, KELSEY ANN AUDRIA TREVORROW SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF PLACER KELSEY ANN AUDRIA TREVORROW, an ) CASENO.: $C V 0039905 individual, Se for all purposes to: Dep Plaintiff, COMPLAINT FOR DAMAGES: 1. Breach of Implied Warranty of V. Merchantability under the Song- Beverly Warranty Act. FORD MOTOR COMPANY, a Delaware Corporation; and DOES 1 through 20, inclusive, the Song-Beverly Warranty Act. 3. Breach of Express Warranty under the Magnuson-Moss Warranty Act. 4. Breach of Implied Warranty of Merchantability under the Magnuson-Moss Warranty Act. Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) 2. Breach of Express Warranty under ) ) ) ) ) ) ) ) ) JURY TRIAL DEMANDED 10 11 LZ 13 14 15 16 17 18 19 20 21 22 a3 24 25 26 27 28 PLAINTIFF KELSEY ANN AUDRIA TREVORROW hereby allege and complain as follows: GENERAL ALLEGATIONS COMMON TO ALL CAUSES OF ACTION L. Plaintiff is an individual, residing in the City of Vacaville, County of Solano, in the State of California. 2. Defendant FORD MOTOR COMPANY (hereinafter referred to as “Manufacturer”) is a corporation doing business in the County of Placer, State of California, and, at all times relevant herein, was/is engaged in the manufacture, sale, distribution, and/or importing of Ford motor vehicles and related equipment. 3. The true names and capacities, whether individual, corporate, associate, or otherwise, of the Defendant, Does | through 20, inclusive, are unknown to Plaintiff who therefore sue the Defendant by such fictitious names. Plaintiff will seek leave to amend this Complaint to set forth their true names and capacities when they have ascertained them. Further, Plaintiff is informed and believe, and thereon allege, the Defendant designated herein as a “Doe” is responsible in some manner for the events and happenings herein referred to and caused injury and damage to Plaintiff as herein alleged. 4. Plaintiff is informed and believe, and thereon allege, that at all times herein mentioned, Defendant, was the agent, servant, and/or employee of each of their Co- Defendants. Plaintiff is informed and believe, and thereon allege, that in doing the things hereinafter alleged Defendant, were acting in the course and scope of their employment as such agents, servants, and/or employees, and with the permission, consent, knowledge, and/or ratification of their Co-Defendants, principals, and/or employers. HI III 10 11 12 13 14 LS 16 17 18 19 20 21 22 23 24 25 26 2] | 28 Before October 3, 2014, Defendant, Manufacturer and Does 1 through 20 inclusive, manufactured and/or distributed into the stream of commerce a 2013 Ford Focus, VIN: 1FADP3F23DL248082 (hereinafter referred to as the “Vehicle”) for its eventual sale/lease in the State of California. On or about October 3, 2014, Plaintiff purchased, for personal, family, and/or household purposes, the subject Vehicle from the Seller for a total consideration over the term of the installment contract of $20,984.68. Retail Installment Sale Contract is in the possession of Defendant. The subject Vehicle was/is a “new motor vehicle” under the Song-Beverly Warranty Act. Along with the purchase of the Vehicle, Plaintiff received written warranties and other express and implied warranties including, but not limited to, warranties from Manufacturer and Seller that the Vehicle and its components would be free from all defects in material and workmanship; that the Vehicle would pass without objection in the trade under the contract description; that the Vehicle would be fit for the ordinary purposes for which it was intended; that the Vehicle would conform to the promises and affirmations of fact made; that the Defendant, would perform any repairs, alignments, adjustments, and/or replacements of any parts necessary to ensure that the Vehicle was free from any defects in material and workmanship; that the Defendant, would maintain the utility of the Vehicle for three years or 36,000 miles basic warranty, five years or 60,000 miles drive train warranty, and would conform the Vehicle to the applicable express warranties. (A copy of the written warranty is in the possession of the Defendant). 10 11 12 L3 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 a 10. IL: jee 13. Plaintiff has duly performed all the conditions on Plaintiff's part under the purchase agreement and under the express and implied warranties given to Plaintiff, except insofar as the acts and/or omissions of the Defendant, as alleged herein, prevented and/or excused such performance. Plaintiff has delivered the Vehicle to the Manufacturer’s authorized service and repair facilities, agents and/or dealers, including Seller, on several separate occasions resulting in the Vehicle being out of service by reason of repair of nonconformities. Repair Orders/Invoices are in the possession of Defendant. By way of example, and not by way of limitation, the defects, malfunctions, misadjustments, and/or nonconformities with Plaintiff Vehicle include the following: transmission malfunctions, shuddering concerns, clutch replacements, check engine light illuminations, TCM replacement, performed PMI procedure, and recalls, among other concerns. Each time Plaintiff delivered the nonconforming Vehicle to a Manufacturer-authorized service and repair facility, Plaintiff notified Defendant of the defects, malfunctions, misadjustments, and/or nonconformities existent with the Vehicle and demanded that Manufacturer or its representatives repair, adjust, and/or replace any necessary parts to conform the Vehicle to the applicable warranties. Each time Plaintiff delivered the nonconforming Vehicle to a Manufacturer-authorized service and repair facility, Defendant represented to Plaintiff that they could and would conform the Vehicle to the applicable warranties, that in fact they did conform the Vehicle to said warranties, and that all the defects, malfunctions, misadjustments, and/or nonconformities have been repaired; however, Manufacturer or its representatives failed to 10 11 LZ £3 14 15 16 LT 18 19 20 21 22 23 14. 15. 16. 17. conform the Vehicle to the applicable warranties because said defects, malfunctions, misadjustments, and/or nonconformities continue to exist even after a reasonable number of attempts to repair was given. FIRST CAUSE OF ACTION (Breach of Implied Warranty of Merchantability under Song-Beverly Warranty Act against the Defendant) Plaintiff realleges each and every paragraph (1-13) and incorporates them by this reference as though fully set forth herein. The distribution and sale of the Vehicle was accompanied by the Manufacturer and Seller’s implied warranty that the Vehicle was merchantable. Furthermore, the Defendant impliedly warranted, inter alia, that the Vehicle would pass without objection in the trade under the contract description; that the Vehicle was fit for the ordinary purposes for which it was intended; that the Vehicle was adequately assembled; and/or that the Vehicle conformed to the promises or affirmations of facts made to Plaintiff. As evidenced by the defects, malfunctions, misadjustments, and/or nonconformities alleged herein, the Vehicle was not merchantable because it did not have the quality that a buyer would reasonably expect, because it could not pass without objection in the trade under the contract description; because it was not fit for the ordinary purposes for which it was intended; because it was not adequately assembled; and/or because it did not or could not be conformed to the promises or affirmations of fact made to Plaintiff. 10 ii 12 13 14 LS 16 17 18 19 20 21 22 23 24 25 26 27 28 /// /I// // 18. 19, 20. 21. Dies Upon discovery of the Vehicles’ nonconformities, Plaintiff took reasonable steps to notify the Defendant within a reasonable time that the Vehicle did not have the quality that a buyer would reasonably expect and, further, justifiably revoked acceptance of the nonconforming Vehicle. As a result of the acts and/or omissions of the Defendant, Plaintiff has sustained damage in the amount actually paid or payable under the contract, plus prejudgement interest thereon at the legal rate. Plaintiff will seek leave to amend this Complaint to set forth the exact amount thereof when that amount is ascertained. As a further result of the actions of the Defendant, and each of them, Plaintiff has sustained incidental and consequential damages in an amount yet to be determined, plus interest thereon at the legal rate. Plaintiff will seek leave to amend this Complaint to set forth the exact amount of incidental damages when that amount is ascertained. As a further result of the actions of the Defendant, and each of them, Plaintiff has sustained damages equal to the difference between the value of the Vehicle as accepted and the value the Vehicle would have had if it had been as warranted. As a direct result of the acts and/or omissions of the Defendant and in pursuing Plaintiff's claim, it was necessary for Plaintiff to retain legal counsel. Pursuant to Song- Beverly, Plaintiff, in addition to their other remedies, is entitled to the recovery of their attorneys’ fees based upon actual time expended and reasonably incurred, in connection with the commencement and prosecution of this action. 10 id. 12 13 14 1S 16 17 18 19 20 21. 22 23 24 25 26 23, 24. 2). 26. 27. 28. 20. SECOND CAUSE OF ACTION (Breach of Express Warranty under Song-Beverly Warranty Act against the Defendant) Plaintiff realleges each and every paragraph (1-22) and incorporates them by this reference as though fully set forth herein. The Vehicle had defects, malfunctions, misadjustments, and/or nonconformities covered by the warranty that substantially impaired its value, use, or safety to Plaintiff. Plaintiff delivered the Vehicle to Manufacturer or its authorized repair facilities for repair. Defendant failed to service or repair the Vehicle to match the written warranty after a reasonable number of opportunities to do so. The acts and/or omissions of the Defendant, in failing to perform the proper repairs, part replacements, and/or adjustments, to conform the Vehicle to the applicable express warranties constitute a breach of the express warranties that the Manufacturer provided to Plaintiff, thereby breaching Defendants’ obligations under Song-Beverly. Defendant failed to perform the necessary repairs and/or service in good and workmanlike manner. The actions taken by the Defendants were insufficient to make the Subject Vehicle conform to the express warranties and/or proper operational characteristics of like Vehicles, all in violation of the Defendants’ obligations under Song-Beverly. As a result of the acts and/or omissions of the Defendant, and pursuant to the provisions of the Song-Beverly, Plaintiff is entitled to replacement of the Vehicle or restitution of the amount actually paid or payable under the contract, at Plaintiff's election, plus prejudgment interest thereon at the legal rate. Plaintiff will seek leave of Court to amend 10 11 12 13 14 LS 16 17 18 L9 20 2d: 22 23 24 25 26 2:1 28 a0. 31. 32. 33. 34. aa: this Complaint to set forth the exact amount of restitution and interest, upon election, when that amount has been ascertained. Additionally, as a result of the acts and/or omissions of the Defendant, and pursuant to Song-Beverly, Plaintiff has sustained and is entitled to consequential and incidental damages in amounts yet to be determined, plus interest thereon at the legal rate. Plaintiff will seek leave of the court to amend this complaint to set forth the exact amount of consequential and/or incidental damages, when those amounts have been ascertained. As a direct result of the acts and/or omissions of the Defendant, and in pursuing Plaintiff's claim, it was necessary for Plaintiff to retain legal counsel. Pursuant to Song- Beverly, Plaintiff, in addition to other remedies, is entitled to the recovery of their attorneys’ fees based upon actual time expended and reasonably incurred, in connection with the commencement and prosecution of this action. THIRD CAUSE OF ACTION (Breach of Written Warranty under Magnuson-Moss Warranty Act against the Defendant) Plaintiff realleges each and every paragraph (1-31) and incorporates them by this reference as though fully set forth herein. Plaintiff is a “Consumer” as defined in the Magnuson-Moss Warranty Act (hereinafter referred to as the “Warranty Act”) 15 USC 2301(3). The Seller is a “Supplier” and “Warrantor” as defined by the Warranty Act, 15 USC 2301(4), (5). The Manufacturer is a “Supplier” and “Warrantor” as defined by the Warranty Act, 15 USC 2301(4), (5). 10 11 12 13 14 15 16 17 18 Lo 20 21 22 23 24 25 26 27 28 36. 37. 38. 39. 40. 41. /1/ MI /// The Vehicle is a “Consumer Product” as defined in the Warranty Act, 15 USC 2301(1). The Vehicle was manufactured, sold, and leased /purchased after July 4, 1975. The express warranty given by the Manufacturer pertaining to the Vehicle is a “Written Warranty” as defined in the Warranty Act, 15 USC 2301(6). The Seller is an authorized dealership/agent of the manufacturer designated to perform repairs on Vehicles under Manufacturer’s warranties. The above-described actions (failure to repair and/or properly repair the above- mentioned defects, etc.), including failure to honor the written warranty, constitute a breach of the written warranty by the Manufacturer and Seller actionable under the Warranty Act, 15 USC 2310(d)(1), (2). As a direct result of the Manufacturer and/or Seller’s acts and/or omissions, Plaintiff has suffered damages as set forth herein. Therefore, Plaintiff is entitled to a judgment and the following relief against all Defendants: (1) A declaration that acceptance has been properly revoked by Plaintiff and for damages incurred in revoking acceptance; (2) A refund of the purchase price paid by Plaintiff for the Vehicle; (3) Cancellation of Plaintiff retail installment contract and payment in full of the balance of same; (4) Consequential, incidental, and actual damages to be proved at trial; (5) Costs and expenses including actual attorneys’ fees reasonably incurred; (6) Prejudgment interest at the legal rate; and (7) Such other relief the Court deems appropriate. 10 Lid LZ 13 14 15 16 17 // // MI // /// /// /I/ /// FOURTH CAUSE OF ACTION (Breach of Implied Warranty under Magnuson-Moss Warranty Act against the Defendant) 42. Plaintiff realleges each and every paragraph (1-41) and incorporates them by this reference as though fully set forth herein. 43. The above-described actions on the part of the Seller constitute a breach of the implied warranties of merchantability actionable under the Warranty Act, 15 USC 2301(7), 2308, 2310(d)(1), (2). 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WHEREFORE, Plaintiff prays for judgment against the Defendant, and each of them, as follows: A. B. For replacement or restitution, at Plaintiff's election, according to proof; For incidental damages, according to proof; For consequential damages, according to proof; For a civil penalty as provided in Song-Beverly, in an amount not to exceed two times the amount of Plaintiff's actual damages; For actual attorney’s fees, reasonably incurred; For costs of suit and expenses, according to proof; For the difference between the value of the Vehicle as accepted and the value the Vehicle would have had if it had been as warranted; For remedies provided in Chapters 6 and 7 of Division 2 of the Commercial Code; For pre-judgment interest at the legal rate; Such other relief the Court deems appropriate. Date: Uae ( ( y Respectfully submitted, SUMER LEGAL SERVICES, P.C. By: ff eR Christopher M-Tovasz, Esq. Michael C. Yu, Esq. Attorneys for Plaintiff, KELSEY ANN AUDRIA TREVORROW 11