Complaint

Cal. Super. - 3rd Dist.September 12, 2018

N 10 11 12 13 14 15 16 17 18 LS 20 21 22 23 24 20 26 27 28 LAW OFFICES OF PATREA R. BULLOCK Email: Attorney@CaliforniaLemonLawExpert.com 1420 East Roseville Parkway, Suite 140-335 Roseville, CA 95661 F I L. a Dp Telephone: (916) 878-0161 Superior Court of California Faxsimile: (855) 520-1690 County of Placer SEP 12 2018 Attorney: Patrea R. Bullock, SBN 171335 dake Chatters a opti Attorney for Plaintiff AMANDA FISHER B ve Officer & Clerk AMANDA FISHER, vs. KIA MOTORS AMERICA, INC.; and DOES 1 through 10 inclusive, Ucatuorto, Deputy SUPERIOR COURT OF CALIFORNIA COUNTY OF PLACER Case No: S€V0041798 Judge: Plaintiff, Dept: COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS Defendants. JURY TRIAL DEMANDED w w e we w a a DS DS S e Se S e S e Se w e Plaintiff alleges as follows: PARTIES 1. As used in this Complaint, the word “Plaintiff” shall refer to Plaintiff AMANDA FISHER. 2. Plaintiff is a resident of Placer County, California. 3. As used in this Complaint, the word “Defendant” shall refer to all Defendants named in this Complaint. 4. Defendant is a corporation organized and in existence under the laws of the State of California and registered with 1 COMPLAINT; JURY TRIAL DEMAND 10 Eee 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the California Department of Corporations to conduct business in California under the name of KIA MOTORS AMERICA, INC. 5. Plaintiff does not know the true names and capacities of the Defendants sued under the fictitious names DOES 1 to 10. They are sued pursuant to Code of Civil Procedure section 474. When Plaintiff becomes aware of the true names and capacities of the Defendants sued as DOES 1 TO 10, Plaintiff will amend this Complaint to state their true names and capacities. FIRST CAUSE OF ACTION BY PLAINTIFF AGAINST DEFENDANT VIOLATION OF SUBDIVIDION (D) OF CIVIL CODE SECTION 1793.2 6. On or about February 18, 2017, Plaintiff leased a new 2016 Kia Optima Hybrid EX, vehicle identification number KNAGN4AD9G5099162, (hereinafter “Vehicle”) with 58 miles on the odometer, which was manufactured and or distributed by Defendant. The Vehicle - leased primarily for personal, family or household purposes. Plaintiff leased the Vehicle from a person or entity engaged in the business of manufacturing, distributing or selling consumer goods at retail. de In connection with the lease, Plaintiff received an express written warranty in which Defendant undertook to preserve or maintain the utility or performance of the Vehicle or to provide compensation if there is a failure in utility or performance for a specified period of time. The warranty provided, in relevant part, that in the event a defect developed with the Vehicle during the warranty period, 2 COMPLAINT; JURY TRIAL DEMAND 10 LL 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff could deliver the Vehicle for repair services to Defendant’s representative and the Vehicle would be repaired. 8. During the warranty period, the Vehicle contained or developed defects, including but not limited to, DEFECTS IN BRAKING SYSTEMS. Said defects substantially impair the use, value or safety of the Vehicle. 91. Defendant and its representatives in this state have been unable to service or repair the Vehicle to conform to the applicable express warranties after a reasonable number of opportunities. Despite this fact, Defendant failed to promptly replace the Vehicle or make restitution to Plaintiff as required by Civil Code section 1793.2, subdivision (d) and Civil Code section 1793.1, subdivision (a) (2). 10. Plaintiff has been damaged by Defendant’s failure to comply with its obligations pursuant to Civil Code section 1793.2, subdivision (d) and Civil Code section 1793.1, subdivision (a) (2), and therefore brings this cause of action pursuant to Civil Code section 1794. 11. Defendant’s failure to comply with its obligation under Civil Code section 1793.2, subdivision (d) was willful, in that Defendant and its representative were aware that they were unable to service or repair the Vehicle to conform to the applicable express warranties after a reasonable number of repair attempts, yet Defendant failed to and/or refused to promptly replace the Vehicle or make restitution. Accordingly, Plaintiff is entitled to a civil penalty of two times 3 COMPLAINT; JURY TRIAL DEMAND 10 tk 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ZT 28 Plaintiff’s actual damages pursuant to Civil Code section 1794, subdivision (c). 12. Defendant does not maintain a qualified third-party dispute resolution process which substantially complies with Civil Code section 1793.22. Accordingly, Plaintiff is entitled to a civil penalty of two times Plaintiff’s actual damages pursuant to Civil Code section 1794, subdivision (e). 13. Plaintiff seeks civil penalties pursuant to section 1794, subdivisions (c) and (e)in the alternative and does not seek to cumulate civil penalties, as provided in Civil Code section 1794, subdivision (f). SECOND CAUSE OF ACTION BY PLAINTIFF AGAINST DEFENDANT VIOLATION OF SUBDIVIDION (B) OF CIVIL CODE SECTION 1793.2 14. Plaintiff incorporates by reference the allegations contained in the paragraphs set forth above. 15. Although Plaintiff presented the Vehicle to Defendant’s representative in this state, Defendant and its representative failed to commence the service or repairs within a reasonable time and failed to service or repair the Vehicle so as to conform to the applicable warranties within 30 days, in violation of Civil Code section 1793.2, subdivision (b). Plaintiff did not extend the time for completion of repairs beyond the 30-day requirement. 16% Plaintiff has been jenaged by Defendant’s failure to comply with its obligations pursuant to Civil Code section 4 COMPLAINT; JURY TRIAL DEMAND 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 24 28 1793.2(b), and therefore brings this Cause of Action pursuant to Civil Code section 1794. 17. Plaintiff has rightfully rejected and/or justifiably revoked acceptance of the Vehicle and has exercised a right to cancel the sale. By serving this Complaint, Plaintiff does so again. Accordingly, Plaintiff seeks the remedies provided in California Civil Code section 1794(b) (1), including the entire purchase price. In the alternative, Plaintiff seeks the remedies set forth in California Civil Code section 1794(b) (2), including the diminution in value of the Vehicle resulting from its defects. Plaintiff believes that, at the present time, the Vehicle’s value is de minimis. 18. Defendant’s failure to comply with its obligations under Civil Code section 1793.2(b) was willful, in that Defendant and its representative were aware that they were obligated to service or repair the Vehicle to conform to the applicable express warranties within 30 days, yet they failed to do so. Accordingly, Plaintiff is entitled to a civil penalty of two times Plaintiff’s actual damages pursuant to Civil Code section 1794(c). THIRD CAUSE OF ACTION BY PLAINTIFF AGAINST DEFENDANT VIOLATION OF SUBDIVIDION (A) (3) OF CIVIL CODE SECTION 1793.2 19. Plaintiff incorporates by reference the allegations contained in paragraphs set forth above. 20. In violation of Civil Code section 1793.2, subdivisi on (a) (3), Defendant failed to make available to its authorized 5 COMPLAINT; JURY TRIAL DEMAND 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 service and repair facilities sufficient service literature and replacement parts to effect repairs during the express warranty period. Plaintiff has been damaged by Defendant’s failure to comply with its obligations pursuant to Civil Code section 1793.2(a) (3), and therefore brings this Cause of Action pursuant to Civil Code section 1794. 21. Defendant’s failure to comply with its obligations under Civil Code section 1793.2, subdivision (a) (3) was willful, in that Defendant knew of its obligation to provide literature and replacement parts sufficient to allow its repair facilities to effect repairs during the warranty period, yet Defendant failed to take any action to correct its failure to comply with the law. Accordingly, Plaintiff is entitled to a civil penalty of two times Plaintiff’s actual damages; pursuant to Civil Code section 1794(c). FOURTH CAUSE OF ACTION BY PLAINTIFF AGAINST DEFENDANT BREACH OF EXPRESS WRITTEN WARRANTY CIVIL CODE SECTIONS 1791.2, SUBD. (a) ;1794 22. Plaintiff incorporates by reference the allegations contained in paragraphs set forth above. 23. In accordance with Defendant’s warranty, Plaintiff delivered the Vehicle to Defendant’s representative in this state to perform warranty repairs. Plaintiff did so within a reasonable time. Each time Plaintiff delivered the Vehicle, Plaintiff notified Defendant and its representative of the characteristics of the Defects. However, the representative 6 COMPLAINT; JURY TRIAL DEMAND 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 failed to repair the Vehicle, breaching the terms of the written warranty on each occasion. 24. Plaintiff has been damaged by Defendant’s failure to comply with its obligations under the express warranty, and therefore brings this Cause of Action pursuant to Civil Code section 1794. 25. Defendant’s failure to comply with its obligations under the express warranty was willful, in that Defendant and its authorized representative were aware that they were obligated to repair the Defects, but they intentionally refused to do so. Accordingly, Plaintiff is entitled to a civil penalty of two times Plaintiff’s actual damages pursuant to Civil Code section 1794(c). FIFTH CAUSE OF ACTION BY PLAINTIFF AGAINST DEFENDANT BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY CIVIL CODE SECTIONS 1791.1 AND 1794 26. Plaintiff incorporates by reference the allegations contained in paragraphs set forth above. 27. Pursuant to Civil Code section 1792, the sale of the Vehicle was accompanied by Defendant’s implied warranty of merchantability. Pursuant to Civil Code section 1791.1,the duration of the implied warranty is coextensive in duration with the duration of the express written warranty provided by Defendant, except that the duration is not to exceed one year. 28 s Pursuant to Civil Code Section 1791.1(a), the implied warranty of merchantability means and includes that the Vehicle will comply with each of the following requirements: (1) The 7 COMPLAINT; JURY TRIAL DEMAND 10 Lak. 12 13 14 L5 16 17 18 19 20 21 22 23 24 25 26 27 28 Vehicle will pass without objection in the trade under the contract description; (2) The Vehicle is fit for the ordinary purposes for which such goods are used; (3) The Vehicle is adequately contained, packaged and labeled; (4) The Vehicle will conform to the promises or affirmations of fact made on the container or label. 29. On or about February 18, 2017, or within one year thereafter, the Vehicle contained or developed the defects set forth above. The existence of each of these defects constitutes a breach of the implied warranty because the Vehicle (1) does not pass without objection in the trade under the contract description, (2) is not fit for the ordinary purposes for which such goods are used, (3) is not adequately contained, packaged and labeled, and (4) does not conform to the promises or affirmations of fact made on the container or label. 30. Plaintiff has been damaged by Defendant’s failure to comply with its obligations under the implied warranty, and therefore brings this Cause of Action pursuant to Civil Code section 1794. SIXTH CAUSE OF ACTION BY PLAINTIFF AGAINST DEFENDANT VIOLATION OF THE MAGNUSON-MOSS WARRANTY ACT 31 i Plaintiff incorporates by reference the allegations contained in paragraphs set forth above. 32. Plaintiff is a “consumer” as defined in the Magnuson-Moss Act (referred to as “Mag-Moss”), 15 U.S.C section 2301(3). 8 COMPLAINT; JURY TRIAL DEMAND 10 id 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 33%. Defendant is a “supplier” and “warrantor” as defined in the Mag-Moss Act., 15 U.S.C. section 2301(4), 15 U.S.C. section 2301(5). 34. The Vehicle is a “consumer product” as defined in the Mag-Moss Act, 15 U.S.C. section 2301 (1). 35% In addition to the express warranty, in connection with the sale of the Vehicle to Plaintiff, an implied warranty of merchantability was created under California law. The vehicle’s implied warranties were not disclaimed using a Buyer’s Guide displayed on the vehicle; thus any purported disclaimers were ineffective pursuant to 15 U.S.C. section 2308 (c). 36. Defendant violated the Magnuson-Moss Act when it breached the express warranty and implied warranties by failing to repair the defects and nonconformities, or to replace the vehicle. 31 Plaintiff performed all terms, conditions, covenants, promises and obligations required to be performed on Plaintiff’s part under the terms of the purchase agreement, express warranty and implied warranty, except for those terms, conditions, covenants promises and obligations or payments for which performance and/or compliance has been excused by the acts and/or conduct of the Defendant and/or by operation of law. 38. As a direct and proximate result of the acts and omissions of the Defendant, Plaintiff has been damaged in the 9 COMPLAINT; JURY TRIAL DEMAND 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 form of general, special and actual damages in an amount within the jurisdiction of this Court, according to proof at trial. 39. Under the Act, Plaintiff is entitled to reimbursement of the entire amount paid or payable. 40. Plaintiff is entitled to all incidental, consequential and general damages resulting from Defendant’s failure to comply with their obligations under the Magnuson-Moss Act. 41. Plaintiff is entitled under the Magnuson-Moss Act to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney’s fees, reasonably incurred in connection with the commencement and prosecution of this action pursuant to 15 U.S.C. section 2310(da) (2). PRAYER PLAINTIFF PRAYS for judgment against Defendant as follows: a. For Plaintiff’s actual damages in the amount according to proof at trial; b. For restitution; c. For a civil penalty in the amount of two times Plaintiff’s actual damages pursuant to Civil Code section 1794, subdivision (c) and/or (e); d. For any consequential and incidental damages; e. For costs of the suit and Plaintiff’s reasonable attorneys’ fees pursuant to Civil Code section 1794, subdivision (d); 10 COMPLAINT; JURY TRIAL DEMAND 10 11 12 13 14 LS 16 17 18 19 20 21 22 23 24 25 26 27 28 f. For prejudgment interest at the legal rate; and g. For such other relief as the Court may deem proper. DEMAND FOR JURY TRIAL Plaintiff hereby demands a jury trial on all causes of action asserted herein. Dated: September 12, 2018 swing gc we f ft By: PATREA R. BULLOCK Attorney for Plaintiff 11 COMPLAINT; JURY TRIAL DEMAND