Legal Document: VARGAS ET AL VS FORD MOTOR COMPANY ET AL

On July 06, 2022 a 60056Compl003fa9 was filed involving a dispute between Gonzalo Vargas, Karina Vargas, Livier Vargas, and Ford Motor Company, Jim Burke Ford, in the District Court of Kern County.

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1 Tionna Dolin (SBN 299010)
Email: tdolin@slpattorney.com
2 Mark Gibson (SBN 258216)
Email: mgibson@slpattorney.com
3
(emailservices@slpattorney.com)
4 Strategic Legal Practices, APC
1888 Century Park East, 19th Floor
5 Los Angeles, CA 90067
Telephone: (310) 929-4900
6 Facsimile: (310) 943-3838
7 Attorneys for Plaintiffs KARINA VARGAS, GONZALO VARGAS, and LIVIER VARGAS
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
COUNTY OF KERN
10

11
STRATEGIC LEGAL PRACTICES, APC

KARINA VARGAS, GONZALO VARGAS, Case No.:
1840 CENTURY PARK EAST, SUITE 430, LOS ANGELES, CA 90067

12 and LIVIER VARGAS,
13 Hon.
Plaintiffs, Dept.
14
vs.
15 COMPLAINT FOR VIOLATION OF
FORD MOTOR COMPANY; JIM BURKE STATUTORY OBLIGATIONS
16 FORD; and DOES 1 through 10, inclusive,
17
Defendants. JURY TRIAL DEMANDED
18

COMPLAINT; JURY TRIAL DEMANDED
1 Plaintiffs allege as follows:

2 PARTIES

3 1. As used in this Complaint, the word "Plaintiffs” shall refer to Plaintiffs

4 KARINA VARGAS, GONZALO VARGAS, and LIVIER VARGAS.

5 2. Plaintiffs are residents of Kern County, California.

6 3. As used in this Complaint, the word "Defendants" shall refer to all Defendants

7 named in this Complaint.

8 4. Defendant FORD MOTOR COMPANY (“FMC”) is a corporation organized

9 and in existence under the laws of the State of Delaware and registered with the California

10 Department of Corporations to conduct business in California. Defendant FMC’s principal

11 place of business is in the State of Michigan. At all times relevant herein, Defendant was
STRATEGIC LEGAL PRACTICES, APC
1840 CENTURY PARK EAST, SUITE 430, LOS ANGELES, CA 90067

12 engaged in the business of designing, manufacturing, constructing, assembling, marketing,

13 distributing, and selling automobiles and other motor vehicles and motor vehicle components

14 in Kern County.

15 5. Defendant JIM BURKE FORD (“JBF”) is an unknown business entity

16 organized and in existence under the laws of the State of California. At all times relevant

17 herein, Defendant JBF was engaged in the business of selling automobiles and automobile

18 components, and servicing and repairing automobiles in Kern County.

19 6. Plaintiffs are ignorant of the true names and capacities of the Defendants sued

20 under the fictitious names DOES 1 to 10. They are sued pursuant to Code of Civil Procedure

21 section 474. When Plaintiffs become aware of the true names and capacities of the Defendants

22 sued as DOES 1 to 10, Plaintiffs will amend this Complaint to state their true names and

23 capacities.

24 TOLLING OF THE STATUTES OF LIMITATION

25 7. To the extent there are any statutes of limitation applicable to Plaintiffs’ claims-

26 including, without limitation, the express warranty, implied warranty, and negligent repair –

27 the running of the limitation periods have been tolled by, inter alia, the following doctrines or

1
COMPLAINT; JURY TRIAL DEMANDED
1 rules: equitable tolling, the discovery rule, the fraudulent concealment rules, equitable

2 estoppel, the repair rule, and/or class action tolling (e.g., the American Pipe rule).

3 8. Plaintiffs discovered Defendants’ wrongful conduct alleged herein on or about

4 October 2021 when they requested a buyback and/or restitution of the Subject Vehicle from

5 FMC, as the Vehicle continued to exhibit symptoms of defects following FMC’s unsuccessful

6 repair attempts to repair them. However, FMC failed to provide restitution pursuant to the

7 Song-Beverly Consumer Warranty Act.

8 9. By filing this Complaint, Plaintiffs hereby revoke acceptance of the Subject

9 Vehicle yet again.

10 FACTUAL BACKGROUND

11 10. On or about October 24, 2016, Plaintiffs entered into a warranty contract with
STRATEGIC LEGAL PRACTICES, APC
1840 CENTURY PARK EAST, SUITE 430, LOS ANGELES, CA 90067

12 Defendant FMC regarding a 2017 Ford Fusion vehicle identification number

13 3FA6P0G74HR215858 (hereafter "Vehicle"), which was manufactured and or distributed by

14 Defendant FMC.

15 11. The warranty contract contained various warranties, including but not limited to

16 the bumper-bumper warranty, powertrain warranty, emission warranty, etc. A true and correct

17 copy of the warranty contract is attached hereto as Exhibit A. The terms of the express

18 warranty are described in Exhibit A and are incorporated herein.

19 12. Pursuant to the Song-Beverly Consumer Warranty Act (the "Act") Civil Code

20 sections 1790 et seq. the Subject Vehicle constitutes "consumer goods” used primarily for

21 family or household purposes, and Plaintiff has used the vehicle primarily for those purposes.

22 Plaintiff is a "buyer" of consumer goods under the Act. Defendant FMC is a "manufacturer"

23 and/or “distributor" under the Act.

24 13. Plaintiffs justifiably revoke acceptance of the Subject Vehicle under Civil Code,

25 section 1794, et seq. by filing this Complaint and/or did so prior to filing the instant Complaint.

26 14. These causes of action arise out of the warranty obligations of FMC in

27 connection with a motor vehicle for which FMC issued a written warranty.

2
COMPLAINT; JURY TRIAL DEMANDED
1 15. Defects and nonconformities to warranty manifested themselves within the

2 applicable express warranty period, including but not limited to, the electrical system; the

3 engine; among other defects and non-conformities.

4 16. Said defects/nonconformities substantially impair the use, value, or safety of

5 the Vehicle.

6 17. Under the Song-Beverly Act, Defendant FMC had an affirmative duty to

7 promptly offer to repurchase or replace the Subject Vehicle at the time it failed to conform the

8 Subject Vehicle to the terms of the express warranty after a reasonable number of repair

9 attempts. 2

10 18. Defendant FMC has failed to either promptly replace the Subject Vehicle or to

11 promptly make restitution in accordance with the Song-Beverly Act.
STRATEGIC LEGAL PRACTICES, APC
1840 CENTURY PARK EAST, SUITE 430, LOS ANGELES, CA 90067

12 19. Under the Act, Plaintiffs are entitled to reimbursement of the price paid for the

13 vehicle less that amount directly attributable to use by the Plaintiffs prior to the first

14 presentation to an authorized repair facility for a nonconformity.

15 20. Plaintiffs are entitled to replacement or reimbursement pursuant to Civil Code,

16 section 1794, et seq. Plaintiffs are entitled to rescission of the contract pursuant to Civil Code,

17 section 1794, et seq. and Commercial Code, section 2711.

18 21. Plaintiffs are entitled to recover any “cover” damages under Commercial Code,

19 sections 2711, 2712, and Civil Code, section 1794, et seq.

21 2
“A manufacturer's duty to repurchase a vehicle does not depend on a consumer's
22 request, but instead arises as soon as the manufacturer fails to comply with the warranty
within a reasonable time. (Krotin v. Porsche Cars North America, Inc. (1995) 38 Cal.App.4th
23 294, 301-302, 45 Cal.Rptr.2d 10.) Chrysler performed the bridge operation on Santana's
vehicle in August 2014 with 30,262 miles on the odometer—within the three-year, 36,000
24 mile warranty. The internal e-mails demonstrating Chrysler's awareness of the safety risks
inherent in the bridge operation were sent in September 2013, and thus Chrysler was well
25 aware of the problem when it performed the bridge operation on Santana's vehicle. Thus,
Chrysler's duty to repurchase or provide restitution arose prior to the expiration of the three-
26 year, 36,000 mile warranty. Moreover, although we do not have the actual five-year, 100,000
mile power train warranty in our record, Santana's expert testified that the no-start/stalling
27 issues Santana experienced were within the scope of the power train warranty, which was still
active when Santana requested repurchase in approximately January 2016, at 44,467 miles.
28 Thus the premise of Chrysler's argument—that Santana's request for repurchase was outside
the relevant warranty—is not only irrelevant, but wrong.” Santana v. FCA US, LLC, 56 Cal.
App. 5th 334, 270 Cal. Rptr. 3d 335 (2020).
3
COMPLAINT; JURY TRIAL DEMANDED
1 22. Plaintiffs are entitled to recover all incidental and consequential damages

2 pursuant to 1794 et seq. and Commercial Code, sections 2711, 2712, and 2713 et seq.

3 23. Plaintiffs suffered damages in a sum to be proven at trial in an amount that is

4 not less than $25,001.00.

5 24. Plaintiffs are entitled to all incidental, consequential, and general damages

6 resulting from Defendants’ failure to comply with its obligations under the Song-Beverly Act.

7 FIRST CAUSE OF ACTION

8 BY PLAINTIFFS AGAINST DEFENDANT FMC

9 VIOLATION OF SUBDIVISION (D) OF CIVIL CODE SECTION 1793.2

10 25. Plaintiffs incorporate by reference the allegations contained in the paragraphs

11 set forth above.
STRATEGIC LEGAL PRACTICES, APC
1840 CENTURY PARK EAST, SUITE 430, LOS ANGELES, CA 90067

12 26. Defendant FMC and its representatives in this state have been unable to service

13 or repair the Vehicle to conform to the applicable express warranties after a reasonable

14 number of opportunities. Despite this fact, Defendant FMC failed to promptly replace the

15 Vehicle or make restitution to Plaintiffs as required by Civil Code section 1793.2, subdivision

16 (d) and Civil Code section 1793.1, subdivision (a)(2).

17 27. Plaintiffs have been damaged by Defendant FMC's failure to comply with its

18 obligations pursuant to Civil Code section 1793.2, subdivision (d) and Civil Code section

19 1793.1, subdivision (a)(2), and therefore brings this cause of action pursuant to Civil Code

20 section 1794.

21 28. Defendant FMC's failure to comply with its obligations under Civil Code

22 section 1793.2, subdivision (d) was willful, in that Defendant FMC and its representative were

23 aware that they were unable to service or repair the Vehicle to conform to the applicable

24 express warranties after a reasonable number of repair attempts, yet Defendant FMC failed

25 and refused to promptly replace the Vehicle or make restitution. Accordingly, Plaintiffs are

26 entitled to a civil penalty of two times Plaintiffs’ actual damages pursuant to Civil Code

27 section 1794, subdivision (c).

4
COMPLAINT; JURY TRIAL DEMANDED
1 29. Defendant FMC does not maintain a qualified third-party dispute resolution

2 process which substantially complies with Civil Code section 1793.22. Accordingly,

3 Plaintiffs are entitled to a civil penalty of two times Plaintiffs’ actual damages pursuant to

4 Civil Code section 1794, subdivision (e).

5 30. Plaintiffs seek civil penalties pursuant to section 1794, subdivisions (c), and (e)

6 in the alternative and does not seek to cumulate civil penalties, as provided in Civil Code

7 section 1794, subdivision (f).

8 SECOND CAUSE OF ACTION

9 BY PLAINTIFFS AGAINST DEFENDANT FMC

10 VIOLATION OF SUBDIVISION (B) OF CIVIL CODE SECTION 1793.2

11 31. Plaintiffs incorporate by reference the allegations contained in the paragraphs
STRATEGIC LEGAL PRACTICES, APC
1840 CENTURY PARK EAST, SUITE 430, LOS ANGELES, CA 90067

12 set forth above.

13 32. Although Plaintiffs presented the Vehicle to Defendant FMC's representative in

14 this state, Defendant FMC and its representative failed to commence the service or repairs

15 within a reasonable time and failed to service or repair the Vehicle so as to conform to the

16 applicable warranties within 30 days, in violation of Civil Code section 1793.2, subdivision

17 (b). Plaintiffs did not extend the time for completion of repairs beyond the 30-day

18 requirement.

19 33. Plaintiffs have been damaged by Defendant FMC's failure to comply with its

20 obligations pursuant to Civil Code section 1793.2(b), and therefore brings this Cause of

21 Action pursuant to Civil Code section 1794.

22 34. Plaintiffs have rightfully rejected and/or justifiably revoked acceptance of the

23 Vehicle, and has exercised a right to cancel the purchase. By serving this Complaint,

24 Plaintiffs do so again. Accordingly, Plaintiffs seek the remedies provided in California Civil

25 Code section 1794(b)(1), including the entire contract price. In the alternative, Plaintiffs seek

26 the remedies set forth in California Civil Code section 1794(b)(2), including the diminution in

27 value of the Vehicle resulting from its defects. Plaintiffs believe that, at the present time, the

28 Vehicle’s value is de minimis.

5
COMPLAINT; JURY TRIAL DEMANDED
1 35. Defendant FMC's failure to comply with its obligations under Civil Code

2 section 1793.2(b) was willful, in that Defendant FMC and its representative were aware that

3 they were obligated to service or repair the Vehicle to conform to the applicable express

4 warranties within 30 days, yet they failed to do so. Accordingly, Plaintiffs are entitled to a

5 civil penalty of two times Plaintiffs’ actual damages pursuant to Civil Code section 1794(c).

6 THIRD CAUSE OF ACTION

7 BY PLAINTIFFS AGAINST DEFENDANT FMC

8 VIOLATION OF SUBDIVISION (A)(3) OF CIVIL CODE SECTION 1793.2

9 36. Plaintiffs incorporate by reference the allegations contained in paragraphs set

10 forth above.

11 37. In violation of Civil Code section 1793.2, subdivision (a)(3), Defendant FMC
STRATEGIC LEGAL PRACTICES, APC
1840 CENTURY PARK EAST, SUITE 430, LOS ANGELES, CA 90067

12 failed to make available to its authorized service and repair facilities sufficient service

13 literature and replacement parts to effect repairs during the express warranty period. Plaintiffs

14 have been damaged by Defendant FMC's failure to comply with its obligations pursuant to

15 Civil Code section 1793.2(a)(3), and therefore brings this Cause of Action pursuant to Civil

16 Code section 1794.

17 38. Defendant FMC's failure to comply with its obligations under Civil Code

18 section 1793.2, subdivision (a)(3) was wilful, in that Defendant FMC knew of its obligation to

19 provide literature and replacement parts sufficient to allow its repair facilities to effect repairs

20 during the warranty period, yet Defendant FMC failed to take any action to correct its failure

21 to comply with the law. Accordingly, Plaintiffs are entitled to a civil penalty of two times

22 Plaintiffs’ actual damages, pursuant to Civil Code section 1794(c).

23 FOURTH CAUSE OF ACTION

24 BY PLAINTIFFS AGAINST DEFENDANT FMC

25 BREACH OF THE IMPLIED WARRANTY OF MERCHANTABILITY

26 (CIV. CODE, § 1791.1; § 1794; § 1795.5)

27 39. Plaintiffs incorporate by reference the allegations contained in the paragraphs

28 set forth above.

6
COMPLAINT; JURY TRIAL DEMANDED
1 40. Pursuant to Civil Code section 1792, the sale of the Vehicle was accompanied

2 by Defendant FMC's implied warranty of merchantability. Pursuant to Civil Code section

3 1791.1, the duration of the implied warranty is coextensive in duration with the duration of the

4 express written warranty provided by Defendant FMC, except that the duration is not to

5 exceed one-year.

6 41. Pursuant to Civil Code section 1791.1 (a), the implied warranty of

7 merchantability means and includes that the Vehicle will comply with each of the following

8 requirements: (1) The Vehicle will pass without objection in the trade under the contract

9 description; (2) The Vehicle is fit for the ordinary purposes for which such goods are used; (3)

10 The Vehicle is adequately contained, packaged, and labelled; (4) The Vehicle will conform to

11 the promises or affirmations of fact made on the container or label.
STRATEGIC LEGAL PRACTICES, APC
1840 CENTURY PARK EAST, SUITE 430, LOS ANGELES, CA 90067

12 42. At the time of sale, the subject vehicle contained one or more latent defect(s)

13 set forth above. The existence of the said defect(s)constitutes a breach of the implied warranty

14 because the Vehicle (1) does not pass without objection in the trade under the contract

15 description, (2) is not fit for the ordinary purposes for which such goods are used, (3) is not

16 adequately contained, packaged, and labelled, and (4) does not conform to the promises or

17 affirmations of fact made on the container or label.

18 43. Plaintiffs have been damaged by Defendant FMC's failure to comply with its

19 obligations under the implied warranty, and therefore brings this Cause of Action pursuant to

20 Civil Code section 1794.

21 FIFTH CAUSE OF ACTION

22 BY PLAINTIFFS AGAINST DEFENDANT JBF

23 NEGLIGENT REPAIR

24 44. Plaintiffs incorporate by reference the allegations contained in the paragraphs

25 set forth above.

26 45. Plaintiffs delivered the Subject Vehicle to Defendant JBF for substantial repair

27 on at least one occasion.

7
COMPLAINT; JURY TRIAL DEMANDED
1 46. Defendant JBF owed a duty to Plaintiffs to use ordinary care and skill in

2 storage, preparation and repair of the Subject Vehicle in accordance with industry standards.

3 47. Defendant JBF breached its duty to Plaintiffs to use ordinary care and skill by

4 failing to properly store, prepare and repair the Subject Vehicle in accordance with industry

5 standards.

6 48. Defendant JBF’s negligent breach of its duties owed to Plaintiffs were a

7 proximate cause of Plaintiffs’ damages.

8 PRAYER

9 PLAINTIFFS PRAY for judgment against Defendants as follows:

10 a. For general, special and actual damages according to proof;

11 b. For restitution;
STRATEGIC LEGAL PRACTICES, APC
1840 CENTURY PARK EAST, SUITE 430, LOS ANGELES, CA 90067

12 c. For any consequential and incidental damages;

13 d. For reimbursement and/or restitution of all monies expended;

14 e. For diminution in value;

15 f. For a civil penalty in the amount of two times Plaintiffs’ actual damages

16 pursuant to Civil Code section 1794, subdivision (c) or (e);

17 g. For prejudgment interest at the legal rate;

18 h. For costs of the suit and Plaintiffs’ reasonable attorneys’ fees pursuant

19 to Civil Code section 1794, subdivision (d); and

20 i. For such other relief as the Court may deem proper.

21 DEMAND FOR JURY TRIAL

22 Plaintiffs hereby demand a jury trial on all causes of action asserted herein.

23 Dated: June 21, 2022 STRATEGIC LEGAL PRACTICES, APC

24
BY: ______________________________________
25
Tionna Dolin
26 Attorney for Plaintiffs KARINA VARGAS,
GONZALO VARGAS, and LIVIER
27 VARGAS

8
COMPLAINT; JURY TRIAL DEMANDED

Case Info

Case No.

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Document Filed Date

July 07, 2022

Case Filing Date

July 06, 2022

County

Status

Pending

Parties

FORD MOTOR COMPANY Defendant
GONZALO VARGAS Plaintiff
JIM BURKE FORD Defendant
KARINA VARGAS Plaintiff
LIVIER VARGAS Plaintiff
Tionna Dolin Attorneys for Plaintiffs
Michael Mortenson Attorneys for Defendants
Craig Taggart Attorneys for Defendants
Hannah Biemann Attorneys for Defendants
Mark Gibson Attorneys for Plaintiffs
David Keithly Attorneys for Defendants
Steven Whang Attorneys for Plaintiffs

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