Preview
QUILL & ARROW, LLP
1
Kevin Y. Jacobson, Esq. (SBN 320532)
2 kjacobson@quillarrowlaw.com
Allen Amarkarian, Esq. (SBN 319117)
3 aamarkarian@quillarrowlaw.com
e-service@quillarrowlaw.com
4 10900 Wilshire Boulevard, Suite 300
5 Los Angeles, CA, 90024
Telephone: (310) 933-4271
6 Facsimile: (310) 889-0645
7
Attorneys for Plaintiff,
8 JULIO CESAR GAMARRO
9
10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
11 COUNTY OF RIVERSIDE
12
13 JULIO CESAR GAMARRO, an Case No.:
individual, Unlimited Jurisdiction
14
COMPLAINT
Plaintiff,
15
1. VIOLATION OF SONG-BEVERLY
16 vs. ACT - BREACH OF EXPRESS
WARRANTY
17 NISSAN NORTH AMERICA, INC., a 2. VIOLATION OF SONG-BEVERLY
Delaware Corporation, and DOES 1 ACT - BREACH OF IMPLIED
18 through 10, inclusive, WARRANTY
19 3. VIOLATION OF THE SONG-
BEVERLY ACT SECTION 1793.2
20 Defendants.
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27
28
COMPLAINT
1 Plaintiff, JULIO CESAR GAMARRO, an individual (“Plaintiff”), alleges as follows against
2 Defendant, NISSAN NORTH AMERICA, INC., a Delaware Corporation (“NISSAN NORTH
3 AMERICA, INC.”), and DOES 1 through 10 inclusive, on information and belief, formed after a
4 reasonable inquiry under the circumstances:
5 DEMAND FOR JURY TRIAL
6 1. Plaintiff, JULIO CESAR GAMARRO, hereby demands trial by jury in this action.
7 GENERAL ALLEGATIONS
8 2. Plaintiff, JULIO CESAR GAMARRO, is an individual residing in the City of
9 Riverside, State of California.
10 3. Defendant, NISSAN NORTH AMERICA, INC., is and was a Delaware Corporation
11 operating and doing business in the State of California.
12 4. These causes of causes of action arise out of warranty and repair obligations of
13 NISSAN NORTH AMERICA, INC. in connection with a vehicle Plaintiff purchased and for which
14 NISSAN NORTH AMERICA, INC. issued a written warranty. The warranty was not issued by the
15 selling dealership.
16 5. Plaintiff does not know the true names and capacities, whether corporate,
17 partnership, associate, individual, or otherwise of Defendant issued herein as Does 1 through 10,
18 inclusive, under the provisions of section 474 of the California Code of Civil Procedure. Defendant
19 Does 1 through 10, inclusive, are in some manner responsible for the acts, occurrences, and
20 transactions set forth herein, and are legally liable to Plaintiff. Plaintiff will seek leave to amend
21 this Complaint to set forth the true names and capacities of the fictitiously named Defendant,
22 together with appropriate charging allegations, when ascertained.
23 6. All acts of corporate employees as alleged were authorized or ratified by an officer,
24 director, or managing agent of the corporate employer.
25 7. Each Defendant, whether actually or fictitiously named herein, was the principal,
26 agent (actual or ostensible), or employee of each other Defendant, and in acting as such principal
27 or within the course and scope of such employment or agency, took some part in the acts and
28 omissions hereinafter set forth by reason of which each Defendant is liable to Plaintiff for the relief
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COMPLAINT
1 prayed for herein.
2 8. On June 10, 2021, Plaintiff purchased a 2021 Nissan Rogue, having VIN No.:
3 5N1AT3BA2MC724369 ("the Subject Vehicle”). These causes of action arise out of warranty and
4 repair obligations of NISSAN NORTH AMERICA, INC. in connection with a vehicle that Plaintiff
5 purchased and for which NISSAN NORTH AMERICA, INC. issued a written warranty. The
6 warranty was not issued by the selling dealership.
7 9. NISSAN NORTH AMERICA, INC. warranted the Subject Vehicle and agreed to
8 preserve or maintain the utility or performance of Plaintiff’s vehicle or to provide compensation if
9 there was a failure in such utility or performance. In connection with the purchase, Plaintiff received
10 various warranties, inter alia, a 3-year/36,000 mile express bumper to bumper warranty, a 5-
11 year/60,000 mile powertrain warranty which, inter alia, covers the engine and the transmission, as
12 well as various emissions warranties that exceed the time and mileage limitations of the bumper to
13 bumper and powertrain warranties.
14 10. The Subject Vehicle was delivered to Plaintiff with serious defects and
15 nonconformities to warranty and developed other serious defects and nonconformities to warranty
16 including, but not limited to, engine, electrical, emission, suspension, transmission, and steering
17 system defects.
18 11. Plaintiff hereby revokes acceptance of the sales contract.
19 12. Pursuant to the Song-Beverly Consumer Warranty Act (hereinafter the “Act”) Civil
20 Code 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 13. Plaintiff is a “buyer” of consumer goods under the Act.
23 14. Defendant, NISSAN NORTH AMERICA, INC., is a "manufacturer" and/or
24 “distributor" under the Act.
25 15. Plaintiff hereby demands trial by jury in this action.
26 FIRST CAUSE OF ACTION
27 Violation of the Song-Beverly Act – Breach of Express Warranty
28 16. Plaintiff incorporates herein by reference each and every allegation contained in the
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COMPLAINT
1 preceding and succeeding paragraphs as though herein fully restated and re-alleged.
2 17. The Subject Vehicle was sold to Plaintiff with express warranties that the Subject
3 Vehicle would be free from defects in materials, nonconformity, or workmanship during the
4 applicable warranty period and to the extent that the Subject Vehicle had defects, Defendant
5 NISSAN NORTH AMERICA, INC. would repair the defects.
6 18. The Subject Vehicle was delivered to Plaintiff with serious defects and
7 nonconformities to warranty and developed other serious defects and nonconformities to warranty
8 including, but not limited to, engine, electrical, emission, suspension, transmission, and steering
9 system defects.
10 19. Pursuant to the Song-Beverly Consumer Warranty Act (hereinafter the “Act”) Civil
11 Code sections 1790 et seq. the vehicle constitutes “consumer goods” used primarily for family or
12 household purposes, and Plaintiff has used the Subject Vehicle primarily for those purposes.
13 20. Plaintiff is the “buyer” of consumer goods under the Act.
14 21. Defendant, NISSAN NORTH AMERICA, INC., is a "manufacturer" and/or
15 “distributor" under the Act.
16 22. The foregoing defects and nonconformities to warranty manifested themselves in
17 the Subject Vehicle within the applicable express warranty period. The nonconformities
18 substantially impair the use, value, and/or safety of the vehicle.
19 23. Plaintiff delivered the vehicle to an authorized NISSAN NORTH AMERICA, INC.
20 repair facility for repair of the nonconformities.
21 24. Defendant was unable to conform Plaintiff’s vehicle to the applicable express
22 warranty after a reasonable number of repair attempts.
23 25. Notwithstanding Plaintiff’s entitlement, Defendant NISSAN NORTH AMERICA,
24 INC. has failed to either promptly replace the new motor vehicle or to promptly make restitution in
25 accordance with the Song-Beverly Act.
26 26. By failure of Defendant to remedy the defects as alleged above or to issue a refund
27 or replacement vehicle, Defendant is in breach of its obligations under the Song-Beverly Act.
28 27. Under the Act, Plaintiff is entitled to reimbursement of the price paid for the vehicle
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COMPLAINT
1 less that amount directly attributable to use by the Plaintiff prior to the first presentation of the
2 nonconformities.
3 28. Plaintiff is entitled to all incidental, consequential, and general damages resulting
4 from Defendant’s failure to comply with its obligations under the Song-Beverly Act.
5 29. Plaintiff is entitled under the Song-Beverly Act to recover as part of the judgment a
6 sum equal to the aggregate amount of costs and expenses, including attorney’s fees, reasonably
7 incurred in connection with the commencement and prosecution of this action.
8 30. Because Defendant willfully violated the Song-Beverly Act, Plaintiff is entitled, in
9 addition to the amounts recovered, a civil penalty of up to two times the amount of actual damages
10 for NISSAN NORTH AMERICA, INC.’s willful failure to comply with its responsibilities under
11 the Act.
12 SECOND CAUSE OF ACTION
13 Violation of the Song-Beverly Act – Breach of Implied Warranty
14 31. Plaintiff incorporates herein by reference each and every allegation contained in the
15 preceding and succeeding paragraphs as though herein fully restated and re-alleged.
16 32. NISSAN NORTH AMERICA, INC. and its authorized dealership at which Plaintiff
17 purchased the subject vehicle had reason to know the purpose of the Subject Vehicle at the time of
18 sale of the subject vehicle. The Subject Vehicle was accompanied by implied warranties provided
19 for under the law.
20 33. Among other warranties, the Subject Vehicle was accompanied by an implied
21 warranty that the Subject vehicle was merchantable pursuant to Civil Code section 1792.
22 34. Pursuant to Civil Code section 1791.1 (a), the implied warranty of merchantability
23 means and includes that the Vehicle will comply with each of the following requirements: (1) The
24 Vehicle will pass without objection in the trade under the contract description; (2) The Vehicle is
25 fit for the ordinary purposes for which such goods are used; (3) The Vehicle is adequately
26 contained, packaged, and labelled; (4) The Vehicle will conform to the promises or affirmations of
27 fact made on the container or label.
28 35. The Subject Vehicle was not fit for the ordinary purpose for which such goods are
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COMPLAINT
1 used because it was equipped with one or more defective vehicle systems/components.
2 36. The Subject Vehicle did not measure up to the promises or facts stated on the
3 container or label because it was equipped with one or more defective vehicle systems/components.
4 37. The Subject Vehicle was not of the same quality as those generally accepted in the
5 trade because it was sold with one or more defective vehicle systems/components which manifested
6 as engine, electrical, emission, suspension, transmission, and steering system defects.
7 38. Upon information and belief, the defective vehicle systems and components were
8 present at the time of sale of the Subject Vehicle; thus, extending the duration of any implied
9 warranty under Mexia v. Rinker Boat Co., Inc. (2009) 174 Cal.App.4th 1297, 1304–1305 and other
10 applicable laws.
11 39. Plaintiff is entitled to justifiably revoke acceptance of the subject vehicle under Civil
12 Code, section 1794, et seq.
13 40. Plaintiff hereby revokes acceptance of the Subject Vehicle.
14 41. Plaintiff is entitled to replacement or reimbursement pursuant to Civil Code, section
15 1794, et seq.
16 42. Plaintiff is entitled to rescission of the contract pursuant to Civil Code, section 1794,
17 et seq. and Commercial Code, section 2711.
18 43. Plaintiff is entitled to recover any incidental, consequential, and/or “cover” damages
19 under Commercial Code, sections 2711, 2712, and Civil Code, section 1794, et seq.
20 THIRD CAUSE OF ACTION
21 Violation of the Song-Beverly Act Section 1793.2(b)
22 44. Plaintiff incorporates herein by reference each and every allegation contained in the
23 preceding and succeeding paragraphs as though herein fully restated and re-alleged.
24 45. Pursuant to Civil Code, section 1793.2, subdivision (a) a manufacturer that sells
25 consumer goods in California, for which it has made an express warranty, shall maintain service
26 and repair facilities or designate and authorize independent service and repair facilities to carry out
27 the terms of those warranties.
28 46. Pursuant to Civil Code, section 1793.2, subdivision (b), when service and repair of
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COMPLAINT
1 goods are necessary because they do not conform with the applicable express warranties, service
2 and repair shall be commenced within a reasonable time by the manufacturer or its representative.
3 47. Civil Code, section 1793.2, subdivision (b) further states that goods shall be serviced
4 or repaired so as to conform to the applicable warranties within 30 days and/or within a reasonable
5 time.
6 48. The sale of the Subject Vehicle was accompanied by express warranties, including
7 a warranty guaranteeing that the subject vehicle was safe to drive and not equipped with defective
8 parts, including the electrical system.
9 49. Plaintiff delivered the subject vehicle to NISSAN NORTH AMERICA, INC.’s
10 authorized service representatives on multiple occasions. The subject vehicle was delivered for
11 repairs of defects, which amount to nonconformities to the express warranties that accompanied
12 the sale of the subject vehicle.
13 50. Defendant’s authorized facilities did not conform the Subject Vehicle to warranty
14 within 30-days and/or commence repairs within a reasonable time, and NISSAN NORTH
15 AMERICA, INC. has failed to tender the subject vehicle back to Plaintiff in conformance with its
16 warranties within the timeframes set forth in Civil Code section 1793.2(b).
17 51. Plaintiff is entitled to justifiably revoke acceptance of the subject vehicle under Civil
18 Code, section 1794, et seq.
19 52. Plaintiff hereby revokes acceptance of the subject vehicle.
20 53. Plaintiff is entitled to replacement or reimbursement pursuant to Civil Code, section
21 1794, et seq.
22 54. Plaintiff is entitled to rescission of the contract pursuant to Civil Code section 1794,
23 et seq. and Commercial Code, section 2711.
24 55. Plaintiff is entitled to recover any “cover” damages under Commercial Code
25 sections 2711, 2712, and Civil Code, section 1794, et seq.
26 56. Plaintiff is entitled to recover all incidental and consequential damages pursuant to
27 1794 et seq and Commercial Code sections, 2711, 2712, and 2713 et seq.
28 57. Plaintiff is entitled in addition to the amounts recovered, a civil penalty of up to two
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COMPLAINT
1 times the amount of actual damages in that NISSAN NORTH AMERICA, INC. has willfully failed
2 to comply with its responsibilities under the Act.
3 PRAYER FOR RELIEF
4 WHEREFORE, Plaintiff prays for judgment against Defendant, as follows:
5 1. For general, special, and actual damages according to proof at trial;
6 2. For rescission of the purchase contract and restitution of all monies expended;
7 3. For diminution in value;
8 4. For incidental and consequential damages according to proof at trial;
9 5. For civil penalty in the amount of two times Plaintiff’s actual damages;
10 6. For prejudgment interest at the legal rate;
11 7. For reasonable attorney’s fees and costs of suit; and
12 For such other and further relief as the Court deems just and proper under the circumstances.
13
Dated: January 11, 2023
14 QUILL & ARROW, LLP
15
16 ________________________
Kevin Y. Jacobson, Esq.
17 Allen Amarkarian, Esq.
Attorneys for Plaintiff,
18 JULIO CESAR GAMARRO
19 Plaintiff, JULIO CESAR GAMARRO, hereby demands trial by jury in this action.
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COMPLAINT
Preview
QUILL & ARROW, LLP 1 Kevin Y. Jacobson, Esq. (SBN 320532) 2 kjacobson@quillarrowlaw.com Allen Amarkarian, Esq. (SBN 319117) 3 aamarkarian@quillarrowlaw.com e-service@quillarrowlaw.com 4 10900 Wilshire Boulevard, Suite 300 5 Los Angeles, CA, 90024 Telephone: (310) 933-4271 6 Facsimile: (310) 889-0645 7 Attorneys for Plaintiff, 8 JULIO CESAR GAMARRO 9 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 COUNTY OF RIVERSIDE 12 13 JULIO CESAR GAMARRO, an Case No.: individual, Unlimited Jurisdiction 14 COMPLAINT Plaintiff, 15 1. VIOLATION OF SONG-BEVERLY 16 vs. ACT - BREACH OF EXPRESS WARRANTY 17 NISSAN NORTH AMERICA, INC., a 2. VIOLATION OF SONG-BEVERLY Delaware Corporation, and DOES 1 ACT - BREACH OF IMPLIED 18 through 10, inclusive, WARRANTY 19 3. VIOLATION OF THE SONG- BEVERLY ACT SECTION 1793.2 20 Defendants. 21 22 23 24 25 26 27 28 COMPLAINT 1 Plaintiff, JULIO CESAR GAMARRO, an individual (“Plaintiff”), alleges as follows against 2 Defendant, NISSAN NORTH AMERICA, INC., a Delaware Corporation (“NISSAN NORTH 3 AMERICA, INC.”), and DOES 1 through 10 inclusive, on information and belief, formed after a 4 reasonable inquiry under the circumstances: 5 DEMAND FOR JURY TRIAL 6 1. Plaintiff, JULIO CESAR GAMARRO, hereby demands trial by jury in this action. 7 GENERAL ALLEGATIONS 8 2. Plaintiff, JULIO CESAR GAMARRO, is an individual residing in the City of 9 Riverside, State of California. 10 3. Defendant, NISSAN NORTH AMERICA, INC., is and was a Delaware Corporation 11 operating and doing business in the State of California. 12 4. These causes of causes of action arise out of warranty and repair obligations of 13 NISSAN NORTH AMERICA, INC. in connection with a vehicle Plaintiff purchased and for which 14 NISSAN NORTH AMERICA, INC. issued a written warranty. The warranty was not issued by the 15 selling dealership. 16 5. Plaintiff does not know the true names and capacities, whether corporate, 17 partnership, associate, individual, or otherwise of Defendant issued herein as Does 1 through 10, 18 inclusive, under the provisions of section 474 of the California Code of Civil Procedure. Defendant 19 Does 1 through 10, inclusive, are in some manner responsible for the acts, occurrences, and 20 transactions set forth herein, and are legally liable to Plaintiff. Plaintiff will seek leave to amend 21 this Complaint to set forth the true names and capacities of the fictitiously named Defendant, 22 together with appropriate charging allegations, when ascertained. 23 6. All acts of corporate employees as alleged were authorized or ratified by an officer, 24 director, or managing agent of the corporate employer. 25 7. Each Defendant, whether actually or fictitiously named herein, was the principal, 26 agent (actual or ostensible), or employee of each other Defendant, and in acting as such principal 27 or within the course and scope of such employment or agency, took some part in the acts and 28 omissions hereinafter set forth by reason of which each Defendant is liable to Plaintiff for the relief -2- COMPLAINT 1 prayed for herein. 2 8. On June 10, 2021, Plaintiff purchased a 2021 Nissan Rogue, having VIN No.: 3 5N1AT3BA2MC724369 ("the Subject Vehicle”). These causes of action arise out of warranty and 4 repair obligations of NISSAN NORTH AMERICA, INC. in connection with a vehicle that Plaintiff 5 purchased and for which NISSAN NORTH AMERICA, INC. issued a written warranty. The 6 warranty was not issued by the selling dealership. 7 9. NISSAN NORTH AMERICA, INC. warranted the Subject Vehicle and agreed to 8 preserve or maintain the utility or performance of Plaintiff’s vehicle or to provide compensation if 9 there was a failure in such utility or performance. In connection with the purchase, Plaintiff received 10 various warranties, inter alia, a 3-year/36,000 mile express bumper to bumper warranty, a 5- 11 year/60,000 mile powertrain warranty which, inter alia, covers the engine and the transmission, as 12 well as various emissions warranties that exceed the time and mileage limitations of the bumper to 13 bumper and powertrain warranties. 14 10. The Subject Vehicle was delivered to Plaintiff with serious defects and 15 nonconformities to warranty and developed other serious defects and nonconformities to warranty 16 including, but not limited to, engine, electrical, emission, suspension, transmission, and steering 17 system defects. 18 11. Plaintiff hereby revokes acceptance of the sales contract. 19 12. Pursuant to the Song-Beverly Consumer Warranty Act (hereinafter the “Act”) Civil 20 Code 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 13. Plaintiff is a “buyer” of consumer goods under the Act. 23 14. Defendant, NISSAN NORTH AMERICA, INC., is a "manufacturer" and/or 24 “distributor" under the Act. 25 15. Plaintiff hereby demands trial by jury in this action. 26 FIRST CAUSE OF ACTION 27 Violation of the Song-Beverly Act – Breach of Express Warranty 28 16. Plaintiff incorporates herein by reference each and every allegation contained in the -3- COMPLAINT 1 preceding and succeeding paragraphs as though herein fully restated and re-alleged. 2 17. The Subject Vehicle was sold to Plaintiff with express warranties that the Subject 3 Vehicle would be free from defects in materials, nonconformity, or workmanship during the 4 applicable warranty period and to the extent that the Subject Vehicle had defects, Defendant 5 NISSAN NORTH AMERICA, INC. would repair the defects. 6 18. The Subject Vehicle was delivered to Plaintiff with serious defects and 7 nonconformities to warranty and developed other serious defects and nonconformities to warranty 8 including, but not limited to, engine, electrical, emission, suspension, transmission, and steering 9 system defects. 10 19. Pursuant to the Song-Beverly Consumer Warranty Act (hereinafter the “Act”) Civil 11 Code sections 1790 et seq. the vehicle constitutes “consumer goods” used primarily for family or 12 household purposes, and Plaintiff has used the Subject Vehicle primarily for those purposes. 13 20. Plaintiff is the “buyer” of consumer goods under the Act. 14 21. Defendant, NISSAN NORTH AMERICA, INC., is a "manufacturer" and/or 15 “distributor" under the Act. 16 22. The foregoing defects and nonconformities to warranty manifested themselves in 17 the Subject Vehicle within the applicable express warranty period. The nonconformities 18 substantially impair the use, value, and/or safety of the vehicle. 19 23. Plaintiff delivered the vehicle to an authorized NISSAN NORTH AMERICA, INC. 20 repair facility for repair of the nonconformities. 21 24. Defendant was unable to conform Plaintiff’s vehicle to the applicable express 22 warranty after a reasonable number of repair attempts. 23 25. Notwithstanding Plaintiff’s entitlement, Defendant NISSAN NORTH AMERICA, 24 INC. has failed to either promptly replace the new motor vehicle or to promptly make restitution in 25 accordance with the Song-Beverly Act. 26 26. By failure of Defendant to remedy the defects as alleged above or to issue a refund 27 or replacement vehicle, Defendant is in breach of its obligations under the Song-Beverly Act. 28 27. Under the Act, Plaintiff is entitled to reimbursement of the price paid for the vehicle -4- COMPLAINT 1 less that amount directly attributable to use by the Plaintiff prior to the first presentation of the 2 nonconformities. 3 28. Plaintiff is entitled to all incidental, consequential, and general damages resulting 4 from Defendant’s failure to comply with its obligations under the Song-Beverly Act. 5 29. Plaintiff is entitled under the Song-Beverly Act to recover as part of the judgment a 6 sum equal to the aggregate amount of costs and expenses, including attorney’s fees, reasonably 7 incurred in connection with the commencement and prosecution of this action. 8 30. Because Defendant willfully violated the Song-Beverly Act, Plaintiff is entitled, in 9 addition to the amounts recovered, a civil penalty of up to two times the amount of actual damages 10 for NISSAN NORTH AMERICA, INC.’s willful failure to comply with its responsibilities under 11 the Act. 12 SECOND CAUSE OF ACTION 13 Violation of the Song-Beverly Act – Breach of Implied Warranty 14 31. Plaintiff incorporates herein by reference each and every allegation contained in the 15 preceding and succeeding paragraphs as though herein fully restated and re-alleged. 16 32. NISSAN NORTH AMERICA, INC. and its authorized dealership at which Plaintiff 17 purchased the subject vehicle had reason to know the purpose of the Subject Vehicle at the time of 18 sale of the subject vehicle. The Subject Vehicle was accompanied by implied warranties provided 19 for under the law. 20 33. Among other warranties, the Subject Vehicle was accompanied by an implied 21 warranty that the Subject vehicle was merchantable pursuant to Civil Code section 1792. 22 34. Pursuant to Civil Code section 1791.1 (a), the implied warranty of merchantability 23 means and includes that the Vehicle will comply with each of the following requirements: (1) The 24 Vehicle will pass without objection in the trade under the contract description; (2) The Vehicle is 25 fit for the ordinary purposes for which such goods are used; (3) The Vehicle is adequately 26 contained, packaged, and labelled; (4) The Vehicle will conform to the promises or affirmations of 27 fact made on the container or label. 28 35. The Subject Vehicle was not fit for the ordinary purpose for which such goods are -5- COMPLAINT 1 used because it was equipped with one or more defective vehicle systems/components. 2 36. The Subject Vehicle did not measure up to the promises or facts stated on the 3 container or label because it was equipped with one or more defective vehicle systems/components. 4 37. The Subject Vehicle was not of the same quality as those generally accepted in the 5 trade because it was sold with one or more defective vehicle systems/components which manifested 6 as engine, electrical, emission, suspension, transmission, and steering system defects. 7 38. Upon information and belief, the defective vehicle systems and components were 8 present at the time of sale of the Subject Vehicle; thus, extending the duration of any implied 9 warranty under Mexia v. Rinker Boat Co., Inc. (2009) 174 Cal.App.4th 1297, 1304–1305 and other 10 applicable laws. 11 39. Plaintiff is entitled to justifiably revoke acceptance of the subject vehicle under Civil 12 Code, section 1794, et seq. 13 40. Plaintiff hereby revokes acceptance of the Subject Vehicle. 14 41. Plaintiff is entitled to replacement or reimbursement pursuant to Civil Code, section 15 1794, et seq. 16 42. Plaintiff is entitled to rescission of the contract pursuant to Civil Code, section 1794, 17 et seq. and Commercial Code, section 2711. 18 43. Plaintiff is entitled to recover any incidental, consequential, and/or “cover” damages 19 under Commercial Code, sections 2711, 2712, and Civil Code, section 1794, et seq. 20 THIRD CAUSE OF ACTION 21 Violation of the Song-Beverly Act Section 1793.2(b) 22 44. Plaintiff incorporates herein by reference each and every allegation contained in the 23 preceding and succeeding paragraphs as though herein fully restated and re-alleged. 24 45. Pursuant to Civil Code, section 1793.2, subdivision (a) a manufacturer that sells 25 consumer goods in California, for which it has made an express warranty, shall maintain service 26 and repair facilities or designate and authorize independent service and repair facilities to carry out 27 the terms of those warranties. 28 46. Pursuant to Civil Code, section 1793.2, subdivision (b), when service and repair of -6- COMPLAINT 1 goods are necessary because they do not conform with the applicable express warranties, service 2 and repair shall be commenced within a reasonable time by the manufacturer or its representative. 3 47. Civil Code, section 1793.2, subdivision (b) further states that goods shall be serviced 4 or repaired so as to conform to the applicable warranties within 30 days and/or within a reasonable 5 time. 6 48. The sale of the Subject Vehicle was accompanied by express warranties, including 7 a warranty guaranteeing that the subject vehicle was safe to drive and not equipped with defective 8 parts, including the electrical system. 9 49. Plaintiff delivered the subject vehicle to NISSAN NORTH AMERICA, INC.’s 10 authorized service representatives on multiple occasions. The subject vehicle was delivered for 11 repairs of defects, which amount to nonconformities to the express warranties that accompanied 12 the sale of the subject vehicle. 13 50. Defendant’s authorized facilities did not conform the Subject Vehicle to warranty 14 within 30-days and/or commence repairs within a reasonable time, and NISSAN NORTH 15 AMERICA, INC. has failed to tender the subject vehicle back to Plaintiff in conformance with its 16 warranties within the timeframes set forth in Civil Code section 1793.2(b). 17 51. Plaintiff is entitled to justifiably revoke acceptance of the subject vehicle under Civil 18 Code, section 1794, et seq. 19 52. Plaintiff hereby revokes acceptance of the subject vehicle. 20 53. Plaintiff is entitled to replacement or reimbursement pursuant to Civil Code, section 21 1794, et seq. 22 54. Plaintiff is entitled to rescission of the contract pursuant to Civil Code section 1794, 23 et seq. and Commercial Code, section 2711. 24 55. Plaintiff is entitled to recover any “cover” damages under Commercial Code 25 sections 2711, 2712, and Civil Code, section 1794, et seq. 26 56. Plaintiff is entitled to recover all incidental and consequential damages pursuant to 27 1794 et seq and Commercial Code sections, 2711, 2712, and 2713 et seq. 28 57. Plaintiff is entitled in addition to the amounts recovered, a civil penalty of up to two -7- COMPLAINT 1 times the amount of actual damages in that NISSAN NORTH AMERICA, INC. has willfully failed 2 to comply with its responsibilities under the Act. 3 PRAYER FOR RELIEF 4 WHEREFORE, Plaintiff prays for judgment against Defendant, as follows: 5 1. For general, special, and actual damages according to proof at trial; 6 2. For rescission of the purchase contract and restitution of all monies expended; 7 3. For diminution in value; 8 4. For incidental and consequential damages according to proof at trial; 9 5. For civil penalty in the amount of two times Plaintiff’s actual damages; 10 6. For prejudgment interest at the legal rate; 11 7. For reasonable attorney’s fees and costs of suit; and 12 For such other and further relief as the Court deems just and proper under the circumstances. 13 Dated: January 11, 2023 14 QUILL & ARROW, LLP 15 16 ________________________ Kevin Y. Jacobson, Esq. 17 Allen Amarkarian, Esq. Attorneys for Plaintiff, 18 JULIO CESAR GAMARRO 19 Plaintiff, JULIO CESAR GAMARRO, hereby demands trial by jury in this action. 20 21 22 23 24 25 26 27 28 -8- COMPLAINT