Preview
QUILL & ARROW, LLP
1
Kevin Y. Jacobson, Esq. (SBN 320532)
2 kjacobson@quillarrowlaw.com
e-service@quillarrowlaw.com
3 10900 Wilshire Boulevard, Suite 300
Los Angeles, CA, 90024
4 Telephone: (310) 933-4271
5 Facsimile: (310) 889-0645
6
Attorney for Plaintiffs,
7 ANDREA I. MALDONADO
AND CRISTIAN I. VALENCIA
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
COUNTY OF RIVERSIDE
10
11 Case No.:
ANDREA I. MALDONADO, an
individual, and CRISTIAN I. VALENCIA, Unlimited Jurisdiction
12
an individual, COMPLAINT
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Plaintiffs, 1. VIOLATION OF SONG-BEVERLY
14
ACT - BREACH OF EXPRESS
15 vs. WARRANTY
2. VIOLATION OF SONG-BEVERLY
16 VOLKSWAGEN GROUP OF AMERICA, ACT - BREACH OF IMPLIED
INC., a New Jersey Corporation and WARRANTY
17 MOSS BROS. AUTO GROUP, INC., a 3. VIOLATION OF THE SONG-
California Corporation d/b/a MOSS BROS. BEVERLY ACT SECTION 1793.2
18 VOLKSWAGEN, and DOES 1 through 10, 4. NEGLIGENT REPAIR
19 inclusive,
20
Defendants.
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COMPLAINT
1 Plaintiffs, ANDREA I. MALDONADO, an individual, and CRISTIAN I. VALENCIA, an
2 individual (“Plaintiffs”), allege as follows against Defendant VOLKSWAGEN GROUP OF
3 AMERICA, INC., a New Jersey Corporation (“VOLKSWAGEN GROUP OF AMERICA, INC.”)
4 and MOSS BROS. AUTO GROUP, INC., a California Corporation d/b/a MOSS BROS.
5 VOLKSWAGEN (“MOSS BROS. VOLKSWAGEN”), and DOES 1 through 10 inclusive, on
6 information and belief, formed after a reasonable inquiry under the circumstances:
7 DEMAND FOR JURY TRIAL
8 1. Plaintiffs, ANDREA I. MALDONADO and CRISTIAN I. VALENCIA, hereby
9 demand trial by jury in this action.
10 GENERAL ALLEGATIONS
11 2. Plaintiffs, ANDREA I. MALDONADO and CRISTIAN I. VALENCIA, are
12 individuals residing in the City of Moreno Valley, State of California.
13 3. Defendant, VOLKSWAGEN GROUP OF AMERICA, INC., is and was a New
14 Jersey Corporation operating and doing business in the State of California.
15 4. Defendant, MOSS BROS. VOLKSWAGEN, is and was a California Corporation
16 registered to do business in the State of California with its principal place of business in the City of
17 Riverside, State of California.
18 5. These causes of causes of action arise out of warranty and repair obligations of
19 VOLKSWAGEN GROUP OF AMERICA, INC. in connection with a vehicle Plaintiffs purchased
20 and for which VOLKSWAGEN GROUP OF AMERICA, INC. issued a written warranty. The
21 warranty was not issued by the selling dealership.
22 6. Plaintiffs do not know the true names and capacities, whether corporate, partnership,
23 associate, individual, or otherwise of Defendant issued herein as Does 1 through 10, inclusive,
24 under the provisions of section 474 of the California Code of Civil Procedure. Defendant Does 1
25 through 10, inclusive, are in some manner responsible for the acts, occurrences, and transactions
26 set forth herein, and are legally liable to Plaintiffs. Plaintiffs will seek leave to amend this
27 Complaint to set forth the true names and capacities of the fictitiously named Defendant, together
28 with appropriate charging allegations, when ascertained.
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COMPLAINT
1 7. All acts of corporate employees as alleged were authorized or ratified by an officer,
2 director, or managing agent of the corporate employer.
3 8. Each Defendant, whether actually or fictitiously named herein, was the principal,
4 agent (actual or ostensible), or employee of each other Defendant, and in acting as such principal
5 or within the course and scope of such employment or agency, took some part in the acts and
6 omissions hereinafter set forth by reason of which each Defendant is liable to Plaintiffs for the relief
7 prayed for herein.
8 9. On January 30, 2022, Plaintiffs purchased a 2022 Volkswagen Tiguan, having VIN
9 No.: 3VV8B7AX9NM041914 ("the Subject Vehicle”). These causes of action arise out of warranty
10 and repair obligations of VOLKSWAGEN GROUP OF AMERICA, INC. in connection with a
11 vehicle that Plaintiffs purchased and for which VOLKSWAGEN GROUP OF AMERICA, INC.
12 issued a written warranty. The warranty was not issued by the selling dealership.
13 10. VOLKSWAGEN GROUP OF AMERICA, INC. warranted the Subject Vehicle and
14 agreed to preserve or maintain the utility or performance of Plaintiffs’ vehicle or to provide
15 compensation if there was a failure in such utility or performance. In connection with the purchase,
16 Plaintiffs received various warranties, inter alia, a 4-year/50,000 mile express bumper to bumper
17 warranty, a 4-year/50,000 mile powertrain warranty which, inter alia, covers the engine and the
18 transmission, as well as various emissions warranties that exceed the time and mileage limitations
19 of the bumper to bumper and powertrain warranties.
20 11. The Subject Vehicle was delivered to Plaintiffs with serious defects and
21 nonconformities to warranty and developed other serious defects and nonconformities to warranty
22 including, but not limited to, electrical, engine, emission, and transmission system defects.
23 12. Plaintiffs hereby revoke acceptance of the sales contract.
24 13. Pursuant to the Song-Beverly Consumer Warranty Act (hereinafter the “Act”) Civil
25 Code sections 1790 et seq. the Subject Vehicle constitutes “consumer goods” used primarily for
26 family or household purposes, and Plaintiffs have used the vehicle primarily for those purposes.
27 14. Plaintiffs are the “buyers” of consumer goods under the Act.
28 15. Defendant, VOLKSWAGEN GROUP OF AMERICA, INC., is a "manufacturer"
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COMPLAINT
1 and/or “distributor" under the Act.
2 16. Plaintiffs hereby demand trial by jury in this action.
3 FIRST CAUSE OF ACTION
4 Violation of the Song-Beverly Act – Breach of Express Warranty
5 (Against Defendant VOLKSWAGEN GROUP OF AMERICA, INC.)
6 17. Plaintiffs incorporate herein by reference each and every allegation contained in the
7 preceding and succeeding paragraphs as though herein fully restated and re-alleged.
8 18. The Subject Vehicle was sold to Plaintiffs with express warranties that the Subject
9 Vehicle would be free from defects in materials, nonconformity, or workmanship during the
10 applicable warranty period and to the extent that the Subject Vehicle had defects, Defendant
11 VOLKSWAGEN GROUP OF AMERICA, INC. would repair the defects.
12 19. The Subject Vehicle was delivered to Plaintiffs with serious defects and
13 nonconformities to warranty and developed other serious defects and nonconformities to warranty
14 including, but not limited to, electrical, engine, emission, and transmission system defects.
15 20. Pursuant to the Song-Beverly Consumer Warranty Act (hereinafter the “Act”) Civil
16 Code sections 1790 et seq. the vehicle constitutes “consumer goods” used primarily for family or
17 household purposes, and Plaintiffs have used the Subject Vehicle primarily for those purposes.
18 21. Plaintiffs are the “buyers” of consumer goods under the Act.
19 22. Defendant, VOLKSWAGEN GROUP OF AMERICA, INC., is a "manufacturer"
20 and/or “distributor" under the Act.
21 23. The foregoing defects and nonconformities to warranty manifested themselves in
22 the Subject Vehicle within the applicable express warranty period. The nonconformities
23 substantially impair the use, value, and/or safety of the vehicle.
24 24. Plaintiffs delivered the vehicle to an authorized VOLKSWAGEN GROUP OF
25 AMERICA, INC. repair facility for repair of the nonconformities.
26 25. Defendant was unable to conform Plaintiffs’ vehicle to the applicable express
27 warranty after a reasonable number of repair attempts.
28 26. Notwithstanding Plaintiffs’ entitlement, Defendant VOLKSWAGEN GROUP OF
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COMPLAINT
1 AMERICA, INC. has failed to either promptly replace the new motor vehicle or to promptly make
2 restitution in accordance with the Song-Beverly Act.
3 27. By failure of Defendant to remedy the defects as alleged above or to issue a refund
4 or replacement vehicle, Defendant is in breach of its obligations under the Song-Beverly Act.
5 28. Under the Act, Plaintiffs are entitled to reimbursement of the price paid for the
6 vehicle less that amount directly attributable to use by the Plaintiff prior to the first presentation of
7 the nonconformities.
8 29. Plaintiffs are entitled to all incidental, consequential, and general damages resulting
9 from Defendant’s failure to comply with its obligations under the Song-Beverly Act.
10 30. Plaintiffs are entitled under the Song-Beverly Act to recover as part of the judgment
11 a sum equal to the aggregate amount of costs and expenses, including attorney’s fees, reasonably
12 incurred in connection with the commencement and prosecution of this action.
13 31. Because Defendant willfully violated the Song-Beverly Act, Plaintiffs are entitled,
14 in addition to the amounts recovered, a civil penalty of up to two times the amount of actual
15 damages for VOLKSWAGEN GROUP OF AMERICA, INC.’s willful failure to comply with its
16 responsibilities under the Act.
17 SECOND CAUSE OF ACTION
18 Violation of the Song-Beverly Act – Breach of Implied Warranty
19 (Against Defendant VOLKSWAGEN GROUP OF AMERICA, INC.)
20 32. Plaintiffs incorporate herein by reference each and every allegation contained in the
21 preceding and succeeding paragraphs as though herein fully restated and re-alleged.
22 33. VOLKSWAGEN GROUP OF AMERICA, INC. and its authorized dealership at
23 which Plaintiffs purchased the subject vehicle had reason to know the purpose of the Subject
24 Vehicle at the time of sale of the subject vehicle. The sale of the Subject Vehicle was accompanied
25 by implied warranties provided for under the law.
26 34. Among other warranties, the sale of the Subject Vehicle was accompanied by an
27 implied warranty that the Subject vehicle was merchantable pursuant to Civil Code section 1792.
28 35. Pursuant to Civil Code section 1791.1 (a), the implied warranty of merchantability
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COMPLAINT
1 means and includes that the Vehicle will comply with each of the following requirements: (1) The
2 Vehicle will pass without objection in the trade under the contract description; (2) The Vehicle is
3 fit for the ordinary purposes for which such goods are used; (3) The Vehicle is adequately
4 contained, packaged, and labelled; (4) The Vehicle will conform to the promises or affirmations of
5 fact made on the container or label.
6 36. The Subject Vehicle was not fit for the ordinary purpose for which such goods are
7 used because it was equipped with one or more defective vehicle systems/components.
8 37. The Subject Vehicle did not measure up to the promises or facts stated on the
9 container or label because it was equipped with one or more defective vehicle systems/components.
10 38. The Subject Vehicle was not of the same quality as those generally accepted in the
11 trade because it was sold with one or more defective vehicle systems/components which manifested
12 as electrical, engine, emission, and transmission system defects.
13 39. Upon information and belief, the defective vehicle systems and components were
14 present at the time of sale of the Subject Vehicle; thus, extending the duration of any implied
15 warranty under Mexia v. Rinker Boat Co., Inc. (2009) 174 Cal.App.4th 1297, 1304–1305 and other
16 applicable laws.
17 40. Plaintiffs are entitled to justifiably revoke acceptance of the subject vehicle under
18 Civil Code, section 1794, et seq.
19 41. Plaintiffs hereby revoke acceptance of the Subject Vehicle.
20 42. Plaintiffs are entitled to replacement or reimbursement pursuant to Civil Code,
21 section 1794, et seq.
22 43. Plaintiffs are entitled to rescission of the contract pursuant to Civil Code, section
23 1794, et seq. and Commercial Code, section 2711.
24 44. Plaintiffs are entitled to recover any incidental, consequential, and/or “cover”
25 damages under Commercial Code, sections 2711, 2712, and Civil Code, section 1794, et seq.
26 ///
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COMPLAINT
1 THIRD CAUSE OF ACTION
2 Violation of the Song-Beverly Act Section 1793.2(b)
3 (Against Defendant VOLKSWAGEN GROUP OF AMERICA, INC.)
4 45. Plaintiffs incorporate herein by reference each and every allegation contained in the
5 preceding and succeeding paragraphs as though herein fully restated and re-alleged.
6 46. Pursuant to Civil Code, section 1793.2, subdivision (a) a manufacturer that sells
7 consumer goods in California, for which it has made an express warranty, shall maintain service
8 and repair facilities or designate and authorize independent service and repair facilities to carry out
9 the terms of those warranties.
10 47. Pursuant to Civil Code, section 1793.2, subdivision (b), when service and repair of
11 goods are necessary because they do not conform with the applicable express warranties, service
12 and repair shall be commenced within a reasonable time by the manufacturer or its representative.
13 48. Civil Code, section 1793.2, subdivision (b) further states that goods shall be serviced
14 or repaired so as to conform to the applicable warranties within 30 days and/or within a reasonable
15 time.
16 49. The sale of the Subject Vehicle was accompanied by express warranties, including
17 a warranty guaranteeing that the subject vehicle was safe to drive and not equipped with defective
18 parts, including the electrical system.
19 50. Plaintiffs delivered the subject vehicle to VOLKSWAGEN GROUP OF
20 AMERICA, INC.’s authorized service representatives on multiple occasions. The subject vehicle
21 was delivered for repairs of defects, which amount to nonconformities to the express warranties
22 that accompanied the sale of the subject vehicle.
23 51. Defendant’s authorized facilities did not conform the Subject Vehicle to warranty
24 within 30-days and/or commence repairs within a reasonable time, and VOLKSWAGEN GROUP
25 OF AMERICA, INC. has failed to tender the subject vehicle back to Plaintiff in conformance with
26 its warranties within the timeframes set forth in Civil Code section 1793.2(b).
27 52. Plaintiffs are entitled to justifiably revoke acceptance of the subject vehicle under
28 Civil Code, section 1794, et seq.
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COMPLAINT
1 53. Plaintiffs hereby revoke acceptance of the subject vehicle.
2 54. Plaintiffs are entitled to replacement or reimbursement pursuant to Civil Code,
3 section 1794, et seq.
4 55. Plaintiffs are entitled to rescission of the contract pursuant to Civil Code section
5 1794, et seq. and Commercial Code, section 2711.
6 56. Plaintiffs are entitled to recover any “cover” damages under Commercial Code
7 sections 2711, 2712, and Civil Code, section 1794, et seq.
8 57. Plaintiffs are entitled to recover all incidental and consequential damages pursuant
9 to 1794 et seq and Commercial Code sections, 2711, 2712, and 2713 et seq.
10 58. Plaintiffs are entitled in addition to the amounts recovered, a civil penalty of up to
11 two times the amount of actual damages in that VOLKSWAGEN GROUP OF AMERICA, INC.
12 has willfully failed to comply with its responsibilities under the Act.
13 FOURTH CAUSE OF ACTION
14 Negligent Repair
15 Against Defendant MOSS BROS. VOLKSWAGEN
16 59. Plaintiffs incorporate herein by reference each and every allegation contained in the
17 preceding and succeeding paragraphs as through herein fully restated and re-alleged.
18 60. Plaintiffs delivered the Subject Vehicle to Defendant MOSS BROS.
19 VOLKSWAGEN for repairs on numerous occasions.
20 61. Defendant MOSS BROS. VOLKSWAGEN owed a duty to Plaintiffs to use ordinary
21 care and skill in storage, preparation, and repair of the Subject Vehicle in accordance with industry
22 standards.
23 62. Defendant MOSS BROS. VOLKSWAGEN breached its duty to Plaintiffs to
24 ordinary care and skill by failing to properly store, prepare, and repair of the Subject Vehicle in
25 accordance with industry standards.
26 Defendant MOSS BROS. VOLKSWAGEN’s negligent breach of its duties owed to
27 Plaintiffs were a proximate cause of Plaintiffs’ damages
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COMPLAINT
1 PRAYER FOR RELIEF
2 WHEREFORE, Plaintiffs pray for judgment against Defendants, as follows:
3 1. For general, special, and actual damages according to proof at trial;
4 2. For rescission of the purchase contract and restitution of all monies expended;
5 3. For diminution in value;
6 4. For incidental and consequential damages according to proof at trial;
7 5. For civil penalty in the amount of two times Plaintiffs’ actual damages;
8 6. For prejudgment interest at the legal rate;
9 7. For reasonable attorney’s fees and costs of suit; and
10 For such other and further relief as the Court deems just and proper under the circumstances.
11
Dated: April 5, 2023
12 QUILL & ARROW, LLP
13
14 _______________________
Kevin Y. Jacobson, Esq.
15 Attorney for Plaintiffs,
ANDREA I. MALDONADO
16 CRISTIAN I. VALENCIA
17 Plaintiffs, ANDREA I. MALDONADO and CRISTIAN I. VALENCIA, hereby demand
18 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 e-service@quillarrowlaw.com 3 10900 Wilshire Boulevard, Suite 300 Los Angeles, CA, 90024 4 Telephone: (310) 933-4271 5 Facsimile: (310) 889-0645 6 Attorney for Plaintiffs, 7 ANDREA I. MALDONADO AND CRISTIAN I. VALENCIA 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF RIVERSIDE 10 11 Case No.: ANDREA I. MALDONADO, an individual, and CRISTIAN I. VALENCIA, Unlimited Jurisdiction 12 an individual, COMPLAINT 13 Plaintiffs, 1. VIOLATION OF SONG-BEVERLY 14 ACT - BREACH OF EXPRESS 15 vs. WARRANTY 2. VIOLATION OF SONG-BEVERLY 16 VOLKSWAGEN GROUP OF AMERICA, ACT - BREACH OF IMPLIED INC., a New Jersey Corporation and WARRANTY 17 MOSS BROS. AUTO GROUP, INC., a 3. VIOLATION OF THE SONG- California Corporation d/b/a MOSS BROS. BEVERLY ACT SECTION 1793.2 18 VOLKSWAGEN, and DOES 1 through 10, 4. NEGLIGENT REPAIR 19 inclusive, 20 Defendants. 21 22 23 24 25 26 27 28 COMPLAINT 1 Plaintiffs, ANDREA I. MALDONADO, an individual, and CRISTIAN I. VALENCIA, an 2 individual (“Plaintiffs”), allege as follows against Defendant VOLKSWAGEN GROUP OF 3 AMERICA, INC., a New Jersey Corporation (“VOLKSWAGEN GROUP OF AMERICA, INC.”) 4 and MOSS BROS. AUTO GROUP, INC., a California Corporation d/b/a MOSS BROS. 5 VOLKSWAGEN (“MOSS BROS. VOLKSWAGEN”), and DOES 1 through 10 inclusive, on 6 information and belief, formed after a reasonable inquiry under the circumstances: 7 DEMAND FOR JURY TRIAL 8 1. Plaintiffs, ANDREA I. MALDONADO and CRISTIAN I. VALENCIA, hereby 9 demand trial by jury in this action. 10 GENERAL ALLEGATIONS 11 2. Plaintiffs, ANDREA I. MALDONADO and CRISTIAN I. VALENCIA, are 12 individuals residing in the City of Moreno Valley, State of California. 13 3. Defendant, VOLKSWAGEN GROUP OF AMERICA, INC., is and was a New 14 Jersey Corporation operating and doing business in the State of California. 15 4. Defendant, MOSS BROS. VOLKSWAGEN, is and was a California Corporation 16 registered to do business in the State of California with its principal place of business in the City of 17 Riverside, State of California. 18 5. These causes of causes of action arise out of warranty and repair obligations of 19 VOLKSWAGEN GROUP OF AMERICA, INC. in connection with a vehicle Plaintiffs purchased 20 and for which VOLKSWAGEN GROUP OF AMERICA, INC. issued a written warranty. The 21 warranty was not issued by the selling dealership. 22 6. Plaintiffs do not know the true names and capacities, whether corporate, partnership, 23 associate, individual, or otherwise of Defendant issued herein as Does 1 through 10, inclusive, 24 under the provisions of section 474 of the California Code of Civil Procedure. Defendant Does 1 25 through 10, inclusive, are in some manner responsible for the acts, occurrences, and transactions 26 set forth herein, and are legally liable to Plaintiffs. Plaintiffs will seek leave to amend this 27 Complaint to set forth the true names and capacities of the fictitiously named Defendant, together 28 with appropriate charging allegations, when ascertained. -2- COMPLAINT 1 7. All acts of corporate employees as alleged were authorized or ratified by an officer, 2 director, or managing agent of the corporate employer. 3 8. Each Defendant, whether actually or fictitiously named herein, was the principal, 4 agent (actual or ostensible), or employee of each other Defendant, and in acting as such principal 5 or within the course and scope of such employment or agency, took some part in the acts and 6 omissions hereinafter set forth by reason of which each Defendant is liable to Plaintiffs for the relief 7 prayed for herein. 8 9. On January 30, 2022, Plaintiffs purchased a 2022 Volkswagen Tiguan, having VIN 9 No.: 3VV8B7AX9NM041914 ("the Subject Vehicle”). These causes of action arise out of warranty 10 and repair obligations of VOLKSWAGEN GROUP OF AMERICA, INC. in connection with a 11 vehicle that Plaintiffs purchased and for which VOLKSWAGEN GROUP OF AMERICA, INC. 12 issued a written warranty. The warranty was not issued by the selling dealership. 13 10. VOLKSWAGEN GROUP OF AMERICA, INC. warranted the Subject Vehicle and 14 agreed to preserve or maintain the utility or performance of Plaintiffs’ vehicle or to provide 15 compensation if there was a failure in such utility or performance. In connection with the purchase, 16 Plaintiffs received various warranties, inter alia, a 4-year/50,000 mile express bumper to bumper 17 warranty, a 4-year/50,000 mile powertrain warranty which, inter alia, covers the engine and the 18 transmission, as well as various emissions warranties that exceed the time and mileage limitations 19 of the bumper to bumper and powertrain warranties. 20 11. The Subject Vehicle was delivered to Plaintiffs with serious defects and 21 nonconformities to warranty and developed other serious defects and nonconformities to warranty 22 including, but not limited to, electrical, engine, emission, and transmission system defects. 23 12. Plaintiffs hereby revoke acceptance of the sales contract. 24 13. Pursuant to the Song-Beverly Consumer Warranty Act (hereinafter the “Act”) Civil 25 Code sections 1790 et seq. the Subject Vehicle constitutes “consumer goods” used primarily for 26 family or household purposes, and Plaintiffs have used the vehicle primarily for those purposes. 27 14. Plaintiffs are the “buyers” of consumer goods under the Act. 28 15. Defendant, VOLKSWAGEN GROUP OF AMERICA, INC., is a "manufacturer" -3- COMPLAINT 1 and/or “distributor" under the Act. 2 16. Plaintiffs hereby demand trial by jury in this action. 3 FIRST CAUSE OF ACTION 4 Violation of the Song-Beverly Act – Breach of Express Warranty 5 (Against Defendant VOLKSWAGEN GROUP OF AMERICA, INC.) 6 17. Plaintiffs incorporate herein by reference each and every allegation contained in the 7 preceding and succeeding paragraphs as though herein fully restated and re-alleged. 8 18. The Subject Vehicle was sold to Plaintiffs with express warranties that the Subject 9 Vehicle would be free from defects in materials, nonconformity, or workmanship during the 10 applicable warranty period and to the extent that the Subject Vehicle had defects, Defendant 11 VOLKSWAGEN GROUP OF AMERICA, INC. would repair the defects. 12 19. The Subject Vehicle was delivered to Plaintiffs with serious defects and 13 nonconformities to warranty and developed other serious defects and nonconformities to warranty 14 including, but not limited to, electrical, engine, emission, and transmission system defects. 15 20. Pursuant to the Song-Beverly Consumer Warranty Act (hereinafter the “Act”) Civil 16 Code sections 1790 et seq. the vehicle constitutes “consumer goods” used primarily for family or 17 household purposes, and Plaintiffs have used the Subject Vehicle primarily for those purposes. 18 21. Plaintiffs are the “buyers” of consumer goods under the Act. 19 22. Defendant, VOLKSWAGEN GROUP OF AMERICA, INC., is a "manufacturer" 20 and/or “distributor" under the Act. 21 23. The foregoing defects and nonconformities to warranty manifested themselves in 22 the Subject Vehicle within the applicable express warranty period. The nonconformities 23 substantially impair the use, value, and/or safety of the vehicle. 24 24. Plaintiffs delivered the vehicle to an authorized VOLKSWAGEN GROUP OF 25 AMERICA, INC. repair facility for repair of the nonconformities. 26 25. Defendant was unable to conform Plaintiffs’ vehicle to the applicable express 27 warranty after a reasonable number of repair attempts. 28 26. Notwithstanding Plaintiffs’ entitlement, Defendant VOLKSWAGEN GROUP OF -4- COMPLAINT 1 AMERICA, INC. has failed to either promptly replace the new motor vehicle or to promptly make 2 restitution in accordance with the Song-Beverly Act. 3 27. By failure of Defendant to remedy the defects as alleged above or to issue a refund 4 or replacement vehicle, Defendant is in breach of its obligations under the Song-Beverly Act. 5 28. Under the Act, Plaintiffs are entitled to reimbursement of the price paid for the 6 vehicle less that amount directly attributable to use by the Plaintiff prior to the first presentation of 7 the nonconformities. 8 29. Plaintiffs are entitled to all incidental, consequential, and general damages resulting 9 from Defendant’s failure to comply with its obligations under the Song-Beverly Act. 10 30. Plaintiffs are entitled under the Song-Beverly Act to recover as part of the judgment 11 a sum equal to the aggregate amount of costs and expenses, including attorney’s fees, reasonably 12 incurred in connection with the commencement and prosecution of this action. 13 31. Because Defendant willfully violated the Song-Beverly Act, Plaintiffs are entitled, 14 in addition to the amounts recovered, a civil penalty of up to two times the amount of actual 15 damages for VOLKSWAGEN GROUP OF AMERICA, INC.’s willful failure to comply with its 16 responsibilities under the Act. 17 SECOND CAUSE OF ACTION 18 Violation of the Song-Beverly Act – Breach of Implied Warranty 19 (Against Defendant VOLKSWAGEN GROUP OF AMERICA, INC.) 20 32. Plaintiffs incorporate herein by reference each and every allegation contained in the 21 preceding and succeeding paragraphs as though herein fully restated and re-alleged. 22 33. VOLKSWAGEN GROUP OF AMERICA, INC. and its authorized dealership at 23 which Plaintiffs purchased the subject vehicle had reason to know the purpose of the Subject 24 Vehicle at the time of sale of the subject vehicle. The sale of the Subject Vehicle was accompanied 25 by implied warranties provided for under the law. 26 34. Among other warranties, the sale of the Subject Vehicle was accompanied by an 27 implied warranty that the Subject vehicle was merchantable pursuant to Civil Code section 1792. 28 35. Pursuant to Civil Code section 1791.1 (a), the implied warranty of merchantability -5- COMPLAINT 1 means and includes that the Vehicle will comply with each of the following requirements: (1) The 2 Vehicle will pass without objection in the trade under the contract description; (2) The Vehicle is 3 fit for the ordinary purposes for which such goods are used; (3) The Vehicle is adequately 4 contained, packaged, and labelled; (4) The Vehicle will conform to the promises or affirmations of 5 fact made on the container or label. 6 36. The Subject Vehicle was not fit for the ordinary purpose for which such goods are 7 used because it was equipped with one or more defective vehicle systems/components. 8 37. The Subject Vehicle did not measure up to the promises or facts stated on the 9 container or label because it was equipped with one or more defective vehicle systems/components. 10 38. The Subject Vehicle was not of the same quality as those generally accepted in the 11 trade because it was sold with one or more defective vehicle systems/components which manifested 12 as electrical, engine, emission, and transmission system defects. 13 39. Upon information and belief, the defective vehicle systems and components were 14 present at the time of sale of the Subject Vehicle; thus, extending the duration of any implied 15 warranty under Mexia v. Rinker Boat Co., Inc. (2009) 174 Cal.App.4th 1297, 1304–1305 and other 16 applicable laws. 17 40. Plaintiffs are entitled to justifiably revoke acceptance of the subject vehicle under 18 Civil Code, section 1794, et seq. 19 41. Plaintiffs hereby revoke acceptance of the Subject Vehicle. 20 42. Plaintiffs are entitled to replacement or reimbursement pursuant to Civil Code, 21 section 1794, et seq. 22 43. Plaintiffs are entitled to rescission of the contract pursuant to Civil Code, section 23 1794, et seq. and Commercial Code, section 2711. 24 44. Plaintiffs are entitled to recover any incidental, consequential, and/or “cover” 25 damages under Commercial Code, sections 2711, 2712, and Civil Code, section 1794, et seq. 26 /// 27 /// 28 /// -6- COMPLAINT 1 THIRD CAUSE OF ACTION 2 Violation of the Song-Beverly Act Section 1793.2(b) 3 (Against Defendant VOLKSWAGEN GROUP OF AMERICA, INC.) 4 45. Plaintiffs incorporate herein by reference each and every allegation contained in the 5 preceding and succeeding paragraphs as though herein fully restated and re-alleged. 6 46. Pursuant to Civil Code, section 1793.2, subdivision (a) a manufacturer that sells 7 consumer goods in California, for which it has made an express warranty, shall maintain service 8 and repair facilities or designate and authorize independent service and repair facilities to carry out 9 the terms of those warranties. 10 47. Pursuant to Civil Code, section 1793.2, subdivision (b), when service and repair of 11 goods are necessary because they do not conform with the applicable express warranties, service 12 and repair shall be commenced within a reasonable time by the manufacturer or its representative. 13 48. Civil Code, section 1793.2, subdivision (b) further states that goods shall be serviced 14 or repaired so as to conform to the applicable warranties within 30 days and/or within a reasonable 15 time. 16 49. The sale of the Subject Vehicle was accompanied by express warranties, including 17 a warranty guaranteeing that the subject vehicle was safe to drive and not equipped with defective 18 parts, including the electrical system. 19 50. Plaintiffs delivered the subject vehicle to VOLKSWAGEN GROUP OF 20 AMERICA, INC.’s authorized service representatives on multiple occasions. The subject vehicle 21 was delivered for repairs of defects, which amount to nonconformities to the express warranties 22 that accompanied the sale of the subject vehicle. 23 51. Defendant’s authorized facilities did not conform the Subject Vehicle to warranty 24 within 30-days and/or commence repairs within a reasonable time, and VOLKSWAGEN GROUP 25 OF AMERICA, INC. has failed to tender the subject vehicle back to Plaintiff in conformance with 26 its warranties within the timeframes set forth in Civil Code section 1793.2(b). 27 52. Plaintiffs are entitled to justifiably revoke acceptance of the subject vehicle under 28 Civil Code, section 1794, et seq. -7- COMPLAINT 1 53. Plaintiffs hereby revoke acceptance of the subject vehicle. 2 54. Plaintiffs are entitled to replacement or reimbursement pursuant to Civil Code, 3 section 1794, et seq. 4 55. Plaintiffs are entitled to rescission of the contract pursuant to Civil Code section 5 1794, et seq. and Commercial Code, section 2711. 6 56. Plaintiffs are entitled to recover any “cover” damages under Commercial Code 7 sections 2711, 2712, and Civil Code, section 1794, et seq. 8 57. Plaintiffs are entitled to recover all incidental and consequential damages pursuant 9 to 1794 et seq and Commercial Code sections, 2711, 2712, and 2713 et seq. 10 58. Plaintiffs are entitled in addition to the amounts recovered, a civil penalty of up to 11 two times the amount of actual damages in that VOLKSWAGEN GROUP OF AMERICA, INC. 12 has willfully failed to comply with its responsibilities under the Act. 13 FOURTH CAUSE OF ACTION 14 Negligent Repair 15 Against Defendant MOSS BROS. VOLKSWAGEN 16 59. Plaintiffs incorporate herein by reference each and every allegation contained in the 17 preceding and succeeding paragraphs as through herein fully restated and re-alleged. 18 60. Plaintiffs delivered the Subject Vehicle to Defendant MOSS BROS. 19 VOLKSWAGEN for repairs on numerous occasions. 20 61. Defendant MOSS BROS. VOLKSWAGEN owed a duty to Plaintiffs to use ordinary 21 care and skill in storage, preparation, and repair of the Subject Vehicle in accordance with industry 22 standards. 23 62. Defendant MOSS BROS. VOLKSWAGEN breached its duty to Plaintiffs to 24 ordinary care and skill by failing to properly store, prepare, and repair of the Subject Vehicle in 25 accordance with industry standards. 26 Defendant MOSS BROS. VOLKSWAGEN’s negligent breach of its duties owed to 27 Plaintiffs were a proximate cause of Plaintiffs’ damages 28 -8- COMPLAINT 1 PRAYER FOR RELIEF 2 WHEREFORE, Plaintiffs pray for judgment against Defendants, as follows: 3 1. For general, special, and actual damages according to proof at trial; 4 2. For rescission of the purchase contract and restitution of all monies expended; 5 3. For diminution in value; 6 4. For incidental and consequential damages according to proof at trial; 7 5. For civil penalty in the amount of two times Plaintiffs’ actual damages; 8 6. For prejudgment interest at the legal rate; 9 7. For reasonable attorney’s fees and costs of suit; and 10 For such other and further relief as the Court deems just and proper under the circumstances. 11 Dated: April 5, 2023 12 QUILL & ARROW, LLP 13 14 _______________________ Kevin Y. Jacobson, Esq. 15 Attorney for Plaintiffs, ANDREA I. MALDONADO 16 CRISTIAN I. VALENCIA 17 Plaintiffs, ANDREA I. MALDONADO and CRISTIAN I. VALENCIA, hereby demand 18 trial by jury in this action. 19 20 21 22 23 24 25 26 27 28 -9- COMPLAINT