Preview
1 KNIGHT LAW GROUP, LLP
Roger Kirnos (SBN 283163)
2
E-mail: rogerk@knightlaw.com
3 Lauren Ungs (SBN 273374)
E-mail: laurenu@knightlaw.com
4 10250 Constellation Blvd., Suite 2500
Los Angeles, CA 90067
5
Telephone: (310) 552-2250
6 Fax: (310) 552-7973
7 Attorneys for Plaintiff(s),
JOSE RUIZ TINOCO aka JOSE RUIZ
8
SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF RIVERSIDE
10
JOSE RUIZ TINOCO AKA JOSE RUIZ, Case No.:
11
Plaintiff(s), Unlimited Jurisdiction
12
COMPLAINT:
13 vs.
14 1. VIOLATION OF SONG-BEVERLY
ACT - BREACH OF EXPRESS
15 NISSAN NORTH AMERICA, INC., a WARRANTY
Delaware Corporation, VICTORVILLE
2. FRAUDULENT INDUCEMENT –
16 NISSAN, INC., a California Corporation dba
INTENTIONAL
Valley Hi Nissan, and DOES 1 through 10,
17 MISREPRESENTATION
inclusive,
3. FRAUDULENT INDUCEMENT –
18 CONCEALMENT
19 Defendants. 4. NEGLIGENT REPAIR
20
21 Assigned for All Purposes to the
22 Honorable
23 Department:
24
25
26
27
28
-1-
JOSE RUIZ TINOCO AKA JOSE RUIZ v. NISSAN COMPLAINT
1 Plaintiff(s) Jose Ruiz Tinoco AKA Jose Ruiz allege as follows against Defendant NISSAN
2 NORTH AMERICA, INC., a Delaware Corporation (“NISSAN”), VICTORVILLE NISSAN, INC.,
3 a California Corporation dba Valley Hi Nissan (“Valley Hi Nissan”); and DOES 1 through 10,
4 inclusive, on information and belief, formed after an inquiry reasonable under the circumstances:
5 DEMAND FOR JURY TRIAL
6 1. Plaintiff(s), Jose Ruiz Tinoco AKA Jose Ruiz, hereby demand trial by jury in this action.
7 GENERAL ALLEGATIONS
8 1. Plaintiff(s), Jose Ruiz Tinoco AKA Jose Ruiz (“Plaintiff(s)”), are individuals residing in
9 the State of California.
10 2. Defendant NISSAN is a Delaware Corporation registered to do business in the State of
11 California with its registered office in the City of Sacramento, County of Sacramento, and State of
12 California.
13 3. Defendant Valley Hi Nissan, is and at all relevant times was a California Corporation
14 registered to do business in the State of California with its principal place of business in the City of
15 Victorville, County of San Bernardino, and State of California.
16 4. Plaintiff(s)’ fraud related causes of action arise out of the facts that surround the
17 misrepresentations and concealment of material facts at the time Plaintiff(s) purchased a used,
18 certified pre-owned motor vehicle. The transaction which resulted from misrepresentations and
19 concealment of material facts occurred in Riverside, County of Riverside, California.
20 5. Plaintiff(s)’ cause(s) of action for violations of the Song-Beverly Act arise from warranty
21 obligations of NISSAN in connection with a vehicle purchased by Plaintiff(s) and for which NISSAN
22 issued written warranties. Plaintiff(s) allege that NISSAN was unable to repair the vehicle in
23 accordance with the written warranty or the consumer protection and warranty laws of the State of
24 California. The warranty contract was entered into in Riverside, County of Riverside, California.
25 6. Plaintiff(s) do not know the true names and capacities, whether corporate, partnership,
26 associate, individual or otherwise of NISSAN issued herein as Does 1 through 10, inclusive, under
27 the provisions of section 474 of the California Code of Civil Procedure. NISSAN Does 1 through
28 10, inclusive, are in some manner responsible for the acts, occurrences and transactions set forth
-2-
JOSE RUIZ TINOCO AKA JOSE RUIZ v. NISSAN COMPLAINT
1 herein, and are legally liable to Plaintiff. Plaintiff(s) will seek leave to amend this Complaint to set
2 forth the true names and capacities of the fictitiously named NISSAN, together with appropriate
3 charging allegations, when ascertained.
4 7. All acts of corporate employees as alleged were authorized or ratified by an officer, director
5 or managing agent of the corporate employer.
6 8. On March 10, 2022, Plaintiff(s) purchased a used, certified pre-owned 2022 Nissan
7 Frontier, VIN: 1N6ED1EJ9NN604218 (“the Subject Vehicle”).
8 9. Plaintiff(s) entered into an express written contract with NISSAN, referred to as the New
9 Vehicle Limited Warranty (“Warranty”), by which NISSAN undertook to preserve or maintain the
10 utility or performance of the Subject Vehicle or provide compensation if there was a failure in such
11 utility or performance. The Warranty covers any repairs needed to correct defects in materials or
12 workmanship of covered parts. The basic coverage period lasts 36 months or 36,000 miles, whichever
13 comes first, and the powertrain coverage lasts 60 months or 60,000 miles, whichever comes first. The
14 powertrain coverage specifically applies to the engine, transmission and transaxle, drivetrain, and
15 restraint system. The Warranty assured consumers that NISSAN would repair any defect in materials
16 or workmanship under normal use. The express warranty contract is attached and incorporated by
17 this reference as Exhibit 1.
18 10. Plaintiff(s) hereby revokes acceptance of the Subject Vehicle. Plaintiff(s) also reasonably
19 revoked acceptance of the Subject Vehicle by contacting NISSAN, demanding that the Subject
20 Vehicle be repurchased pursuant to the Song-Beverly Act.
21 The Continuously Variable Transmission (“CVT”) Defect
22 11. NISSAN manufactured and/or distributed more than five hundred thousand vehicles
23 throughout the United States equipped with defective continuously variable transmissions (“CVT”).
24 These defective CVTs were installed in NISSAN automobiles from 2010 to present, which were sold
25 or leased to California consumers, including Plaintiff(s).
26 12. The CVT defect causes consumers to experience the following manifestations of the defect:
27 unusual noises; stalling; premature transmission failure; hesitation from a stop before acceleration;
28 sudden, hard shaking during deceleration; sudden, hard shaking and violent jerking (commonly
-3-
JOSE RUIZ TINOCO AKA JOSE RUIZ v. NISSAN COMPLAINT
1 known as “juddering” or “shuddering”) during acceleration; and other drivability concerns that
2 impede the driver’s safety, each and all of which prevent a CVT-equipped vehicle from operating as
3 intended by the driver.
4 13. This transmission defect creates unreasonably dangerous situations while driving and
5 increases the risk of a crash when trying to accelerate from a stop; at low speeds when drivers intend
6 to accelerate to merge with highway traffic; and when attempting to drive uphill. The transmission
7 defect creates a serious safety risk that can lead to accidents, injuries, or even death to the driver, the
8 vehicles’ occupants, other drivers, and pedestrians.
9 NISSAN Knew of the CVT Defect
10 14. NISSAN knew or should have known about the safety hazard posed by the defective
11 transmissions before the sale of CVT-equipped vehicles from pre-market testing, consumer
12 complaints to the National Highway Traffic Safety Administration (“NHTSA”), consumer
13 complaints made directly to NISSAN and its dealers, and other sources which drove NISSAN to issue
14 Technical Service Bulletins acknowledging the transmission’s defect.
15 15. Plaintiff(s) are informed and believe that by October of 2012, if not earlier, NISSAN was
16 aware that the CVT installed in the vehicles was defective and would manifest symptoms as described
17 above (juddering, lag when attempting to accelerate, hard deceleration, complete failure and other
18 symptoms). NISSAN knew that the CVTs installed in its vehicles were prematurely failing, requiring
19 repeated repair or replacement. NISSAN knew that the replacement CVTs were just as likely to fail
20 prematurely as the originally installed CVT and had no fix for the rampant problems.
21 16. NISSAN tracks and monitors warranty spending by component part. After failures in pre-
22 release testing data and failures in prior iterations of the CVT, NISSANS knowledge of the defects
23 were enhanced by its regular review of warranty spending on repairs and replacements of the CVT
24 and its component parts that it monitored.
25 17. NISSAN should not have sold, leased, or marketed the CVT-equipped vehicles without a
26 full and complete disclosure of the transmission defect, and should have voluntarily recalled all CVT-
27 equipped vehicles long ago.
28 18. NISSAN knew or should have known of the many complaints about the CVT logged by
-4-
JOSE RUIZ TINOCO AKA JOSE RUIZ v. NISSAN COMPLAINT
1 NHTSA’s Office of Defects Investigation (“ODI”), and the content, consistency, and large number
2 of those complaints alerted, or should have alerted, NISSAN to the CVT transmission defects. For
3 years, owners of NISSAN vehicles equipped with CVTs have publicly complained to the United
4 States government about the CVT Defect. Despite knowing about the CVT defect and the danger it
5 poses to consumers and other parties, NISSAN sold, leased, and continues to sell and lease, vehicles
6 equipped with the CVT.
7 19. NISSAN knew about the CVT defects contained in CVT-equipped vehicles and concealed
8 the existence of those defects from Plaintiff(s) and other consumers prior to the time they purchased
9 or leased their respective vehicles. NISSAN continued this concealment from Plaintiff(s) and other
10 consumers following their respective sales or leases. NISSAN’s concealment caused Plaintiff(s) and
11 other consumers to experience the CVT defect throughout the life of the vehicles.
12 20. NISSAN has a long history of minimizing the significance of the CVT defect by preparing
13 and issuing Technical Service Bulletins (“TSBs”) and written service campaigns to its dealerships’
14 service and repair facilities, through which it falsely implies that the defect occurs only in certain,
15 seemingly rare circumstances and is capable of repair by the procedures NISSAN authorizes, all while
16 NISSAN knew that the repairs would be ineffective in the long-term.
17 21. In its TSBs and service campaigns issued to its dealerships’ service and repair facilities,
18 NISSAN has attributed this problem to the computer software issues or deteriorated transmission
19 fluid; however (as explained in further detail below), NISSAN’s proposed fixes have not resolved the
20 CVT defect in affected vehicles.
21 22. NISSAN’s January 3, 2013 TSB minimized the CVT defect by stating that the engines in
22 CVT-equipped 2013 Sentras would exhibit a small RPM decrease for a short duration or would stop
23 running when braking and shifting into reverse or drive. What NISSAN failed to communicate was
24 that the engines would also exhibit hesitation/lag, or would stop running entirely, when accelerating
25 from a stop. To solve the problem, NISSAN recommended that technicians reprogram the Engine
26 Control Module (“ECM”) first and, if applicable, the Transmission Control Module (“TCM”).
27 23. On March 15, 2013, NISSAN continued to minimize the CVT defect by releasing a further
28 TSB that documented its “Voluntary Service Campaign” to reprogram the ECM and, if necessary,
-5-
JOSE RUIZ TINOCO AKA JOSE RUIZ v. NISSAN COMPLAINT
1 the TCM in CVT-equipped 2013 NISSAN Sentras to prevent a condition in which the vehicle’s
2 engine may stop running when first shifting out of park, or at very low speeds (when taking off after
3 a stop or coasting to a stop) in cold weather. NISSAN specifically stated in this TSB that “The vehicle
4 still meets and exceeds applicable safety standards and there is no unreasonable risk to motor vehicle
5 safety.” (emphasis added). On June 27, 2013, NISSAN released a Service Campaign Bulletin that
6 reiterated the exact problems and solution identified in the March 15, 2013 TSB.
7 24. On May 30, 2013, NISSAN noted that the engines in 2013 NISSAN Sentras continued to
8 display intermittent RPM drops while stopped, and recommended reprogramming the ECM if the
9 March 15, 2013 Voluntary Service Campaign set forth in NTB13-022 already “has been completed.”
10 25. By the end of the 2013 calendar year, NISSAN released another TSB for 2013 NISSAN
11 Sentras acknowledging the continued problem of engine RPMs dropping very low while stopped and
12 the engine failing to run altogether while coming to a complete stop. NISSAN, again, recommended
13 only that technicians reprogram the ECM.
14 26. By January 27, 2014, NISSAN expanded its TSB to include all 2013 and 2014 NISSAN
15 Sentras and identified continued problems with the engines’ RPMs dropping very low while stopped
16 and failing to run altogether while coming to a complete stop. NISSAN, again, recommended only
17 that technicians reprogram the ECM.
18 27. On August 13, 2015, NISSAN conducted another Voluntary Service Campaign to
19 reprogram the CVT in 2013-2014 NISSAN Sentras and 2012-2017 NISSAN Versas because,
20 according to the TSB, “the belt may slip when manually shifting from the L range to the D range due
21 to low hydraulic pressure. Belt slippage may result in noise, vibration and poor acceleration. Left
22 unrepaired, this condition may reduce the durability of the CVT. This is not a safety issue, and the
23 vehicle meets or exceeds applicable safety standards.” (emphasis added). NISSAN further stated:
24 “the new software will increase hydraulic pressure while shifting to prevent CVT belt slip while
25 manually shifting from the L to D range.”
26 28. On April 7, 2016, NISSAN advised its authorized dealerships that the transmission failures
27 in the CVTs affected the 2014 Sentras as well. Specifically, NISSAN stated that 2013-2014 NISSAN
28 Sentras and 2012-2017 NISSAN Versas were experiencing “judder or shake (pulsing sensation, or
-6-
JOSE RUIZ TINOCO AKA JOSE RUIZ v. NISSAN COMPLAINT
1 fore/aft sensation)… while slowing to a stop.” NISSAN once again suggested that technicians
2 reprogram the TCM.
3 29. On November 20, 2017, NISSAN issued a TSB for CVT-equipped vehicles, including
4 NISSAN Sentras and 2012-2017 NISSAN Versas, acknowledging customer reports of transmission
5 judder (shake, shudder, single or multiple bumps or vibration), hesitation on acceleration, and lack of
6 power or RPM flare. The repair procedure involved a reprogram of the TCM.
7 30. On September 28, 2017, NISSAN issued another TSB for CVT-equipped vehicles,
8 including the 2013-2014 NISSAN Sentras and 2012-2014 NISSAN Versas, which again suggested
9 that technicians reprogram the TCM to address customer complaints with the CVT.
10 31. On February 1, 2018, NISSAN again issued a TSB for CVT-equipped vehicles, including
11 2013-2017 NISSAN Sentras and NISSAN Versas, again intending to address customer reports of
12 transmission judder, hesitation on acceleration, lack of power or RPM flare. The TSB, again,
13 suggested that technicians reprogram the TCM.
14 32. The above-described recommendations to “fix” the CVT defect through ECM and TCM
15 reprogramming (the software “updates”) or cooling the “transmission oil” (“transmission fluid
16 coolant procedure”), whether performed by NISSAN prior to delivery of the CVT-equipped vehicles
17 or performed by a repair technician after delivery, failed to remedy the transmission failures that
18 would inevitably occur in all CVT-equipped vehicles.
19 33. Upon information and belief, NISSAN has yet to develop any solution to correct the
20 transmission defect.
21 34. NISSAN has continued to manufacture, market, and distribute new CVT-equipped vehicles
22 into model year 2021, despite its failure to remedy the known CVT defect.
23 35. NHTSA provides a system for motor vehicle owners to report complaints relating to safety
24 defects that pose a risk of accidents, injuries, and even death in vehicles manufactured or imported in
25 the United States, including safety defects relating to transmission malfunctions. The safety defect
26 complaints are entered into NHTSA’s consumer complaint automated database, which manufacturers
27 can, and do, routinely access. NHTSA also provides these consumer complaints to the vehicle’s
28 manufacturer, including NISSAN. NISSAN reviews NHTSA consumer complaints. Given that the
-7-
JOSE RUIZ TINOCO AKA JOSE RUIZ v. NISSAN COMPLAINT
1 vast majority of vehicles owners are not aware of NHTSA and/or its reporting system, complaints
2 received by NHTSA are a small minority of the overall number of complaints made to NISSAN,
3 which also receives complaints directly and/or through its authorized dealerships.
4 36. Since at least October 2012, NISSAN has received complaints of transmission-related
5 drivability concerns and safety concerns related to CVT-equipped NISSAN vehicles.
6 37. Consumer complaints submitted to National Highway Traffic Safety Administration
7 (“NHTSA”) about the CVT defect have persisted despite the application of NISSAN’s supposed
8 fixes. Some consumers have received three or four computer upgrades and/or fluid replacements, yet
9 continue to experience the dangerous transmission failures. Drivers report that they do not feel safe
10 driving the CVT-equipped vehicles.
11 38. Consumers have submitted over 100 individual NHTSA complaints regarding the
12 transmission defect described in NISSAN’s Technical Service Bulletins. The number and content of
13 NHTSA consumer complaints of “juddering,” “down shifting,” “hesitation,” and loss of acceleration
14 highlight the CVT-equipped vehicles’ transmission defect.
15 39. These consumer complaints filed with NHTSA, and delivered to NISSAN, often highlight
16 the safety risk caused by the defect, including reports of near accidents and actual accidents that
17 occurred due to the defect without response or resolution by NISSAN. NISSAN received and was
18 aware of these consumer complaints and the impact on consumer safety.
19 40. NISSAN has been on notice for years that its CVT-equipped vehicles suffer from
20 transmission defects. By way of example, NISSAN doubled the warranty period for the transmission
21 in various models of 2003 to 2010 NISSANs equipped with a CVT to alleviate consumers’ concerns
22 that the CVTs were defective and would eventually fail, thereby leading to repair costs after the
23 warranty expired.
24 41. NISSAN has also released TSBs regarding CVT issues for earlier NISSAN models
25 equipped with a CVT. For example:
26 a. On August 15, 2014, NISSAN released a TSB acknowledging that the CVT reduced
27 vehicle speed in 2007-2012 NISSAN Sentras after high driving speed, driving in ambient temperature
28 of 96 degrees or higher, climbing steep or extended hills for 6 miles or more, and exhibited whine or
-8-
JOSE RUIZ TINOCO AKA JOSE RUIZ v. NISSAN COMPLAINT
1 rattle type noises due to reduced engine performance at decreasing vehicle speeds. NISSAN
2 recommended that its technicians install a kit designed to cool “transmission oil”. NISSAN released
3 another TSB acknowledging the same problems and suggested fixes on November 25, 2015,
4 necessarily indicating that NISSAN had not solved the problem.
5 b. NISSAN released a TSB on April 6, 2016 directed toward the 2013-2016 Altima and
6 the 2014-2016 Rogue to correct the vehicles’ hesitation and loss of power. The recommended fix
7 included removing the control valve to inspect the CVT belt and assess evidence of CVT belt
8 slippage. If there was no such evidence, the technician was told to replace the control valve and
9 effectively do nothing. If evidence of belt slippage existed, NISSAN replaced the entire CVT
10 assembly.
11 c. A September 10, 2013 TSB released by NISSAN noted a pronounced juddering during
12 light acceleration between 5 and 35 mph in 2013-2014 NISSAN Altima V6 Sedans and 2013-2014
13 Pathfinders. To fix the issue, NISSAN recommended reprogramming the CVT unless the vehicle was
14 a Pathfinder built before December 2012. In that case, unless a January 10, 2013 voluntary service
15 campaign to reprogram the Pathfinder was performed, NISSAN required the complete replacement
16 of the CVT. Even 2013- 2014 Pathfinders and Altimas manufactured after December 2012 had the
17 CVTs completely replaced if reprogramming of the CVT once again failed and the vehicle exhibited
18 pressure vibration.
19 d. NISSAN recognized long-standing issues with the CVT in reducing engine
20 performance and creating conditions where the vehicle experiences low power in July 6, 2012.
21 NISSAN identified the applicable vehicles as the 2001-2011 Altimas, 2008-2011 Altima Coupes,
22 2007-2011 Sentras, and 2008-2011 Rogues. At that time, NISSAN advised technicians to look for
23 overfilled CVT fluid levels, incorrect types of transmission fluid, or incorrect coolant/water mixes,
24 but otherwise failed to offer any other repairs.
25 42. NISSAN has continuously experienced problems over a number of years with its CVT
26 transmissions that resulted in the same transmission failures that Plaintiff(s) has experienced, yet
27 NISSAN has continued to install the CVT transmissions in its vehicles and failed to adequately
28 disclose to the Plaintiff(s) or other consumers the resulting transmission failures or the safety
-9-
JOSE RUIZ TINOCO AKA JOSE RUIZ v. NISSAN COMPLAINT
1 implications of such failures.
2 43. Upon information and belief, NISSAN was aware, or should have been aware, of the
3 CVT defect present in the Subject Vehicle before it was sold to Plaintiff.
4 44. At all relevant times, NISSAN had knowledge of the transmission defect.
5 NISSAN Had a Duty to Disclose The CVT Defect
6 45. The existence of the CVT defect is a material fact that a reasonable consumer would
7 consider when deciding whether to purchase or lease a vehicle equipped with a CVT transmission.
8 46. Plaintiff(s) would not have purchased the Subject Vehicle, or would have paid significantly
9 less for it, had they known of the transmission defect and the safety hazard it creates. By failing to
10 disclose the defect, NISSAN denied Plaintiff(s) information that was material to the purchase of, and
11 material to their willingness to use, the Subject Vehicle.
12 47. NISSAN had and continues to have a duty to disclose the CVT transmission defect and the
13 likelihood of the associated out-of-pocket repair costs to Plaintiff(s) and other consumers because: 1)
14 the defect poses an unreasonable safety hazard; 2) NISSAN has exclusive knowledge that is not
15 reasonably discoverable by Plaintiff(s) and consumers; 3) NISSAN has actively concealed the defect;
16 4) NISSAN made representations but did not disclose facts that materially qualified the facts
17 disclosed, or that rendered its disclosure likely to mislead.
18 48. NISSAN has chosen financial gain at the expense of consumer safety by failing to disclose
19 its knowledge of this critical safety defect to consumers.
20 49. Despite NISSAN’s knowledge of the defect in the CVT in the Subject Vehicle, NISSAN
21 continued to fail to disclose this unresolved safety defect to new and subsequent purchasers and
22 lessees of CVT-equipped vehicles, including Plaintiff(s). NISSAN continues to manufacture and sell
23 NISSAN vehicles equipped with the defective CVTs without any disclosure to consumers about these
24 hidden safety defects. NISSAN otherwise prevents reasonable consumers from repairing or
25 discovering this hazard until the vehicle’s transmission unexpectedly fails to properly function,
26 placing its occupants and other travelers in danger.
27 50. NISSAN’s Technical Service Bulletins concerning the transmission problems in the Subject
28 Vehicle were not sent to prospective purchasers or to consumers after purchase, and did not fully
-10-
JOSE RUIZ TINOCO AKA JOSE RUIZ v. NISSAN COMPLAINT
1 disclose the pervasiveness of the defect, the safety issues arising from the defect, or the uncertain
2 nature of the prescribed fixes.
3 PLAINTIFF(S)’ EXPERIENCES
4 51. The Subject Vehicle was purchased by Plaintiff(s) on March 10, 2022.
5 52. The Subject Vehicle was equipped with a CVT transmission.
6 53. Plaintiff(s) visited a car dealership in Riverside, California in hopes of finding a motor
7 vehicle. Plaintiff(s) walked the dealership in search of a vehicle to meet Plaintiff(s)’ needs, assisted
8 by a salesperson.
9 54. Prior to purchasing the Subject Vehicle, Plaintiff(s) reviewed marketing brochures, viewed
10 television commercials and/or heard radio commercials about the qualities of the Nissan Frontier.
11 Plaintiff(s) further relied on the statements made during the sales process by NISSAN’s agents and
12 within the marketing materials written by NISSAN. Plaintiff(s) also relied on the representations by
13 NISSAN and its authorized agent that the Subject Vehicle was certified pre-owned, meaning it met
14 the rigorous inspection and safety requirements. However, NISSAN and its authorized agents did
15 not disclose to Plaintiff(s) any information about the CVT defect. These omissions were material to
16 Plaintiff(s)’ decision to purchase the Subject Vehicle. Had NISSAN and/or its authorized agents
17 disclosed the CVT defect before Plaintiff(s) purchased the Subject Vehicle, Plaintiff(s) would have
18 been aware of such defects, and would not have purchased the Subject Vehicle.
19 55. During the powertrain warranty period, Plaintiff(s) presented the Subject Vehicle to a
20 NISSAN authorized dealership for repair after experiencing drivability concerns stemming from the
21 CVT defect on at least one occasion. At the conclusion of each of NISSAN authorized repair
22 facility’s attempted repair, neither NISSAN, nor its agent disclosed: (1) the existence known defect
23 in the CVT; or (2) NISSAN’s knowledge of the known CVT defect prior to the sale of the Subject
24 Vehicle to Plaintiff(s).
25 FIRST CAUSE OF ACTION
26 Violation of the Song-Beverly Act – Breach of Express Warranty
27 (Against Defendant Nissan North America)
28 56. Plaintiff(s) incorporates herein by reference each and every allegation contained in the
-11-
JOSE RUIZ TINOCO AKA JOSE RUIZ v. NISSAN COMPLAINT
1 preceding paragraphs as though herein fully restated and re-alleged.
2 57. Pursuant to the Song-Beverly Consumer Warranty Act (herein after the “Act”) Civil Code
3 sections 1790 et seq. the Subject Vehicle constitutes “consumer goods” used primarily for family or
4 household purposes, and Plaintiff(s) have used the Subject Vehicle primarily for those purposes.
5 58. Pursuant to the Song-Beverly Consumer Warranty Act (herein after the “Act”) Civil Code
6 sections 1790 et seq. the Subject Vehicle constitutes a “new motor vehicle.”
7 59. Plaintiff(s) are “buyers” of consumer goods under the Act.
8 60. NISSAN is a “manufacturer” and/or “distributor” under the Act.
9 61. NISSAN’s express written warranty covered the Subject Vehicle.
10 62. NISSAN entered into an express written warranty contract with Plaintiff(s) (“Warranty”).
11 NISSAN’s Warranty covers any repairs needed to correct defects in materials or workmanship of
12 covered parts. The basic coverage period lasts 36 months or 36,000 miles, whichever comes first, and
13 the powertrain coverage lasts 60 months or 60,000 miles, whichever comes first. The Warranty begins
14 on the date the vehicle is delivered to the first retail buyer or put into use, whichever is earliest. The
15 powertrain coverage specifically applies to the engine, transmission and transaxle, drivetrain, and
16 restraint system. The complete terms of that express warranty contract are attached hereto as Exhibit
17 1.
18 63. Defects and nonconformities to warranty manifested themselves within the applicable
19 express warranty period. The nonconformities substantially impaired the use, value and/or safety of
20 the Subject Vehicle.
21 64. Plaintiff(s) delivered the vehicle to an authorized NISSAN repair facility for repair of the
22 nonconformities.
23 65. NISSAN was unable to conform the Subject Vehicle to the applicable express warranty
24 after a reasonable number of repair attempts.
25 66. Notwithstanding Plaintiff(s)’ entitlement to a replacement vehicle and/or restitution under
26 the Act, NISSAN has failed to promptly make restitution in accordance with the Song-Beverly Act.
27 67. By failure of NISSAN to remedy the defects and nonconformities as alleged above, or to
28 promptly issue a refund in compliance with the Song-Beverly Act, NISSAN is in breach of its
-12-
JOSE RUIZ TINOCO AKA JOSE RUIZ v. NISSAN COMPLAINT
1 obligations under the Song-Beverly Act.
2 68. Under the Act, Plaintiff(s) are entitled to reimbursement of the price paid for the vehicle
3 less that amount directly attributable to use by the Plaintiff(s) prior to the first presentation to an
4 authorized repair facility for a nonconformity.
5 69. Plaintiff(s) are entitled to all incidental, consequential, and general damages resulting from
6 NISSAN’s failure to comply with its obligations under the Song-Beverly Act. Those damages
7 include, but are not limited to, registration fees and insurance for the Subject Vehicle.
8 70. Plaintiff(s) are entitled under the Song-Beverly Act to recover as part of the judgment a
9 sum equal to the aggregate amount of costs and expenses, including attorney’s fees, reasonably
10 incurred in connection with the commencement and prosecution of this action.
11 71. Plaintiff(s) are entitled in addition to the amounts recovered, a civil penalty of up to two
12 times the amount of actual damages for NISSAN’s willful failure to comply with its responsibilities
13 under the Act.
14 SECOND CAUSE OF ACTION
15 Fraudulent Inducement – Intentional Misrepresentation
16 (Against Defendant Nissan North America)
17 72. Plaintiff(s) incorporate herein by reference each and every allegation contained in the
18 preceding and succeeding paragraphs as though herein fully restated and re-alleged.
19 73. NISSAN were the only party with knowledge of the CVT defect because that knowledge
20 came from internal reports such as pre-release testing data, customer complaints made directly to
21 NISSAN, and technical service bulletins. None of this information was available to the public, nor
22 did NISSAN or its agents disclose any of the information to Plaintiff(s). NISSAN had exclusive
23 knowledge of the defect as described in detail above.
24 74. Without remedying the defects, NISSAN continued to equip vehicles with the defective
25 CVT. Those same defects to the transmission persisted throughout NISSAN’s production and sale of
26 vehicles equipped with the CVT.
27 75. NISSAN drafted, produced, and distributed marketing brochures to the public containing
28 factual representations about the Subject Vehicle.
-13-
JOSE RUIZ TINOCO AKA JOSE RUIZ v. NISSAN COMPLAINT
1 76. NISSAN produces and distributes marketing materials, including brochures and manuals,
2 to its authorized dealerships for the purpose of providing them to consumers such as Plaintiff. These
3 marketing materials are meant to provide certain information regarding NISSAN’s vehicles to the
4 consumer.
5 77. With these marketing materials and its dealership personnel, NISSAN is able to
6 communicate indirectly to consumers such as Plaintiff regarding its vehicles.
7 78. NISSAN’s authorized dealerships are its agents for purposes of the sale of NISSAN
8 vehicles to consumers such as Plaintiff.
9 79. The marketing brochures drafted, produced, and distributed by NISSAN and its agents
10 included the following misrepresentations about the Subject Vehicle:
11 a. “We got there by developing everything from exterior aerodynamics that whisper
12 through the wind, to an advanced 2.5-liter, 4-cylinder engine, to a virtually gearless Xtronic CVT®
13 transmission that maximizes efficiency and performance.”
14 b. “Active Engine Braking. Whether you’re slowing for a corner or coming to a stop, this
15 system uses the CVT transmission to apply engine braking – much like shifting to a lower gear in
16 traditional transmissions – to help give smoother deceleration and a more confident feel when
17 braking.”
18 c. “Combining a powerful 4-cylinder engine and a responsive Xtronic CVT®
19 (Continuously Variable Transmission) for zip when you need it and sip when you don’t – that’s
20 brilliant.”
21 d. “a virtually gearless CVT transmission that helps maximize efficiency and
22 performance.”
23 80. As alleged in more detail in paragraphs 45 through 50, NISSAN had a duty to disclose the
24 CVT defect.
25 81. Unfortunately, the Subject Vehicle was delivered to Plaintiff(s) with a defective CVT.
26 82. The representations made to Plaintiff(s) regarding the CVT and related drivability of the
27 Subject Vehicle were false.
28 83. NISSAN made such false representations regarding the CVT despite its extensive internal
-14-
JOSE RUIZ TINOCO AKA JOSE RUIZ v. NISSAN COMPLAINT
1 knowledge of the CVT defect, as described in more detail above.
2 84. NISSAN intended that Plaintiff(s) rely on the above described representations related to the
3 Subject Vehicle and its CVT, including that neither had inherent and irreparable defects, in inducing
4 Plaintiff(s) to purchase the Subject Vehicle.
5 85. Plaintiff(s) justifiably and reasonably relied on NISSAN’s representations related to the
6 reliability of the Subject Vehicle and its CVT, because NISSAN was the manufacturer of the Subject
7 Vehicle and claimed to have performed and relied upon extensive pre-release testing of the vehicles.
8 NISSAN was in a superior position of knowledge.
9 86. Plaintiff(s) were harmed by purchasing the Subject Vehicle that Plaintiff(s) would not have
10 purchased had Plaintiff(s) known the true facts about the CVT defect. Plaintiff(s) also suffered
11 diminution in the value of Plaintiff(s)’ vehicle, out-of-pocket expenses, damages in the amount of the
12 difference between the value of the vehicle equipped with the defective transmission and the value
13 of the vehicle if it had been equipped as warranted, and reliance damages. Plaintiff(s) also incurred
14 expenses relating to registration, insurance, and maintenance of the Subject Vehicle.
15 87. Plaintiff(s)’ reliance on NISSAN’s representations about the CVT’s qualities was a
16 substantial factor in causing Plaintiff(s)’ harm because NISSAN and its agents were the exclusive
17 source of information about the qualities of the CVT.
18 88. NISSAN failed to disclose the CVT defect at the time of sale, or at any point after the time
19 of sale, despite its ongoing knowledge of the defect. NISSAN’s continued concealment of the CVT
20 defect through both (1) its failure to proactively notify Plaintiff(s) of its prior fraud and (2) ongoing
21 misrepresentations that were made to Plaintiff(s) each time they brought the Subject Vehicle in for
22 repair, resulted in Plaintiff(s) incurring additional expenses to operative and maintain the Subject
23 Vehicle that they would not have otherwise incurred had they known of NISSAN’s fraud at the time
24 of sale or anytime thereafter. As a further result of the ongoing concealment and misrepresentations,
25 Plaintiff(s) incurred an immediate reduction in value at the time they drove the car off the lot, incurred
26 ongoing depreciation of the Subject Vehicle’s value, and any opportunity to reduce their
27 accumulating damages associated with a defective, depreciating asset.
28 89. The foregoing fraudulent and wrongful acts by NISSAN, as alleged above, were authorized
-15-
JOSE RUIZ TINOCO AKA JOSE RUIZ v. NISSAN COMPLAINT
1 and ratified by NISSAN’s officers, directions, and/or mangers. NISSAN’s agents or employees also
2 committed the wrongful acts set forth above with the foregoing knowledge, authorization, approval,
3 direction, or ratification of an officer, director, or managing agent of NISSAN pursuant to an implicit
4 or explicit company plan, scheme, or policy regarding the advertising and sale of NISSAN vehicles
5 with a CVT. Alternatively, the aforementioned wrongful acts were committed by an officer, director,
6 or managing agent of NISSAN.
7
8 THIRD CAUSE OF ACTION
9 Fraudulent Inducement – Concealment
10 (Against Defendant Nissan North America)
11 90. Plaintiff(s) incorporates herein by reference each and every allegation contained in the
12 preceding and succeeding paragraphs as though herein fully restated and re-alleged.
13 91. The Subject Vehicle was delivered to Plaintiff(s) with a serious safety defect in the CVT,
14 which manifested itself during Plaintiff(s)’ possession of the Subject Vehicle.
15 92. As alleged in more detail in paragraphs 45 through 50, NISSAN had a duty to disclose the
16 CVT defect.
17 93. NISSAN made such false representations regarding the CVT despite its extensive internal
18 knowledge of the CVT defect, as described in more detail above.
19 94. NISSAN and its agents intentionally concealed and failed to disclose facts relating to the
20 defective CVT as explained in more detail above.
21 95. NISSAN’s marketing brochure touted the characteristics of the Subject Vehicle and its
22 CVT, while not disclosing the defects in the CVT. NISSAN disclosed some facts (including the
23 characteristics of the drive quality and performance of the vehicle), but intentionally failed to disclose
24 the defects in the CVT, making the disclosure deceptive. The following are examples of the partial,
25 misleading representations that NISSAN made in its printed marketing material:
26 a. “We got there by developing everything from exterior aerodynamics that whisper
27 through the wind, to an advanced 2.5-liter, 4-cylinder engine, to a virtually gearless Xtronic CVT®
28 transmission that maximizes efficiency and performance.”
-16-
JOSE RUIZ TINOCO AKA JOSE RUIZ v. NISSAN COMPLAINT
1 b. “Active Engine Braking. Whether you’re slowing for a corner or coming to a stop, this
2 system uses the CVT transmission to apply engine braking – much like shifting to a lower gear in
3 traditional transmissions – to help give smoother deceleration and a more confident feel when
4 braking.”
5 c. “Combining a powerful 4-cylinder engine and a responsive Xtronic CVT®
6 (Continuously Variable Transmission) for zip when you need it and sip when you don’t – that’s
7 brilliant.”
8 d. “a virtually gearless CVT transmission that helps maximize efficiency and
9 performance.”
10 96. NISSAN actively concealed information from the public, preventing Plaintiff(s) from
11 discovering any of the concealed facts as described in detail above.
12 97. Plaintiff(s) did not know about the defective CVT at the time of sale.
13 98. Prior to the date of sale and on the date of sale, NISSAN had an opportunity to disclose the
14 defective CVT to Plaintiff(s), but instead concealed from and failed to disclose to Plaintiff(s), any of
15 the known defects in the CVT.
16 99. NISSAN intended to deceive Plaintiff(s) by concealing the known issues with the CVT in
17 an effort to sell the Subject Vehicle.
18 100. NISSAN fraudulently induced Plaintiff(s) to purchase the Subject Vehicle they would not
19 have entered into but for NISSAN’s concealment of the defective nature of the CVT.
20 101. Uncertain and unpredictable performance of a Subject Vehicle’s transmission can result in
21 sudden and unexpected movements or stalling that greatly increase the risk of a motor vehicle
22 accident, personal injury, and related liability.
23 102. Plaintiff(s) have been exposed numerous times to potential personal injury, physical harm,
24 and related liability from motor vehicle accidents caused by the CVT defect and problems presented
25 by the Subject Vehicle as a result of NISSAN’s fraudulent concealment in failing to disclose the CVT
26 defect to Plaintiff(s) at the time they purchased the Subject Vehicle and each time they presented the
27 Subject Vehicle for repair.
28 103. Had NISSAN and/or its agents disclosed the defective transmission to Plaintiff(s) at or prior
-17-
JOSE RUIZ TINOCO AKA JOSE RUIZ v. NISSAN COMPLAINT
1 to the sale, Plaintiff(s) would not have purchased the Subject Vehicle.
2 104. Plaintiff(s) were harmed by purchasing the Subject Vehicle that Plaintiff(s) would not have
3 purchased had Plaintiff(s) known the true facts about the CVT defect. Plaintiff(s) also suffered
4 diminution in the value of Plaintiff(s)’ vehicle, out-of-pocket expenses, damages in the amount of the
5 difference between the value of the vehicle equipped with the defective transmission and the value
6 of the vehicle if it had been equipped as warranted, and reliance damages. Plaintiff(s) also incurred
7 expenses relating to registration, insurance, and maintenance of the Subject Vehicle.
8 105. NISSAN failed to disclose the CVT defect at the time of sale, or at any point after the time
9 of sale, despite its ongoing knowledge of the defect. NISSAN’s continued concealment of the CVT
10 defect through both (1) its failure to proactively notify Plaintiff(s) of its prior fraud and (2) ongoing
11 misrepresentations that were made to Plaintiff(s) each time they brought the Subject Vehicle in for
12 repair, resulted in Plaintiff(s) incurring additional expenses to operative and maintain the Subject
13 Vehicle that they would not have otherwise incurred had they known of NISSAN’s fraud at the time
14 of sale or anytime thereafter. As a further result of the ongoing concealment and misrepresentations,
15 Plaintiff(s) incurred an immediate reduction in value at the time they drove the car off the lot, incurred
16 ongoing depreciation of the Subject Vehicle’s value, and any opportunity to reduce their
17 accumulating damages associated with a defective, depreciating asset.
18 106. Plaintiff(s) were harmed by NISSAN’s concealment of the defective transmission because
19 Plaintiff(s) were induced to purchase the Subject Vehicle, which Plaintiff(s) would not have otherwise
20 purchased.
21 107. NISSAN’s concealment of the defects was a substantial factor in causing Plaintiff(s)’ harm.
22
23 FOURTH CAUSE OF ACTION
24 Negligent Repair
25 (Against Defendant VICTORVILLE NISSAN, INC. dba Valley Hi Nissan)
26 108. Plaintiff(s) incorporate herein by reference each and every allegation contained in the
27 preceding and succeeding paragraphs as though herein fully restated and re-alleged.
28
-18-
JOSE RUIZ TINOCO AKA JOSE RUIZ v. NISSAN COMPLAINT
1 109. Plaintiff(s) delivered the Subject Vehicle to Defendant VICTORVILLE NISSAN, INC. dba
2 Valley Hi Nissan for repair of on numerous occasions.
3 110. Defendant VICTORVILLE NISSAN, INC. dba Valley Hi Nissan owed a duty to Plaintiff(s)
4 to use ordinary care and skill in storage, preparation and repair of the Subject Vehicle in accordance
5 with industry standards.
6 111. Defendant VICTORVILLE NISSAN, INC. dba Valley Hi Nissan breached its duty to
7 Plaintiff(s) to use ordinary care and skill by failing to properly store, prepare and repair of the Subject
8 Vehicle in accordance with industry standards.
9 112. Defendant VICTORVILLE NISSAN, INC. dba Valley Hi Nissan’s negligent breach of its
10 duties owed to Plaintiff(s) was a proximate cause of Plaintiff’s damages.
11
12 PRAYER FOR RELIEF
13 WHEREFORE, Plaintiff(s) pray for judgment against Defendants, as follows:
14 1. For general, special and actual damages according to proof at trial;
15 2. For rescission of the purchase contract and restitution of all monies expended;
16 3. For Out-of-Pocket expenses, including the difference in fair market value of the Subject
17 Vehicle and reliance damages;
18 4. For incidental and consequential damages according to proof at trial;
19 5. For a civil penalty in the amount of two times Plaintiff(s)’ actual damages;
20 6. For punitive damages;
21 7. For revocation of acceptance of the subject vehicle;
22 8. For prejudgment interest at the legal rate;
23 9. For reasonable attorney’s fees and costs of suit; and
24 ///
25 ///
26 ///
27 ///
28 ///
-19-
JOSE RUIZ TINOCO AKA JOSE RUIZ v. NISSAN COMPLAINT
1 10. For such other and further relief as the Court deems just and proper under the circumstances.
2
Dated: April 13, 2023 KNIGHT LAW GROUP, LLP
3
4
5 LAUREN UNGS (SBN 273374)
6 Attorneys for Plaintiff(s),
JOSE RUIZ TINOCO AKA JOSE RUIZ
7
8
9 Plaintiff(s), Jose Ruiz Tinoco AKA Jose Ruiz, hereby demand trial by jury in this action.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-20-
JOSE RUIZ TINOCO AKA JOSE RUIZ v. NISSAN COMPLAINT
EXHIBIT 1
2022
WARRANTY INFORMATION BOOKLET
Nissan, the Nissan logo, and Nissan model names are Nissan trademarks.
©2021 Nissan North America, Inc.
All rights reserved. No part of this publication may be reproduced or stored in a retrieval system, or transmitted
in any form, or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior
written permission of Nissan North America, Inc.
TABLE OF CONTENTS
1 WARRANTY COVERAGE AT A GLANCE 23 BRIDGESTONE FIRESTONE TIRE LIMITED
WARRANTY
2 NISSAN’S CUSTOMER CARE PROGRAM
26 GOODYEAR/DUNLOP TIRE LIMITED
4 NISSAN’S COMMITMENT TO CUSTOMER WARRANTY
SATISFACTION
35 CONTINENTAL/GENERAL TIRE LIMITED
5
Preview
1 KNIGHT LAW GROUP, LLP Roger Kirnos (SBN 283163) 2 E-mail: rogerk@knightlaw.com 3 Lauren Ungs (SBN 273374) E-mail: laurenu@knightlaw.com 4 10250 Constellation Blvd., Suite 2500 Los Angeles, CA 90067 5 Telephone: (310) 552-2250 6 Fax: (310) 552-7973 7 Attorneys for Plaintiff(s), JOSE RUIZ TINOCO aka JOSE RUIZ 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF RIVERSIDE 10 JOSE RUIZ TINOCO AKA JOSE RUIZ, Case No.: 11 Plaintiff(s), Unlimited Jurisdiction 12 COMPLAINT: 13 vs. 14 1. VIOLATION OF SONG-BEVERLY ACT - BREACH OF EXPRESS 15 NISSAN NORTH AMERICA, INC., a WARRANTY Delaware Corporation, VICTORVILLE 2. FRAUDULENT INDUCEMENT – 16 NISSAN, INC., a California Corporation dba INTENTIONAL Valley Hi Nissan, and DOES 1 through 10, 17 MISREPRESENTATION inclusive, 3. FRAUDULENT INDUCEMENT – 18 CONCEALMENT 19 Defendants. 4. NEGLIGENT REPAIR 20 21 Assigned for All Purposes to the 22 Honorable 23 Department: 24 25 26 27 28 -1- JOSE RUIZ TINOCO AKA JOSE RUIZ v. NISSAN COMPLAINT 1 Plaintiff(s) Jose Ruiz Tinoco AKA Jose Ruiz allege as follows against Defendant NISSAN 2 NORTH AMERICA, INC., a Delaware Corporation (“NISSAN”), VICTORVILLE NISSAN, INC., 3 a California Corporation dba Valley Hi Nissan (“Valley Hi Nissan”); and DOES 1 through 10, 4 inclusive, on information and belief, formed after an inquiry reasonable under the circumstances: 5 DEMAND FOR JURY TRIAL 6 1. Plaintiff(s), Jose Ruiz Tinoco AKA Jose Ruiz, hereby demand trial by jury in this action. 7 GENERAL ALLEGATIONS 8 1. Plaintiff(s), Jose Ruiz Tinoco AKA Jose Ruiz (“Plaintiff(s)”), are individuals residing in 9 the State of California. 10 2. Defendant NISSAN is a Delaware Corporation registered to do business in the State of 11 California with its registered office in the City of Sacramento, County of Sacramento, and State of 12 California. 13 3. Defendant Valley Hi Nissan, is and at all relevant times was a California Corporation 14 registered to do business in the State of California with its principal place of business in the City of 15 Victorville, County of San Bernardino, and State of California. 16 4. Plaintiff(s)’ fraud related causes of action arise out of the facts that surround the 17 misrepresentations and concealment of material facts at the time Plaintiff(s) purchased a used, 18 certified pre-owned motor vehicle. The transaction which resulted from misrepresentations and 19 concealment of material facts occurred in Riverside, County of Riverside, California. 20 5. Plaintiff(s)’ cause(s) of action for violations of the Song-Beverly Act arise from warranty 21 obligations of NISSAN in connection with a vehicle purchased by Plaintiff(s) and for which NISSAN 22 issued written warranties. Plaintiff(s) allege that NISSAN was unable to repair the vehicle in 23 accordance with the written warranty or the consumer protection and warranty laws of the State of 24 California. The warranty contract was entered into in Riverside, County of Riverside, California. 25 6. Plaintiff(s) do not know the true names and capacities, whether corporate, partnership, 26 associate, individual or otherwise of NISSAN issued herein as Does 1 through 10, inclusive, under 27 the provisions of section 474 of the California Code of Civil Procedure. NISSAN Does 1 through 28 10, inclusive, are in some manner responsible for the acts, occurrences and transactions set forth -2- JOSE RUIZ TINOCO AKA JOSE RUIZ v. NISSAN COMPLAINT 1 herein, and are legally liable to Plaintiff. Plaintiff(s) will seek leave to amend this Complaint to set 2 forth the true names and capacities of the fictitiously named NISSAN, together with appropriate 3 charging allegations, when ascertained. 4 7. All acts of corporate employees as alleged were authorized or ratified by an officer, director 5 or managing agent of the corporate employer. 6 8. On March 10, 2022, Plaintiff(s) purchased a used, certified pre-owned 2022 Nissan 7 Frontier, VIN: 1N6ED1EJ9NN604218 (“the Subject Vehicle”). 8 9. Plaintiff(s) entered into an express written contract with NISSAN, referred to as the New 9 Vehicle Limited Warranty (“Warranty”), by which NISSAN undertook to preserve or maintain the 10 utility or performance of the Subject Vehicle or provide compensation if there was a failure in such 11 utility or performance. The Warranty covers any repairs needed to correct defects in materials or 12 workmanship of covered parts. The basic coverage period lasts 36 months or 36,000 miles, whichever 13 comes first, and the powertrain coverage lasts 60 months or 60,000 miles, whichever comes first. The 14 powertrain coverage specifically applies to the engine, transmission and transaxle, drivetrain, and 15 restraint system. The Warranty assured consumers that NISSAN would repair any defect in materials 16 or workmanship under normal use. The express warranty contract is attached and incorporated by 17 this reference as Exhibit 1. 18 10. Plaintiff(s) hereby revokes acceptance of the Subject Vehicle. Plaintiff(s) also reasonably 19 revoked acceptance of the Subject Vehicle by contacting NISSAN, demanding that the Subject 20 Vehicle be repurchased pursuant to the Song-Beverly Act. 21 The Continuously Variable Transmission (“CVT”) Defect 22 11. NISSAN manufactured and/or distributed more than five hundred thousand vehicles 23 throughout the United States equipped with defective continuously variable transmissions (“CVT”). 24 These defective CVTs were installed in NISSAN automobiles from 2010 to present, which were sold 25 or leased to California consumers, including Plaintiff(s). 26 12. The CVT defect causes consumers to experience the following manifestations of the defect: 27 unusual noises; stalling; premature transmission failure; hesitation from a stop before acceleration; 28 sudden, hard shaking during deceleration; sudden, hard shaking and violent jerking (commonly -3- JOSE RUIZ TINOCO AKA JOSE RUIZ v. NISSAN COMPLAINT 1 known as “juddering” or “shuddering”) during acceleration; and other drivability concerns that 2 impede the driver’s safety, each and all of which prevent a CVT-equipped vehicle from operating as 3 intended by the driver. 4 13. This transmission defect creates unreasonably dangerous situations while driving and 5 increases the risk of a crash when trying to accelerate from a stop; at low speeds when drivers intend 6 to accelerate to merge with highway traffic; and when attempting to drive uphill. The transmission 7 defect creates a serious safety risk that can lead to accidents, injuries, or even death to the driver, the 8 vehicles’ occupants, other drivers, and pedestrians. 9 NISSAN Knew of the CVT Defect 10 14. NISSAN knew or should have known about the safety hazard posed by the defective 11 transmissions before the sale of CVT-equipped vehicles from pre-market testing, consumer 12 complaints to the National Highway Traffic Safety Administration (“NHTSA”), consumer 13 complaints made directly to NISSAN and its dealers, and other sources which drove NISSAN to issue 14 Technical Service Bulletins acknowledging the transmission’s defect. 15 15. Plaintiff(s) are informed and believe that by October of 2012, if not earlier, NISSAN was 16 aware that the CVT installed in the vehicles was defective and would manifest symptoms as described 17 above (juddering, lag when attempting to accelerate, hard deceleration, complete failure and other 18 symptoms). NISSAN knew that the CVTs installed in its vehicles were prematurely failing, requiring 19 repeated repair or replacement. NISSAN knew that the replacement CVTs were just as likely to fail 20 prematurely as the originally installed CVT and had no fix for the rampant problems. 21 16. NISSAN tracks and monitors warranty spending by component part. After failures in pre- 22 release testing data and failures in prior iterations of the CVT, NISSANS knowledge of the defects 23 were enhanced by its regular review of warranty spending on repairs and replacements of the CVT 24 and its component parts that it monitored. 25 17. NISSAN should not have sold, leased, or marketed the CVT-equipped vehicles without a 26 full and complete disclosure of the transmission defect, and should have voluntarily recalled all CVT- 27 equipped vehicles long ago. 28 18. NISSAN knew or should have known of the many complaints about the CVT logged by -4- JOSE RUIZ TINOCO AKA JOSE RUIZ v. NISSAN COMPLAINT 1 NHTSA’s Office of Defects Investigation (“ODI”), and the content, consistency, and large number 2 of those complaints alerted, or should have alerted, NISSAN to the CVT transmission defects. For 3 years, owners of NISSAN vehicles equipped with CVTs have publicly complained to the United 4 States government about the CVT Defect. Despite knowing about the CVT defect and the danger it 5 poses to consumers and other parties, NISSAN sold, leased, and continues to sell and lease, vehicles 6 equipped with the CVT. 7 19. NISSAN knew about the CVT defects contained in CVT-equipped vehicles and concealed 8 the existence of those defects from Plaintiff(s) and other consumers prior to the time they purchased 9 or leased their respective vehicles. NISSAN continued this concealment from Plaintiff(s) and other 10 consumers following their respective sales or leases. NISSAN’s concealment caused Plaintiff(s) and 11 other consumers to experience the CVT defect throughout the life of the vehicles. 12 20. NISSAN has a long history of minimizing the significance of the CVT defect by preparing 13 and issuing Technical Service Bulletins (“TSBs”) and written service campaigns to its dealerships’ 14 service and repair facilities, through which it falsely implies that the defect occurs only in certain, 15 seemingly rare circumstances and is capable of repair by the procedures NISSAN authorizes, all while 16 NISSAN knew that the repairs would be ineffective in the long-term. 17 21. In its TSBs and service campaigns issued to its dealerships’ service and repair facilities, 18 NISSAN has attributed this problem to the computer software issues or deteriorated transmission 19 fluid; however (as explained in further detail below), NISSAN’s proposed fixes have not resolved the 20 CVT defect in affected vehicles. 21 22. NISSAN’s January 3, 2013 TSB minimized the CVT defect by stating that the engines in 22 CVT-equipped 2013 Sentras would exhibit a small RPM decrease for a short duration or would stop 23 running when braking and shifting into reverse or drive. What NISSAN failed to communicate was 24 that the engines would also exhibit hesitation/lag, or would stop running entirely, when accelerating 25 from a stop. To solve the problem, NISSAN recommended that technicians reprogram the Engine 26 Control Module (“ECM”) first and, if applicable, the Transmission Control Module (“TCM”). 27 23. On March 15, 2013, NISSAN continued to minimize the CVT defect by releasing a further 28 TSB that documented its “Voluntary Service Campaign” to reprogram the ECM and, if necessary, -5- JOSE RUIZ TINOCO AKA JOSE RUIZ v. NISSAN COMPLAINT 1 the TCM in CVT-equipped 2013 NISSAN Sentras to prevent a condition in which the vehicle’s 2 engine may stop running when first shifting out of park, or at very low speeds (when taking off after 3 a stop or coasting to a stop) in cold weather. NISSAN specifically stated in this TSB that “The vehicle 4 still meets and exceeds applicable safety standards and there is no unreasonable risk to motor vehicle 5 safety.” (emphasis added). On June 27, 2013, NISSAN released a Service Campaign Bulletin that 6 reiterated the exact problems and solution identified in the March 15, 2013 TSB. 7 24. On May 30, 2013, NISSAN noted that the engines in 2013 NISSAN Sentras continued to 8 display intermittent RPM drops while stopped, and recommended reprogramming the ECM if the 9 March 15, 2013 Voluntary Service Campaign set forth in NTB13-022 already “has been completed.” 10 25. By the end of the 2013 calendar year, NISSAN released another TSB for 2013 NISSAN 11 Sentras acknowledging the continued problem of engine RPMs dropping very low while stopped and 12 the engine failing to run altogether while coming to a complete stop. NISSAN, again, recommended 13 only that technicians reprogram the ECM. 14 26. By January 27, 2014, NISSAN expanded its TSB to include all 2013 and 2014 NISSAN 15 Sentras and identified continued problems with the engines’ RPMs dropping very low while stopped 16 and failing to run altogether while coming to a complete stop. NISSAN, again, recommended only 17 that technicians reprogram the ECM. 18 27. On August 13, 2015, NISSAN conducted another Voluntary Service Campaign to 19 reprogram the CVT in 2013-2014 NISSAN Sentras and 2012-2017 NISSAN Versas because, 20 according to the TSB, “the belt may slip when manually shifting from the L range to the D range due 21 to low hydraulic pressure. Belt slippage may result in noise, vibration and poor acceleration. Left 22 unrepaired, this condition may reduce the durability of the CVT. This is not a safety issue, and the 23 vehicle meets or exceeds applicable safety standards.” (emphasis added). NISSAN further stated: 24 “the new software will increase hydraulic pressure while shifting to prevent CVT belt slip while 25 manually shifting from the L to D range.” 26 28. On April 7, 2016, NISSAN advised its authorized dealerships that the transmission failures 27 in the CVTs affected the 2014 Sentras as well. Specifically, NISSAN stated that 2013-2014 NISSAN 28 Sentras and 2012-2017 NISSAN Versas were experiencing “judder or shake (pulsing sensation, or -6- JOSE RUIZ TINOCO AKA JOSE RUIZ v. NISSAN COMPLAINT 1 fore/aft sensation)… while slowing to a stop.” NISSAN once again suggested that technicians 2 reprogram the TCM. 3 29. On November 20, 2017, NISSAN issued a TSB for CVT-equipped vehicles, including 4 NISSAN Sentras and 2012-2017 NISSAN Versas, acknowledging customer reports of transmission 5 judder (shake, shudder, single or multiple bumps or vibration), hesitation on acceleration, and lack of 6 power or RPM flare. The repair procedure involved a reprogram of the TCM. 7 30. On September 28, 2017, NISSAN issued another TSB for CVT-equipped vehicles, 8 including the 2013-2014 NISSAN Sentras and 2012-2014 NISSAN Versas, which again suggested 9 that technicians reprogram the TCM to address customer complaints with the CVT. 10 31. On February 1, 2018, NISSAN again issued a TSB for CVT-equipped vehicles, including 11 2013-2017 NISSAN Sentras and NISSAN Versas, again intending to address customer reports of 12 transmission judder, hesitation on acceleration, lack of power or RPM flare. The TSB, again, 13 suggested that technicians reprogram the TCM. 14 32. The above-described recommendations to “fix” the CVT defect through ECM and TCM 15 reprogramming (the software “updates”) or cooling the “transmission oil” (“transmission fluid 16 coolant procedure”), whether performed by NISSAN prior to delivery of the CVT-equipped vehicles 17 or performed by a repair technician after delivery, failed to remedy the transmission failures that 18 would inevitably occur in all CVT-equipped vehicles. 19 33. Upon information and belief, NISSAN has yet to develop any solution to correct the 20 transmission defect. 21 34. NISSAN has continued to manufacture, market, and distribute new CVT-equipped vehicles 22 into model year 2021, despite its failure to remedy the known CVT defect. 23 35. NHTSA provides a system for motor vehicle owners to report complaints relating to safety 24 defects that pose a risk of accidents, injuries, and even death in vehicles manufactured or imported in 25 the United States, including safety defects relating to transmission malfunctions. The safety defect 26 complaints are entered into NHTSA’s consumer complaint automated database, which manufacturers 27 can, and do, routinely access. NHTSA also provides these consumer complaints to the vehicle’s 28 manufacturer, including NISSAN. NISSAN reviews NHTSA consumer complaints. Given that the -7- JOSE RUIZ TINOCO AKA JOSE RUIZ v. NISSAN COMPLAINT 1 vast majority of vehicles owners are not aware of NHTSA and/or its reporting system, complaints 2 received by NHTSA are a small minority of the overall number of complaints made to NISSAN, 3 which also receives complaints directly and/or through its authorized dealerships. 4 36. Since at least October 2012, NISSAN has received complaints of transmission-related 5 drivability concerns and safety concerns related to CVT-equipped NISSAN vehicles. 6 37. Consumer complaints submitted to National Highway Traffic Safety Administration 7 (“NHTSA”) about the CVT defect have persisted despite the application of NISSAN’s supposed 8 fixes. Some consumers have received three or four computer upgrades and/or fluid replacements, yet 9 continue to experience the dangerous transmission failures. Drivers report that they do not feel safe 10 driving the CVT-equipped vehicles. 11 38. Consumers have submitted over 100 individual NHTSA complaints regarding the 12 transmission defect described in NISSAN’s Technical Service Bulletins. The number and content of 13 NHTSA consumer complaints of “juddering,” “down shifting,” “hesitation,” and loss of acceleration 14 highlight the CVT-equipped vehicles’ transmission defect. 15 39. These consumer complaints filed with NHTSA, and delivered to NISSAN, often highlight 16 the safety risk caused by the defect, including reports of near accidents and actual accidents that 17 occurred due to the defect without response or resolution by NISSAN. NISSAN received and was 18 aware of these consumer complaints and the impact on consumer safety. 19 40. NISSAN has been on notice for years that its CVT-equipped vehicles suffer from 20 transmission defects. By way of example, NISSAN doubled the warranty period for the transmission 21 in various models of 2003 to 2010 NISSANs equipped with a CVT to alleviate consumers’ concerns 22 that the CVTs were defective and would eventually fail, thereby leading to repair costs after the 23 warranty expired. 24 41. NISSAN has also released TSBs regarding CVT issues for earlier NISSAN models 25 equipped with a CVT. For example: 26 a. On August 15, 2014, NISSAN released a TSB acknowledging that the CVT reduced 27 vehicle speed in 2007-2012 NISSAN Sentras after high driving speed, driving in ambient temperature 28 of 96 degrees or higher, climbing steep or extended hills for 6 miles or more, and exhibited whine or -8- JOSE RUIZ TINOCO AKA JOSE RUIZ v. NISSAN COMPLAINT 1 rattle type noises due to reduced engine performance at decreasing vehicle speeds. NISSAN 2 recommended that its technicians install a kit designed to cool “transmission oil”. NISSAN released 3 another TSB acknowledging the same problems and suggested fixes on November 25, 2015, 4 necessarily indicating that NISSAN had not solved the problem. 5 b. NISSAN released a TSB on April 6, 2016 directed toward the 2013-2016 Altima and 6 the 2014-2016 Rogue to correct the vehicles’ hesitation and loss of power. The recommended fix 7 included removing the control valve to inspect the CVT belt and assess evidence of CVT belt 8 slippage. If there was no such evidence, the technician was told to replace the control valve and 9 effectively do nothing. If evidence of belt slippage existed, NISSAN replaced the entire CVT 10 assembly. 11 c. A September 10, 2013 TSB released by NISSAN noted a pronounced juddering during 12 light acceleration between 5 and 35 mph in 2013-2014 NISSAN Altima V6 Sedans and 2013-2014 13 Pathfinders. To fix the issue, NISSAN recommended reprogramming the CVT unless the vehicle was 14 a Pathfinder built before December 2012. In that case, unless a January 10, 2013 voluntary service 15 campaign to reprogram the Pathfinder was performed, NISSAN required the complete replacement 16 of the CVT. Even 2013- 2014 Pathfinders and Altimas manufactured after December 2012 had the 17 CVTs completely replaced if reprogramming of the CVT once again failed and the vehicle exhibited 18 pressure vibration. 19 d. NISSAN recognized long-standing issues with the CVT in reducing engine 20 performance and creating conditions where the vehicle experiences low power in July 6, 2012. 21 NISSAN identified the applicable vehicles as the 2001-2011 Altimas, 2008-2011 Altima Coupes, 22 2007-2011 Sentras, and 2008-2011 Rogues. At that time, NISSAN advised technicians to look for 23 overfilled CVT fluid levels, incorrect types of transmission fluid, or incorrect coolant/water mixes, 24 but otherwise failed to offer any other repairs. 25 42. NISSAN has continuously experienced problems over a number of years with its CVT 26 transmissions that resulted in the same transmission failures that Plaintiff(s) has experienced, yet 27 NISSAN has continued to install the CVT transmissions in its vehicles and failed to adequately 28 disclose to the Plaintiff(s) or other consumers the resulting transmission failures or the safety -9- JOSE RUIZ TINOCO AKA JOSE RUIZ v. NISSAN COMPLAINT 1 implications of such failures. 2 43. Upon information and belief, NISSAN was aware, or should have been aware, of the 3 CVT defect present in the Subject Vehicle before it was sold to Plaintiff. 4 44. At all relevant times, NISSAN had knowledge of the transmission defect. 5 NISSAN Had a Duty to Disclose The CVT Defect 6 45. The existence of the CVT defect is a material fact that a reasonable consumer would 7 consider when deciding whether to purchase or lease a vehicle equipped with a CVT transmission. 8 46. Plaintiff(s) would not have purchased the Subject Vehicle, or would have paid significantly 9 less for it, had they known of the transmission defect and the safety hazard it creates. By failing to 10 disclose the defect, NISSAN denied Plaintiff(s) information that was material to the purchase of, and 11 material to their willingness to use, the Subject Vehicle. 12 47. NISSAN had and continues to have a duty to disclose the CVT transmission defect and the 13 likelihood of the associated out-of-pocket repair costs to Plaintiff(s) and other consumers because: 1) 14 the defect poses an unreasonable safety hazard; 2) NISSAN has exclusive knowledge that is not 15 reasonably discoverable by Plaintiff(s) and consumers; 3) NISSAN has actively concealed the defect; 16 4) NISSAN made representations but did not disclose facts that materially qualified the facts 17 disclosed, or that rendered its disclosure likely to mislead. 18 48. NISSAN has chosen financial gain at the expense of consumer safety by failing to disclose 19 its knowledge of this critical safety defect to consumers. 20 49. Despite NISSAN’s knowledge of the defect in the CVT in the Subject Vehicle, NISSAN 21 continued to fail to disclose this unresolved safety defect to new and subsequent purchasers and 22 lessees of CVT-equipped vehicles, including Plaintiff(s). NISSAN continues to manufacture and sell 23 NISSAN vehicles equipped with the defective CVTs without any disclosure to consumers about these 24 hidden safety defects. NISSAN otherwise prevents reasonable consumers from repairing or 25 discovering this hazard until the vehicle’s transmission unexpectedly fails to properly function, 26 placing its occupants and other travelers in danger. 27 50. NISSAN’s Technical Service Bulletins concerning the transmission problems in the Subject 28 Vehicle were not sent to prospective purchasers or to consumers after purchase, and did not fully -10- JOSE RUIZ TINOCO AKA JOSE RUIZ v. NISSAN COMPLAINT 1 disclose the pervasiveness of the defect, the safety issues arising from the defect, or the uncertain 2 nature of the prescribed fixes. 3 PLAINTIFF(S)’ EXPERIENCES 4 51. The Subject Vehicle was purchased by Plaintiff(s) on March 10, 2022. 5 52. The Subject Vehicle was equipped with a CVT transmission. 6 53. Plaintiff(s) visited a car dealership in Riverside, California in hopes of finding a motor 7 vehicle. Plaintiff(s) walked the dealership in search of a vehicle to meet Plaintiff(s)’ needs, assisted 8 by a salesperson. 9 54. Prior to purchasing the Subject Vehicle, Plaintiff(s) reviewed marketing brochures, viewed 10 television commercials and/or heard radio commercials about the qualities of the Nissan Frontier. 11 Plaintiff(s) further relied on the statements made during the sales process by NISSAN’s agents and 12 within the marketing materials written by NISSAN. Plaintiff(s) also relied on the representations by 13 NISSAN and its authorized agent that the Subject Vehicle was certified pre-owned, meaning it met 14 the rigorous inspection and safety requirements. However, NISSAN and its authorized agents did 15 not disclose to Plaintiff(s) any information about the CVT defect. These omissions were material to 16 Plaintiff(s)’ decision to purchase the Subject Vehicle. Had NISSAN and/or its authorized agents 17 disclosed the CVT defect before Plaintiff(s) purchased the Subject Vehicle, Plaintiff(s) would have 18 been aware of such defects, and would not have purchased the Subject Vehicle. 19 55. During the powertrain warranty period, Plaintiff(s) presented the Subject Vehicle to a 20 NISSAN authorized dealership for repair after experiencing drivability concerns stemming from the 21 CVT defect on at least one occasion. At the conclusion of each of NISSAN authorized repair 22 facility’s attempted repair, neither NISSAN, nor its agent disclosed: (1) the existence known defect 23 in the CVT; or (2) NISSAN’s knowledge of the known CVT defect prior to the sale of the Subject 24 Vehicle to Plaintiff(s). 25 FIRST CAUSE OF ACTION 26 Violation of the Song-Beverly Act – Breach of Express Warranty 27 (Against Defendant Nissan North America) 28 56. Plaintiff(s) incorporates herein by reference each and every allegation contained in the -11- JOSE RUIZ TINOCO AKA JOSE RUIZ v. NISSAN COMPLAINT 1 preceding paragraphs as though herein fully restated and re-alleged. 2 57. Pursuant to the Song-Beverly Consumer Warranty Act (herein after the “Act”) Civil Code 3 sections 1790 et seq. the Subject Vehicle constitutes “consumer goods” used primarily for family or 4 household purposes, and Plaintiff(s) have used the Subject Vehicle primarily for those purposes. 5 58. Pursuant to the Song-Beverly Consumer Warranty Act (herein after the “Act”) Civil Code 6 sections 1790 et seq. the Subject Vehicle constitutes a “new motor vehicle.” 7 59. Plaintiff(s) are “buyers” of consumer goods under the Act. 8 60. NISSAN is a “manufacturer” and/or “distributor” under the Act. 9 61. NISSAN’s express written warranty covered the Subject Vehicle. 10 62. NISSAN entered into an express written warranty contract with Plaintiff(s) (“Warranty”). 11 NISSAN’s Warranty covers any repairs needed to correct defects in materials or workmanship of 12 covered parts. The basic coverage period lasts 36 months or 36,000 miles, whichever comes first, and 13 the powertrain coverage lasts 60 months or 60,000 miles, whichever comes first. The Warranty begins 14 on the date the vehicle is delivered to the first retail buyer or put into use, whichever is earliest. The 15 powertrain coverage specifically applies to the engine, transmission and transaxle, drivetrain, and 16 restraint system. The complete terms of that express warranty contract are attached hereto as Exhibit 17 1. 18 63. Defects and nonconformities to warranty manifested themselves within the applicable 19 express warranty period. The nonconformities substantially impaired the use, value and/or safety of 20 the Subject Vehicle. 21 64. Plaintiff(s) delivered the vehicle to an authorized NISSAN repair facility for repair of the 22 nonconformities. 23 65. NISSAN was unable to conform the Subject Vehicle to the applicable express warranty 24 after a reasonable number of repair attempts. 25 66. Notwithstanding Plaintiff(s)’ entitlement to a replacement vehicle and/or restitution under 26 the Act, NISSAN has failed to promptly make restitution in accordance with the Song-Beverly Act. 27 67. By failure of NISSAN to remedy the defects and nonconformities as alleged above, or to 28 promptly issue a refund in compliance with the Song-Beverly Act, NISSAN is in breach of its -12- JOSE RUIZ TINOCO AKA JOSE RUIZ v. NISSAN COMPLAINT 1 obligations under the Song-Beverly Act. 2 68. Under the Act, Plaintiff(s) are entitled to reimbursement of the price paid for the vehicle 3 less that amount directly attributable to use by the Plaintiff(s) prior to the first presentation to an 4 authorized repair facility for a nonconformity. 5 69. Plaintiff(s) are entitled to all incidental, consequential, and general damages resulting from 6 NISSAN’s failure to comply with its obligations under the Song-Beverly Act. Those damages 7 include, but are not limited to, registration fees and insurance for the Subject Vehicle. 8 70. Plaintiff(s) are entitled under the Song-Beverly Act to recover as part of the judgment a 9 sum equal to the aggregate amount of costs and expenses, including attorney’s fees, reasonably 10 incurred in connection with the commencement and prosecution of this action. 11 71. Plaintiff(s) are entitled in addition to the amounts recovered, a civil penalty of up to two 12 times the amount of actual damages for NISSAN’s willful failure to comply with its responsibilities 13 under the Act. 14 SECOND CAUSE OF ACTION 15 Fraudulent Inducement – Intentional Misrepresentation 16 (Against Defendant Nissan North America) 17 72. Plaintiff(s) incorporate herein by reference each and every allegation contained in the 18 preceding and succeeding paragraphs as though herein fully restated and re-alleged. 19 73. NISSAN were the only party with knowledge of the CVT defect because that knowledge 20 came from internal reports such as pre-release testing data, customer complaints made directly to 21 NISSAN, and technical service bulletins. None of this information was available to the public, nor 22 did NISSAN or its agents disclose any of the information to Plaintiff(s). NISSAN had exclusive 23 knowledge of the defect as described in detail above. 24 74. Without remedying the defects, NISSAN continued to equip vehicles with the defective 25 CVT. Those same defects to the transmission persisted throughout NISSAN’s production and sale of 26 vehicles equipped with the CVT. 27 75. NISSAN drafted, produced, and distributed marketing brochures to the public containing 28 factual representations about the Subject Vehicle. -13- JOSE RUIZ TINOCO AKA JOSE RUIZ v. NISSAN COMPLAINT 1 76. NISSAN produces and distributes marketing materials, including brochures and manuals, 2 to its authorized dealerships for the purpose of providing them to consumers such as Plaintiff. These 3 marketing materials are meant to provide certain information regarding NISSAN’s vehicles to the 4 consumer. 5 77. With these marketing materials and its dealership personnel, NISSAN is able to 6 communicate indirectly to consumers such as Plaintiff regarding its vehicles. 7 78. NISSAN’s authorized dealerships are its agents for purposes of the sale of NISSAN 8 vehicles to consumers such as Plaintiff. 9 79. The marketing brochures drafted, produced, and distributed by NISSAN and its agents 10 included the following misrepresentations about the Subject Vehicle: 11 a. “We got there by developing everything from exterior aerodynamics that whisper 12 through the wind, to an advanced 2.5-liter, 4-cylinder engine, to a virtually gearless Xtronic CVT® 13 transmission that maximizes efficiency and performance.” 14 b. “Active Engine Braking. Whether you’re slowing for a corner or coming to a stop, this 15 system uses the CVT transmission to apply engine braking – much like shifting to a lower gear in 16 traditional transmissions – to help give smoother deceleration and a more confident feel when 17 braking.” 18 c. “Combining a powerful 4-cylinder engine and a responsive Xtronic CVT® 19 (Continuously Variable Transmission) for zip when you need it and sip when you don’t – that’s 20 brilliant.” 21 d. “a virtually gearless CVT transmission that helps maximize efficiency and 22 performance.” 23 80. As alleged in more detail in paragraphs 45 through 50, NISSAN had a duty to disclose the 24 CVT defect. 25 81. Unfortunately, the Subject Vehicle was delivered to Plaintiff(s) with a defective CVT. 26 82. The representations made to Plaintiff(s) regarding the CVT and related drivability of the 27 Subject Vehicle were false. 28 83. NISSAN made such false representations regarding the CVT despite its extensive internal -14- JOSE RUIZ TINOCO AKA JOSE RUIZ v. NISSAN COMPLAINT 1 knowledge of the CVT defect, as described in more detail above. 2 84. NISSAN intended that Plaintiff(s) rely on the above described representations related to the 3 Subject Vehicle and its CVT, including that neither had inherent and irreparable defects, in inducing 4 Plaintiff(s) to purchase the Subject Vehicle. 5 85. Plaintiff(s) justifiably and reasonably relied on NISSAN’s representations related to the 6 reliability of the Subject Vehicle and its CVT, because NISSAN was the manufacturer of the Subject 7 Vehicle and claimed to have performed and relied upon extensive pre-release testing of the vehicles. 8 NISSAN was in a superior position of knowledge. 9 86. Plaintiff(s) were harmed by purchasing the Subject Vehicle that Plaintiff(s) would not have 10 purchased had Plaintiff(s) known the true facts about the CVT defect. Plaintiff(s) also suffered 11 diminution in the value of Plaintiff(s)’ vehicle, out-of-pocket expenses, damages in the amount of the 12 difference between the value of the vehicle equipped with the defective transmission and the value 13 of the vehicle if it had been equipped as warranted, and reliance damages. Plaintiff(s) also incurred 14 expenses relating to registration, insurance, and maintenance of the Subject Vehicle. 15 87. Plaintiff(s)’ reliance on NISSAN’s representations about the CVT’s qualities was a 16 substantial factor in causing Plaintiff(s)’ harm because NISSAN and its agents were the exclusive 17 source of information about the qualities of the CVT. 18 88. NISSAN failed to disclose the CVT defect at the time of sale, or at any point after the time 19 of sale, despite its ongoing knowledge of the defect. NISSAN’s continued concealment of the CVT 20 defect through both (1) its failure to proactively notify Plaintiff(s) of its prior fraud and (2) ongoing 21 misrepresentations that were made to Plaintiff(s) each time they brought the Subject Vehicle in for 22 repair, resulted in Plaintiff(s) incurring additional expenses to operative and maintain the Subject 23 Vehicle that they would not have otherwise incurred had they known of NISSAN’s fraud at the time 24 of sale or anytime thereafter. As a further result of the ongoing concealment and misrepresentations, 25 Plaintiff(s) incurred an immediate reduction in value at the time they drove the car off the lot, incurred 26 ongoing depreciation of the Subject Vehicle’s value, and any opportunity to reduce their 27 accumulating damages associated with a defective, depreciating asset. 28 89. The foregoing fraudulent and wrongful acts by NISSAN, as alleged above, were authorized -15- JOSE RUIZ TINOCO AKA JOSE RUIZ v. NISSAN COMPLAINT 1 and ratified by NISSAN’s officers, directions, and/or mangers. NISSAN’s agents or employees also 2 committed the wrongful acts set forth above with the foregoing knowledge, authorization, approval, 3 direction, or ratification of an officer, director, or managing agent of NISSAN pursuant to an implicit 4 or explicit company plan, scheme, or policy regarding the advertising and sale of NISSAN vehicles 5 with a CVT. Alternatively, the aforementioned wrongful acts were committed by an officer, director, 6 or managing agent of NISSAN. 7 8 THIRD CAUSE OF ACTION 9 Fraudulent Inducement – Concealment 10 (Against Defendant Nissan North America) 11 90. Plaintiff(s) incorporates herein by reference each and every allegation contained in the 12 preceding and succeeding paragraphs as though herein fully restated and re-alleged. 13 91. The Subject Vehicle was delivered to Plaintiff(s) with a serious safety defect in the CVT, 14 which manifested itself during Plaintiff(s)’ possession of the Subject Vehicle. 15 92. As alleged in more detail in paragraphs 45 through 50, NISSAN had a duty to disclose the 16 CVT defect. 17 93. NISSAN made such false representations regarding the CVT despite its extensive internal 18 knowledge of the CVT defect, as described in more detail above. 19 94. NISSAN and its agents intentionally concealed and failed to disclose facts relating to the 20 defective CVT as explained in more detail above. 21 95. NISSAN’s marketing brochure touted the characteristics of the Subject Vehicle and its 22 CVT, while not disclosing the defects in the CVT. NISSAN disclosed some facts (including the 23 characteristics of the drive quality and performance of the vehicle), but intentionally failed to disclose 24 the defects in the CVT, making the disclosure deceptive. The following are examples of the partial, 25 misleading representations that NISSAN made in its printed marketing material: 26 a. “We got there by developing everything from exterior aerodynamics that whisper 27 through the wind, to an advanced 2.5-liter, 4-cylinder engine, to a virtually gearless Xtronic CVT® 28 transmission that maximizes efficiency and performance.” -16- JOSE RUIZ TINOCO AKA JOSE RUIZ v. NISSAN COMPLAINT 1 b. “Active Engine Braking. Whether you’re slowing for a corner or coming to a stop, this 2 system uses the CVT transmission to apply engine braking – much like shifting to a lower gear in 3 traditional transmissions – to help give smoother deceleration and a more confident feel when 4 braking.” 5 c. “Combining a powerful 4-cylinder engine and a responsive Xtronic CVT® 6 (Continuously Variable Transmission) for zip when you need it and sip when you don’t – that’s 7 brilliant.” 8 d. “a virtually gearless CVT transmission that helps maximize efficiency and 9 performance.” 10 96. NISSAN actively concealed information from the public, preventing Plaintiff(s) from 11 discovering any of the concealed facts as described in detail above. 12 97. Plaintiff(s) did not know about the defective CVT at the time of sale. 13 98. Prior to the date of sale and on the date of sale, NISSAN had an opportunity to disclose the 14 defective CVT to Plaintiff(s), but instead concealed from and failed to disclose to Plaintiff(s), any of 15 the known defects in the CVT. 16 99. NISSAN intended to deceive Plaintiff(s) by concealing the known issues with the CVT in 17 an effort to sell the Subject Vehicle. 18 100. NISSAN fraudulently induced Plaintiff(s) to purchase the Subject Vehicle they would not 19 have entered into but for NISSAN’s concealment of the defective nature of the CVT. 20 101. Uncertain and unpredictable performance of a Subject Vehicle’s transmission can result in 21 sudden and unexpected movements or stalling that greatly increase the risk of a motor vehicle 22 accident, personal injury, and related liability. 23 102. Plaintiff(s) have been exposed numerous times to potential personal injury, physical harm, 24 and related liability from motor vehicle accidents caused by the CVT defect and problems presented 25 by the Subject Vehicle as a result of NISSAN’s fraudulent concealment in failing to disclose the CVT 26 defect to Plaintiff(s) at the time they purchased the Subject Vehicle and each time they presented the 27 Subject Vehicle for repair. 28 103. Had NISSAN and/or its agents disclosed the defective transmission to Plaintiff(s) at or prior -17- JOSE RUIZ TINOCO AKA JOSE RUIZ v. NISSAN COMPLAINT 1 to the sale, Plaintiff(s) would not have purchased the Subject Vehicle. 2 104. Plaintiff(s) were harmed by purchasing the Subject Vehicle that Plaintiff(s) would not have 3 purchased had Plaintiff(s) known the true facts about the CVT defect. Plaintiff(s) also suffered 4 diminution in the value of Plaintiff(s)’ vehicle, out-of-pocket expenses, damages in the amount of the 5 difference between the value of the vehicle equipped with the defective transmission and the value 6 of the vehicle if it had been equipped as warranted, and reliance damages. Plaintiff(s) also incurred 7 expenses relating to registration, insurance, and maintenance of the Subject Vehicle. 8 105. NISSAN failed to disclose the CVT defect at the time of sale, or at any point after the time 9 of sale, despite its ongoing knowledge of the defect. NISSAN’s continued concealment of the CVT 10 defect through both (1) its failure to proactively notify Plaintiff(s) of its prior fraud and (2) ongoing 11 misrepresentations that were made to Plaintiff(s) each time they brought the Subject Vehicle in for 12 repair, resulted in Plaintiff(s) incurring additional expenses to operative and maintain the Subject 13 Vehicle that they would not have otherwise incurred had they known of NISSAN’s fraud at the time 14 of sale or anytime thereafter. As a further result of the ongoing concealment and misrepresentations, 15 Plaintiff(s) incurred an immediate reduction in value at the time they drove the car off the lot, incurred 16 ongoing depreciation of the Subject Vehicle’s value, and any opportunity to reduce their 17 accumulating damages associated with a defective, depreciating asset. 18 106. Plaintiff(s) were harmed by NISSAN’s concealment of the defective transmission because 19 Plaintiff(s) were induced to purchase the Subject Vehicle, which Plaintiff(s) would not have otherwise 20 purchased. 21 107. NISSAN’s concealment of the defects was a substantial factor in causing Plaintiff(s)’ harm. 22 23 FOURTH CAUSE OF ACTION 24 Negligent Repair 25 (Against Defendant VICTORVILLE NISSAN, INC. dba Valley Hi Nissan) 26 108. Plaintiff(s) incorporate herein by reference each and every allegation contained in the 27 preceding and succeeding paragraphs as though herein fully restated and re-alleged. 28 -18- JOSE RUIZ TINOCO AKA JOSE RUIZ v. NISSAN COMPLAINT 1 109. Plaintiff(s) delivered the Subject Vehicle to Defendant VICTORVILLE NISSAN, INC. dba 2 Valley Hi Nissan for repair of on numerous occasions. 3 110. Defendant VICTORVILLE NISSAN, INC. dba Valley Hi Nissan owed a duty to Plaintiff(s) 4 to use ordinary care and skill in storage, preparation and repair of the Subject Vehicle in accordance 5 with industry standards. 6 111. Defendant VICTORVILLE NISSAN, INC. dba Valley Hi Nissan breached its duty to 7 Plaintiff(s) to use ordinary care and skill by failing to properly store, prepare and repair of the Subject 8 Vehicle in accordance with industry standards. 9 112. Defendant VICTORVILLE NISSAN, INC. dba Valley Hi Nissan’s negligent breach of its 10 duties owed to Plaintiff(s) was a proximate cause of Plaintiff’s damages. 11 12 PRAYER FOR RELIEF 13 WHEREFORE, Plaintiff(s) pray for judgment against Defendants, as follows: 14 1. For general, special and actual damages according to proof at trial; 15 2. For rescission of the purchase contract and restitution of all monies expended; 16 3. For Out-of-Pocket expenses, including the difference in fair market value of the Subject 17 Vehicle and reliance damages; 18 4. For incidental and consequential damages according to proof at trial; 19 5. For a civil penalty in the amount of two times Plaintiff(s)’ actual damages; 20 6. For punitive damages; 21 7. For revocation of acceptance of the subject vehicle; 22 8. For prejudgment interest at the legal rate; 23 9. For reasonable attorney’s fees and costs of suit; and 24 /// 25 /// 26 /// 27 /// 28 /// -19- JOSE RUIZ TINOCO AKA JOSE RUIZ v. NISSAN COMPLAINT 1 10. For such other and further relief as the Court deems just and proper under the circumstances. 2 Dated: April 13, 2023 KNIGHT LAW GROUP, LLP 3 4 5 LAUREN UNGS (SBN 273374) 6 Attorneys for Plaintiff(s), JOSE RUIZ TINOCO AKA JOSE RUIZ 7 8 9 Plaintiff(s), Jose Ruiz Tinoco AKA Jose Ruiz, hereby demand trial by jury in this action. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -20- JOSE RUIZ TINOCO AKA JOSE RUIZ v. NISSAN COMPLAINT EXHIBIT 1 2022 WARRANTY INFORMATION BOOKLET Nissan, the Nissan logo, and Nissan model names are Nissan trademarks. ©2021 Nissan North America, Inc. All rights reserved. No part of this publication may be reproduced or stored in a retrieval system, or transmitted in any form, or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of Nissan North America, Inc. TABLE OF CONTENTS 1 WARRANTY COVERAGE AT A GLANCE 23 BRIDGESTONE FIRESTONE TIRE LIMITED WARRANTY 2 NISSAN’S CUSTOMER CARE PROGRAM 26 GOODYEAR/DUNLOP TIRE LIMITED 4 NISSAN’S COMMITMENT TO CUSTOMER WARRANTY SATISFACTION 35 CONTINENTAL/GENERAL TIRE LIMITED 5