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KNIGHT LAW GROUP, LLP
1
Roger Kirnos (SBN 283163)
2 E-mail: rogerk@knightlaw.com
Lauren Ungs (SBN 273374)
3 E-mail: laurenu@knightlaw.com
10250 Constellation Blvd., Suite 2500
4
Los Angeles, CA 90067
5 Telephone: (310) 552-2250
Fax: (310) 552-7973
6
Attorneys for Plaintiff(s),
7 ANA FIGUEROA MORAN and
ELLIOT VILLAVICENCIO FRAGOSO
8
SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF RIVERSIDE
10
11 ANA FIGUEROA MORAN AND Case No.:
ELLIOT VILLAVICENCIO FRAGOSO,
12 Unlimited Jurisdiction
Plaintiff(s),
13 COMPLAINT:
vs.
14 1. VIOLATION OF SONG-BEVERLY
ACT - BREACH OF EXPRESS
15 WARRANTY
NISSAN NORTH AMERICA, INC., a
16 Delaware Corporation, WISH 2. FRAUDULENT INDUCEMENT –
AUTOMOTIVE III, INC., a California INTENTIONAL
17 MISREPRESENTATION
Corporation dba Nissan of Alhambra, and
18 DOES 1 through 10, inclusive, 3. FRAUDULENT INDUCEMENT –
CONCEALMENT
19 4. NEGLIGENT REPAIR
20 Defendants.
21
Assigned for All Purposes to the
22 Honorable
23
Department:
24
25
26
27
28
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ANA FIGUEROA MORAN & ELLIOT VILLAVICENCIO FRAGOSO v. NISSAN
COMPLAINT
1 Plaintiff(s) Ana Figueroa Moran and Elliot Villavicencio Fragoso allege as follows against
2 Defendant NISSAN NORTH AMERICA, INC., a Delaware Corporation (“NISSAN”), Defendant
3 WISH AUTOMOTIVE III, INC., doing business as Nissan of Alhambra, 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 Plaintiff(s), Ana Figueroa Moran & Elliot Villavicencio Fragoso, hereby demand trial by
7 jury in this action.
8 GENERAL ALLEGATIONS
9 Plaintiff(s), Ana Figueroa Moran & Elliot Villavicencio Fragoso (“Plaintiff(s)”), are individuals
10 residing in the State of California.
11 Defendant NISSAN is a Delaware Corporation registered to do business in the State of
12 California with its registered office in the City of Sacramento, County of Sacramento, and State of
13 California.
14 Defendant WISH AUTOMOTIVE III, INC., doing business as Nissan of Alhambra
15 (hereinafter “Dealer” or “Nissan of Alhambra”), is and at all relevant times 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 Alhambra, County of Los Angeles, and State of California.
18 Plaintiff(s)’ fraud related causes of action arise out of the facts that surround the
19 misrepresentations and concealment of material facts at the time Plaintiff(s) purchased a new motor
20 vehicle. The transaction which resulted from misrepresentations and concealment of material facts
21 occurred in Corona, County of Los Angeles, California.
22 Plaintiff(s)’ cause(s) of action for violations of the Song-Beverly Act arise from warranty
23 obligations of NISSAN in connection with a vehicle purchased by Plaintiff(s) and for which NISSAN
24 issued written warranties. Plaintiff(s) allege that NISSAN was unable to repair the vehicle in accordance
25 with the written warranty or the consumer protection and warranty laws of the State of California. The
26 warranty contract was entered into in Corona, County of Los Angeles, California.
27 Plaintiff(s) do not know the true names and capacities, whether corporate, partnership, associate,
28 individual or otherwise of NISSAN issued herein as Does 1 through 10, inclusive, under the provisions
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ANA FIGUEROA MORAN & ELLIOT VILLAVICENCIO FRAGOSO v. NISSAN
COMPLAINT
1 of section 474 of the California Code of Civil Procedure. NISSAN Does 1 through 10, inclusive, are in
2 some manner responsible for the acts, occurrences and transactions set forth herein, and are legally liable
3 to Plaintiff. Plaintiff(s) will seek leave to amend this Complaint to set forth the true names and capacities
4 of the fictitiously named NISSAN, together with appropriate charging allegations, when ascertained.
5 All acts of corporate employees as alleged were authorized or ratified by an officer, director or
6 managing agent of the corporate employer.
7 On September 19, 2020, Plaintiff(s) purchased a new 2021 Nissan Kicks, VIN:
8 3N1CP5BV4LL538693 (“the Subject Vehicle”).
9 Plaintiff(s) entered into an express written contract with NISSAN, referred to as the New Vehicle
10 Limited Warranty (“Warranty”), by which NISSAN undertook to preserve or maintain the utility or
11 performance of the Subject Vehicle or provide compensation if there was a failure in such utility or
12 performance. The Warranty covers any repairs needed to correct defects in materials or workmanship
13 of covered parts. The express warranty contract is attached and incorporated by this reference as Exhibit
14 1.
15 Plaintiff(s) hereby revokes acceptance of the Subject Vehicle. Plaintiff(s) also reasonably
16 revoked acceptance of the Subject Vehicle by contacting NISSAN, demanding that the Subject Vehicle
17 be repurchased pursuant to the Song-Beverly Act.
18 The Emergency Braking Defect
19 The Subject Vehicle was equipped with a defective emergency braking system that exposed
20 Plaintiff(s), Plaintiff(s)’ passengers, and other consumers on the road to the risk of sudden and
21 unexpected collision.
22 As advertised by NISSAN, its Forward Emergency Braking/Automatic Emergency Braking
23 technology (herein referred to as the “Emergency Braking System”) uses radar to detect the possibility
24 of a collision with vehicles or pedestrians. In its intended functionality, the Emergency Braking System
25 will apply an emergency brake, causing the vehicle to decelerate and stop, in the event that an imminent
26 collision is detected.
27 NISSAN first offered Forward Emergency Braking technology on the model year 2015 NISSAN
28 Murano. In recent years, in an effort to appear at the forefront of emerging autonomous driving
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ANA FIGUEROA MORAN & ELLIOT VILLAVICENCIO FRAGOSO v. NISSAN COMPLAINT
1 technology, it has expanded the application of that technology to other models, and has re-branded this
2 same technology as Automatic Emergency Braking technology. Beginning with model year 2018
3 vehicles, NISSAN made what is now called “ Automatic Emergency Braking” a standard feature on
4 its Rogue, Rogue Sport, Murano, Altima, Maxima, Armada, Pathfinder, Leaf and Sentra vehicles.
5 NISSAN’s Emergency Braking System, however, is not road ready. It suffers from a serious
6 defect, wherein the Emergency Braking System engages suddenly and unexpectedly when no collision
7 is imminent, and a driver has no intention of stopping her vehicle. This defect is referred to herein as the
8 Emergency Braking Defect. The Emergency Braking Defect is a defect in material and workmanship
9 because the Emergency Braking System should not engage when no collision is imminent and a driver
10 or the vehicle has no intention or need of stopping the vehicle.
11 Due to the Emergency Braking Defect, consumers of NISSAN vehicles, including Plaintiff(s),
12 have experienced sudden and unexpected braking on railroad tracks, on bridges, in intersections, and
13 other driving situations that have placed them at serious and unreasonable risk of side-on or rear- end
14 collision.
15 The Emergency Braking Defect is a uniform defect, existing within all NISSAN vehicles
16 equipped with the Emergency Braking System, and often manifests itself at extremely low mileages,
17 within NISSAN’s 36,000 mile limited warranty period.
18 NISSAN knew of the Emergency Braking Defect prior to the date Plaintiff(s) purchased the
19 Subject Vehicle through several avenues: (1) failures in pre-release testing; (2) it was monitoring the
20 high volume warranty repairs and contact from its authorized repair facilities; (3) it received complaints
21 about the Emergency Braking Defect from consumers contacting customer service; and (4) it monitors
22 customer complaints collected by the National Highway Traffic Safety Administration’s (“NHTSA”)
23 Office of Defects Investigation (“ODI”). Despite this knowledge, NISSAN failed to disclose and
24 actively concealed the Emergency Braking Defect from consumers, including Plaintiff(s), and the public
25 and continued to market and advertise NISSAN vehicles equipped with the defective systems.
26 NISSAN sold hundreds of thousands of vehicles equipped with the Emergency Braking Defect
27 despite knowing that the Emergency Braking System engages suddenly and unexpectedly, posing a
28 safety hazard to Plaintiff(s) and others sharing the road with defective NISSAN vehicles.
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ANA FIGUEROA MORAN & ELLIOT VILLAVICENCIO FRAGOSO v. NISSAN COMPLAINT
1 Purchasers and lessees who have complained to NISSAN about the Emergency Braking Defect
2 have been told that their vehicle is not defective and have been refused repair or other adequate remedy.
3 The Emergency Braking Defect inhibits Plaintiff(s)’ expected, comfortable, and safe use of the
4 Subject Vehicle, and exposes them to the risk of serious injury resulting from sudden brake failure.
5 As a result of NISSAN’s selling and leasing vehicles with the Emergency Braking Defect,
6 Plaintiff(s) were damaged in that Plaintiff(s) purchased the Subject Vehicle which Plaintiff(s) would not
7 have purchased, or at least paid more for the Subject Vehicle than they would have paid, had they known
8 about the Emergency Braking Defect.
9
The Subject Vehicle suffers from the Emergency Braking Defect, which results in the emergency
10
brake on the Subject Vehicle suddenly and unexpectedly engaging, bringing it to a halt wherever it may
11
be.
12
Upon information and belief, NISSAN introduced its Emergency Braking System as an optional
13
feature in its model year 2015 Murano.
14
Initially, NISSAN called its Emergency Braking System “Forward Emergency Braking.” From
15
model year 2015 through model year 2017, NISSAN offered its Emergency Braking System as an
16
optional feature on numerous models, including the Rogue, the Altima, and the Maxima.
17
For the 2017 model year Rogue, NISSAN introduced a series of mid-year enhancements, which
18
included standard Forward Emergency Braking.
19
For the 2018 model year, NISSAN re-branded Forward Emergency Braking as “Automatic
20
Emergency Braking.” NISSAN also made it standard on seven of its most popular models: the Rogue,
21
Rogue Sport, Altima, Murano, LEAF, Pathfinder, Maxima, and Sentra (except manual-transmission
22
equipped and all NISMO versions).
23
Based on the uniformity of experiences with the Emergency Braking Defect across models and
24
model years, as further detailed below, it is evident that there is no material difference in the Emergency
25
Braking Systems in NISSAN vehicles with respect to the Emergency Braking Defect.
26
As advertised by NISSAN, its Emergency Braking System “uses radar technology to monitor a
27
vehicle’s proximity to the vehicle ahead, giving the driver audible and visual display warnings to help
28
the driver reduce the vehicle’s speed if a potential frontal collision is detected. If the driver fails to
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ANA FIGUEROA MORAN & ELLIOT VILLAVICENCIO FRAGOSO v. NISSAN COMPLAINT
1 respond, the AEB system can apply the brakes, helping the driver to avoid the collision or reduce the
2 speed of impact if it is unavoidable.”
3 What NISSAN does not advertise, and does not inform potential buyers of NISSAN vehicles, is
4 that its Emergency Braking System suffers from the Emergency Braking Defect, which results in the
5 emergency brake on their vehicles suddenly and unexpectedly engaging even in the complete absence
6 of another vehicle or other obstacle on the road ahead.
7 Based on the reports of those who have experienced the Emergency Braking Defect, as further
8 detailed below, this defect is often experienced on railroad tracks and bridges. Consumers of NISSAN
9 vehicles equipped with the Emergency Braking Defect have found themselves stopped in the middle of
10 railroad tracks, on highways, and at high speeds.
11 The Emergency Braking Defect poses a clear and significant safety risk to Plaintiff(s),
12 Plaintiff(s)’ occupants, and other drivers on the road because it can unexpectedly render the Subject
13 Vehicle helplessly at risk of a side-on collision on train tracks or in an intersection, because it puts the
14 Subject Vehicle at a heightened risk of being rear-ended (including at high speeds), and because it can
15 prevent the Subject Vehicle from moving out of the way of danger.
16
NISSAN’s Knowledge of the Emergency Braking Defect
17
Moreover, as further detailed below, consumers, like Plaintiff(s), experience the Emergency
18
Braking Defect at inordinately low mileages, further evidencing the fact that it is a fundamental and
19
uniform defect.
20
NISSAN knew of the Emergency Braking Defect prior to the date Plaintiff(s) purchased the
21
Subject Vehicle through several avenues: (1) failures in pre-release evaluation and testing; (2)
22
monitoring of the high volume of early warranty repairs and contact from its authorized repair facilities;
23
(3) it received complaints about the Emergency Braking Defect from consumers contacting customer
24
service; and (4) it monitors customer complaints collected by the National Highway Traffic Safety
25
Administration’s (“NHTSA”) Office of Defects Investigation (“ODI”), and (5) testing done in response
26
to those complaints. Despite this knowledge, NISSAN failed to disclose and actively concealed the
27
Emergency Braking Defect from consumers, including Plaintiff(s), and the public and continued to
28
market and advertise NISSAN vehicles equipped with the defective systems.
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ANA FIGUEROA MORAN & ELLIOT VILLAVICENCIO FRAGOSO v. NISSAN COMPLAINT
1 On information and belief, NISSAN learned of the Emergency Braking Defect at least as early
2 as 2016, and certainly well before Plaintiff(s) purchased the Subject Vehicle.
3 During the pre-release process of designing, manufacturing, engineering, and testing the
4 Emergency Braking System, NISSAN necessarily would have gained comprehensive and exclusive
5 knowledge about the Emergency Braking Systems, particularly the basic engineering principles behind
6 the function of the systems and the systems’ responses to expected conditions they would encounter in
7 ordinary use.
8 An adequate pre-release analysis of the design, engineering, and manufacture of the Emergency
9 Braking Systems in the Subject Vehicle would have revealed to NISSAN that the systems were defective
10 and caused vehicles to suddenly and unexpectedly stop during normal driving events, such as when
11 vehicles encountered train tracks or inclines.
12 Further, consumers complain of experiencing the Emergency Braking Defect at low mileages,
13 within the warranty period. Upon information and belief, NISSAN collects, reviews, and analyzes
14 detailed information about warranty claims made at its dealerships and service centers, including the
15 type and frequency of such claims. Complete data on such claims is exclusively within NISSAN’s
16 control and unavailable to Plaintiff(s) without discovery.
17 Online resources reveal that consumers complained to NISSAN about the Emergency Braking
18 Defect starting with, at least, model year 2016 vehicles, and that these complaints have continued
19 unabated through the present day.
20 For example, online complaints available through National Highway Traffic Safety
21 Administration state the following:
22 a. 2016 NISSAN Altima, Incident Dated October 1, 2016: “The contact owns a 2016
23 NISSAN Altima. While driving various speeds, the Forward Emergency Braking warning
24 indicator illuminated and caused the vehicle to slow down and then stop. The contact took
25 the vehicle to a dealer, but there was no resolution for the issue with the emergency brake.
26 The manufacturer was notified of the issue. The failure mileage was 7,259.”
27 b. 2016 NISSAN Rogue, Incident Dated July 2, 2018: “The vehicle automatically
28 applies the brake in some instances . . . Service has had the entire body control module
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ANA FIGUEROA MORAN & ELLIOT VILLAVICENCIO FRAGOSO v. NISSAN COMPLAINT
1 replaced, but electrical issues still persist. Multiple dealers have not been able to recreate
2 the problem even though issues are still present. Significant safety hazard by vehicle
3 automatically applying brake randomly and NISSAN still does nothing to resolve the
4 issue.”
5 c. 2017 NISSAN Rogue, Incident Dated August 30, 2017: “ABS braking system goes
6 on when driving car for no apparent reason. No other cars or obstacles around. This has
7 happened 7 times. Speed usually between 30/35 MPH.”
8 d. 2017 NISSAN Rogue, Incident Dated October 11, 2017: “On October 11, 2017, the
9 vehicle’s [Emergency Braking System] caused the vehicle to unexpectedly brake while
10 moving at approximately 65 mph on the interstate 10 freeway. This malfunction nearly
11 caused a serious accident which could have resulted in serious injuries. We immediately
12 contacted the NISSAN dealer and they did have the vehicle towed to their service
13 department for inspection. They have had the vehicle for approximately 1 week and are
14 now contacting us requesting that we pick up the vehicle, despite the fact that they have
15 not repaired the vehicle ”
16 e. 2017 NISSAN Rogue, Incident Dated October 18, 2017: “The first time the vehicle
17 malfunctioned, I was driving in a grocery store parking lot with a personal friend and
18 suddenly the car’s emergency brake protection activated, jolting the car to a stop. The
19 second occurrence was in a parking deck (different from the first location) and the car again
20 activated the emergency brake protection system, jolting the car to a stop. I then felt this
21 was a safety issue and brought this into the NISSAN dealership. They checked the car and
22 called reporting they could not find anything wrong with the car and I should pick it up. I
23 picked the car up and continued to drive it until I switched cars with a personal friend who
24 used the car to drive one mile back to home down a 4 lane road. Upon coming to an
25 intersection, she reports she began slowing down and got in a turn lane to make a left onto
26 our neighborhood road and as she was approaching the light, the car activated the
27 emergency braking system, again jolting the car to a stop. She states during and after the
28 car came to a complete stop, she kept her foot on the brake the entire time and while
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ANA FIGUEROA MORAN & ELLIOT VILLAVICENCIO FRAGOSO v. NISSAN COMPLAINT
1 decompressing the brake, the car then jolted forward crashing into the car in front of her. I
2 had the car towed in to the NISSAN dealership and had corporate NISSAN step in to
3 investigate the car. 6 weeks later they investigated the car reporting that no error was found
4 with the car and again I should pick up my vehicle. I requested specific tests and asked the
5 testing process for the car and was advised by the investigation department that they could
6 not disclose that information and that the testing and results were ‘property of NISSAN’
7 and that they were not offering any further assistance.”
8 f. 2017 NISSAN Rogue, Incident Dated October 26, 2017: “On 10-26-2-17 while
9 traveling at approximately 35 mph the vehicle’s Forward Emergency Braking System
10 (FEB) suddenly and unexpectedly activated, bringing the car to a full and complete stop in
11 the middle of the road. . . . There were no adverse conditions, obstructions, or vehicles
12 within a dangerous distance to have caused the activation. . . . I returned the vehicle to the
13 dealership were I purchased the car. After four days of diagnostic and road testing I was
14 told that according to NISSAN Tech Line, since the dealership was unable to duplicate the
15 malfunction during the test drive the car is considered operational and safe and could be
16 returned to the customer ”
17 g. 2017 NISSAN Rogue, Incident Dated January 28, 2018: “A second totally
18 unnecessary deployment again occurred, this time @ 8:43 AM. I was again on the
19 Southbound Major Deegan expressway . . . speed 52 MPH with the cruise control engaged,
20 when the Forward Emergency Brake System automatically deployed, for about 2 to 3
21 seconds. Again, there was no car immediately in front of me; no debris on the roadway;
22 nothing that would alert the sensor.”
23 h. 2017 NISSAN Rogue, Incident dated February 8, 2018: “(FEB) Forward
24 Emergency Braking System Faulty. I have filed another claim before this but there has
25 been more development and answers to the unknown as to why it is doing this. I spoke to
26 NISSAN’s arbitration dept last night and they have found that it is some traffic lights that
27 are causing an interference and causing this system to set off audible beep followed by a
28 red light (according to user manual it is the FEB emergency warning indicator). It will then
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ANA FIGUEROA MORAN & ELLIOT VILLAVICENCIO FRAGOSO v. NISSAN COMPLAINT
1 brake on its own I am still fighting with NISSAN, but as of last night, they said NISSAN
2 had no interest in replacing or letting me repurchase at this time ”
3 i. 2018 NISSAN Rogue, Incident Dated April 23, 2018: “The emergency braking
4 engages without reason. This has led to 2 near misses. Once the car just stopped in the
5 road. I thought it might have misinterpreted a snow pile. Then, driving over a train
6 crossing, the car just stopped. Luckily I was able to get it moving before a train came. Very
7 scary! When I called the service department, they were not very concerned.”
8 j. 2017 NISSAN Maxima and 2018 Rogue, Incidents Dated May 28, 2018 and prior:
9 “The problem began in my 2017 NISSAN Maxima. I told the dealership that the
10 emergency automatic braking system initiated while no other cars were around. They
11 traded me in to the 2018 NISSAN Rogue and the same issue has occurred 3 times in this
12 vehicle. Each time, there were no other vehicles around. The dealership claimed there is
13 nothing wrong with my vehicle. It wasn’t until I contacted corporate that they admitted
14 they know there’s a defect, but no fix was available yet. They knowingly jeopardized my
15 infant son’s safety and lied to me. This defect is scary and shouldn’t be allowed to be swept
16 under the rug by dealerships. I no longer feel safe driving with NISSAN.”
17 k. 2018 NISSAN Rogue, Incident Dated July 2, 2018: “Forward Emergency Braking
18 System engages while approaching a metal roadway surface and comes to a complete and
19 abrupt stop. The roadway is a driveway on a private property. This vehicle is equipped with
20 a safety system designed to prevent collisions with objects ahead, but engages when there
21 is no object in front. The dealership has been aware of this issue since July 5, 2018 and the
22 manufacturer has been aware since July 26, 2018. In several instances, motorist travelling
23 behind were unexpectedly surprised and forced to take evasive maneuvers to avoid
24 collision.”
25 l. 2018 NISSAN Rogue, Incident Dated September 24, 2018: “The contact stated that
26 the vehicle’s automatic braking feature independently activated while the vehicle was
27 being driven at various speeds. There were no obstacles in the vehicle’s path. The failure
28 occurred without warning on approximately six occasions. . . . The failure mileage was
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ANA FIGUEROA MORAN & ELLIOT VILLAVICENCIO FRAGOSO v. NISSAN COMPLAINT
1 approximately 1,600.”
2 m. 2018 NISSAN Rogue, Incident Dated September 30, 2018: “Auto emergency
3 braking is activating when there is no vehicle or obstacle in front of me. It happened the
4 first time I left the dealer on an open highway. It happened again in a dark parking garage,
5 and again when I was going less than 10 miles an hour over railroad tracks. It happened to
6 my husband going over a bridge with metal expansion joints. Good thing no one was
7 behind us when it happened.”
8 n. 2018 NISSAN Rogue, Incident Dated October 23, 2018: “While accelerating on a
9 county street, at almost 40 MPH, my car decided to suddenly brake and almost immediately
10 stop. It vibrated and we heard a loud grinding type noise. I removed my foot from
11 accelerator, and after just a second, the braking stopped and I was able to accelerate again.
12 I was almost rear-ended by the car behind me. No warning lights or sounds were heard.
13 The car has about 15,500 miles. This is the second time that this has happened. . . . I’m
14 scared to drive this on the freeway, or actually anywhere I want to go more than 10 miles
15 per hour ”
16 o. 2018 NISSAN Rogue, Incident Dated November 13, 2018: “While moving at 35
17 MPH on a paved surface street with no obstacles/cars in front of me or behind me and a
18 green light at the next traffic light, the car made a high pitched noise and came to a full
19 stop. Seemed as if the emergency braking system engaged for no apparent reason. Could
20 have caused a rear end collision if anyone were behind me or if I were on the highway.”
21 p. 2018 NISSAN Leaf, Incident Dated May 15, 2018: “While driving forward, the
22 vehicle suddenly, unexpectedly and violently applies the brakes without any driver input
23 whatsoever! There are no other vehicles or pedestrians in the vicinity at the time. This
24 sudden braking problem began on or about 5/15/18 and happened on several occasions
25 after that. Twice while entering the underground parking garage at an office building and
26 twice while driving on a city street. Vehicle has been at the local NISSAN dealer for over
27 a week but neither the dealership nor the manufacturer apparently has any idea how to fix
28 the problem. They think that there is a fault in the Automatic Emergency Braking system.
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ANA FIGUEROA MORAN & ELLIOT VILLAVICENCIO FRAGOSO v. NISSAN COMPLAINT
1 The service manager told me that other instances of the same issue have been reported to
2 NISSAN. The salesperson indicated that there were 4 other similar cases at their dealership
3 alone.”
4 As the complaints reveal, NISSAN was repeatedly notified of the Emergency Braking Defect by
5 customers and dealers. Further, federal law requires automakers like NISSAN to be in close contact with
6 NHTSA regarding potential auto defects, including imposing a legal requirement, backed by criminal
7 penalties for violation, of confidential disclosure of defects by automakers to NHTSA, including field
8 reports, customer complaints, and warranty data. See TREAD Act, Pub. L. No. 106-414, 114 Stat. 1800
9 (2000). Thus, automakers like NISSAN should (and do) monitor NHTSA databases for consumer
10 complaints regarding their automobiles as part of the automakers’ ongoing obligation to identify
11 potential defects in their vehicles.
12 The complaints, moreover, show that consumers of NISSAN vehicles equipped with the
13 Emergency Braking System considered the Emergency Braking Defect to be a material safety issue to
14 the reasonable consumer.
15 NISSAN’s knowledge of the Emergency Braking Defect is also clear from its July 19, 2018
16 technical service bulletin (“TSB”), NTB18-041a. NTB18-041a addresses unexpected operation of the
17 Emergency Braking System in 2017-18 Rogue, Rogue Sport, and Rogue Hybrid vehicles, and admits
18 that the Emergency Braking System operates unexpectedly in these vehicles. NTB18-041a provides a
19 purported repair for the unexpected operation of the Emergency Braking system in these vehicles.
20 NTB18-041a, however, does not adequately address the Emergency Braking Defect in any of the
21 NISSAN vehicles for which it applies.
22 NTB18-041a is not a recall, and a consumer of one of the covered Rogue models must first
23 experience the inherently dangerous Emergency Braking Defect before a repair is offered pursuant to
24 NTB18-041a. Thus, NISSAN requires consumers of covered Rogue models to risk sudden collision
25 before it even offers the purported repair.
26 The purported fix provided in NTB18-041a is ineffective and does not remedy the Emergency
27 Braking Defect.
28 At the point that NISSAN published a TSB to its authorized repair facilities addressing
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ANA FIGUEROA MORAN & ELLIOT VILLAVICENCIO FRAGOSO v. NISSAN COMPLAINT
1 ineffective repair procedures for the Emergency Braking Defect, it failed to immediately notify all
2 consumers of other year, make, model vehicles equipped with the same Emergency Braking Defect.
3 Instead, NISSAN chose to continue concealing the known Emergency Braking Defect from consumers
4 and the public.
5 NISSAN’s Marketing and Concealment
6 Upon information and belief, NISSAN knowingly marketed and sold/leased vehicles with the
7 Emergency Braking Defect, while willfully concealing the true risks posed by the Emergency Braking
8 Systems.
9 NISSAN directly markets its vehicles equipped with the Emergency Braking System to
10 consumers via extensive nationwide, multimedia advertising campaigns on television, the Internet,
11 billboards, print publications, mailings, and through other mass media.
12 NISSAN’s marketing material describes the vehicles as “intelligent” and as automatically
13 deploying emergency braking to avoid a collision.
14 In practice, the vehicles deploy emergency braking at unexpected moments when the braking
15 was not necessary for safety, and instead, impedes the driver’s safety. NISSAN concealed the fact that
16 the vehicles suffer from the Emergency Braking Defect which causes the vehicles, including the Subject
17 Vehicle, to stop suddenly and unexpectedly even when there is no risk of colliding with a vehicle or
18 pedestrian in front of the Subject Vehicle.
19 NISSAN knowingly misled Plaintiff(s) about the true, defective nature of the Subject Vehicle.
20 As detailed above, upon information and belief, NISSAN has been aware of the Emergency Braking
21 Defect since at least 2016, before Plaintiff(s) purchased the Subject Vehicle, through pre-release
22 evaluation and testing, and the numerous and consistent complaints about the Emergency Braking
23 Defect made directly to NISSAN, received through dealerships, and collected by NHTSA.
24 In sum, NISSAN has actively concealed the existence and nature of the Emergency Braking from
25 consumers, including Plaintiff(s), since at least 2016 despite its knowledge of the existence and
26 pervasiveness of the Emergency Braking Defect.
27 By engaging in the conduct described above, NISSAN has concealed, and continues to conceal,
28 the Emergency Braking Defect from the public, including Plaintiff(s). If Plaintiff(s) had knowledge of
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ANA FIGUEROA MORAN & ELLIOT VILLAVICENCIO FRAGOSO v. NISSAN COMPLAINT
1 the information NISSAN concealed, Plaintiff(s) would not have purchased the Subject Vehicle.
2
NISSAN Had a Duty to Disclose The Emergency Braking Defect
3
The existence of the Emergency Braking Defect is a material fact that a reasonable consumer
4
would consider when deciding whether to purchase or lease a vehicle equipped with an Emergency
5
Braking System.
6
Plaintiff(s) would not have purchased the Subject Vehicle, or would have paid significantly less
7
for it, had they known of the Emergency Braking Defect and the safety hazard it creates. By failing to
8
disclose the defect, NISSAN denied Plaintiff(s) information that was material to the purchase of, and
9
material to their willingness to use, the Subject Vehicle.
10
NISSAN had and continues to have a duty to disclose the Emergency Braking Defect and the
11
likelihood of the associated out-of-pocket repair costs to Plaintiff(s) and other consumers because: 1)
12
the defect poses an unreasonable safety hazard; 2) NISSAN has exclusive knowledge that is not
13
reasonably discoverable by Plaintiff(s) and consumers; 3) NISSAN has actively concealed the defect;
14
4) NISSAN made representations but did not disclose facts that materially qualified the facts disclosed,
15
or that rendered its disclosure likely to mislead.
16
NISSAN has chosen financial gain at the expense of consumer safety by failing to disclose its
17
knowledge of this critical safety defect to consumers.
18
Despite NISSAN’s knowledge of the defect in the Emergency Braking Defect in the Subject
19
Vehicle, NISSAN continued to fail to disclose this unresolved safety defect to new and subsequent
20
purchasers and lessees of NISSAN vehicles equipped with an Emergency Braking System, including
21
Plaintiff(s). NISSAN continued to manufacture and sell vehicles with Emergency Braking Systems
22
without any disclosure to consumers about these hidden safety defects. NISSAN otherwise prevents
23
reasonable consumers from repairing or discovering this hazard until the vehicle’s Emergency Braking
24
System unexpectedly fails to properly function, placing its occupants and other travelers in danger.
25
NISSAN’s Technical Service Bulletin concerning the Emergency Braking Defect in NISSAN
26
vehicles were not sent to prospective purchasers or to consumers after purchase, and did not fully
27
disclose the pervasiveness of the defect, the safety issues arising from the defect, or the uncertain nature
28
of the prescribed fixes.
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ANA FIGUEROA MORAN & ELLIOT VILLAVICENCIO FRAGOSO v. NISSAN COMPLAINT
1 PLAINTIFF(S)’ EXPERIENCES
2 The Subject Vehicle was purchased by Plaintiff(s) on September 19, 2020.
3 The Subject Vehicle was equipped with NISSAN’s Emergency Braking System.
4 Plaintiff(s) visited a car dealership in Corona, California in hopes of finding a motor vehicle.
5 Plaintiff(s) walked the dealership in search of a vehicle to meet Plaintiff(s)’ needs, assisted by a
6 salesperson.
7 Prior to purchasing the Subject Vehicle, Plaintiff(s) reviewed marketing brochures, viewed
8 television commercials and/or heard radio commercials about the qualities of the Nissan Kicks.
9 Plaintiff(s) further relied on the statements made during the sales process by NISSAN’s agents and
10 within the marketing materials written by NISSAN. However, NISSAN and its authorized agents did
11 not disclose to Plaintiff(s) any information about the Emergency Braking Defect. These omissions were
12 material to Plaintiff(s)’ decision to purchase the Subject Vehicle. Had NISSAN and/or its authorized
13 agents disclosed the Emergency Braking Defect before Plaintiff(s) purchased the Subject Vehicle,
14 Plaintiff(s) would have been aware of such defects, and would not have purchased the Subject Vehicle.
15 During the express warranty period, Plaintiff(s) presented the Subject Vehicle to a NISSAN
16 authorized dealership for repair after experiencing electrical and driveability concerns caused by failures
17 in the Emergency Braking System. At the conclusion of each of NISSAN authorized repair facility’s
18 attempted repair, neither NISSAN, nor its agent disclosed: (1) the existence known defect in the
19 Emergency Braking Defect; or (2) NISSAN’s knowledge of the known Emergency Braking Defect prior
20 to the sale of the Subject Vehicle to Plaintiff(s).
21 FIRST CAUSE OF ACTION
22 Violation of the Song-Beverly Act – Breach of Express Warranty
(Against NISSAN Only)
23
Plaintiff(s) incorporates herein by reference each and every allegation contained in the preceding
24
paragraphs as though herein fully restated and re-alleged.
25
Pursuant to the Song-Beverly Consumer Warranty Act (herein after the “Act”) Civil Code
26
sections 1790 et seq. the Subject Vehicle constitutes “consumer goods” used primarily for family or
27
household purposes, and Plaintiff(s) have used the Subject Vehicle primarily for those purposes.
28
Pursuant to the Song-Beverly Consumer Warranty Act (herein after the “Act”) Civil Code
-15-
ANA FIGUEROA MORAN & ELLIOT VILLAVICENCIO FRAGOSO v. NISSAN COMPLAINT
1 sections 1790 et seq. the Subject Vehicle constitutes a “new motor vehicle.”
2 Plaintiff(s) are “buyers” of consumer goods under the Act.
3 NISSAN is a “manufacturer” and/or “distributor” under the Act.
4 NISSAN’s express written warranty covered the Subject Vehicle.
5 NISSAN entered into an express written warranty contract with Plaintiff(s) (“Warranty”).
6 NISSAN’s Warranty covers any repairs needed to correct defects in materials or workmanship of
7 covered parts. The complete terms of that express warranty contract are attached hereto as Exhibit 1 and
8 are incorporated by reference.
9 Defects and nonconformities to warranty manifested themselves within the applicable express
10 warranty period. The nonconformities substantially impaired the use, value and/or safety of the Subject
11 Vehicle.
12 Plaintiff(s) delivered the vehicle to an authorized NISSAN repair facility for repair of the
13 nonconformities.
14 NISSAN was unable to conform the Subject Vehicle to the applicable express warranty after a
15 reasonable number of repair attempts.
16 Notwithstanding Plaintiff(s)’ entitlement to a replacement vehicle and/or restitution under the
17 Act, NISSAN has failed to either promptly replace the new motor vehicle or to promptly make restitution
18 in accordance with the Song-Beverly Act.
19 By failure of NISSAN to remedy the defects and nonconformities as alleged above, or to
20 promptly issue a refund or replacement vehicle, NISSAN is in breach of its obligations under the Song-
21 Beverly Act.
22 Under the Act, Plaintiff(s) are entitled to reimbursement of the price paid for the vehicle less that
23 amount directly attributable to use by the Plaintiff(s) prior to the first presentation to an authorized repair
24 facility for a nonconformity.
25 Plaintiff(s) are entitled to all incidental, consequential, and general damages resulting from
26 NISSAN’s failure to comply with its obligations under the Song-Beverly Act. Those damages include,
27 but are not limited to, registration fees and insurance for the Subject Vehicle.
28 Plaintiff(s) are entitled under the Song-Beverly Act to recover as part of the judgment a sum
-16-
ANA FIGUEROA MORAN & ELLIOT VILLAVICENCIO FRAGOSO v. NISSAN COMPLAINT
1 equal to the aggregate amount of costs and expenses, including attorney’s fees, reasonably incurred in
2 connection with the commencement and prosecution of this action.
3 Plaintiff(s) are entitled in addition to the amounts recovered, a civil penalty of up to two times
4 the amount of actual damages for NISSAN’s willful failure to comply with its responsibilities under the
5 Act.
6 SECOND CAUSE OF ACTION
7 Fraudulent Inducement – Intentional Misrepresentation
(Against NISSAN Only)
8
Plaintiff(s) incorporate herein by reference each and every allegation contained in the preceding
9
and succeeding paragraphs as though herein fully restated and re-alleged.
10
NISSAN was the only party with knowledge of the Emergency Braking Defect because that
11
knowledge came from internal reports such as pre-release testing data, customer complaints made
12
directly to NISSAN, and technical service bulletins. None of this information was available to the public,
13
nor did NISSAN or its agents disclose any of the information to Plaintiff(s). NISSAN had exclusive
14
knowledge of the defect as described in detail above.
15
Without remedying the defects, NISSAN continued to equip vehicles with the defective
16
Emergency Braking System. Those same defects to the Emergency Braking System persisted throughout
17
NISSAN’s production and sale of vehicles equipped with the Emergency Braking System.
18
NISSAN drafted, produced, and distributed marketing brochures to the public containing factual
19
representations about the Subject Vehicle.
20
NISSAN produces and distributes marketing materials, including brochures and manuals, to its
21
authorized dealerships for the purpose of providing them to consumers such as Plaintiff. These
22
marketing materials are meant to provide certain information regarding NISSAN’s vehicles to the
23
consumer.
24
With these marketing materials and its dealership personnel, NISSAN is able to communicate
25
indirectly to consumers such as Plaintiff regarding its vehicles.
26
NISSAN’s authorized dealerships are its agents for purposes of the sale of NISSAN vehicles to
27
consumers such as Plaintiff.
28
The marketing brochures drafted, produced, and distributed by NISSAN and its agents included
-17-
ANA FIGUEROA MORAN & ELLIOT VILLAVICENCIO FRAGOSO v. NISSAN COMPLAINT
1 misrepresentations about the Emergency Braking System. As advertised by NISSAN, its Emergency
2 Braking System “uses radar technology to monitor a vehicle’s proximity to the vehicle ahead, giving
3 the driver audible and visual display warnings to help the driver reduce the vehicle’s speed if a potential
4 frontal collision is detected. If the driver fails to respond, the AEB system can apply the brakes, helping
5 the driver to avoid the collision or reduce the speed of impact if it is unavoidable.” NISSAN’s marketing
6 material further describes the vehicles as “intelligent” and as automatically deploying emergency
7 braking to avoid a collision.
8 As alleged in more detail in paragraphs 53 through 58, NISSAN had a duty to disclose the
9 Emergency Braking Defect.
10 Unfortunately, the Subject Vehicle was delivered to Plaintiff(s) with a defective Emergency
11 Braking System.
12 The representations made to Plaintiff(s) regarding the Emergency Braking System and related
13 safety features of the Subject Vehicle were false.
14 NISSAN made such false representations regarding the Emergency Braking System despite its
15 extensive internal knowledge of the Emergency Braking Defect, as described in more detail above.
16 NISSAN intended that Plaintiff(s) rely on the above-described representations related to the
17 Subject Vehicle and its Emergency Braking System, including that neither had inherent and irreparable
18 defects, in inducing Plaintiff(s) to purchase the Subject Vehicle.
19 Plaintiff(s) justifiably and reasonably relied on NISSAN’s representations related to the
20 reliability of the Subject Vehicle and its Emergency Braking System, because NISSAN was the
21 manufacturer of the Subject Vehicle and claimed to have performed and relied upon extensive pre-
22 release testing of the system. NISSAN was in a superior position of knowledge.
23 Plaintiff(s) were harmed by purchasing the Subject Vehicle that Plaintiff(s) would not have
24 purchased had Plaintiff(s) known the true facts about the Emergency Braking Defect. Plaintiff(s) also
25 suffered diminution in the value of Plaintiff(s)’ vehicle, out-of-pocket expenses, damages in the amount
26 of the difference between the value of the vehicle equipped with the Emergency Braking Defect and the
27 value of the vehicle if it had been equipped as warranted and marketed, and reliance damages. Plaintiff(s)
28 also incurred expenses relating to registration, insurance, and maintenance of the Subject Vehicle.
-18-
ANA FIGUEROA MORAN & ELLIOT VILLAVICENCIO FRAGOSO v. NISSAN COMPLAINT
1 Plaintiff(s)’ reliance on NISSAN’s representations about the Emergency Braking System’s
2 qualities was a substantial factor in causing Plaintiff(s)’ harm because NISSAN and its agents were the
3 exclusive source of information about the qualities of the Emergency Braking System.
4 NISSAN failed to disclose the Emergency Braking Defect at the time of sale, or at any point
5 after the time of sale, despite its ongoing knowledge of the defect. NISSAN’s continued concealment
6 of the Emergency Braking Defect through both (1) its failure to proactively notify Plaintiff(s) of its prior
7 fraud and (2) ongoing misrepresentations that were made to Plaintiff(s) each time they brought the
8 Subject Vehicle in for repair, resulted in Plaintiff(s) incurring additional expenses to operate and
9 maintain the Subject Vehicle that they would not have otherwise incurred had they known of NISSAN’s
10 fraud at the time of sale or anytime thereafter. As a further result of the ongoing concealment and
11 misrepresentations, Plaintiff(s) incurred an immediate reduction in value at the time they drove the new
12 car off the lot, incurred ongoing depreciation of the Subject Vehicle’s value, and any opportunity to
13 reduce their accumulating damages associated with a defective, depreciating asset.
14 The foregoing fraudulent and wrongful acts by NISSAN, as alleged above, were authorized and
15 ratified by NISSAN’s officers, directions, and/or mangers. NISSAN’s agents or employees also
16 committed the wrongful acts set forth above with the foregoing knowledge, authorization, approval,
17 direction, or ratification of an officer, director, or managing agent of NISSAN pursuant to an implicit or
18 explicit company plan, scheme, or policy regarding the advertising and sale of NISSAN vehicles with
19 an Emergency Braking System. Alternatively, the aforementioned wrongful acts were committed by an
20 officer, director, or managing agent of NISSAN.
21 THIRD CAUSE OF ACTION
22 Fraudulent Inducement – Concealment
Preview
KNIGHT LAW GROUP, LLP 1 Roger Kirnos (SBN 283163) 2 E-mail: rogerk@knightlaw.com Lauren Ungs (SBN 273374) 3 E-mail: laurenu@knightlaw.com 10250 Constellation Blvd., Suite 2500 4 Los Angeles, CA 90067 5 Telephone: (310) 552-2250 Fax: (310) 552-7973 6 Attorneys for Plaintiff(s), 7 ANA FIGUEROA MORAN and ELLIOT VILLAVICENCIO FRAGOSO 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF RIVERSIDE 10 11 ANA FIGUEROA MORAN AND Case No.: ELLIOT VILLAVICENCIO FRAGOSO, 12 Unlimited Jurisdiction Plaintiff(s), 13 COMPLAINT: vs. 14 1. VIOLATION OF SONG-BEVERLY ACT - BREACH OF EXPRESS 15 WARRANTY NISSAN NORTH AMERICA, INC., a 16 Delaware Corporation, WISH 2. FRAUDULENT INDUCEMENT – AUTOMOTIVE III, INC., a California INTENTIONAL 17 MISREPRESENTATION Corporation dba Nissan of Alhambra, and 18 DOES 1 through 10, inclusive, 3. FRAUDULENT INDUCEMENT – CONCEALMENT 19 4. NEGLIGENT REPAIR 20 Defendants. 21 Assigned for All Purposes to the 22 Honorable 23 Department: 24 25 26 27 28 -1- ANA FIGUEROA MORAN & ELLIOT VILLAVICENCIO FRAGOSO v. NISSAN COMPLAINT 1 Plaintiff(s) Ana Figueroa Moran and Elliot Villavicencio Fragoso allege as follows against 2 Defendant NISSAN NORTH AMERICA, INC., a Delaware Corporation (“NISSAN”), Defendant 3 WISH AUTOMOTIVE III, INC., doing business as Nissan of Alhambra, 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 Plaintiff(s), Ana Figueroa Moran & Elliot Villavicencio Fragoso, hereby demand trial by 7 jury in this action. 8 GENERAL ALLEGATIONS 9 Plaintiff(s), Ana Figueroa Moran & Elliot Villavicencio Fragoso (“Plaintiff(s)”), are individuals 10 residing in the State of California. 11 Defendant NISSAN is a Delaware Corporation registered to do business in the State of 12 California with its registered office in the City of Sacramento, County of Sacramento, and State of 13 California. 14 Defendant WISH AUTOMOTIVE III, INC., doing business as Nissan of Alhambra 15 (hereinafter “Dealer” or “Nissan of Alhambra”), is and at all relevant times 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 Alhambra, County of Los Angeles, and State of California. 18 Plaintiff(s)’ fraud related causes of action arise out of the facts that surround the 19 misrepresentations and concealment of material facts at the time Plaintiff(s) purchased a new motor 20 vehicle. The transaction which resulted from misrepresentations and concealment of material facts 21 occurred in Corona, County of Los Angeles, California. 22 Plaintiff(s)’ cause(s) of action for violations of the Song-Beverly Act arise from warranty 23 obligations of NISSAN in connection with a vehicle purchased by Plaintiff(s) and for which NISSAN 24 issued written warranties. Plaintiff(s) allege that NISSAN was unable to repair the vehicle in accordance 25 with the written warranty or the consumer protection and warranty laws of the State of California. The 26 warranty contract was entered into in Corona, County of Los Angeles, California. 27 Plaintiff(s) do not know the true names and capacities, whether corporate, partnership, associate, 28 individual or otherwise of NISSAN issued herein as Does 1 through 10, inclusive, under the provisions -2- ANA FIGUEROA MORAN & ELLIOT VILLAVICENCIO FRAGOSO v. NISSAN COMPLAINT 1 of section 474 of the California Code of Civil Procedure. NISSAN Does 1 through 10, inclusive, are in 2 some manner responsible for the acts, occurrences and transactions set forth herein, and are legally liable 3 to Plaintiff. Plaintiff(s) will seek leave to amend this Complaint to set forth the true names and capacities 4 of the fictitiously named NISSAN, together with appropriate charging allegations, when ascertained. 5 All acts of corporate employees as alleged were authorized or ratified by an officer, director or 6 managing agent of the corporate employer. 7 On September 19, 2020, Plaintiff(s) purchased a new 2021 Nissan Kicks, VIN: 8 3N1CP5BV4LL538693 (“the Subject Vehicle”). 9 Plaintiff(s) entered into an express written contract with NISSAN, referred to as the New Vehicle 10 Limited Warranty (“Warranty”), by which NISSAN undertook to preserve or maintain the utility or 11 performance of the Subject Vehicle or provide compensation if there was a failure in such utility or 12 performance. The Warranty covers any repairs needed to correct defects in materials or workmanship 13 of covered parts. The express warranty contract is attached and incorporated by this reference as Exhibit 14 1. 15 Plaintiff(s) hereby revokes acceptance of the Subject Vehicle. Plaintiff(s) also reasonably 16 revoked acceptance of the Subject Vehicle by contacting NISSAN, demanding that the Subject Vehicle 17 be repurchased pursuant to the Song-Beverly Act. 18 The Emergency Braking Defect 19 The Subject Vehicle was equipped with a defective emergency braking system that exposed 20 Plaintiff(s), Plaintiff(s)’ passengers, and other consumers on the road to the risk of sudden and 21 unexpected collision. 22 As advertised by NISSAN, its Forward Emergency Braking/Automatic Emergency Braking 23 technology (herein referred to as the “Emergency Braking System”) uses radar to detect the possibility 24 of a collision with vehicles or pedestrians. In its intended functionality, the Emergency Braking System 25 will apply an emergency brake, causing the vehicle to decelerate and stop, in the event that an imminent 26 collision is detected. 27 NISSAN first offered Forward Emergency Braking technology on the model year 2015 NISSAN 28 Murano. In recent years, in an effort to appear at the forefront of emerging autonomous driving -3- ANA FIGUEROA MORAN & ELLIOT VILLAVICENCIO FRAGOSO v. NISSAN COMPLAINT 1 technology, it has expanded the application of that technology to other models, and has re-branded this 2 same technology as Automatic Emergency Braking technology. Beginning with model year 2018 3 vehicles, NISSAN made what is now called “ Automatic Emergency Braking” a standard feature on 4 its Rogue, Rogue Sport, Murano, Altima, Maxima, Armada, Pathfinder, Leaf and Sentra vehicles. 5 NISSAN’s Emergency Braking System, however, is not road ready. It suffers from a serious 6 defect, wherein the Emergency Braking System engages suddenly and unexpectedly when no collision 7 is imminent, and a driver has no intention of stopping her vehicle. This defect is referred to herein as the 8 Emergency Braking Defect. The Emergency Braking Defect is a defect in material and workmanship 9 because the Emergency Braking System should not engage when no collision is imminent and a driver 10 or the vehicle has no intention or need of stopping the vehicle. 11 Due to the Emergency Braking Defect, consumers of NISSAN vehicles, including Plaintiff(s), 12 have experienced sudden and unexpected braking on railroad tracks, on bridges, in intersections, and 13 other driving situations that have placed them at serious and unreasonable risk of side-on or rear- end 14 collision. 15 The Emergency Braking Defect is a uniform defect, existing within all NISSAN vehicles 16 equipped with the Emergency Braking System, and often manifests itself at extremely low mileages, 17 within NISSAN’s 36,000 mile limited warranty period. 18 NISSAN knew of the Emergency Braking Defect prior to the date Plaintiff(s) purchased the 19 Subject Vehicle through several avenues: (1) failures in pre-release testing; (2) it was monitoring the 20 high volume warranty repairs and contact from its authorized repair facilities; (3) it received complaints 21 about the Emergency Braking Defect from consumers contacting customer service; and (4) it monitors 22 customer complaints collected by the National Highway Traffic Safety Administration’s (“NHTSA”) 23 Office of Defects Investigation (“ODI”). Despite this knowledge, NISSAN failed to disclose and 24 actively concealed the Emergency Braking Defect from consumers, including Plaintiff(s), and the public 25 and continued to market and advertise NISSAN vehicles equipped with the defective systems. 26 NISSAN sold hundreds of thousands of vehicles equipped with the Emergency Braking Defect 27 despite knowing that the Emergency Braking System engages suddenly and unexpectedly, posing a 28 safety hazard to Plaintiff(s) and others sharing the road with defective NISSAN vehicles. -4- ANA FIGUEROA MORAN & ELLIOT VILLAVICENCIO FRAGOSO v. NISSAN COMPLAINT 1 Purchasers and lessees who have complained to NISSAN about the Emergency Braking Defect 2 have been told that their vehicle is not defective and have been refused repair or other adequate remedy. 3 The Emergency Braking Defect inhibits Plaintiff(s)’ expected, comfortable, and safe use of the 4 Subject Vehicle, and exposes them to the risk of serious injury resulting from sudden brake failure. 5 As a result of NISSAN’s selling and leasing vehicles with the Emergency Braking Defect, 6 Plaintiff(s) were damaged in that Plaintiff(s) purchased the Subject Vehicle which Plaintiff(s) would not 7 have purchased, or at least paid more for the Subject Vehicle than they would have paid, had they known 8 about the Emergency Braking Defect. 9 The Subject Vehicle suffers from the Emergency Braking Defect, which results in the emergency 10 brake on the Subject Vehicle suddenly and unexpectedly engaging, bringing it to a halt wherever it may 11 be. 12 Upon information and belief, NISSAN introduced its Emergency Braking System as an optional 13 feature in its model year 2015 Murano. 14 Initially, NISSAN called its Emergency Braking System “Forward Emergency Braking.” From 15 model year 2015 through model year 2017, NISSAN offered its Emergency Braking System as an 16 optional feature on numerous models, including the Rogue, the Altima, and the Maxima. 17 For the 2017 model year Rogue, NISSAN introduced a series of mid-year enhancements, which 18 included standard Forward Emergency Braking. 19 For the 2018 model year, NISSAN re-branded Forward Emergency Braking as “Automatic 20 Emergency Braking.” NISSAN also made it standard on seven of its most popular models: the Rogue, 21 Rogue Sport, Altima, Murano, LEAF, Pathfinder, Maxima, and Sentra (except manual-transmission 22 equipped and all NISMO versions). 23 Based on the uniformity of experiences with the Emergency Braking Defect across models and 24 model years, as further detailed below, it is evident that there is no material difference in the Emergency 25 Braking Systems in NISSAN vehicles with respect to the Emergency Braking Defect. 26 As advertised by NISSAN, its Emergency Braking System “uses radar technology to monitor a 27 vehicle’s proximity to the vehicle ahead, giving the driver audible and visual display warnings to help 28 the driver reduce the vehicle’s speed if a potential frontal collision is detected. If the driver fails to -5- ANA FIGUEROA MORAN & ELLIOT VILLAVICENCIO FRAGOSO v. NISSAN COMPLAINT 1 respond, the AEB system can apply the brakes, helping the driver to avoid the collision or reduce the 2 speed of impact if it is unavoidable.” 3 What NISSAN does not advertise, and does not inform potential buyers of NISSAN vehicles, is 4 that its Emergency Braking System suffers from the Emergency Braking Defect, which results in the 5 emergency brake on their vehicles suddenly and unexpectedly engaging even in the complete absence 6 of another vehicle or other obstacle on the road ahead. 7 Based on the reports of those who have experienced the Emergency Braking Defect, as further 8 detailed below, this defect is often experienced on railroad tracks and bridges. Consumers of NISSAN 9 vehicles equipped with the Emergency Braking Defect have found themselves stopped in the middle of 10 railroad tracks, on highways, and at high speeds. 11 The Emergency Braking Defect poses a clear and significant safety risk to Plaintiff(s), 12 Plaintiff(s)’ occupants, and other drivers on the road because it can unexpectedly render the Subject 13 Vehicle helplessly at risk of a side-on collision on train tracks or in an intersection, because it puts the 14 Subject Vehicle at a heightened risk of being rear-ended (including at high speeds), and because it can 15 prevent the Subject Vehicle from moving out of the way of danger. 16 NISSAN’s Knowledge of the Emergency Braking Defect 17 Moreover, as further detailed below, consumers, like Plaintiff(s), experience the Emergency 18 Braking Defect at inordinately low mileages, further evidencing the fact that it is a fundamental and 19 uniform defect. 20 NISSAN knew of the Emergency Braking Defect prior to the date Plaintiff(s) purchased the 21 Subject Vehicle through several avenues: (1) failures in pre-release evaluation and testing; (2) 22 monitoring of the high volume of early warranty repairs and contact from its authorized repair facilities; 23 (3) it received complaints about the Emergency Braking Defect from consumers contacting customer 24 service; and (4) it monitors customer complaints collected by the National Highway Traffic Safety 25 Administration’s (“NHTSA”) Office of Defects Investigation (“ODI”), and (5) testing done in response 26 to those complaints. Despite this knowledge, NISSAN failed to disclose and actively concealed the 27 Emergency Braking Defect from consumers, including Plaintiff(s), and the public and continued to 28 market and advertise NISSAN vehicles equipped with the defective systems. -6- ANA FIGUEROA MORAN & ELLIOT VILLAVICENCIO FRAGOSO v. NISSAN COMPLAINT 1 On information and belief, NISSAN learned of the Emergency Braking Defect at least as early 2 as 2016, and certainly well before Plaintiff(s) purchased the Subject Vehicle. 3 During the pre-release process of designing, manufacturing, engineering, and testing the 4 Emergency Braking System, NISSAN necessarily would have gained comprehensive and exclusive 5 knowledge about the Emergency Braking Systems, particularly the basic engineering principles behind 6 the function of the systems and the systems’ responses to expected conditions they would encounter in 7 ordinary use. 8 An adequate pre-release analysis of the design, engineering, and manufacture of the Emergency 9 Braking Systems in the Subject Vehicle would have revealed to NISSAN that the systems were defective 10 and caused vehicles to suddenly and unexpectedly stop during normal driving events, such as when 11 vehicles encountered train tracks or inclines. 12 Further, consumers complain of experiencing the Emergency Braking Defect at low mileages, 13 within the warranty period. Upon information and belief, NISSAN collects, reviews, and analyzes 14 detailed information about warranty claims made at its dealerships and service centers, including the 15 type and frequency of such claims. Complete data on such claims is exclusively within NISSAN’s 16 control and unavailable to Plaintiff(s) without discovery. 17 Online resources reveal that consumers complained to NISSAN about the Emergency Braking 18 Defect starting with, at least, model year 2016 vehicles, and that these complaints have continued 19 unabated through the present day. 20 For example, online complaints available through National Highway Traffic Safety 21 Administration state the following: 22 a. 2016 NISSAN Altima, Incident Dated October 1, 2016: “The contact owns a 2016 23 NISSAN Altima. While driving various speeds, the Forward Emergency Braking warning 24 indicator illuminated and caused the vehicle to slow down and then stop. The contact took 25 the vehicle to a dealer, but there was no resolution for the issue with the emergency brake. 26 The manufacturer was notified of the issue. The failure mileage was 7,259.” 27 b. 2016 NISSAN Rogue, Incident Dated July 2, 2018: “The vehicle automatically 28 applies the brake in some instances . . . Service has had the entire body control module -7- ANA FIGUEROA MORAN & ELLIOT VILLAVICENCIO FRAGOSO v. NISSAN COMPLAINT 1 replaced, but electrical issues still persist. Multiple dealers have not been able to recreate 2 the problem even though issues are still present. Significant safety hazard by vehicle 3 automatically applying brake randomly and NISSAN still does nothing to resolve the 4 issue.” 5 c. 2017 NISSAN Rogue, Incident Dated August 30, 2017: “ABS braking system goes 6 on when driving car for no apparent reason. No other cars or obstacles around. This has 7 happened 7 times. Speed usually between 30/35 MPH.” 8 d. 2017 NISSAN Rogue, Incident Dated October 11, 2017: “On October 11, 2017, the 9 vehicle’s [Emergency Braking System] caused the vehicle to unexpectedly brake while 10 moving at approximately 65 mph on the interstate 10 freeway. This malfunction nearly 11 caused a serious accident which could have resulted in serious injuries. We immediately 12 contacted the NISSAN dealer and they did have the vehicle towed to their service 13 department for inspection. They have had the vehicle for approximately 1 week and are 14 now contacting us requesting that we pick up the vehicle, despite the fact that they have 15 not repaired the vehicle ” 16 e. 2017 NISSAN Rogue, Incident Dated October 18, 2017: “The first time the vehicle 17 malfunctioned, I was driving in a grocery store parking lot with a personal friend and 18 suddenly the car’s emergency brake protection activated, jolting the car to a stop. The 19 second occurrence was in a parking deck (different from the first location) and the car again 20 activated the emergency brake protection system, jolting the car to a stop. I then felt this 21 was a safety issue and brought this into the NISSAN dealership. They checked the car and 22 called reporting they could not find anything wrong with the car and I should pick it up. I 23 picked the car up and continued to drive it until I switched cars with a personal friend who 24 used the car to drive one mile back to home down a 4 lane road. Upon coming to an 25 intersection, she reports she began slowing down and got in a turn lane to make a left onto 26 our neighborhood road and as she was approaching the light, the car activated the 27 emergency braking system, again jolting the car to a stop. She states during and after the 28 car came to a complete stop, she kept her foot on the brake the entire time and while -8- ANA FIGUEROA MORAN & ELLIOT VILLAVICENCIO FRAGOSO v. NISSAN COMPLAINT 1 decompressing the brake, the car then jolted forward crashing into the car in front of her. I 2 had the car towed in to the NISSAN dealership and had corporate NISSAN step in to 3 investigate the car. 6 weeks later they investigated the car reporting that no error was found 4 with the car and again I should pick up my vehicle. I requested specific tests and asked the 5 testing process for the car and was advised by the investigation department that they could 6 not disclose that information and that the testing and results were ‘property of NISSAN’ 7 and that they were not offering any further assistance.” 8 f. 2017 NISSAN Rogue, Incident Dated October 26, 2017: “On 10-26-2-17 while 9 traveling at approximately 35 mph the vehicle’s Forward Emergency Braking System 10 (FEB) suddenly and unexpectedly activated, bringing the car to a full and complete stop in 11 the middle of the road. . . . There were no adverse conditions, obstructions, or vehicles 12 within a dangerous distance to have caused the activation. . . . I returned the vehicle to the 13 dealership were I purchased the car. After four days of diagnostic and road testing I was 14 told that according to NISSAN Tech Line, since the dealership was unable to duplicate the 15 malfunction during the test drive the car is considered operational and safe and could be 16 returned to the customer ” 17 g. 2017 NISSAN Rogue, Incident Dated January 28, 2018: “A second totally 18 unnecessary deployment again occurred, this time @ 8:43 AM. I was again on the 19 Southbound Major Deegan expressway . . . speed 52 MPH with the cruise control engaged, 20 when the Forward Emergency Brake System automatically deployed, for about 2 to 3 21 seconds. Again, there was no car immediately in front of me; no debris on the roadway; 22 nothing that would alert the sensor.” 23 h. 2017 NISSAN Rogue, Incident dated February 8, 2018: “(FEB) Forward 24 Emergency Braking System Faulty. I have filed another claim before this but there has 25 been more development and answers to the unknown as to why it is doing this. I spoke to 26 NISSAN’s arbitration dept last night and they have found that it is some traffic lights that 27 are causing an interference and causing this system to set off audible beep followed by a 28 red light (according to user manual it is the FEB emergency warning indicator). It will then -9- ANA FIGUEROA MORAN & ELLIOT VILLAVICENCIO FRAGOSO v. NISSAN COMPLAINT 1 brake on its own I am still fighting with NISSAN, but as of last night, they said NISSAN 2 had no interest in replacing or letting me repurchase at this time ” 3 i. 2018 NISSAN Rogue, Incident Dated April 23, 2018: “The emergency braking 4 engages without reason. This has led to 2 near misses. Once the car just stopped in the 5 road. I thought it might have misinterpreted a snow pile. Then, driving over a train 6 crossing, the car just stopped. Luckily I was able to get it moving before a train came. Very 7 scary! When I called the service department, they were not very concerned.” 8 j. 2017 NISSAN Maxima and 2018 Rogue, Incidents Dated May 28, 2018 and prior: 9 “The problem began in my 2017 NISSAN Maxima. I told the dealership that the 10 emergency automatic braking system initiated while no other cars were around. They 11 traded me in to the 2018 NISSAN Rogue and the same issue has occurred 3 times in this 12 vehicle. Each time, there were no other vehicles around. The dealership claimed there is 13 nothing wrong with my vehicle. It wasn’t until I contacted corporate that they admitted 14 they know there’s a defect, but no fix was available yet. They knowingly jeopardized my 15 infant son’s safety and lied to me. This defect is scary and shouldn’t be allowed to be swept 16 under the rug by dealerships. I no longer feel safe driving with NISSAN.” 17 k. 2018 NISSAN Rogue, Incident Dated July 2, 2018: “Forward Emergency Braking 18 System engages while approaching a metal roadway surface and comes to a complete and 19 abrupt stop. The roadway is a driveway on a private property. This vehicle is equipped with 20 a safety system designed to prevent collisions with objects ahead, but engages when there 21 is no object in front. The dealership has been aware of this issue since July 5, 2018 and the 22 manufacturer has been aware since July 26, 2018. In several instances, motorist travelling 23 behind were unexpectedly surprised and forced to take evasive maneuvers to avoid 24 collision.” 25 l. 2018 NISSAN Rogue, Incident Dated September 24, 2018: “The contact stated that 26 the vehicle’s automatic braking feature independently activated while the vehicle was 27 being driven at various speeds. There were no obstacles in the vehicle’s path. The failure 28 occurred without warning on approximately six occasions. . . . The failure mileage was -10- ANA FIGUEROA MORAN & ELLIOT VILLAVICENCIO FRAGOSO v. NISSAN COMPLAINT 1 approximately 1,600.” 2 m. 2018 NISSAN Rogue, Incident Dated September 30, 2018: “Auto emergency 3 braking is activating when there is no vehicle or obstacle in front of me. It happened the 4 first time I left the dealer on an open highway. It happened again in a dark parking garage, 5 and again when I was going less than 10 miles an hour over railroad tracks. It happened to 6 my husband going over a bridge with metal expansion joints. Good thing no one was 7 behind us when it happened.” 8 n. 2018 NISSAN Rogue, Incident Dated October 23, 2018: “While accelerating on a 9 county street, at almost 40 MPH, my car decided to suddenly brake and almost immediately 10 stop. It vibrated and we heard a loud grinding type noise. I removed my foot from 11 accelerator, and after just a second, the braking stopped and I was able to accelerate again. 12 I was almost rear-ended by the car behind me. No warning lights or sounds were heard. 13 The car has about 15,500 miles. This is the second time that this has happened. . . . I’m 14 scared to drive this on the freeway, or actually anywhere I want to go more than 10 miles 15 per hour ” 16 o. 2018 NISSAN Rogue, Incident Dated November 13, 2018: “While moving at 35 17 MPH on a paved surface street with no obstacles/cars in front of me or behind me and a 18 green light at the next traffic light, the car made a high pitched noise and came to a full 19 stop. Seemed as if the emergency braking system engaged for no apparent reason. Could 20 have caused a rear end collision if anyone were behind me or if I were on the highway.” 21 p. 2018 NISSAN Leaf, Incident Dated May 15, 2018: “While driving forward, the 22 vehicle suddenly, unexpectedly and violently applies the brakes without any driver input 23 whatsoever! There are no other vehicles or pedestrians in the vicinity at the time. This 24 sudden braking problem began on or about 5/15/18 and happened on several occasions 25 after that. Twice while entering the underground parking garage at an office building and 26 twice while driving on a city street. Vehicle has been at the local NISSAN dealer for over 27 a week but neither the dealership nor the manufacturer apparently has any idea how to fix 28 the problem. They think that there is a fault in the Automatic Emergency Braking system. -11- ANA FIGUEROA MORAN & ELLIOT VILLAVICENCIO FRAGOSO v. NISSAN COMPLAINT 1 The service manager told me that other instances of the same issue have been reported to 2 NISSAN. The salesperson indicated that there were 4 other similar cases at their dealership 3 alone.” 4 As the complaints reveal, NISSAN was repeatedly notified of the Emergency Braking Defect by 5 customers and dealers. Further, federal law requires automakers like NISSAN to be in close contact with 6 NHTSA regarding potential auto defects, including imposing a legal requirement, backed by criminal 7 penalties for violation, of confidential disclosure of defects by automakers to NHTSA, including field 8 reports, customer complaints, and warranty data. See TREAD Act, Pub. L. No. 106-414, 114 Stat. 1800 9 (2000). Thus, automakers like NISSAN should (and do) monitor NHTSA databases for consumer 10 complaints regarding their automobiles as part of the automakers’ ongoing obligation to identify 11 potential defects in their vehicles. 12 The complaints, moreover, show that consumers of NISSAN vehicles equipped with the 13 Emergency Braking System considered the Emergency Braking Defect to be a material safety issue to 14 the reasonable consumer. 15 NISSAN’s knowledge of the Emergency Braking Defect is also clear from its July 19, 2018 16 technical service bulletin (“TSB”), NTB18-041a. NTB18-041a addresses unexpected operation of the 17 Emergency Braking System in 2017-18 Rogue, Rogue Sport, and Rogue Hybrid vehicles, and admits 18 that the Emergency Braking System operates unexpectedly in these vehicles. NTB18-041a provides a 19 purported repair for the unexpected operation of the Emergency Braking system in these vehicles. 20 NTB18-041a, however, does not adequately address the Emergency Braking Defect in any of the 21 NISSAN vehicles for which it applies. 22 NTB18-041a is not a recall, and a consumer of one of the covered Rogue models must first 23 experience the inherently dangerous Emergency Braking Defect before a repair is offered pursuant to 24 NTB18-041a. Thus, NISSAN requires consumers of covered Rogue models to risk sudden collision 25 before it even offers the purported repair. 26 The purported fix provided in NTB18-041a is ineffective and does not remedy the Emergency 27 Braking Defect. 28 At the point that NISSAN published a TSB to its authorized repair facilities addressing -12- ANA FIGUEROA MORAN & ELLIOT VILLAVICENCIO FRAGOSO v. NISSAN COMPLAINT 1 ineffective repair procedures for the Emergency Braking Defect, it failed to immediately notify all 2 consumers of other year, make, model vehicles equipped with the same Emergency Braking Defect. 3 Instead, NISSAN chose to continue concealing the known Emergency Braking Defect from consumers 4 and the public. 5 NISSAN’s Marketing and Concealment 6 Upon information and belief, NISSAN knowingly marketed and sold/leased vehicles with the 7 Emergency Braking Defect, while willfully concealing the true risks posed by the Emergency Braking 8 Systems. 9 NISSAN directly markets its vehicles equipped with the Emergency Braking System to 10 consumers via extensive nationwide, multimedia advertising campaigns on television, the Internet, 11 billboards, print publications, mailings, and through other mass media. 12 NISSAN’s marketing material describes the vehicles as “intelligent” and as automatically 13 deploying emergency braking to avoid a collision. 14 In practice, the vehicles deploy emergency braking at unexpected moments when the braking 15 was not necessary for safety, and instead, impedes the driver’s safety. NISSAN concealed the fact that 16 the vehicles suffer from the Emergency Braking Defect which causes the vehicles, including the Subject 17 Vehicle, to stop suddenly and unexpectedly even when there is no risk of colliding with a vehicle or 18 pedestrian in front of the Subject Vehicle. 19 NISSAN knowingly misled Plaintiff(s) about the true, defective nature of the Subject Vehicle. 20 As detailed above, upon information and belief, NISSAN has been aware of the Emergency Braking 21 Defect since at least 2016, before Plaintiff(s) purchased the Subject Vehicle, through pre-release 22 evaluation and testing, and the numerous and consistent complaints about the Emergency Braking 23 Defect made directly to NISSAN, received through dealerships, and collected by NHTSA. 24 In sum, NISSAN has actively concealed the existence and nature of the Emergency Braking from 25 consumers, including Plaintiff(s), since at least 2016 despite its knowledge of the existence and 26 pervasiveness of the Emergency Braking Defect. 27 By engaging in the conduct described above, NISSAN has concealed, and continues to conceal, 28 the Emergency Braking Defect from the public, including Plaintiff(s). If Plaintiff(s) had knowledge of -13- ANA FIGUEROA MORAN & ELLIOT VILLAVICENCIO FRAGOSO v. NISSAN COMPLAINT 1 the information NISSAN concealed, Plaintiff(s) would not have purchased the Subject Vehicle. 2 NISSAN Had a Duty to Disclose The Emergency Braking Defect 3 The existence of the Emergency Braking Defect is a material fact that a reasonable consumer 4 would consider when deciding whether to purchase or lease a vehicle equipped with an Emergency 5 Braking System. 6 Plaintiff(s) would not have purchased the Subject Vehicle, or would have paid significantly less 7 for it, had they known of the Emergency Braking Defect and the safety hazard it creates. By failing to 8 disclose the defect, NISSAN denied Plaintiff(s) information that was material to the purchase of, and 9 material to their willingness to use, the Subject Vehicle. 10 NISSAN had and continues to have a duty to disclose the Emergency Braking Defect and the 11 likelihood of the associated out-of-pocket repair costs to Plaintiff(s) and other consumers because: 1) 12 the defect poses an unreasonable safety hazard; 2) NISSAN has exclusive knowledge that is not 13 reasonably discoverable by Plaintiff(s) and consumers; 3) NISSAN has actively concealed the defect; 14 4) NISSAN made representations but did not disclose facts that materially qualified the facts disclosed, 15 or that rendered its disclosure likely to mislead. 16 NISSAN has chosen financial gain at the expense of consumer safety by failing to disclose its 17 knowledge of this critical safety defect to consumers. 18 Despite NISSAN’s knowledge of the defect in the Emergency Braking Defect in the Subject 19 Vehicle, NISSAN continued to fail to disclose this unresolved safety defect to new and subsequent 20 purchasers and lessees of NISSAN vehicles equipped with an Emergency Braking System, including 21 Plaintiff(s). NISSAN continued to manufacture and sell vehicles with Emergency Braking Systems 22 without any disclosure to consumers about these hidden safety defects. NISSAN otherwise prevents 23 reasonable consumers from repairing or discovering this hazard until the vehicle’s Emergency Braking 24 System unexpectedly fails to properly function, placing its occupants and other travelers in danger. 25 NISSAN’s Technical Service Bulletin concerning the Emergency Braking Defect in NISSAN 26 vehicles were not sent to prospective purchasers or to consumers after purchase, and did not fully 27 disclose the pervasiveness of the defect, the safety issues arising from the defect, or the uncertain nature 28 of the prescribed fixes. -14- ANA FIGUEROA MORAN & ELLIOT VILLAVICENCIO FRAGOSO v. NISSAN COMPLAINT 1 PLAINTIFF(S)’ EXPERIENCES 2 The Subject Vehicle was purchased by Plaintiff(s) on September 19, 2020. 3 The Subject Vehicle was equipped with NISSAN’s Emergency Braking System. 4 Plaintiff(s) visited a car dealership in Corona, California in hopes of finding a motor vehicle. 5 Plaintiff(s) walked the dealership in search of a vehicle to meet Plaintiff(s)’ needs, assisted by a 6 salesperson. 7 Prior to purchasing the Subject Vehicle, Plaintiff(s) reviewed marketing brochures, viewed 8 television commercials and/or heard radio commercials about the qualities of the Nissan Kicks. 9 Plaintiff(s) further relied on the statements made during the sales process by NISSAN’s agents and 10 within the marketing materials written by NISSAN. However, NISSAN and its authorized agents did 11 not disclose to Plaintiff(s) any information about the Emergency Braking Defect. These omissions were 12 material to Plaintiff(s)’ decision to purchase the Subject Vehicle. Had NISSAN and/or its authorized 13 agents disclosed the Emergency Braking Defect before Plaintiff(s) purchased the Subject Vehicle, 14 Plaintiff(s) would have been aware of such defects, and would not have purchased the Subject Vehicle. 15 During the express warranty period, Plaintiff(s) presented the Subject Vehicle to a NISSAN 16 authorized dealership for repair after experiencing electrical and driveability concerns caused by failures 17 in the Emergency Braking System. At the conclusion of each of NISSAN authorized repair facility’s 18 attempted repair, neither NISSAN, nor its agent disclosed: (1) the existence known defect in the 19 Emergency Braking Defect; or (2) NISSAN’s knowledge of the known Emergency Braking Defect prior 20 to the sale of the Subject Vehicle to Plaintiff(s). 21 FIRST CAUSE OF ACTION 22 Violation of the Song-Beverly Act – Breach of Express Warranty (Against NISSAN Only) 23 Plaintiff(s) incorporates herein by reference each and every allegation contained in the preceding 24 paragraphs as though herein fully restated and re-alleged. 25 Pursuant to the Song-Beverly Consumer Warranty Act (herein after the “Act”) Civil Code 26 sections 1790 et seq. the Subject Vehicle constitutes “consumer goods” used primarily for family or 27 household purposes, and Plaintiff(s) have used the Subject Vehicle primarily for those purposes. 28 Pursuant to the Song-Beverly Consumer Warranty Act (herein after the “Act”) Civil Code -15- ANA FIGUEROA MORAN & ELLIOT VILLAVICENCIO FRAGOSO v. NISSAN COMPLAINT 1 sections 1790 et seq. the Subject Vehicle constitutes a “new motor vehicle.” 2 Plaintiff(s) are “buyers” of consumer goods under the Act. 3 NISSAN is a “manufacturer” and/or “distributor” under the Act. 4 NISSAN’s express written warranty covered the Subject Vehicle. 5 NISSAN entered into an express written warranty contract with Plaintiff(s) (“Warranty”). 6 NISSAN’s Warranty covers any repairs needed to correct defects in materials or workmanship of 7 covered parts. The complete terms of that express warranty contract are attached hereto as Exhibit 1 and 8 are incorporated by reference. 9 Defects and nonconformities to warranty manifested themselves within the applicable express 10 warranty period. The nonconformities substantially impaired the use, value and/or safety of the Subject 11 Vehicle. 12 Plaintiff(s) delivered the vehicle to an authorized NISSAN repair facility for repair of the 13 nonconformities. 14 NISSAN was unable to conform the Subject Vehicle to the applicable express warranty after a 15 reasonable number of repair attempts. 16 Notwithstanding Plaintiff(s)’ entitlement to a replacement vehicle and/or restitution under the 17 Act, NISSAN has failed to either promptly replace the new motor vehicle or to promptly make restitution 18 in accordance with the Song-Beverly Act. 19 By failure of NISSAN to remedy the defects and nonconformities as alleged above, or to 20 promptly issue a refund or replacement vehicle, NISSAN is in breach of its obligations under the Song- 21 Beverly Act. 22 Under the Act, Plaintiff(s) are entitled to reimbursement of the price paid for the vehicle less that 23 amount directly attributable to use by the Plaintiff(s) prior to the first presentation to an authorized repair 24 facility for a nonconformity. 25 Plaintiff(s) are entitled to all incidental, consequential, and general damages resulting from 26 NISSAN’s failure to comply with its obligations under the Song-Beverly Act. Those damages include, 27 but are not limited to, registration fees and insurance for the Subject Vehicle. 28 Plaintiff(s) are entitled under the Song-Beverly Act to recover as part of the judgment a sum -16- ANA FIGUEROA MORAN & ELLIOT VILLAVICENCIO FRAGOSO v. NISSAN COMPLAINT 1 equal to the aggregate amount of costs and expenses, including attorney’s fees, reasonably incurred in 2 connection with the commencement and prosecution of this action. 3 Plaintiff(s) are entitled in addition to the amounts recovered, a civil penalty of up to two times 4 the amount of actual damages for NISSAN’s willful failure to comply with its responsibilities under the 5 Act. 6 SECOND CAUSE OF ACTION 7 Fraudulent Inducement – Intentional Misrepresentation (Against NISSAN Only) 8 Plaintiff(s) incorporate herein by reference each and every allegation contained in the preceding 9 and succeeding paragraphs as though herein fully restated and re-alleged. 10 NISSAN was the only party with knowledge of the Emergency Braking Defect because that 11 knowledge came from internal reports such as pre-release testing data, customer complaints made 12 directly to NISSAN, and technical service bulletins. None of this information was available to the public, 13 nor did NISSAN or its agents disclose any of the information to Plaintiff(s). NISSAN had exclusive 14 knowledge of the defect as described in detail above. 15 Without remedying the defects, NISSAN continued to equip vehicles with the defective 16 Emergency Braking System. Those same defects to the Emergency Braking System persisted throughout 17 NISSAN’s production and sale of vehicles equipped with the Emergency Braking System. 18 NISSAN drafted, produced, and distributed marketing brochures to the public containing factual 19 representations about the Subject Vehicle. 20 NISSAN produces and distributes marketing materials, including brochures and manuals, to its 21 authorized dealerships for the purpose of providing them to consumers such as Plaintiff. These 22 marketing materials are meant to provide certain information regarding NISSAN’s vehicles to the 23 consumer. 24 With these marketing materials and its dealership personnel, NISSAN is able to communicate 25 indirectly to consumers such as Plaintiff regarding its vehicles. 26 NISSAN’s authorized dealerships are its agents for purposes of the sale of NISSAN vehicles to 27 consumers such as Plaintiff. 28 The marketing brochures drafted, produced, and distributed by NISSAN and its agents included -17- ANA FIGUEROA MORAN & ELLIOT VILLAVICENCIO FRAGOSO v. NISSAN COMPLAINT 1 misrepresentations about the Emergency Braking System. As advertised by NISSAN, its Emergency 2 Braking System “uses radar technology to monitor a vehicle’s proximity to the vehicle ahead, giving 3 the driver audible and visual display warnings to help the driver reduce the vehicle’s speed if a potential 4 frontal collision is detected. If the driver fails to respond, the AEB system can apply the brakes, helping 5 the driver to avoid the collision or reduce the speed of impact if it is unavoidable.” NISSAN’s marketing 6 material further describes the vehicles as “intelligent” and as automatically deploying emergency 7 braking to avoid a collision. 8 As alleged in more detail in paragraphs 53 through 58, NISSAN had a duty to disclose the 9 Emergency Braking Defect. 10 Unfortunately, the Subject Vehicle was delivered to Plaintiff(s) with a defective Emergency 11 Braking System. 12 The representations made to Plaintiff(s) regarding the Emergency Braking System and related 13 safety features of the Subject Vehicle were false. 14 NISSAN made such false representations regarding the Emergency Braking System despite its 15 extensive internal knowledge of the Emergency Braking Defect, as described in more detail above. 16 NISSAN intended that Plaintiff(s) rely on the above-described representations related to the 17 Subject Vehicle and its Emergency Braking System, including that neither had inherent and irreparable 18 defects, in inducing Plaintiff(s) to purchase the Subject Vehicle. 19 Plaintiff(s) justifiably and reasonably relied on NISSAN’s representations related to the 20 reliability of the Subject Vehicle and its Emergency Braking System, because NISSAN was the 21 manufacturer of the Subject Vehicle and claimed to have performed and relied upon extensive pre- 22 release testing of the system. NISSAN was in a superior position of knowledge. 23 Plaintiff(s) were harmed by purchasing the Subject Vehicle that Plaintiff(s) would not have 24 purchased had Plaintiff(s) known the true facts about the Emergency Braking Defect. Plaintiff(s) also 25 suffered diminution in the value of Plaintiff(s)’ vehicle, out-of-pocket expenses, damages in the amount 26 of the difference between the value of the vehicle equipped with the Emergency Braking Defect and the 27 value of the vehicle if it had been equipped as warranted and marketed, and reliance damages. Plaintiff(s) 28 also incurred expenses relating to registration, insurance, and maintenance of the Subject Vehicle. -18- ANA FIGUEROA MORAN & ELLIOT VILLAVICENCIO FRAGOSO v. NISSAN COMPLAINT 1 Plaintiff(s)’ reliance on NISSAN’s representations about the Emergency Braking System’s 2 qualities was a substantial factor in causing Plaintiff(s)’ harm because NISSAN and its agents were the 3 exclusive source of information about the qualities of the Emergency Braking System. 4 NISSAN failed to disclose the Emergency Braking Defect at the time of sale, or at any point 5 after the time of sale, despite its ongoing knowledge of the defect. NISSAN’s continued concealment 6 of the Emergency Braking Defect through both (1) its failure to proactively notify Plaintiff(s) of its prior 7 fraud and (2) ongoing misrepresentations that were made to Plaintiff(s) each time they brought the 8 Subject Vehicle in for repair, resulted in Plaintiff(s) incurring additional expenses to operate and 9 maintain the Subject Vehicle that they would not have otherwise incurred had they known of NISSAN’s 10 fraud at the time of sale or anytime thereafter. As a further result of the ongoing concealment and 11 misrepresentations, Plaintiff(s) incurred an immediate reduction in value at the time they drove the new 12 car off the lot, incurred ongoing depreciation of the Subject Vehicle’s value, and any opportunity to 13 reduce their accumulating damages associated with a defective, depreciating asset. 14 The foregoing fraudulent and wrongful acts by NISSAN, as alleged above, were authorized and 15 ratified by NISSAN’s officers, directions, and/or mangers. NISSAN’s agents or employees also 16 committed the wrongful acts set forth above with the foregoing knowledge, authorization, approval, 17 direction, or ratification of an officer, director, or managing agent of NISSAN pursuant to an implicit or 18 explicit company plan, scheme, or policy regarding the advertising and sale of NISSAN vehicles with 19 an Emergency Braking System. Alternatively, the aforementioned wrongful acts were committed by an 20 officer, director, or managing agent of NISSAN. 21 THIRD CAUSE OF ACTION 22 Fraudulent Inducement – Concealment