Preview
QUILL & ARROW, LLP
1
Kevin Y. Jacobson, Esq. (SBN 320532)
2 kjacobson@quillarrowlaw.com
Donald Mahnke, Esq. (SBN 337919
3 dmahnke@quillarrowlaw.com
e-service@quillarrowlaw.com
4 10900 Wilshire Boulevard, Suite 300
5 Los Angeles, CA, 90024
Telephone: (310) 933-4271
6 Facsimile: (310) 889-0645
7
Attorneys for Plaintiffs,
8 MATTHEW GREGORY TEPAS
AND LINDSAY RYAN MCCORMICK
9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
COUNTY OF MONTEREY
11
12
MATTHEW GREGORY TEPAS, an Case No.:
13 individual, and LINDSAY RYAN Unlimited Jurisdiction
MCCORMICK, an individual, COMPLAINT
14
15 Plaintiffs, 1. VIOLATION OF SONG-BEVERLY
ACT - BREACH OF EXPRESS
16 vs. WARRANTY
2. VIOLATION OF SONG-BEVERLY
17 HYUNDAI MOTOR AMERICA, a ACT - BREACH OF IMPLIED
California Corporation, and DOES 1 WARRANTY
18 through 10, inclusive, 3. VIOLATION OF THE SONG-
19 BEVERLY ACT SECTION 1793.2
20 Defendants.
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COMPLAINT
1 Plaintiffs, MATTHEW GREGORY TEPAS, an individual, and LINDSAY RYAN
2 MCCORMICK, an individual (“Plaintiffs”), allege as follows against Defendant HYUNDAI
3 MOTOR AMERICA, a California Corporation (“HYUNDAI MOTOR AMERICA”), and DOES 1
4 through 10 inclusive, on information and belief, formed after a reasonable inquiry under the
5 circumstances:
6 DEMAND FOR JURY TRIAL
7 1. Plaintiffs, MATTHEW GREGORY TEPAS and LINDSAY RYAN
8 MCCORMICK, hereby demand trial by jury in this action.
9 GENERAL ALLEGATIONS
10 2. Plaintiffs, MATTHEW GREGORY TEPAS and LINDSAY RYAN
11 MCCORMICK, are individuals residing in the City of La Selva Beach, State of California.
12 3. Defendant, HYUNDAI MOTOR AMERICA, is and was a California Corporation
13 operating and doing business in the State of California.
14 4. These causes of causes of action arise out of warranty and repair obligations of
15 HYUNDAI MOTOR AMERICA in connection with a vehicle Plaintiffs purchased and for which
16 HYUNDAI MOTOR AMERICA issued a written warranty. The warranty was not issued by the
17 selling dealership.
18 5. Plaintiffs do not know the true names and capacities, whether corporate, partnership,
19 associate, individual, or otherwise of Defendant issued herein as Does 1 through 10, inclusive,
20 under the provisions of section 474 of the California Code of Civil Procedure. Defendant Does 1
21 through 10, inclusive, are in some manner responsible for the acts, occurrences, and transactions
22 set forth herein, and are legally liable to Plaintiffs. Plaintiffs will seek leave to amend this
23 Complaint to set forth the true names and capacities of the fictitiously named Defendant, together
24 with appropriate charging allegations, when ascertained.
25 6. All acts of corporate employees as alleged were authorized or ratified by an officer,
26 director, or managing agent of the corporate employer.
27 7. Each Defendant, whether actually or fictitiously named herein, was the principal,
28 agent (actual or ostensible), or employee of each other Defendant, and in acting as such principal
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COMPLAINT
1 or within the course and scope of such employment or agency, took some part in the acts and
2 omissions hereinafter set forth by reason of which each Defendant is liable to Plaintiffs for the relief
3 prayed for herein.
4 8. On November 30, 2022, Plaintiffs purchased a 2022 Hyundai Ioniq 5, having VIN
5 No.: KM8KM4AEXNU055405 ("the Subject Vehicle”). Pursuant to Section 1792.22, subdivision
6 (e) (2), of the California Civil Code, the Subject Vehicle was purchased as a certified pre-owned
7 (“CPO”) with an accompanying HYUNDAI MOTOR AMERICA’s new and full CPO warranty,
8 and therefore constitutes a “new motor vehicle” vehicle under the Act.These causes of action arise
9 out of warranty and repair obligations of HYUNDAI MOTOR AMERICA in connection with a
10 vehicle that Plaintiffs purchased and for which HYUNDAI MOTOR AMERICA issued a written
11 warranty. The warranty was not issued by the selling dealership.
12 9. HYUNDAI MOTOR AMERICA warranted the Subject Vehicle and agreed to
13 preserve or maintain the utility or performance of Plaintiffs’ vehicle or to provide compensation if
14 there was a failure in such utility or performance. In connection with the purchase, Plaintiffs
15 received various warranties, inter alia, a 5-year/60,000 mile express bumper to bumper warranty, a
16 10-year/100,000 mile powertrain warranty which, inter alia, covers the engine and the transmission,
17 as well as various emissions warranties that exceed the time and mileage limitations of the bumper
18 to bumper and powertrain warranties. Moreover, the HYUNDAI MOTOR AMERICA CPO written
19 warranty issued to Plaintiff, provides the remainder of the 5-year/60,000 mile express bumper to
20 bumper warranty, and a 10-year/100,000-mile powertrain limited warranty.
21 10. The Subject Vehicle was delivered to Plaintiffs with serious defects and
22 nonconformities to warranty and developed other serious defects and nonconformities to warranty
23 including, but not limited to, electrical system defects.
24 11. Plaintiffs first presented the Subject Vehicle for repairs in April 2023 and reported
25 needing to jumpstart the Subject Vehicle.
26 12. In May 2023, Plaintiffs presented the Subject Vehicle again and reported repeated
27 concerns of having to jumpstart the Subject Vehicle on a daily basis.
28 13. Plaintiffs hereby revoke acceptance of the sales contract.
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COMPLAINT
1 14. Pursuant to the Song-Beverly Consumer Warranty Act (hereinafter the “Act”) Civil
2 Code sections 1790 et seq. the Subject Vehicle constitutes “consumer goods” used primarily for
3 family or household purposes, and Plaintiffs have used the vehicle primarily for those purposes.
4 15. Plaintiffs are the “buyers” of consumer goods under the Act.
5 16. Defendant, HYUNDAI MOTOR AMERICA, is a "manufacturer" and/or
6 “distributor" under the Act.
7 17. Plaintiffs hereby demand trial by jury in this action.
8 FIRST CAUSE OF ACTION
9 Violation of the Song-Beverly Act – Breach of Express Warranty
10 18. Plaintiffs incorporate herein by reference each and every allegation contained in the
11 preceding and succeeding paragraphs as though herein fully restated and re-alleged.
12 19. The Subject Vehicle was sold to Plaintiffs with express warranties that the Subject
13 Vehicle would be free from defects in materials, nonconformity, or workmanship during the
14 applicable warranty period and to the extent that the Subject Vehicle had defects, Defendant
15 HYUNDAI MOTOR AMERICA would repair the defects.
16 20. The Subject Vehicle was delivered to Plaintiffs with serious defects and
17 nonconformities to warranty and developed other serious defects and nonconformities to warranty
18 including, but not limited to, electrical system defects.
19 21. Pursuant to the Song-Beverly Consumer Warranty Act (hereinafter the “Act”) Civil
20 Code sections 1790 et seq. the vehicle constitutes “consumer goods” used primarily for family or
21 household purposes, and Plaintiffs have used the Subject Vehicle primarily for those purposes.
22 22. Plaintiffs are the “buyers” of consumer goods under the Act.
23 23. Defendant, HYUNDAI MOTOR AMERICA, is a "manufacturer" and/or
24 “distributor" under the Act.
25 24. The foregoing defects and nonconformities to warranty manifested themselves in
26 the Subject Vehicle within the applicable express warranty period. The nonconformities
27 substantially impair the use, value, and/or safety of the vehicle.
28 25. Plaintiffs delivered the vehicle to an authorized HYUNDAI MOTOR AMERICA
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COMPLAINT
1 repair facility for repair of the nonconformities.
2 26. Defendant was unable to conform Plaintiffs’ vehicle to the applicable express
3 warranty after a reasonable number of repair attempts.
4 27. Notwithstanding Plaintiffs’ entitlement, Defendant HYUNDAI MOTOR
5 AMERICA has failed to either promptly replace the new motor vehicle or to promptly make
6 restitution in accordance with the Song-Beverly Act.
7 28. By failure of Defendant to remedy the defects as alleged above or to issue a refund
8 or replacement vehicle, Defendant is in breach of its obligations under the Song-Beverly Act.
9 29. Under the Act, Plaintiffs are entitled to reimbursement of the price paid for the
10 vehicle less that amount directly attributable to use by the Plaintiff prior to the first presentation of
11 the nonconformities.
12 30. Plaintiffs are entitled to all incidental, consequential, and general damages resulting
13 from Defendant’s failure to comply with its obligations under the Song-Beverly Act.
14 31. Plaintiffs are entitled under the Song-Beverly Act to recover as part of the judgment
15 a sum equal to the aggregate amount of costs and expenses, including attorney’s fees, reasonably
16 incurred in connection with the commencement and prosecution of this action.
17 32. Because Defendant willfully violated the Song-Beverly Act, Plaintiffs are entitled,
18 in addition to the amounts recovered, a civil penalty of up to two times the amount of actual
19 damages for HYUNDAI MOTOR AMERICA’s willful failure to comply with its responsibilities
20 under the Act.
21 SECOND CAUSE OF ACTION
22 Violation of the Song-Beverly Act – Breach of Implied Warranty
23 33. Plaintiffs incorporate herein by reference each and every allegation contained in the
24 preceding and succeeding paragraphs as though herein fully restated and re-alleged.
25 34. HYUNDAI MOTOR AMERICA and its authorized dealership at which Plaintiffs
26 purchased the Subject Vehicle had reason to know the purpose of the Subject Vehicle at the time
27 of sale of the Subject Vehicle. The sale of the Subject Vehicle was accompanied by implied
28 warranties provided for under the law.
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COMPLAINT
1 35. Among other warranties, the sale of the Subject Vehicle was accompanied by an
2 implied warranty that the Subject Vehicle was merchantable pursuant to Civil Code section 1792.
3 36. Pursuant to Civil Code section 1791.1 (a), the implied warranty of merchantability
4 means and includes that the Vehicle will comply with each of the following requirements: (1) The
5 Vehicle will pass without objection in the trade under the contract description; (2) The Vehicle is
6 fit for the ordinary purposes for which such goods are used; (3) The Vehicle is adequately
7 contained, packaged, and labelled; (4) The Vehicle will conform to the promises or affirmations of
8 fact made on the container or label.
9 37. The Subject Vehicle was not fit for the ordinary purpose for which such goods are
10 used because it was equipped with one or more defective vehicle systems/components.
11 38. The Subject Vehicle did not measure up to the promises or facts stated on the
12 container or label because it was equipped with one or more defective vehicle systems/components.
13 39. The Subject Vehicle was not of the same quality as those generally accepted in the
14 trade because it was sold with one or more defective vehicle systems/components which manifested
15 as electrical system defects.
16 40. Upon information and belief, the defective vehicle systems and components were
17 present at the time of sale of the Subject Vehicle; thus, extending the duration of any implied
18 warranty under Mexia v. Rinker Boat Co., Inc. (2009) 174 Cal.App.4th 1297, 1304–1305 and other
19 applicable laws.
20 41. Plaintiffs are entitled to justifiably revoke acceptance of the Subject Vehicle under
21 Civil Code, section 1794, et seq.
22 42. Plaintiffs hereby revoke acceptance of the Subject Vehicle.
23 43. Plaintiffs are entitled to replacement or reimbursement pursuant to Civil Code,
24 section 1794, et seq.
25 44. Plaintiffs are entitled to rescission of the contract pursuant to Civil Code, section
26 1794, et seq. and Commercial Code, section 2711.
27 45. Plaintiffs are entitled to recover any incidental, consequential, and/or “cover”
28 damages under Commercial Code, sections 2711, 2712, and Civil Code, section 1794, et seq.
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COMPLAINT
1 THIRD CAUSE OF ACTION
2 Violation of the Song-Beverly Act Section 1793.2(b)
3 46. Plaintiffs incorporate herein by reference each and every allegation contained in the
4 preceding and succeeding paragraphs as though herein fully restated and re-alleged.
5 47. Pursuant to Civil Code, section 1793.2, subdivision (a) a manufacturer that sells
6 consumer goods in California, for which it has made an express warranty, shall maintain service
7 and repair facilities or designate and authorize independent service and repair facilities to carry out
8 the terms of those warranties.
9 48. Pursuant to Civil Code, section 1793.2, subdivision (b), when service and repair of
10 goods are necessary because they do not conform with the applicable express warranties, service
11 and repair shall be commenced within a reasonable time by the manufacturer or its representative.
12 49. Civil Code, section 1793.2, subdivision (b) further states that goods shall be serviced
13 or repaired so as to conform to the applicable warranties within 30 days and/or within a reasonable
14 time.
15 50. The sale of the Subject Vehicle was accompanied by express warranties, including
16 a warranty guaranteeing that the Subject Vehicle was safe to drive and not equipped with defective
17 parts, including the electrical system.
18 51. Plaintiffs delivered the Subject Vehicle to HYUNDAI MOTOR AMERICA’s
19 authorized service representatives on multiple occasions. The Subject Vehicle was delivered for
20 repairs of defects, which amount to nonconformities to the express warranties that accompanied
21 the sale of the Subject Vehicle.
22 52. Defendant’s authorized facilities did not conform the Subject Vehicle to warranty
23 within 30-days and/or commence repairs within a reasonable time, and HYUNDAI MOTOR
24 AMERICA has failed to tender the Subject Vehicle back to Plaintiff in conformance with its
25 warranties within the timeframes set forth in Civil Code section 1793.2(b).
26 53. Plaintiffs are entitled to justifiably revoke acceptance of the Subject Vehicle under
27 Civil Code, section 1794, et seq.
28 54. Plaintiffs hereby revoke acceptance of the Subject Vehicle.
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COMPLAINT
1 55. Plaintiffs are entitled to replacement or reimbursement pursuant to Civil Code,
2 section 1794, et seq.
3 56. Plaintiffs are entitled to rescission of the contract pursuant to Civil Code section
4 1794, et seq. and Commercial Code, section 2711.
5 57. Plaintiffs are entitled to recover any “cover” damages under Commercial Code
6 sections 2711, 2712, and Civil Code, section 1794, et seq.
7 58. Plaintiffs are entitled to recover all incidental and consequential damages pursuant
8 to 1794 et seq and Commercial Code sections, 2711, 2712, and 2713 et seq.
9 59. Plaintiffs are entitled in addition to the amounts recovered, a civil penalty of up to
10 two times the amount of actual damages in that HYUNDAI MOTOR AMERICA has willfully
11 failed to comply with its responsibilities under the Act.
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COMPLAINT
1 PRAYER FOR RELIEF
2 WHEREFORE, Plaintiffs pray for judgment against Defendant, as follows:
3 1. For general, special, and actual damages according to proof at trial;
4 2. For rescission of the purchase contract and restitution of all monies expended;
5 3. For diminution in value;
6 4. For incidental and consequential damages according to proof at trial;
7 5. For civil penalty in the amount of two times Plaintiffs’ actual damages;
8 6. For prejudgment interest at the legal rate;
9 7. For reasonable attorney’s fees and costs of suit; and
10 For such other and further relief as the Court deems just and proper under the circumstances.
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Dated: October 16, 2023
12 QUILL & ARROW, LLP
13
14 ________________________
Kevin Y. Jacobson, Esq.
15 Donald Mahnke, Esq.
Attorneys for Plaintiffs,
16 MATTHEW GREGORY TEPAS
17 LINDSAY RYAN MCCORMICK
Plaintiffs, MATTHEW GREGORY TEPAS and LINDSAY RYAN MCCORMICK,
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hereby demand trial by jury in this action.
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COMPLAINT
Preview
QUILL & ARROW, LLP 1 Kevin Y. Jacobson, Esq. (SBN 320532) 2 kjacobson@quillarrowlaw.com Donald Mahnke, Esq. (SBN 337919 3 dmahnke@quillarrowlaw.com e-service@quillarrowlaw.com 4 10900 Wilshire Boulevard, Suite 300 5 Los Angeles, CA, 90024 Telephone: (310) 933-4271 6 Facsimile: (310) 889-0645 7 Attorneys for Plaintiffs, 8 MATTHEW GREGORY TEPAS AND LINDSAY RYAN MCCORMICK 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF MONTEREY 11 12 MATTHEW GREGORY TEPAS, an Case No.: 13 individual, and LINDSAY RYAN Unlimited Jurisdiction MCCORMICK, an individual, COMPLAINT 14 15 Plaintiffs, 1. VIOLATION OF SONG-BEVERLY ACT - BREACH OF EXPRESS 16 vs. WARRANTY 2. VIOLATION OF SONG-BEVERLY 17 HYUNDAI MOTOR AMERICA, a ACT - BREACH OF IMPLIED California Corporation, and DOES 1 WARRANTY 18 through 10, inclusive, 3. VIOLATION OF THE SONG- 19 BEVERLY ACT SECTION 1793.2 20 Defendants. 21 22 23 24 25 26 27 28 COMPLAINT 1 Plaintiffs, MATTHEW GREGORY TEPAS, an individual, and LINDSAY RYAN 2 MCCORMICK, an individual (“Plaintiffs”), allege as follows against Defendant HYUNDAI 3 MOTOR AMERICA, a California Corporation (“HYUNDAI MOTOR AMERICA”), and DOES 1 4 through 10 inclusive, on information and belief, formed after a reasonable inquiry under the 5 circumstances: 6 DEMAND FOR JURY TRIAL 7 1. Plaintiffs, MATTHEW GREGORY TEPAS and LINDSAY RYAN 8 MCCORMICK, hereby demand trial by jury in this action. 9 GENERAL ALLEGATIONS 10 2. Plaintiffs, MATTHEW GREGORY TEPAS and LINDSAY RYAN 11 MCCORMICK, are individuals residing in the City of La Selva Beach, State of California. 12 3. Defendant, HYUNDAI MOTOR AMERICA, is and was a California Corporation 13 operating and doing business in the State of California. 14 4. These causes of causes of action arise out of warranty and repair obligations of 15 HYUNDAI MOTOR AMERICA in connection with a vehicle Plaintiffs purchased and for which 16 HYUNDAI MOTOR AMERICA issued a written warranty. The warranty was not issued by the 17 selling dealership. 18 5. Plaintiffs do not know the true names and capacities, whether corporate, partnership, 19 associate, individual, or otherwise of Defendant issued herein as Does 1 through 10, inclusive, 20 under the provisions of section 474 of the California Code of Civil Procedure. Defendant Does 1 21 through 10, inclusive, are in some manner responsible for the acts, occurrences, and transactions 22 set forth herein, and are legally liable to Plaintiffs. Plaintiffs will seek leave to amend this 23 Complaint to set forth the true names and capacities of the fictitiously named Defendant, together 24 with appropriate charging allegations, when ascertained. 25 6. All acts of corporate employees as alleged were authorized or ratified by an officer, 26 director, or managing agent of the corporate employer. 27 7. Each Defendant, whether actually or fictitiously named herein, was the principal, 28 agent (actual or ostensible), or employee of each other Defendant, and in acting as such principal -2- COMPLAINT 1 or within the course and scope of such employment or agency, took some part in the acts and 2 omissions hereinafter set forth by reason of which each Defendant is liable to Plaintiffs for the relief 3 prayed for herein. 4 8. On November 30, 2022, Plaintiffs purchased a 2022 Hyundai Ioniq 5, having VIN 5 No.: KM8KM4AEXNU055405 ("the Subject Vehicle”). Pursuant to Section 1792.22, subdivision 6 (e) (2), of the California Civil Code, the Subject Vehicle was purchased as a certified pre-owned 7 (“CPO”) with an accompanying HYUNDAI MOTOR AMERICA’s new and full CPO warranty, 8 and therefore constitutes a “new motor vehicle” vehicle under the Act.These causes of action arise 9 out of warranty and repair obligations of HYUNDAI MOTOR AMERICA in connection with a 10 vehicle that Plaintiffs purchased and for which HYUNDAI MOTOR AMERICA issued a written 11 warranty. The warranty was not issued by the selling dealership. 12 9. HYUNDAI MOTOR AMERICA warranted the Subject Vehicle and agreed to 13 preserve or maintain the utility or performance of Plaintiffs’ vehicle or to provide compensation if 14 there was a failure in such utility or performance. In connection with the purchase, Plaintiffs 15 received various warranties, inter alia, a 5-year/60,000 mile express bumper to bumper warranty, a 16 10-year/100,000 mile powertrain warranty which, inter alia, covers the engine and the transmission, 17 as well as various emissions warranties that exceed the time and mileage limitations of the bumper 18 to bumper and powertrain warranties. Moreover, the HYUNDAI MOTOR AMERICA CPO written 19 warranty issued to Plaintiff, provides the remainder of the 5-year/60,000 mile express bumper to 20 bumper warranty, and a 10-year/100,000-mile powertrain limited warranty. 21 10. The Subject Vehicle was delivered to Plaintiffs with serious defects and 22 nonconformities to warranty and developed other serious defects and nonconformities to warranty 23 including, but not limited to, electrical system defects. 24 11. Plaintiffs first presented the Subject Vehicle for repairs in April 2023 and reported 25 needing to jumpstart the Subject Vehicle. 26 12. In May 2023, Plaintiffs presented the Subject Vehicle again and reported repeated 27 concerns of having to jumpstart the Subject Vehicle on a daily basis. 28 13. Plaintiffs hereby revoke acceptance of the sales contract. -3- COMPLAINT 1 14. Pursuant to the Song-Beverly Consumer Warranty Act (hereinafter the “Act”) Civil 2 Code sections 1790 et seq. the Subject Vehicle constitutes “consumer goods” used primarily for 3 family or household purposes, and Plaintiffs have used the vehicle primarily for those purposes. 4 15. Plaintiffs are the “buyers” of consumer goods under the Act. 5 16. Defendant, HYUNDAI MOTOR AMERICA, is a "manufacturer" and/or 6 “distributor" under the Act. 7 17. Plaintiffs hereby demand trial by jury in this action. 8 FIRST CAUSE OF ACTION 9 Violation of the Song-Beverly Act – Breach of Express Warranty 10 18. Plaintiffs incorporate herein by reference each and every allegation contained in the 11 preceding and succeeding paragraphs as though herein fully restated and re-alleged. 12 19. The Subject Vehicle was sold to Plaintiffs with express warranties that the Subject 13 Vehicle would be free from defects in materials, nonconformity, or workmanship during the 14 applicable warranty period and to the extent that the Subject Vehicle had defects, Defendant 15 HYUNDAI MOTOR AMERICA would repair the defects. 16 20. The Subject Vehicle was delivered to Plaintiffs with serious defects and 17 nonconformities to warranty and developed other serious defects and nonconformities to warranty 18 including, but not limited to, electrical system defects. 19 21. Pursuant to the Song-Beverly Consumer Warranty Act (hereinafter the “Act”) Civil 20 Code sections 1790 et seq. the vehicle constitutes “consumer goods” used primarily for family or 21 household purposes, and Plaintiffs have used the Subject Vehicle primarily for those purposes. 22 22. Plaintiffs are the “buyers” of consumer goods under the Act. 23 23. Defendant, HYUNDAI MOTOR AMERICA, is a "manufacturer" and/or 24 “distributor" under the Act. 25 24. The foregoing defects and nonconformities to warranty manifested themselves in 26 the Subject Vehicle within the applicable express warranty period. The nonconformities 27 substantially impair the use, value, and/or safety of the vehicle. 28 25. Plaintiffs delivered the vehicle to an authorized HYUNDAI MOTOR AMERICA -4- COMPLAINT 1 repair facility for repair of the nonconformities. 2 26. Defendant was unable to conform Plaintiffs’ vehicle to the applicable express 3 warranty after a reasonable number of repair attempts. 4 27. Notwithstanding Plaintiffs’ entitlement, Defendant HYUNDAI MOTOR 5 AMERICA has failed to either promptly replace the new motor vehicle or to promptly make 6 restitution in accordance with the Song-Beverly Act. 7 28. By failure of Defendant to remedy the defects as alleged above or to issue a refund 8 or replacement vehicle, Defendant is in breach of its obligations under the Song-Beverly Act. 9 29. Under the Act, Plaintiffs are entitled to reimbursement of the price paid for the 10 vehicle less that amount directly attributable to use by the Plaintiff prior to the first presentation of 11 the nonconformities. 12 30. Plaintiffs are entitled to all incidental, consequential, and general damages resulting 13 from Defendant’s failure to comply with its obligations under the Song-Beverly Act. 14 31. Plaintiffs are entitled under the Song-Beverly Act to recover as part of the judgment 15 a sum equal to the aggregate amount of costs and expenses, including attorney’s fees, reasonably 16 incurred in connection with the commencement and prosecution of this action. 17 32. Because Defendant willfully violated the Song-Beverly Act, Plaintiffs are entitled, 18 in addition to the amounts recovered, a civil penalty of up to two times the amount of actual 19 damages for HYUNDAI MOTOR AMERICA’s willful failure to comply with its responsibilities 20 under the Act. 21 SECOND CAUSE OF ACTION 22 Violation of the Song-Beverly Act – Breach of Implied Warranty 23 33. Plaintiffs incorporate herein by reference each and every allegation contained in the 24 preceding and succeeding paragraphs as though herein fully restated and re-alleged. 25 34. HYUNDAI MOTOR AMERICA and its authorized dealership at which Plaintiffs 26 purchased the Subject Vehicle had reason to know the purpose of the Subject Vehicle at the time 27 of sale of the Subject Vehicle. The sale of the Subject Vehicle was accompanied by implied 28 warranties provided for under the law. -5- COMPLAINT 1 35. Among other warranties, the sale of the Subject Vehicle was accompanied by an 2 implied warranty that the Subject Vehicle was merchantable pursuant to Civil Code section 1792. 3 36. Pursuant to Civil Code section 1791.1 (a), the implied warranty of merchantability 4 means and includes that the Vehicle will comply with each of the following requirements: (1) The 5 Vehicle will pass without objection in the trade under the contract description; (2) The Vehicle is 6 fit for the ordinary purposes for which such goods are used; (3) The Vehicle is adequately 7 contained, packaged, and labelled; (4) The Vehicle will conform to the promises or affirmations of 8 fact made on the container or label. 9 37. The Subject Vehicle was not fit for the ordinary purpose for which such goods are 10 used because it was equipped with one or more defective vehicle systems/components. 11 38. The Subject Vehicle did not measure up to the promises or facts stated on the 12 container or label because it was equipped with one or more defective vehicle systems/components. 13 39. The Subject Vehicle was not of the same quality as those generally accepted in the 14 trade because it was sold with one or more defective vehicle systems/components which manifested 15 as electrical system defects. 16 40. Upon information and belief, the defective vehicle systems and components were 17 present at the time of sale of the Subject Vehicle; thus, extending the duration of any implied 18 warranty under Mexia v. Rinker Boat Co., Inc. (2009) 174 Cal.App.4th 1297, 1304–1305 and other 19 applicable laws. 20 41. Plaintiffs are entitled to justifiably revoke acceptance of the Subject Vehicle under 21 Civil Code, section 1794, et seq. 22 42. Plaintiffs hereby revoke acceptance of the Subject Vehicle. 23 43. Plaintiffs are entitled to replacement or reimbursement pursuant to Civil Code, 24 section 1794, et seq. 25 44. Plaintiffs are entitled to rescission of the contract pursuant to Civil Code, section 26 1794, et seq. and Commercial Code, section 2711. 27 45. Plaintiffs are entitled to recover any incidental, consequential, and/or “cover” 28 damages under Commercial Code, sections 2711, 2712, and Civil Code, section 1794, et seq. -6- COMPLAINT 1 THIRD CAUSE OF ACTION 2 Violation of the Song-Beverly Act Section 1793.2(b) 3 46. Plaintiffs incorporate herein by reference each and every allegation contained in the 4 preceding and succeeding paragraphs as though herein fully restated and re-alleged. 5 47. Pursuant to Civil Code, section 1793.2, subdivision (a) a manufacturer that sells 6 consumer goods in California, for which it has made an express warranty, shall maintain service 7 and repair facilities or designate and authorize independent service and repair facilities to carry out 8 the terms of those warranties. 9 48. Pursuant to Civil Code, section 1793.2, subdivision (b), when service and repair of 10 goods are necessary because they do not conform with the applicable express warranties, service 11 and repair shall be commenced within a reasonable time by the manufacturer or its representative. 12 49. Civil Code, section 1793.2, subdivision (b) further states that goods shall be serviced 13 or repaired so as to conform to the applicable warranties within 30 days and/or within a reasonable 14 time. 15 50. The sale of the Subject Vehicle was accompanied by express warranties, including 16 a warranty guaranteeing that the Subject Vehicle was safe to drive and not equipped with defective 17 parts, including the electrical system. 18 51. Plaintiffs delivered the Subject Vehicle to HYUNDAI MOTOR AMERICA’s 19 authorized service representatives on multiple occasions. The Subject Vehicle was delivered for 20 repairs of defects, which amount to nonconformities to the express warranties that accompanied 21 the sale of the Subject Vehicle. 22 52. Defendant’s authorized facilities did not conform the Subject Vehicle to warranty 23 within 30-days and/or commence repairs within a reasonable time, and HYUNDAI MOTOR 24 AMERICA has failed to tender the Subject Vehicle back to Plaintiff in conformance with its 25 warranties within the timeframes set forth in Civil Code section 1793.2(b). 26 53. Plaintiffs are entitled to justifiably revoke acceptance of the Subject Vehicle under 27 Civil Code, section 1794, et seq. 28 54. Plaintiffs hereby revoke acceptance of the Subject Vehicle. -7- COMPLAINT 1 55. Plaintiffs are entitled to replacement or reimbursement pursuant to Civil Code, 2 section 1794, et seq. 3 56. Plaintiffs are entitled to rescission of the contract pursuant to Civil Code section 4 1794, et seq. and Commercial Code, section 2711. 5 57. Plaintiffs are entitled to recover any “cover” damages under Commercial Code 6 sections 2711, 2712, and Civil Code, section 1794, et seq. 7 58. Plaintiffs are entitled to recover all incidental and consequential damages pursuant 8 to 1794 et seq and Commercial Code sections, 2711, 2712, and 2713 et seq. 9 59. Plaintiffs are entitled in addition to the amounts recovered, a civil penalty of up to 10 two times the amount of actual damages in that HYUNDAI MOTOR AMERICA has willfully 11 failed to comply with its responsibilities under the Act. 12 /// 13 /// 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// -8- COMPLAINT 1 PRAYER FOR RELIEF 2 WHEREFORE, Plaintiffs pray for judgment against Defendant, as follows: 3 1. For general, special, and actual damages according to proof at trial; 4 2. For rescission of the purchase contract and restitution of all monies expended; 5 3. For diminution in value; 6 4. For incidental and consequential damages according to proof at trial; 7 5. For civil penalty in the amount of two times Plaintiffs’ actual damages; 8 6. For prejudgment interest at the legal rate; 9 7. For reasonable attorney’s fees and costs of suit; and 10 For such other and further relief as the Court deems just and proper under the circumstances. 11 Dated: October 16, 2023 12 QUILL & ARROW, LLP 13 14 ________________________ Kevin Y. Jacobson, Esq. 15 Donald Mahnke, Esq. Attorneys for Plaintiffs, 16 MATTHEW GREGORY TEPAS 17 LINDSAY RYAN MCCORMICK Plaintiffs, MATTHEW GREGORY TEPAS and LINDSAY RYAN MCCORMICK, 18 hereby demand trial by jury in this action. 19 20 21 22 23 24 25 26 27 28 -9- COMPLAINT