Preview
1 STRATEGIC LEGAL PRACTICES
A PROFESSIONAL CORPORATION
2 Tionna Carvalho (SBN 299010)
3 Email: tcarvalho@slpattorney.com
Sanam Vaziri (SBN 177384)
4 Email: svaziri@slpattorney.com
(emailservices@slpattorney.com)
5 1888 Century Park East, 19th Fl.
Los Angeles, CA 90067
6 Telephone: (310) 929-4900
7 Facsimile: (310) 943-3838
8 Attorneys for Plaintiff:
JOSE NAPOLES
9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
COUNTY OF LOS ANGELES
STRATEGIC LEGAL PRACTICES, APC
11
1888 CENTURY PARK EAST, 19TH FLOOR, LOS ANGELES, CA 90067
12 JOSE NAPOLES, Case No.:
13
14 Plaintiff, Hon.
Dept.
15 vs.
16 GENERAL MOTORS, LLC.; and DOES 1
COMPLAINT FOR VIOLATION OF
17 through 10, inclusive,
STATUTORY OBLIGATIONS
18 Defendants.
19 JURY TRIAL DEMANDED
20
21
22
23
24
25
26
27
28
COMPLAINT; JURY TRIAL DEMANDED
1 Plaintiff alleges as follows:
2 PARTIES
3 1. As used in this Complaint, the word "Plaintiff" shall refer to Plaintiff JOSE
4 NAPOLES.
5 2. Plaintiff is a resident of Los Angeles County, California.
6 3. As used in this Complaint, the word "Defendants" shall refer to all Defendants
7 named in this Complaint.
8 4. Defendant GENERAL MOTORS, LLC.; ("Defendant GM") is a corporation
9 organized and in existence under the laws of the State of Delaware and registered with the
10 California Department of Corporations to conduct business in California. At all times relevant
STRATEGIC LEGAL PRACTICES, APC
11 herein, Defendant was engaged in the business of designing, manufacturing, constructing,
1888 CENTURY PARK EAST, 19TH FLOOR, LOS ANGELES, CA 90067
12 assembling, marketing, distributing, and selling automobiles and other motor vehicles and
13 motor vehicle components in Los Angeles County, California.
14 5. Plaintiff is ignorant of the true names and capacities of the Defendants sued under
15 the fictitious names DOES 1 to 10. They are sued pursuant to Code of Civil Procedure section
16 474. When Plaintiff becomes aware of the true names and capacities of the Defendants sued as
17 DOES 1 to 10, Plaintiff will amend this Complaint to state their true names and capacities.
18 FACTUAL BACKGROUND
19 6. On or about January 28, 2022, Plaintiff entered into a warranty contract with
20 Defendant GM regarding a 2022 Chevrolet Colorado, vehicle identification number
21 1GCGTDEN1N1100062 (hereafter "Vehicle"), which was manufactured and/or distributed by
22 Defendant GM.
23 7. The warranty contract contained various warranties, including but not limited to
24 the bumper-bumper warranty, powertrain warranty, emission warranty, etc. A true and correct
25 copy of the warranty contract is attached hereto as Exhibit A. The terms of the express warranty
26 are described in Exhibit A and are incorporated herein.
27 8. Pursuant to the Song-Beverly Consumer Warranty Act (the "Act") Civil Code
28 sections 1790 et seq. the Subject Vehicle constitutes "consumer goods" used primarily for
1
COMPLAINT; JURY TRIAL DEMANDED
1 family or household purposes, and Plaintiff has used the vehicle primarily for those purposes.
2 Plaintiff is a "buyer" of consumer goods under the Act. Defendant GM is a "manufacturer" and/or
3 "distributor" under the Act.
4 9. Plaintiff justifiably revokes acceptance of the Subject Vehicle under Civil Code,
5 section 1794, et seq. by filing this Complaint and/or did so prior to filing the instant Complaint.
6 10. These causes of action arise out of the warranty obligations of GM in connection
7 with a motor vehicle for which GM issued a written warranty.
8 11. Defects and nonconformities to warranty manifested themselves within the
9 applicable express warranty period, including but not limited to transmission defects, electrical
10 defects, brakes defects; among other defects and non-conformities.
STRATEGIC LEGAL PRACTICES, APC
11 12. Said defects/nonconformities substantially impair the use, value, or safety of the
1888 CENTURY PARK EAST, 19TH FLOOR, LOS ANGELES, CA 90067
12 Vehicle.
13 13. The value of the Subject Vehicle is worthless and /or de minimis.
14 14. Under the Song-Beverly Act, Defendant GM had an affirmative duty to promptly
15 offer to repurchase or replace the Subject Vehicle at the time if failed to conform the Subject
16 Vehicle to the terms of the express warranty after a reasonable number of repair attempts.1
17 15. Defendant GM has failed to either promptly replace the Subject Vehicle or to
18 promptly make restitution in accordance with the Song-Beverly Act.
19 16. Under the Act, Plaintiff is entitled to reimbursement of the price paid for the
20 vehicle less that amount directly attributable to use by the Plaintiff prior to the first presentation
21 to an authorized repair facility for a nonconformity.
22 1
"A manufacturer's duty to repurchase a vehicle does not depend on a consumer's request, but instead
23 arises as soon as the manufacturer fails to comply with the warranty within a reasonable time. (Krotin v. Porsche
Cars North America, Inc. (1995) 38 Cal.App.4th 294, 301-302, 45 Cal.Rptr.2d 10.) Chrysler performed the bridge
24 operation on Santana's vehicle in August 2014 with 30,262 miles on the odometer—within the three-year, 36,000
mile warranty. The internal e-mails demonstrating Chrysler's awareness of the safety risks inherent in the bridge
25 operation were sent in September 2013, and thus Chrysler was well aware of the problem when it performed the
bridge operation on Santana's vehicle. Thus, Chrysler's duty to repurchase or provide restitution arose prior to the
26 expiration of the three-year, 36,000 mile warranty. Moreover, although we do not have the actual five-year,
100,000 mile power train warranty in our record, Santana's expert testified that the no-start/stalling issues Santana
27 experienced were within the scope of the power train warranty, which was still active when Santana requested
repurchase in approximately January 2016, at 44,467 miles. Thus the premise of Chrysler's argument—that
28 Santana's request for repurchase was outside the relevant warranty—is not only irrelevant, but wrong." Santana v.
FCA US, LLC, 56 Cal. App. 5th 334, 270 Cal. Rptr. 3d 335 (2020).
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COMPLAINT; JURY TRIAL DEMANDED
1 17. Plaintiff is entitled to replacement or reimbursement pursuant to Civil Code,
2 section 1794, et seq. Plaintiff is entitled to rescission of the contract pursuant to Civil Code,
3 section 1794, et seq.
4 18. Plaintiff is entitled to recover any "cover" damages under Civil Code, section
5 1794, et seq.
6 19. Plaintiff is entitled to recover all incidental and consequential damages pursuant
7 to Civil Code, section 1794 et seq.
8 20. Plaintiff suffered damages in a sum to be proven at trial in an amount that is not
9 less than $ 25,001.00.
10 21. Plaintiff is entitled to all incidental, consequential, and general damages resulting
STRATEGIC LEGAL PRACTICES, APC
11 from Defendants' failure to comply with its obligations under the Song-Beverly Act.
1888 CENTURY PARK EAST, 19TH FLOOR, LOS ANGELES, CA 90067
12 TOLLING OF THE STATUTES OF LIMITATION
13 22. To the extent there are any statutes of limitation applicable to Plaintiff's claims-
14 including, without limitation, the express warranty and implied warranty– the running of the
15 limitation periods have been tolled by, inter alia, the following doctrines or rules: equitable
16 tolling, the discovery rule, equitable estoppel, the repair rule, and/or class action tolling (e.g.,
17 the American Pipe rule) via the filing of Speerly et al. v. General Motors, LLC, No. 19-cv-
18 11044-DML-DRG (E.D. Mich.) (April 10, 2019).
19 23. Plaintiff discovered Defendant's wrongful conduct alleged herein shortly before
20 the filing of the complaint, as the Vehicle continued to exhibit symptoms of defects following
21 GM's unsuccessful attempts to repair them. However, GM failed to provide restitution pursuant
22 to the Song – Beverly Consumer Warranty Act.
23 24. By filing this Complaint, Plaintiff hereby revokes acceptance of the Subject
24 Vehicle yet again.
25 FIRST CAUSE OF ACTION
26 BY PLAINTIFF AGAINST DEFENDANT GM
27 VIOLATION OF SUBDIVISION (D) OF CIVIL CODE SECTION 1793.2
28 25. Plaintiff incorporates by reference the allegations contained in the paragraphs set
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COMPLAINT; JURY TRIAL DEMANDED
1 forth above.
2 26. Defendant GM and its representatives in this state have been unable to service or
3 repair the Vehicle to conform to the applicable express warranties after a reasonable number of
4 opportunities. Despite this fact, Defendant GM failed to promptly replace the Vehicle or make
5 restitution to Plaintiff as required by Civil Code section 1793.2, subdivision (d) and Civil Code
6 section 1793.1, subdivision (a)(2).
7 27. Plaintiff has been damaged by Defendant GM's failure to comply with its
8 obligations pursuant to Civil Code section 1793.2, subdivision (d) and Civil Code section
9 1793.1, subdivision (a)(2), and therefore brings this cause of action pursuant to Civil Code
10 section 1794.
STRATEGIC LEGAL PRACTICES, APC
11 28. Defendant GM's failure to comply with its obligations under Civil Code section
1888 CENTURY PARK EAST, 19TH FLOOR, LOS ANGELES, CA 90067
12 1793.2, subdivision (d) was willful, in that Defendant GM and its representative were aware
13 that they were unable to service or repair the Vehicle to conform to the applicable express
14 warranties after a reasonable number of repair attempts, yet Defendant GM failed and refused
15 to promptly replace the Vehicle or make restitution. Accordingly, Plaintiff is entitled to a
16 civil penalty of two times Plaintiff's actual damages pursuant to Civil Code section 1794,
17 subdivision (c).
18 29. Defendant GM does not maintain a qualified third-party dispute resolution
19 process which substantially complies with Civil Code section 1793.22. Accordingly, Plaintiff
20 is entitled to a civil penalty of two times Plaintiff's actual damages pursuant to Civil Code
21 section 1794, subdivision (e).
22 30. Plaintiff seeks civil penalties pursuant to Civil Code, section 1794, subdivisions
23 (c), and (e) in the alternative and does not seek to cumulate civil penalties, as provided in Civil
24 Code section 1794, subdivision (e).
25 SECOND CAUSE OF ACTION
26 BY PLAINTIFF AGAINST DEFENDANT GM
27 VIOLATION OF SUBDIVISION (B) OF CIVIL CODE SECTION 1793.2
28 31. Plaintiff incorporates by reference the allegations contained in the paragraphs set
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COMPLAINT; JURY TRIAL DEMANDED
1 forth above.
2 32. Although Plaintiff presented the Vehicle to Defendant GM's representative in
3 this state, Defendant GM and its representative failed to commence the service or repairs within
4 a reasonable time and failed to service or repair the Vehicle so as to conform to the applicable
5 warranties within 30 days, in violation of Civil Code section 1793.2, subdivision (b). Plaintiff
6 did not extend the time for completion of repairs beyond the 30-day requirement.
7 33. Plaintiff has been damaged by Defendant GM's failure to comply with its
8 obligations pursuant to Civil Code section 1793.2(b), and therefore brings this Cause of Action
9 pursuant to Civil Code section 1794.
10 34. Plaintiff has rightfully rejected and/or justifiably revoked acceptance of the
STRATEGIC LEGAL PRACTICES, APC
11 Vehicle and have exercised a right to cancel the purchase. By serving this Complaint, Plaintiff
1888 CENTURY PARK EAST, 19TH FLOOR, LOS ANGELES, CA 90067
12 does so again. Accordingly, Plaintiff seeks the remedies provided in California Civil Code
13 section 1794(b)(1), including the entire contract price. In the alternative, Plaintiff seeks the
14 remedies set forth in California Civil Code section 1794(b)(2), including the diminution in value
15 of the Vehicle resulting from its defects. Plaintiff believes that, at the present time, the Vehicle's
16 value is de minimis.
17 35. Defendant GM's failure to comply with its obligations under Civil Code section
18 1793.2(b) was willful, in that Defendant GM and its representative were aware that they were
19 obligated to service or repair the Vehicle to conform to the applicable express warranties within
20 30 days, yet they failed to do so. Accordingly, Plaintiff is entitled to a civil penalty of two times
21 Plaintiff's actual damages pursuant to Civil Code section 1794(c).
22 THIRD CAUSE OF ACTION
23 BY PLAINTIFF AGAINST DEFENDANT GM
24 VIOLATION OF SUBDIVISION (A)(3) OF CIVIL CODE SECTION 1793.2
25 36. Plaintiff incorporates by reference the allegations contained in paragraphs set
26 forth above.
27 37. In violation of Civil Code section 1793.2, subdivision (a)(3), Defendant GM
28 failed to make available to its authorized service and repair facilities sufficient service literature
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COMPLAINT; JURY TRIAL DEMANDED
1 and replacement parts to effect repairs during the express warranty period. Plaintiff has been
2 damaged by Defendant GM's failure to comply with its obligations pursuant to Civil Code
3 section 1793.2(a)(3), and therefore brings this Cause of Action pursuant to Civil Code section
4 1794.
5 38. Defendant GM's failure to comply with its obligations under Civil Code section
6 1793.2, subdivision (a)(3) was wilful, in that Defendant GM knew of its obligation to provide
7 literature and replacement parts sufficient to allow its repair facilities to effect repairs during
8 the warranty period, yet Defendant GM failed to take any action to correct its failure to comply
9 with the law. Accordingly, Plaintiff is entitled to a civil penalty of two times Plaintiff's actual
10 damages, pursuant to Civil Code section 1794(c).
STRATEGIC LEGAL PRACTICES, APC
11 FOURTH CAUSE OF ACTION
1888 CENTURY PARK EAST, 19TH FLOOR, LOS ANGELES, CA 90067
12 BY PLAINTIFF AGAINST DEFENDANT GM
13 BREACH OF THE IMPLIED WARRANTY OF MERCHANTABILITY
14 (CIV. CODE, § 1791.1; § 1794; § 1795.5)
15 39. Plaintiff incorporates by reference the allegations contained in the paragraphs set
16 forth above.
17 40. Pursuant to Civil Code section 1792, the sale of the Vehicle was accompanied
18 by Defendant GM's implied warranty of merchantability. Pursuant to Civil Code section
19 1791.1, the duration of the implied warranty is coextensive in duration with the duration of the
20 express written warranty provided by Defendant GM, except that the duration is not to exceed
21 one-year.
22 41. Pursuant to Civil Code section 1791.1 (a), the implied warranty of
23 merchantability means and includes that the Vehicle will comply with each of the following
24 requirements: (1) The Vehicle will pass without objection in the trade under the contract
25 description; (2) The Vehicle is fit for the ordinary purposes for which such goods are used; (3)
26 The Vehicle is adequately contained, packaged, and labelled; (4) The Vehicle will conform to
27 the promises or affirmations of fact made on the container or label.
28 42. At the time of sale, the subject vehicle was sold with one or more latent defect(s)
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COMPLAINT; JURY TRIAL DEMANDED
1 as set forth above. The existence of the said latent defect(s) constitutes a breach of the implied
2 warranty because the Vehicle (1) does not pass without objection in the trade under the contract
3 description, (2) is not fit for the ordinary purposes for which such goods are used, (3) is not
4 adequately contained, packaged, and labelled, and (4) does not conform to the promises or
5 affirmations of fact made on the container or label.
6 43. Plaintiff has been damaged by Defendant GM's failure to comply with its
7 obligations under the implied warranty, and therefore brings this Cause of Action pursuant to
8 Civil Code section 1794.
9 FIFTH CAUSE OF ACTION
10 BY PLAINTIFF AGAINST DEFENDANT
STRATEGIC LEGAL PRACTICES, APC
11 FRAUDULENT INDUCEMENT- CONCEALMENT
1888 CENTURY PARK EAST, 19TH FLOOR, LOS ANGELES, CA 90067
12 44. Plaintiff hereby incorporates by reference the allegations contained in the
13 preceding paragraphs of this Complaint.
14 45. Defendant GM committed fraud by allowing the Vehicle to be sold to Plaintiff
15 without disclosing that the Vehicle and its 8-speed transmission were defective and susceptible
16 to sudden and premature failure. Plaintiff purchased the Subject Vehicle equipped with GM's
17 defective 8-speed transmission.
18 46. Plaintiff is informed, believes, and thereon alleges that prior to Plaintiff acquiring
19 the Vehicle, Defendant GM was well aware and knew that the 8-speed transmission installed
20 on the Vehicle was defective but failed to disclose this fact to Plaintiff prior to and at the time
21 of sale and thereafter.2
22 47. Specifically, Defendant GM knew that the 8-speed transmission had one or more
23 defects that can result in various problems, including, but not limited to hard or harsh shifts,
24 jerking, lurching, hesitation on acceleration, surging and/or inability to control the vehicle's
25 speed, acceleration, or deceleration ("Transmission Defect"). These conditions present a safety
26
2
27 Indeed, Defendant has issued various internal technical bulletins to its dealers (not consumers)
concerning the Transmission Defect. For example, an August 2020 Technical Service Bulletin ("TSB") designed
28 to address harsh first shifts of the day notes that "[r]eplacing transmission components or complete assemblies will
not improve the condition."
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COMPLAINT; JURY TRIAL DEMANDED
1 hazard and are unreasonably dangerous to consumers because they can suddenly and
2 unexpectedly cause the driver to be unable to control the speed and acceleration/deceleration of
3 the vehicle. Such unexpected inability to control the vehicle's speed and
4 acceleration/deceleration thereby, exposes Plaintiff and passengers (along with other drivers
5 who share the road or garage with Plaintiff) to a serious risk of accident and injury.
6 48. Plaintiff is informed, believes and thereon alleges that Defendant GM acquired
7 its knowledge of the Transmission Defect prior to Plaintiff acquiring the Vehicle, through
8 sources not available to consumers such as Plaintiff, including but not limited to pre-production
9 and post-production testing data; early consumer complaints about the Transmission Defect
10 made directly to Defendant GM and its network of dealers; aggregate warranty data compiled
STRATEGIC LEGAL PRACTICES, APC
11 from Defendant GM's network of dealers; testing conducted by Defendant GM in response to
1888 CENTURY PARK EAST, 19TH FLOOR, LOS ANGELES, CA 90067
12 these complaints; as well as warranty repair and part replacements data received by Defendant
13 GM from Defendant GM's network of dealers, amongst other sources of internal information.
14 49. Plaintiff is a reasonable consumer who interacted with sales representatives,
15 considered Defendant GM's advertisement, and/or other marketing materials concerning GM
16 Vehicles prior to purchasing Subject Vehicle. Had Defendant GM and its dealership(s) revealed
17 the Transmission Defect in these disclosures, Plaintiff would have been aware of it and would
18 not have purchased Subject Vehicle. For example, Defendant GM marketed and sold its new 8-
19 speed automatic transmissions as having "world-class performance" rivaling top performance
20 vehicles, lightning-fast and smooth shifting, along with improved fuel efficiency, among other
21 representations. Defendant GM's own press release dated January 13, 2014, introduced the new
22 8-speed transmission as being "tuned for world-class shift-response times," and "deliver[ing]
23 shift performance that rivals the dual-clutch/semi-automatic transmissions found in many
24 supercars – but with the smoothness and refinement that comes with a conventional automatic
25 fitted with a torque converter."
26 50. However, prior to Plaintiff's purchase of the Subject Vehicle, Defendant GM was
27 internally referring the 8-speed transmission as a "neck snapper." Defendant GM engineers even
28 considered stopping production in 2015 (but did not) and in 2016, president Johan de Nysschen
Preview
1 STRATEGIC LEGAL PRACTICES A PROFESSIONAL CORPORATION 2 Tionna Carvalho (SBN 299010) 3 Email: tcarvalho@slpattorney.com Sanam Vaziri (SBN 177384) 4 Email: svaziri@slpattorney.com (emailservices@slpattorney.com) 5 1888 Century Park East, 19th Fl. Los Angeles, CA 90067 6 Telephone: (310) 929-4900 7 Facsimile: (310) 943-3838 8 Attorneys for Plaintiff: JOSE NAPOLES 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF LOS ANGELES STRATEGIC LEGAL PRACTICES, APC 11 1888 CENTURY PARK EAST, 19TH FLOOR, LOS ANGELES, CA 90067 12 JOSE NAPOLES, Case No.: 13 14 Plaintiff, Hon. Dept. 15 vs. 16 GENERAL MOTORS, LLC.; and DOES 1 COMPLAINT FOR VIOLATION OF 17 through 10, inclusive, STATUTORY OBLIGATIONS 18 Defendants. 19 JURY TRIAL DEMANDED 20 21 22 23 24 25 26 27 28 COMPLAINT; JURY TRIAL DEMANDED 1 Plaintiff alleges as follows: 2 PARTIES 3 1. As used in this Complaint, the word "Plaintiff" shall refer to Plaintiff JOSE 4 NAPOLES. 5 2. Plaintiff is a resident of Los Angeles County, California. 6 3. As used in this Complaint, the word "Defendants" shall refer to all Defendants 7 named in this Complaint. 8 4. Defendant GENERAL MOTORS, LLC.; ("Defendant GM") is a corporation 9 organized and in existence under the laws of the State of Delaware and registered with the 10 California Department of Corporations to conduct business in California. At all times relevant STRATEGIC LEGAL PRACTICES, APC 11 herein, Defendant was engaged in the business of designing, manufacturing, constructing, 1888 CENTURY PARK EAST, 19TH FLOOR, LOS ANGELES, CA 90067 12 assembling, marketing, distributing, and selling automobiles and other motor vehicles and 13 motor vehicle components in Los Angeles County, California. 14 5. Plaintiff is ignorant of the true names and capacities of the Defendants sued under 15 the fictitious names DOES 1 to 10. They are sued pursuant to Code of Civil Procedure section 16 474. When Plaintiff becomes aware of the true names and capacities of the Defendants sued as 17 DOES 1 to 10, Plaintiff will amend this Complaint to state their true names and capacities. 18 FACTUAL BACKGROUND 19 6. On or about January 28, 2022, Plaintiff entered into a warranty contract with 20 Defendant GM regarding a 2022 Chevrolet Colorado, vehicle identification number 21 1GCGTDEN1N1100062 (hereafter "Vehicle"), which was manufactured and/or distributed by 22 Defendant GM. 23 7. The warranty contract contained various warranties, including but not limited to 24 the bumper-bumper warranty, powertrain warranty, emission warranty, etc. A true and correct 25 copy of the warranty contract is attached hereto as Exhibit A. The terms of the express warranty 26 are described in Exhibit A and are incorporated herein. 27 8. Pursuant to the Song-Beverly Consumer Warranty Act (the "Act") Civil Code 28 sections 1790 et seq. the Subject Vehicle constitutes "consumer goods" used primarily for 1 COMPLAINT; JURY TRIAL DEMANDED 1 family or household purposes, and Plaintiff has used the vehicle primarily for those purposes. 2 Plaintiff is a "buyer" of consumer goods under the Act. Defendant GM is a "manufacturer" and/or 3 "distributor" under the Act. 4 9. Plaintiff justifiably revokes acceptance of the Subject Vehicle under Civil Code, 5 section 1794, et seq. by filing this Complaint and/or did so prior to filing the instant Complaint. 6 10. These causes of action arise out of the warranty obligations of GM in connection 7 with a motor vehicle for which GM issued a written warranty. 8 11. Defects and nonconformities to warranty manifested themselves within the 9 applicable express warranty period, including but not limited to transmission defects, electrical 10 defects, brakes defects; among other defects and non-conformities. STRATEGIC LEGAL PRACTICES, APC 11 12. Said defects/nonconformities substantially impair the use, value, or safety of the 1888 CENTURY PARK EAST, 19TH FLOOR, LOS ANGELES, CA 90067 12 Vehicle. 13 13. The value of the Subject Vehicle is worthless and /or de minimis. 14 14. Under the Song-Beverly Act, Defendant GM had an affirmative duty to promptly 15 offer to repurchase or replace the Subject Vehicle at the time if failed to conform the Subject 16 Vehicle to the terms of the express warranty after a reasonable number of repair attempts.1 17 15. Defendant GM has failed to either promptly replace the Subject Vehicle or to 18 promptly make restitution in accordance with the Song-Beverly Act. 19 16. Under the Act, Plaintiff is entitled to reimbursement of the price paid for the 20 vehicle less that amount directly attributable to use by the Plaintiff prior to the first presentation 21 to an authorized repair facility for a nonconformity. 22 1 "A manufacturer's duty to repurchase a vehicle does not depend on a consumer's request, but instead 23 arises as soon as the manufacturer fails to comply with the warranty within a reasonable time. (Krotin v. Porsche Cars North America, Inc. (1995) 38 Cal.App.4th 294, 301-302, 45 Cal.Rptr.2d 10.) Chrysler performed the bridge 24 operation on Santana's vehicle in August 2014 with 30,262 miles on the odometer—within the three-year, 36,000 mile warranty. The internal e-mails demonstrating Chrysler's awareness of the safety risks inherent in the bridge 25 operation were sent in September 2013, and thus Chrysler was well aware of the problem when it performed the bridge operation on Santana's vehicle. Thus, Chrysler's duty to repurchase or provide restitution arose prior to the 26 expiration of the three-year, 36,000 mile warranty. Moreover, although we do not have the actual five-year, 100,000 mile power train warranty in our record, Santana's expert testified that the no-start/stalling issues Santana 27 experienced were within the scope of the power train warranty, which was still active when Santana requested repurchase in approximately January 2016, at 44,467 miles. Thus the premise of Chrysler's argument—that 28 Santana's request for repurchase was outside the relevant warranty—is not only irrelevant, but wrong." Santana v. FCA US, LLC, 56 Cal. App. 5th 334, 270 Cal. Rptr. 3d 335 (2020). 2 COMPLAINT; JURY TRIAL DEMANDED 1 17. Plaintiff is entitled to replacement or reimbursement pursuant to Civil Code, 2 section 1794, et seq. Plaintiff is entitled to rescission of the contract pursuant to Civil Code, 3 section 1794, et seq. 4 18. Plaintiff is entitled to recover any "cover" damages under Civil Code, section 5 1794, et seq. 6 19. Plaintiff is entitled to recover all incidental and consequential damages pursuant 7 to Civil Code, section 1794 et seq. 8 20. Plaintiff suffered damages in a sum to be proven at trial in an amount that is not 9 less than $ 25,001.00. 10 21. Plaintiff is entitled to all incidental, consequential, and general damages resulting STRATEGIC LEGAL PRACTICES, APC 11 from Defendants' failure to comply with its obligations under the Song-Beverly Act. 1888 CENTURY PARK EAST, 19TH FLOOR, LOS ANGELES, CA 90067 12 TOLLING OF THE STATUTES OF LIMITATION 13 22. To the extent there are any statutes of limitation applicable to Plaintiff's claims- 14 including, without limitation, the express warranty and implied warranty– the running of the 15 limitation periods have been tolled by, inter alia, the following doctrines or rules: equitable 16 tolling, the discovery rule, equitable estoppel, the repair rule, and/or class action tolling (e.g., 17 the American Pipe rule) via the filing of Speerly et al. v. General Motors, LLC, No. 19-cv- 18 11044-DML-DRG (E.D. Mich.) (April 10, 2019). 19 23. Plaintiff discovered Defendant's wrongful conduct alleged herein shortly before 20 the filing of the complaint, as the Vehicle continued to exhibit symptoms of defects following 21 GM's unsuccessful attempts to repair them. However, GM failed to provide restitution pursuant 22 to the Song – Beverly Consumer Warranty Act. 23 24. By filing this Complaint, Plaintiff hereby revokes acceptance of the Subject 24 Vehicle yet again. 25 FIRST CAUSE OF ACTION 26 BY PLAINTIFF AGAINST DEFENDANT GM 27 VIOLATION OF SUBDIVISION (D) OF CIVIL CODE SECTION 1793.2 28 25. Plaintiff incorporates by reference the allegations contained in the paragraphs set 3 COMPLAINT; JURY TRIAL DEMANDED 1 forth above. 2 26. Defendant GM and its representatives in this state have been unable to service or 3 repair the Vehicle to conform to the applicable express warranties after a reasonable number of 4 opportunities. Despite this fact, Defendant GM failed to promptly replace the Vehicle or make 5 restitution to Plaintiff as required by Civil Code section 1793.2, subdivision (d) and Civil Code 6 section 1793.1, subdivision (a)(2). 7 27. Plaintiff has been damaged by Defendant GM's failure to comply with its 8 obligations pursuant to Civil Code section 1793.2, subdivision (d) and Civil Code section 9 1793.1, subdivision (a)(2), and therefore brings this cause of action pursuant to Civil Code 10 section 1794. STRATEGIC LEGAL PRACTICES, APC 11 28. Defendant GM's failure to comply with its obligations under Civil Code section 1888 CENTURY PARK EAST, 19TH FLOOR, LOS ANGELES, CA 90067 12 1793.2, subdivision (d) was willful, in that Defendant GM and its representative were aware 13 that they were unable to service or repair the Vehicle to conform to the applicable express 14 warranties after a reasonable number of repair attempts, yet Defendant GM failed and refused 15 to promptly replace the Vehicle or make restitution. Accordingly, Plaintiff is entitled to a 16 civil penalty of two times Plaintiff's actual damages pursuant to Civil Code section 1794, 17 subdivision (c). 18 29. Defendant GM does not maintain a qualified third-party dispute resolution 19 process which substantially complies with Civil Code section 1793.22. Accordingly, Plaintiff 20 is entitled to a civil penalty of two times Plaintiff's actual damages pursuant to Civil Code 21 section 1794, subdivision (e). 22 30. Plaintiff seeks civil penalties pursuant to Civil Code, section 1794, subdivisions 23 (c), and (e) in the alternative and does not seek to cumulate civil penalties, as provided in Civil 24 Code section 1794, subdivision (e). 25 SECOND CAUSE OF ACTION 26 BY PLAINTIFF AGAINST DEFENDANT GM 27 VIOLATION OF SUBDIVISION (B) OF CIVIL CODE SECTION 1793.2 28 31. Plaintiff incorporates by reference the allegations contained in the paragraphs set 4 COMPLAINT; JURY TRIAL DEMANDED 1 forth above. 2 32. Although Plaintiff presented the Vehicle to Defendant GM's representative in 3 this state, Defendant GM and its representative failed to commence the service or repairs within 4 a reasonable time and failed to service or repair the Vehicle so as to conform to the applicable 5 warranties within 30 days, in violation of Civil Code section 1793.2, subdivision (b). Plaintiff 6 did not extend the time for completion of repairs beyond the 30-day requirement. 7 33. Plaintiff has been damaged by Defendant GM's failure to comply with its 8 obligations pursuant to Civil Code section 1793.2(b), and therefore brings this Cause of Action 9 pursuant to Civil Code section 1794. 10 34. Plaintiff has rightfully rejected and/or justifiably revoked acceptance of the STRATEGIC LEGAL PRACTICES, APC 11 Vehicle and have exercised a right to cancel the purchase. By serving this Complaint, Plaintiff 1888 CENTURY PARK EAST, 19TH FLOOR, LOS ANGELES, CA 90067 12 does so again. Accordingly, Plaintiff seeks the remedies provided in California Civil Code 13 section 1794(b)(1), including the entire contract price. In the alternative, Plaintiff seeks the 14 remedies set forth in California Civil Code section 1794(b)(2), including the diminution in value 15 of the Vehicle resulting from its defects. Plaintiff believes that, at the present time, the Vehicle's 16 value is de minimis. 17 35. Defendant GM's failure to comply with its obligations under Civil Code section 18 1793.2(b) was willful, in that Defendant GM and its representative were aware that they were 19 obligated to service or repair the Vehicle to conform to the applicable express warranties within 20 30 days, yet they failed to do so. Accordingly, Plaintiff is entitled to a civil penalty of two times 21 Plaintiff's actual damages pursuant to Civil Code section 1794(c). 22 THIRD CAUSE OF ACTION 23 BY PLAINTIFF AGAINST DEFENDANT GM 24 VIOLATION OF SUBDIVISION (A)(3) OF CIVIL CODE SECTION 1793.2 25 36. Plaintiff incorporates by reference the allegations contained in paragraphs set 26 forth above. 27 37. In violation of Civil Code section 1793.2, subdivision (a)(3), Defendant GM 28 failed to make available to its authorized service and repair facilities sufficient service literature 5 COMPLAINT; JURY TRIAL DEMANDED 1 and replacement parts to effect repairs during the express warranty period. Plaintiff has been 2 damaged by Defendant GM's failure to comply with its obligations pursuant to Civil Code 3 section 1793.2(a)(3), and therefore brings this Cause of Action pursuant to Civil Code section 4 1794. 5 38. Defendant GM's failure to comply with its obligations under Civil Code section 6 1793.2, subdivision (a)(3) was wilful, in that Defendant GM knew of its obligation to provide 7 literature and replacement parts sufficient to allow its repair facilities to effect repairs during 8 the warranty period, yet Defendant GM failed to take any action to correct its failure to comply 9 with the law. Accordingly, Plaintiff is entitled to a civil penalty of two times Plaintiff's actual 10 damages, pursuant to Civil Code section 1794(c). STRATEGIC LEGAL PRACTICES, APC 11 FOURTH CAUSE OF ACTION 1888 CENTURY PARK EAST, 19TH FLOOR, LOS ANGELES, CA 90067 12 BY PLAINTIFF AGAINST DEFENDANT GM 13 BREACH OF THE IMPLIED WARRANTY OF MERCHANTABILITY 14 (CIV. CODE, § 1791.1; § 1794; § 1795.5) 15 39. Plaintiff incorporates by reference the allegations contained in the paragraphs set 16 forth above. 17 40. Pursuant to Civil Code section 1792, the sale of the Vehicle was accompanied 18 by Defendant GM's implied warranty of merchantability. Pursuant to Civil Code section 19 1791.1, the duration of the implied warranty is coextensive in duration with the duration of the 20 express written warranty provided by Defendant GM, except that the duration is not to exceed 21 one-year. 22 41. Pursuant to Civil Code section 1791.1 (a), the implied warranty of 23 merchantability means and includes that the Vehicle will comply with each of the following 24 requirements: (1) The Vehicle will pass without objection in the trade under the contract 25 description; (2) The Vehicle is fit for the ordinary purposes for which such goods are used; (3) 26 The Vehicle is adequately contained, packaged, and labelled; (4) The Vehicle will conform to 27 the promises or affirmations of fact made on the container or label. 28 42. At the time of sale, the subject vehicle was sold with one or more latent defect(s) 6 COMPLAINT; JURY TRIAL DEMANDED 1 as set forth above. The existence of the said latent defect(s) constitutes a breach of the implied 2 warranty because the Vehicle (1) does not pass without objection in the trade under the contract 3 description, (2) is not fit for the ordinary purposes for which such goods are used, (3) is not 4 adequately contained, packaged, and labelled, and (4) does not conform to the promises or 5 affirmations of fact made on the container or label. 6 43. Plaintiff has been damaged by Defendant GM's failure to comply with its 7 obligations under the implied warranty, and therefore brings this Cause of Action pursuant to 8 Civil Code section 1794. 9 FIFTH CAUSE OF ACTION 10 BY PLAINTIFF AGAINST DEFENDANT STRATEGIC LEGAL PRACTICES, APC 11 FRAUDULENT INDUCEMENT- CONCEALMENT 1888 CENTURY PARK EAST, 19TH FLOOR, LOS ANGELES, CA 90067 12 44. Plaintiff hereby incorporates by reference the allegations contained in the 13 preceding paragraphs of this Complaint. 14 45. Defendant GM committed fraud by allowing the Vehicle to be sold to Plaintiff 15 without disclosing that the Vehicle and its 8-speed transmission were defective and susceptible 16 to sudden and premature failure. Plaintiff purchased the Subject Vehicle equipped with GM's 17 defective 8-speed transmission. 18 46. Plaintiff is informed, believes, and thereon alleges that prior to Plaintiff acquiring 19 the Vehicle, Defendant GM was well aware and knew that the 8-speed transmission installed 20 on the Vehicle was defective but failed to disclose this fact to Plaintiff prior to and at the time 21 of sale and thereafter.2 22 47. Specifically, Defendant GM knew that the 8-speed transmission had one or more 23 defects that can result in various problems, including, but not limited to hard or harsh shifts, 24 jerking, lurching, hesitation on acceleration, surging and/or inability to control the vehicle's 25 speed, acceleration, or deceleration ("Transmission Defect"). These conditions present a safety 26 2 27 Indeed, Defendant has issued various internal technical bulletins to its dealers (not consumers) concerning the Transmission Defect. For example, an August 2020 Technical Service Bulletin ("TSB") designed 28 to address harsh first shifts of the day notes that "[r]eplacing transmission components or complete assemblies will not improve the condition." 7 COMPLAINT; JURY TRIAL DEMANDED 1 hazard and are unreasonably dangerous to consumers because they can suddenly and 2 unexpectedly cause the driver to be unable to control the speed and acceleration/deceleration of 3 the vehicle. Such unexpected inability to control the vehicle's speed and 4 acceleration/deceleration thereby, exposes Plaintiff and passengers (along with other drivers 5 who share the road or garage with Plaintiff) to a serious risk of accident and injury. 6 48. Plaintiff is informed, believes and thereon alleges that Defendant GM acquired 7 its knowledge of the Transmission Defect prior to Plaintiff acquiring the Vehicle, through 8 sources not available to consumers such as Plaintiff, including but not limited to pre-production 9 and post-production testing data; early consumer complaints about the Transmission Defect 10 made directly to Defendant GM and its network of dealers; aggregate warranty data compiled STRATEGIC LEGAL PRACTICES, APC 11 from Defendant GM's network of dealers; testing conducted by Defendant GM in response to 1888 CENTURY PARK EAST, 19TH FLOOR, LOS ANGELES, CA 90067 12 these complaints; as well as warranty repair and part replacements data received by Defendant 13 GM from Defendant GM's network of dealers, amongst other sources of internal information. 14 49. Plaintiff is a reasonable consumer who interacted with sales representatives, 15 considered Defendant GM's advertisement, and/or other marketing materials concerning GM 16 Vehicles prior to purchasing Subject Vehicle. Had Defendant GM and its dealership(s) revealed 17 the Transmission Defect in these disclosures, Plaintiff would have been aware of it and would 18 not have purchased Subject Vehicle. For example, Defendant GM marketed and sold its new 8- 19 speed automatic transmissions as having "world-class performance" rivaling top performance 20 vehicles, lightning-fast and smooth shifting, along with improved fuel efficiency, among other 21 representations. Defendant GM's own press release dated January 13, 2014, introduced the new 22 8-speed transmission as being "tuned for world-class shift-response times," and "deliver[ing] 23 shift performance that rivals the dual-clutch/semi-automatic transmissions found in many 24 supercars – but with the smoothness and refinement that comes with a conventional automatic 25 fitted with a torque converter." 26 50. However, prior to Plaintiff's purchase of the Subject Vehicle, Defendant GM was 27 internally referring the 8-speed transmission as a "neck snapper." Defendant GM engineers even 28 considered stopping production in 2015 (but did not) and in 2016, president Johan de Nysschen