Preview
Tionna Carvalho (SBN 299010)
Email: tearvalho@slpattorney.com Electronically FILED by
Sanam Vaziri (SBN 177384) Superior Court of California,
County of Los An geles
Email: svaziri@slpattorney.com 4/09/2024 3:25 PI
(emailservices@slpattorney.com) David W. Slayton,
Executive Officer/Clerk of Court,
Strategic Legal Practices, APC By Y. Tarasyuk, Deputy Clerk
1888 Century Park East, 19"" Floor
Los Angeles, CA 90067
Telephone: (310) 929-4900
Facsimile: (310) 943-3838
Attorney for Plaintiff:
RICKY SANTACRUZ
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF LOS ANGELES
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12 RICKY SANTACRUZ, CaseNo: 24ST CYOSSO5
13 Plaintiff, Hon.
Dept.
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vs.
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FORD MOTOR COMPANY; AIRPORT COMPLAINT FOR VIOLATION OF
16 MARINA FORD; and DOES | through 10, STATUTORY OBLIGATIONS
inclusive,
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Defendants. JURY TRIAL DEMANDED
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COMPLAINT; JURY TRIAL DEMANDED
Plaintiff alleges as follows:
PARTIES
1 As used in this Complaint, the word "Plaintiff" shall refer to Plaintiff RICKY
SANTACRUZ.
2 Plaintiff is a resident of Los Angeles County, California.
3 As used in this Complaint, the word "Defendants" shall refer to all Defendants
named in this Complaint.
4 Defendant FORD MOTOR COMPANY ("FMC") is a corporation organized and
in existence under the laws of the State of Delaware and registered with the California
10 Department of Corporations to conduct business in California. Defendant FMC's principal place
11 of business is in the State of Michigan. At all times relevant herein, Defendant was engaged in
12 the business of designing, manufacturing, constructing, assembling, marketing, distributing, and
13 selling automobiles and other motor vehicles and motor vehicle components in Los Angeles
14 County, California.
15 5 Defendant AIRPORT MARINA FORD ("AIRMAR FORD") is an unknown
16 business entity organized and in existence under the laws of the State of California. At all times
17 relevant herein, Defendant was engaged in the business of selling automobiles and automobile
18 components, and servicing and repairing automobiles in Los Angeles County, California.
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19 6. Plaintiffis ignorant of the true names and capacities of the Defendants sued under
20 the fictitious names DOES | to 10. They are sued pursuant to Code of Civil Procedure section
21 474. When Plaintiff becomes aware of the true names and capacities of the Defendants sued as
22 DOES | to 10, Plaintiff will amend this Complaint to state their true names and capacities.
23 FACTUAL BACKGROUND
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24 On or about March 29, 2022, Plaintiff entered into a warranty contract with
25 Defendant FMC regarding a Certified Pre-Owned 2020 Ford Expedition, vehicle identification
26 number 1FMJKIKT3LEA10472 (hereafter "Vehicle"), which was manufactured and/or
27 distributed by Defendant FMC.
28 8 The warranty contract contained various warranties, including but not limited to
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COMPLAINT; JURY TRIAL DEMANDED
the bumper-bumper warranty, powertrain warranty, emission warranty, etc. A true and correct
copy of the warranty contract is attached hereto as Exhibit A. The terms of the express warranty
are described in Exhibit A and are incorporated herein.
9 Pursuant to the Song-Beverly Consumer Warranty Act (the "Act") Civil Code
sections 1790 et seq. the Subject Vehicle constitutes "consumer goods" used primarily for
family or household purposes, and Plaintiff has used the vehicle primarily for those purposes.
Plaintiffis a "buyer" of consumer goods under the Act. Defendant FMC is a "manufacturer" and/or
"distributor" under the Act.
10. Plaintiff justifiably revoke acceptance of the Subject Vehicle under Civil Code,
10 section 1794, et seq. by filing this Complaint and/or did so prior to filing the instant Complaint.
11 11. These causes of action arise out of the warranty obligations of FMC in connection
12 with a motor vehicle for which FMC issued a written warranty.
13 12. Defects and nonconformities to warranty manifested themselves within the
14 applicable express warranty period, including but not limited to, transmission defects, engine
15 defects, electrical defects, climate control defects; among other defects and non-conformities.
16 13. Said defects/nonconformities substantially impair the use, value, or safety of the
17 Vehicle.
18 14. The value of the Vehicle is worthless and/or de minimis.
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19 15. Under the Song-Beverly Act, Defendant FMC had an affirmative duty to
20 promptly offer to repurchase or replace the Subject Vehicle at the time it failed to conform the
21 Subject Vehicle to the terms of the express warranty after a reasonable number of repair
22 attempts. !
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24 ' A manufacturer's duty to repurchase a vehicle does not depend on a consumer's
request, but instead arises as soon as the manufacturer fails to comply with the warranty within
25 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 operation on Santana's vehicle in
26 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
27 bridge 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
28 or provide restitution arose prior to the 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 experienced were
within the scope of the power train warranty, which was still active when Santana requested
COMPLAINT; JURY TRIAL DEMANDED
16. Defendant FMC has failed to either promptly replace the Subject Vehicle or to
promptly make restitution in accordance with the Song-Beverly Act.
17. Under the Act, Plaintiff is entitled to reimbursement of the price paid for the
vehicle less that amount directly attributable to use by the Plaintiff prior to the first presentation
to an authorized repair facility for a nonconformity.
18. Plaintiff is entitled to replacement or reimbursement pursuant to Civil Code,
section 1794, et seq. Plaintiff is entitled to rescission of the contract pursuant to Civil Code,
section 1794, et seq.
19. Plaintiff is entitled to recover any "cover" damages under Civil Code, section
10 1794, et seq.
11 20. Plaintiff is entitled to recover all incidental and consequential damages pursuant
12 to Civil Code, section 1794 et seq.
13 21. Plaintiff suffered damages in a sum to be proven at trial in an amount that is not
14 less than $35,001.00.
15 22. Plaintiffis entitled to all incidental, consequential, and general damages resulting
16 from Defendant's failure to comply with its obligations under the Song-Beverly Act.
17 TOLLING OF THE STATUTES OF LIMITATION
18 23. To the extent there are any statutes of limitation applicable to Plaintiff’s claims-
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19 including, without limitation, the express warranty, implied warranty, and negligent repair — the
20 running of the limitation periods have been tolled by, inter alia, the following doctrines or rules:
21 equitable tolling, the discovery rule, the fraudulent concealment rules, equitable estoppel, the
22 repair rule, and/or class action tolling (e.g., the American Pipe rule).
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24. Plaintiff discovered Defendant's wrongful conduct alleged herein shortly before
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the filing of the complaint, as the Vehicle continued to exhibit symptoms of defects following
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FMC's unsuccessful attempts to repair them. However, FMC failed to provide restitution pursuant
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repurchase in approximately January 2016, at 44,467 miles. Thus the premise of Chrysler's
28 argument—that 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
to the Song — Beverly Consumer Warranty Act.
A. Class Action Tolling
25. Under the tolling rule articulated in Am. Pipe & Const. Co. v. Utah, 414 U.S. 538,
94 S. Ct. 756, 38 L. Ed. 2d 713 (1974) (“American Pipe”), the filing of a class action lawsuit in
federal court tolls the statute of limitations for the claims of unnamed class members until the
class certification issue is resolved. In applying American Pipe tolling to California cases, the
California Supreme Court summarized the tolling rule derived from American Pipe and stated
that the statute of limitations is tolled from the time of commencement of the suit to the time of
denial of certification for all purported members of the class. Jolly v. Eli Lilly & Co., 44 Cal.3d
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1103, 1119 (1988). Tolling lasts from the day a class claim is asserted until the day the suit is
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conclusively not a class action. Falk v. Children's Hosp. Los Angeles, 237 Cal. App. 4th 1454,
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1464 (2015).
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26. The tolling of Plaintiff's individual statute of limitations encourages the protection
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of efficiency and economy in litigation as promoted by the class action devise, so that putative
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class members would not find it necessary to seek to intervene or to join individually because of
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fear the class might never be certified or putative class members may subsequently seek to request
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exclusion.
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19 B Discovery Rule Tolling
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27. Plaintiff
had no way of knowing about Defendant’s deception with respect to the
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defect until the defect manifested itself and Defendant was unable to repair it after a reasonable
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number of repair attempts.
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28. Within the time period of any applicable statutes of limitation, Plaintiff could not
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have discovered through the exercise of reasonable diligence that Defendant were concealing
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the defect and conduct complained of herein and concealing the companies’ true position with
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respect to the defect.
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COMPLAINT; JURY TRIAL DEMANDED
29. Defendant was under a continuous duty to disclose to Plaintiff the true character,
quality, and nature of the Vehicles suffering from the defect, and the inevitable repairs, costs,
time, and monetary damage resulting from the defects.
30. Plaintiff did not discover, and did not know of, facts that would have caused a
reasonable person to suspect that Defendants had concealed information about the defect in
Defendants’ Vehicles prior to and at the time of sale and thereafter, which was discovered by
Plaintiff shortly prior to the filing of this Complaint.
C. The Repair Doctrine
10 31. The statute of limitations is tolled by various unsuccessful attempts to repair the
11 vehicle.”
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32. Additionally, the limitations period for warranty claims is tolled against a
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defendant whenever that defendant claims that the defect is susceptible to repair and attempts
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to repair the defect.>
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33. Here, Defendant (and its dealership) undertook to perform various repair
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measures. During the time in which Defendant represented to Plaintiff that the Subject Vehicle
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was fixable and attempted to fix it, the warranty period may have thus been tolled.
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19 D. Fraudulent Concealment Tolling (Estoppel)
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34. Separately, the statute of limitations is equitably tolled due to Defendant’s
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fraudulent conduct alleged herein.*
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? See Aced v. Hobbs—Sesack Plumbing Co., 55 Cal.2d 573, 585 (1961) (“The statute of limitations is tolled
24 where one who has breached a warranty claims that the defect can be repaired and attempts to make repairs.”) and
A&B Painting & Drywall, Inc. v. Sup. Ct., 25 Cal.App.4th 349, 355 (2002) (“Tolling during a period of repairs
25 rests upon the same basis as does an estoppel to assert the statute of limitations, i.e., reliance by the plaintiff upon
the words or actions of the defendant that repairs will be made.”).
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“Tolling during a period of repairs generally rests upon the same legal basis as does an estoppel to assert
27 the statute of limitations, i.e., reliance by the plaintiff on the words or actions of the defendant that repairs will be
made.” Cardinal Health 301, Inc. v. Tyco Electronics Corp., 169 Cal.App.4th 116, 133-134 (2008).
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4 Silence, when there is a duty to speak, may be the basis for equitable estoppel. See Dettamanti v.
Lompoc Union High School Dist. of Santa Barbra Count, 143 Cal. App. 2d 715, 720 (1956) (“The basis for an
COMPLAINT; JURY TRIAL DEMANDED
35. Defendant (and its agents, representatives, officers, directors, employees,
affiliates, and/or dealerships) concealed the defects, minimized the scope, cause, and dangers
of the defects with inadequate TSBs and/or Recalls, and refused to investigate, address, and
remedy the defects as it pertains to all affected vehicles as set forth herein.
36. Furthermore, Defendant’s fraudulent concealment was ongoing. Defendant
blamed the symptoms of the defects on other issues and not the actual defect itself and purported
to be able to repair.
37. Based on the foregoing, Defendant is estopped from relying on any statutes of
limitation in defense of this action.
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38. By filing this Complaint, Plaintiff hereby revokes acceptance of the Subject
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Vehicle yet again.
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Defendant FMC Had Superior and/or Exclusive Knowledge of the Transmission Defect
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39. Prior to Plaintiff purchasing the Vehicle, Defendant FMC knew that vehicles
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equipped with the same 10-speed transmission as the Vehicle suffered from one or more defects
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that can cause the vehicles and their 10-speed transmissions to experience hesitation and/or
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delayed acceleration; harsh and/or hard shifting; jerking, shuddering, and/or juddering
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("Transmission Defect").
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40. Plaintiff is informed and believe, and thereon allege, that Defendant acquired this
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knowledge prior to Plaintiff purchasing the Vehicle through various sources of information,
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including but not limited to pre-production testing, pre-production design failure mode and
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analysis data, production failure mode and analysis data, early consumer complaints made
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exclusively to Ford's network of dealers and directly to Ford, aggregate warranty data compiled
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from Ford's network of dealers, testing conducted by Ford in response to consumer complaints,
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26 estoppel may be found in the failure of the party sought to be estopped to speak when he is under a duty to speak
as well as in his speaking falsely and in a manner which tends to deceive.”). Estoppel to plead the statute of
27 limitations is a well-accepted doctrine under California law. See 3 Witkin Cal. Proc. 4th § 693 at 885 (“‘[T]he
fraudulent concealment by the defendant of the facts upon which the existence of which the cause of action depends
28 tolls the statute,’ and that the statute does not begin to run until discovery . .
o” (quoting Kimball v. Pacific Gas
& Elec. Co.,220 Cal. 203, 215 (1934)).
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COMPLAINT; JURY TRIAL DEMANDED
and repair order and parts data received by Ford from Ford's network of dealers.
Al. As a result of this internal knowledge and investigations, Defendant FMC
subsequently issued technical service bulletins ("TSBs") concerning the Transmission Defect.
42. For example, on or about March 2, 2018, Defendant FMC issued TSB 18-2079,
entitled "10R80 Automatic Transmission — Harsh or Delayed Shift Concerns And/Or
Illuminated MIL — DTC P0711 — Built On or Before 1-Aug-2017," which covers 2017 F-150
vehicles equipped with a 10R80 automatic transmission (the same type of transmission in the
Subject Vehicle). According to the TSB, "[s]ome 2017 F-150/Raptor vehicles equipped with a
10R80 automatic transmission built on or before 1-Aug-2017 may exhibit harsh or delayed
10 shifts and/or an illuminated malfunction indicator lamp (MIL) with diagnostic trouble code
11 (DTC) P0711 stored in the transmission control module (TCM)."
om .
12 TECHNICAL SERVICE BULLETIN 18-2079
10R80 Automatic Transmission — Harsh Or Delayed Shift Concerns 02 March
13 And/Or Illuminated MIL - DTC P0711 - Built On Or Before 1-Aug-2017 2018
14 Model:
Ford
15 2017 F-150
16 Issue: Some 2017 F-150/Raptor vehicles equipped with a 10R80 automatic transmission built on or before 1-
‘Aug-2017 may exhibit harsh or delayed shifts and/or an illuminated malfunction indicator lamp (MIL) with
S diagnostic trouble code (DTC) P0711 stored in the transmission control module (TCM).
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Action: Reprogram the powertrain control module (PCM) using Integrated Diagnostic System (IDS) or Ford
J2534 Diagnostic Software (FJDS) release 108.04 or higher. Make sure you are connected to the internet when
18 entering module Programming to obtain the latest updates. Calibration files may also be obtained at
www! rvice.com.
19 Warranty Status: Eligible Under Provisions Of New Vehicle Limited Warranty Coverage And Emissions
Warranty Coverage Warranty/ESP coverage limits/policies/prior approvals are not altered a TSB.
20 Warranty/ESP coverage limits are determined by the identified causal part and verified using the OASIS part
coverage tool.
21 Labor Times
Operation
Description Time
22 No.
2017 F-150 3.5L GTDI: Retrieve DTCs And Reprogram The PCM (Do Not Use With 182079A 03
23 Any Other Labor Operations) Hrs.
24
Repair/Claim Coding
Causal Part: RECALEM
25 Condition Code: | 04
26 Service Procedure
NOTE: ADVISE THE CUSTOMER THAT THIS VEHICLE IS EQUIPPED WITH AN ADAPTIVE TRANSMISSION
27 SHIFT STRATEGY WHICH ALLOWS THE VEHICLE'S COMPUTER TO LEARN THE TRANSMISSION'S
UNIQUE PARAMETERS AND IMPROVE SHIFT QUALITY. WHEN THE ADAPTIVE STRATEGY IS RESET,
THE COMPUTER WILL BEGIN A RE-LEARNING PROCESS. THIS RE-LEARNING PROCESS MAY RESULT
28 IN FIRMER THAN NORMAL UPSHIFTS AND DOWNSHIFTS FOR SEVERAL DAYS.
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COMPLAINT; JURY TRIAL DEMANDED
43. In TSB 18-2079, Defendant FMC attributed the transmission issues to problems
with the vehicles' powertrain control module ("PCM")—specifically, to problems with the
vehicles’ mn, adaptive transmission shift strategy which allows the vehicle's computer to learn the
transmission's unique parameters and improve shift quality."
44. Then, on or about September 7, 2018, Defendant FMC issued TSB 18-2274,
entitled "2.7L/3.5L/5.0L Engine And 10R80 Transmission - Harsh/Bumpy Shift And/Or
Engagement Concems - Built On Or Before 15-May-2018[,]" which covers 2018 F-150
vehicles. According to the TSB, "[s]ome 2018 F-150 vehicles equipped with a 2.7L, 3.5L or
5.0L engine and 10R80 automatic transmission and built on or before 15-May 2018 may exhibit
10 harsh/bumpy upshift, downshift and/or engagement concerns. Follow the Service Procedure
11 steps to correct the condition."
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12 TECHNICAL SERVICE BULLETIN 18-2274
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2.7L/3.5L/5.0L Engine And 10R80 Transmission - Harsh/Bumpy Shift or Seresoie
And/Or Engagement Concerns - Built On Or Before 15-May-2018
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Model:
15 Ford
oS
|2018 F-150
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S Issue: Some 2018 F-150 vehicles equipped with a 2.7L, 3.5L or 5.0L engine and 10R80 automatic transmission and
17 built on or before 15-May 2018 may exhibit harsh/bumpy upshift, downshift and/or engagement concerns.
Action: Follow the Service Procedure steps to correct the condition.
18 Warranty Status: Eligible Under Provisions Of New Vehicle Limited Warranty Warranty/ESP coverage
limits/policies/prior approvals are not altered by a TSB. Warranty/ESP coverage limits are determined by the
identified causal part and verified using the OASIS part coverage tool.
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Labor Times
20 Description Operation Time
No.
2018 F-150 2.7L/3.5L/5.0L: Reprogram The PCM (Do Not Use With Any Other Labor 182274A 03
21 Operations) rs.
22 Repair/Claim Coding
Causal Part: RECAL
23 ‘Condition Code: |04
24 Service Procedure
41. Check the vehicle build date. Was the vehicle built on or before 15-May-2018?
25 (1), Yes - reprogram the powertrain contro! module (PCM) using the latest version of the appropriate Ford scan
26 +. NOTE: ADVISE THE CUSTOMER THAT THIS VEHICLE IS EQUIPPED WITH AN ADAPTIVE TRANSMISSION SHIFT
STRATEGY WHICH ALLOWS THE VEHICLE'S COMPU’ (O LEARN THE TRANSMISSION'S UNIQUE PARAMETERS
AND IMPROVE SHIFT QUALITY. WHEN THE ADAPTIVE STRATEGY IS RESET, THE COMPUTER WILL BEGIN A RE-
27 LEARNING PROCESS. THIS RE-LEARNING PROCESS MAY RESULT IN FIRMER THAN NORMAL UPSHIFTS AND
DOWNSHIFTS FOR SEVERAL DAYS.
(2). No - this article does not apply. Refer to Workshop Manual (WSM), Section 307-01 for normal diagnostics.
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COMPLAINT; JURY TRIAL DEMANDED
45 Like TSB 18-2079, TSB 18-02274 attributed the transmission issues to problems
with the vehicles' PCM—specifically, to problems with the vehicles 0 adaptive transmission
shift strategy which allows the vehicle's computer to learn the transmission's unique parameters
and improve shift quality
46 Then, on September 27, 2021, Defendant issued TSB 21-2315, entitled "10R80
— Harsh Engagement/Harsh Shift/Delayed Shift With or Without DTCs", which covers 2017 —
2020 Ford vehicles, including the Subject Vehicle. The TSB advised that "Some 2017-20220
F-150 vehicles equipped with a 10R80 automatic transmission may exhibit a harsh
engagement/harsh shift/delayed shift...This may be due to incompatibility of the adaptive
10 calibration to adapt to hardware wear-in over time. To correct the condition, follow the Service
11 Procedure steps to overhaul the main control valve body and/or perform an adaptive learning
12 drive cycle
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10R80 - Harsh Engagement/Harsh Shift/Delayed Shift With Or Without DTCs
Vehicle > Technical Service Bulletins > 10R80- Harsh Engagement/Harsh ShifDelayed Shift Winn Or Wout OTs
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TECHNICAL SERVICE BULLETIN, 22
‘ORED- Harsh Engagement/Harsh Shif\/Delayed Shift With Or Without DTCs 27 September 2021
16
Moet
Ferd ansmission/ Transaxle (10880)
17 editor
OF anemic’ Transaxle (10°00)
feover202t Wi ng [Transmission Transaxle: (1080
18 loove-2021 Ranger ansmissiony Transaxle (10880)
iUneoln anmision/ Transaxle (10220}
bate.
19
Issue: 0 F150, 2018-2021 Expedition/Navigator/Mustang and icles equipped witha TORE autor sy exit a harsh engagement/harsh s syed shit.
Irispo .eiele may also have an ilumineted malfunction indiostor lamp ig ie wouble codes (OTC) PO7S1, PO75: 761, PO762, PO766, PO76T, POTT!,POT7: P2701,
20 PoT0: 704, P2705, P2TO , P2708, PO729, PO73 39, POT, 0736, POT6E PO7DS, PUTF6 and/or POTFT storedin the powertrain contol module (PCM) ortransmi 1 module
(TOM). This may be due to incompaily ofthe adaptive cal to adapt toh rae wearin overtime. To correct the condition, fllow the Procedure steps to overhaul the main control valve body
‘end/or perform an adaptive leaming dive cycle.
21 ‘Action: Follow the Sarvs Procedure steps to core the constion on vehicles that meet all of the following erteria:
One of the following vehicles.
22 2017-2020 F-150
2018-2021 Expedition/Navigator/Mustang
23 2019-2021 Ranger
10R80 automatic transmission
At least one of the following symptoms
24 Harsh engagement
Harsh shitt
25 Delayed shift
NOTE: Part quantity refers tothe numberof that service part number required, which may be diferent than the number of individual pieces. Service part numbers contain 1 piece unless otherwise stated. ‘Ac
26 Needed” indicates the partis required but the number may vary oie nota whole number pats canbe billed out a¢ non-whole numbers, including lee than 1. if Needed” indicates the partis not mandatory
27 47 Like TSBs 18-2079 and 18-02274, TSB 21-2315 attributed the transmission
28 issues to similar "adaptive calibration" shift learning issues and the 10-speed Transmission.
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COMPLAINT; JURY TRIAL DEMANDED
48. However, they fail to fix the transmission defects which affects the subject
vehicle.
49. Plaintiff would not have purchased the Subject Vehicle, or would have paid less
for it, had Plaintiff known of the Transmission Defect, given the unsafe nature of the Defect.
Furthermore, Plaintiff unknowingly exposed themselves to the risk of accident, injury, and/or
liability to others as a result of the nature or the Transmission Defect, which can lead to
hesitation, loss of power, and other shifting issues while driving at highway speeds. Plaintiff is
a reasonable consumers who expected the Subject Vehicle to be safe and free of defects, and
that Defendant FMC would not sell or lease vehicles with known safety-related defects, such as
10 the Transmission Defect, and would disclose any such defects to its consumers when it learns
11 of them.
12 50. Although it has been fully aware of the Transmission Defect, Defendant FMC
13 actively concealed the existence and nature of the Defect from Plaintiffat the time of purchase,
14 repair, and thereafter.
15 FIRST CAUSE OF ACTION
16 BY PLAINTIFF AGAINST DEFENDANT FMC
17 VIOLATION OF SUBDIVISION (D) OF CIVIL CODE SECTION 1793.2
18 S51. Plaintiff incorporates by reference the allegations contained in the paragraphs set
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19 forth above.
20 §2. Defendant FMC and its representatives in this state have been unable to service
21 or repair the Vehicle to conform to the applicable express warranties after a reasonable number
22 of opportunities. Despite this fact, Defendant FMC failed to promptly replace the Vehicle or
23 make restitution to Plaintiffas required by Civil Code section 1793.2, subdivision (d) and Civil
24 Code section 1793.1, subdivision (a)(2).
25 53. Plaintiff has been damaged by Defendant FMC's failure to comply with its
26 obligations pursuant to Civil Code section 1793.2, subdivision (d) and Civil Code section
27 1793.1, subdivision (a)(2), and therefore bring this cause of action pursuant to Civil Code
28 section 1794.
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COMPLAINT; JURY TRIAL DEMANDED
54. Defendant FMC's failure to comply with its obligations under Civil Code section
1793.2, subdivision (d) was willful, in that Defendant FMC and its representative were aware
that they were unable to service or repair the Vehicle to conform to the applicable express
warranties after a reasonable number of repair attempts, yet Defendant FMC failed and refused
to promptly replace the Vehicle or make restitution. Accordingly, Plaintiff is entitled to a civil
penalty of two times Plaintiff's actual damages pursuant to Civil Code section 1794, subdivision
(c).
55. Defendant FMC does not maintain a qualified third-party dispute resolution
process which substantially complies with Civil Code section 1793.22. Accordingly, Plaintiff
10 is entitled to a civil penalty of two times Plaintiffs' actual damages pursuant to Civil Code
11 section 1794, subdivision (e).
12 56. Plaintiff seeks civil penalties pursuant to Civil Code, section 1794, subdivisions
13 (c), and (e) in the alternative and does not seek to cumulate civil penalties, as provided in Civil
14 Code section 1794, subdivision (e).
15 SECOND CAUSE OF ACTION
16 BY PLAINTIFF AGAINST DEFENDANT FMC
17 VIOLATION OF SUBDIVISION (B) OF CIVIL CODE SECTION 1793.2
18 57. Plaintiff incorporates by reference the allegations contained in the paragraphs set
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19 forth above.
20 58. Although Plaintiff presented the Vehicle to Defendant FMC's representative in
21 this state, Defendant FMC and its representative failed to commence the service or repairs
22 within a reasonable time and failed to service or repair the Vehicle so as to conform to the
23 applicable warranties within 30 days, in violation of Civil Code section 1793.2, subdivision (b).
24 Plaintiff
did not extend the time for completion of repairs beyond the 30-day requirement.
25 59. Plaintiff has been damaged by Defendant FMC's failure to comply with its
26 obligations pursuant to Civil Code section 1793.2(b), and therefore bring this Cause of Action
27 pursuant to Civil Code section 1794.
28 60. Plaintiff has rightfully rejected and/or justifiably revoked acceptance of the
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COMPLAINT; JURY TRIAL DEMANDED
Vehicle and has exercised a right to cancel the purchase. By serving this Complaint, Plaintiff
did so again. Accordingly, Plaintiff seeks the remedies provided in California Civil Code
section 1794(b)(1), including the entire contract price. In the alternative, Plaintiff seeks the
remedies set forth in California Civil Code section 1794(b)(2), including the diminution in value
of the Vehicle resulting from its defects. Plaintiff believes that, at the present time, the Vehicle's
value is de minimis.
61. Defendant FMC's failure to comply with its obligations under Civil Code section
1793.2(b) was willful, in that Defendant FMC and its representative were aware that they were
obligated to service or repair the Vehicle to conform to the applicable express warranties within
10 30 days, yet they failed to do so. Accordingly, Plaintiff is entitled to a civil penalty of two times
11 Plaintiff's actual damages pursuant to Civil Code section 1794(c).
12 THIRD CAUSE OF ACTION
13 BY PLAINTIFF AGAINST DEFENDANT FMC
14 VIOLATION OF SUBDIVISION (A)(3) OF CIVIL CODE SECTION 1793.2
15 62. Plaintiff incorporates by reference the allegations contained in paragraphs set
16 forth above.
17 63. In violation of Civil Code section 1793.2, subdivision (a)(3), Defendant FMC
18 failed to make available to its authorized service and repair facilities sufficient service literature
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19 and replacement parts to effect repairs during the express warranty period. Plaintiff has been
20 damaged by Defendant FMC's failure to comply with its obligations pursuant to Civil Code
21 section 1793.2(a)(3), and therefore bring this Cause of Action pursuant to Civil Code section
22 1794.
23 64. Defendant FMC's failure to comply with its obligations under Civil Code section
24 1793.2, subdivision (a)(3) was wilful, in that Defendant FMC knew of its obligation to provide
25 literature and replacement parts sufficient to allow its repair facilities to effect repairs during
26 the warranty period, yet Defendant FMC failed to take any action to correct its failure to comply
27 with the law. Accordingly, Plaintiffis entitled to a civil penalty of two times Plaintiff's actual
28 damages, pursuant to Civil Code section 1794(c).
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COMPLAINT; JURY TRIAL DEMANDED
FOURTH CAUSE OF ACTION
BY PLAINTIFF AGAINST DEFENDANT FMC
BREACH OF THE IMPLIED WARRANTY OF MERCHANTABILITY
(CIV. CODE, § 1791.1; § 1794; § 1795.5)
65. Plaintiff incorporates by reference the allegations contained in the paragraphs set
forth above.
66. Pursuant to Civil Code section 1792, the sale of the Vehicle was accompanied
by Defendant FMC's implied warranty of merchantability. Pursuant to Civil Code section
1791.1, the duration of the implied warranty is coextensive in duration with the duration of the
10 express written warranty provided by Defendant FMC, except that the duration is not to exceed
11 one-year.
12 67. Pursuant to Civil Code section 1791.1 (a), the implied warranty of
13 merchantability means and includes that the Vehicle will comply with each of the following
14 requirements: (1) The Vehicle will pass without objection in the trade under the contract
15 description; (2) The Vehicle is fit for the ordinary purposes for which such goods are used; (3)
16 The Vehicle is adequately contained, packaged, and labelled; (4) The Vehicle will conform to
17 the promises or affirmations of fact made on the container or label.
18 68. The subject vehicle was sold with one or more latent defect(s) set forth above.
n
19 The existence of the said latent defect(s)constitutes a breach of the implied warranty because
20 the Vehicle (1) does not pass without objection in the trade under the contract description, (2)
21 is not fit for the ordinary purposes for which such goods are used, (3) is not adequately
22 contained, packaged, and labelled, and (4) does not conform to the promises or affirmations of
23 fact made on the container or label.
24 69. Plaintiff has been damaged by Defendant FMC's failure to comply with its
25 obligations under the implied warranty, and therefore bring this Cause of Action pursuant to
26 Civil Code section 1794.
27 FIFTH CAUSE OF ACTION
28 BY PLAINTIFF AGAINST DEFENDANT FMC
13
COMPLAINT; JURY TRIAL DEMANDED
(Fraudulent Inducement - Concealment)
70. Plaintiff incorporates by reference the allegations contained in the paragraphs set
forth above.
71. Plaintiff purchased the Vehicle as manufactured with Defendant's 10-Speed
automatic transmission.
72. Defendant FMC committed fraud by allowing the Subject Vehicle to be sold to
Plaintiff without disclosing that the Subject Vehicle and its transmission was defective and
susceptible to sudden and premature failure.
73. In particular, the Plaintiff is informed, believe and thereon allege that prior to
10 Plaintiff acquiring the Vehicle, FMC was well aware and knew that the transmission installed in
11 the Vehicle was defective but failed to disclose this fact to the Plaintiff at the time of the sale and
12 thereafter.
13 74. Specifically, Defendant FMC knew that vehicles equipped with the same 10-speed
14 transmission as the Vehicle suffered from one or more defects that can cause the vehicles and
15 their 10-speed transmissions to experience hesitation and/or delayed acceleration; harsh and/or
16 hard shifting; jerking, shuddering, and/or juddering ("Transmission Defect"). These conditions
17 present a safety hazard and are unreasonably dangerous to consumers because they can suddenly
18 and unexpectedly affect the driver's ability to control the vehicle's speed, acceleration,
n
19 deceleration, and/ or overall responsiveness ofthe vehicle in various driving conditions.
20 75. Plaintiff is informed, believe and thereon allege that FMC acquired its knowledge
21 of the Transmission Defect prior to Plaintiff acquiring the Subject Vehicle, through sources not
22 available to consumers such as Plaintiff, including but not limited to pre-production and post-
23 production testing data, early consumer complaints about the transmission defect made directly
24 to FMC and its network of dealers, aggregate warranty data compiled from FMC's network of
25 dealers, testing conducted by FMC in response to these complaints, as well warranty repair and
26 part replacements data received by FMC from FMC's network of dealers, amongst other sources
27 of internal information.
28 76. Plaintiff is informed, believe, and thereon allege that while Defendant knew about
14
COMPLAINT; JURY TRIAL DEMANDED
the Transmission Defect, and its safety risks, Defendant nevertheless concealed and failed to
disclose the defective nature of the Vehicle and its transmission to Plaintiff at the time of sale,
repair, and thereafter. Had Plaintiff known that the Subject Vehicle suffered from the
Transmission Defect, they would not have purchased the Subject Vehicle.
77. Indeed, Plaintiff alleges that Defendant knew that the Vehicle and its transmission
suffered from an inherent defect, was defective, would fail prematurely, and was not suitable for
its intended use.
78. Defendant FMC was under a duty to Plaintiff to disclose the defective nature of
the Subject Vehicle and its transmission, its safety consequences and/or the associated repair costs
10 because:
11 a. Defendant FMC acquired its knowledge of the Transmission
12 Defect and its potential consequences prior to Plaintiff acquiring the Vehicle,
13 through sources not available to consumers such as Plaintiff, including but not
14 limited to pre-production testing data, early consumer complaints about the
15 Transmission Defect made directly to Defendant FMC and its network of dealers,
16 aggregate warranty data compiled from Defendant FMC's network of dealers,
17 testing conducted by Defendant FMC in response to these complaints, as well as
18 warranty repair and part replacements data received by Defendant FMC from
n
19 Defendant FMC's network of dealers, amongst other sources of internal
20 information;
21 b. Defendant FMC was in a superior position from various internal
22 sources to know (or should have known) the true state of facts about the material
23 defects contained in vehicle equipped with the defective transmission; and;
24 Cc As early as January 2018, Consumers who purchased vehicles
25 equipped with Ford's 10-speed transmission have been complaining about the
26 transmission defect; and
27 d Plaintiff could not reasonably have been expected to learn or
28 discover of the Vehicle's Transmission Defect and its potential consequences
15
COMPLAINT; JURY TRIAL DEMANDED
until well after Plaintiff purchased the Vehicle.
79. In failing to disclose the defects in the Vehicle's transmission, Defendant FMC has
knowingly and intentionally concealed material facts and breached its duty not to do so.
80. The facts concealed or not disclosed by Defendant FMC to Plaintiff are material
in that a reasonable person would have considered them to be important in deciding whether or
not to purchase the Subject Vehicle. Had Plaintiff known that the Subject Vehicle and its
transmissions were defective at the time of sale, they would not have purchased the Subject
Vehicle.
81. Plaintiff is a reasonable consumer who does not expect his transmission to fail
10 and do not properly. Plaintiff furth
Preview
Tionna Carvalho (SBN 299010) Email: tearvalho@slpattorney.com Electronically FILED by Sanam Vaziri (SBN 177384) Superior Court of California, County of Los An geles Email: svaziri@slpattorney.com 4/09/2024 3:25 PI (emailservices@slpattorney.com) David W. Slayton, Executive Officer/Clerk of Court, Strategic Legal Practices, APC By Y. Tarasyuk, Deputy Clerk 1888 Century Park East, 19"" Floor Los Angeles, CA 90067 Telephone: (310) 929-4900 Facsimile: (310) 943-3838 Attorney for Plaintiff: RICKY SANTACRUZ SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF LOS ANGELES 11 12 RICKY SANTACRUZ, CaseNo: 24ST CYOSSO5 13 Plaintiff, Hon. Dept. 14 vs. 15 FORD MOTOR COMPANY; AIRPORT COMPLAINT FOR VIOLATION OF 16 MARINA FORD; and DOES | through 10, STATUTORY OBLIGATIONS inclusive, 17 Defendants. JURY TRIAL DEMANDED 18 19 20 21 22 23 24 25 26 27 28 COMPLAINT; JURY TRIAL DEMANDED Plaintiff alleges as follows: PARTIES 1 As used in this Complaint, the word "Plaintiff" shall refer to Plaintiff RICKY SANTACRUZ. 2 Plaintiff is a resident of Los Angeles County, California. 3 As used in this Complaint, the word "Defendants" shall refer to all Defendants named in this Complaint. 4 Defendant FORD MOTOR COMPANY ("FMC") is a corporation organized and in existence under the laws of the State of Delaware and registered with the California 10 Department of Corporations to conduct business in California. Defendant FMC's principal place 11 of business is in the State of Michigan. At all times relevant herein, Defendant was engaged in 12 the business of designing, manufacturing, constructing, assembling, marketing, distributing, and 13 selling automobiles and other motor vehicles and motor vehicle components in Los Angeles 14 County, California. 15 5 Defendant AIRPORT MARINA FORD ("AIRMAR FORD") is an unknown 16 business entity organized and in existence under the laws of the State of California. At all times 17 relevant herein, Defendant was engaged in the business of selling automobiles and automobile 18 components, and servicing and repairing automobiles in Los Angeles County, California. n 19 6. Plaintiffis ignorant of the true names and capacities of the Defendants sued under 20 the fictitious names DOES | to 10. They are sued pursuant to Code of Civil Procedure section 21 474. When Plaintiff becomes aware of the true names and capacities of the Defendants sued as 22 DOES | to 10, Plaintiff will amend this Complaint to state their true names and capacities. 23 FACTUAL BACKGROUND 7 24 On or about March 29, 2022, Plaintiff entered into a warranty contract with 25 Defendant FMC regarding a Certified Pre-Owned 2020 Ford Expedition, vehicle identification 26 number 1FMJKIKT3LEA10472 (hereafter "Vehicle"), which was manufactured and/or 27 distributed by Defendant FMC. 28 8 The warranty contract contained various warranties, including but not limited to 1 COMPLAINT; JURY TRIAL DEMANDED the bumper-bumper warranty, powertrain warranty, emission warranty, etc. A true and correct copy of the warranty contract is attached hereto as Exhibit A. The terms of the express warranty are described in Exhibit A and are incorporated herein. 9 Pursuant to the Song-Beverly Consumer Warranty Act (the "Act") Civil Code sections 1790 et seq. the Subject Vehicle constitutes "consumer goods" used primarily for family or household purposes, and Plaintiff has used the vehicle primarily for those purposes. Plaintiffis a "buyer" of consumer goods under the Act. Defendant FMC is a "manufacturer" and/or "distributor" under the Act. 10. Plaintiff justifiably revoke acceptance of the Subject Vehicle under Civil Code, 10 section 1794, et seq. by filing this Complaint and/or did so prior to filing the instant Complaint. 11 11. These causes of action arise out of the warranty obligations of FMC in connection 12 with a motor vehicle for which FMC issued a written warranty. 13 12. Defects and nonconformities to warranty manifested themselves within the 14 applicable express warranty period, including but not limited to, transmission defects, engine 15 defects, electrical defects, climate control defects; among other defects and non-conformities. 16 13. Said defects/nonconformities substantially impair the use, value, or safety of the 17 Vehicle. 18 14. The value of the Vehicle is worthless and/or de minimis. n 19 15. Under the Song-Beverly Act, Defendant FMC had an affirmative duty to 20 promptly offer to repurchase or replace the Subject Vehicle at the time it failed to conform the 21 Subject Vehicle to the terms of the express warranty after a reasonable number of repair 22 attempts. ! 23 24 ' A manufacturer's duty to repurchase a vehicle does not depend on a consumer's request, but instead arises as soon as the manufacturer fails to comply with the warranty within 25 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 operation on Santana's vehicle in 26 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 27 bridge 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 28 or provide restitution arose prior to the 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 experienced were within the scope of the power train warranty, which was still active when Santana requested COMPLAINT; JURY TRIAL DEMANDED 16. Defendant FMC has failed to either promptly replace the Subject Vehicle or to promptly make restitution in accordance with the Song-Beverly Act. 17. Under the Act, Plaintiff is entitled to reimbursement of the price paid for the vehicle less that amount directly attributable to use by the Plaintiff prior to the first presentation to an authorized repair facility for a nonconformity. 18. Plaintiff is entitled to replacement or reimbursement pursuant to Civil Code, section 1794, et seq. Plaintiff is entitled to rescission of the contract pursuant to Civil Code, section 1794, et seq. 19. Plaintiff is entitled to recover any "cover" damages under Civil Code, section 10 1794, et seq. 11 20. Plaintiff is entitled to recover all incidental and consequential damages pursuant 12 to Civil Code, section 1794 et seq. 13 21. Plaintiff suffered damages in a sum to be proven at trial in an amount that is not 14 less than $35,001.00. 15 22. Plaintiffis entitled to all incidental, consequential, and general damages resulting 16 from Defendant's failure to comply with its obligations under the Song-Beverly Act. 17 TOLLING OF THE STATUTES OF LIMITATION 18 23. To the extent there are any statutes of limitation applicable to Plaintiff’s claims- n 19 including, without limitation, the express warranty, implied warranty, and negligent repair — the 20 running of the limitation periods have been tolled by, inter alia, the following doctrines or rules: 21 equitable tolling, the discovery rule, the fraudulent concealment rules, equitable estoppel, the 22 repair rule, and/or class action tolling (e.g., the American Pipe rule). 23 24. Plaintiff discovered Defendant's wrongful conduct alleged herein shortly before 24 the filing of the complaint, as the Vehicle continued to exhibit symptoms of defects following 25 FMC's unsuccessful attempts to repair them. However, FMC failed to provide restitution pursuant 26 27 repurchase in approximately January 2016, at 44,467 miles. Thus the premise of Chrysler's 28 argument—that 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). 3 COMPLAINT; JURY TRIAL DEMANDED to the Song — Beverly Consumer Warranty Act. A. Class Action Tolling 25. Under the tolling rule articulated in Am. Pipe & Const. Co. v. Utah, 414 U.S. 538, 94 S. Ct. 756, 38 L. Ed. 2d 713 (1974) (“American Pipe”), the filing of a class action lawsuit in federal court tolls the statute of limitations for the claims of unnamed class members until the class certification issue is resolved. In applying American Pipe tolling to California cases, the California Supreme Court summarized the tolling rule derived from American Pipe and stated that the statute of limitations is tolled from the time of commencement of the suit to the time of denial of certification for all purported members of the class. Jolly v. Eli Lilly & Co., 44 Cal.3d 10 1103, 1119 (1988). Tolling lasts from the day a class claim is asserted until the day the suit is 11 conclusively not a class action. Falk v. Children's Hosp. Los Angeles, 237 Cal. App. 4th 1454, 12 1464 (2015). 13 26. The tolling of Plaintiff's individual statute of limitations encourages the protection 14 of efficiency and economy in litigation as promoted by the class action devise, so that putative 15 class members would not find it necessary to seek to intervene or to join individually because of 16 fear the class might never be certified or putative class members may subsequently seek to request 17 exclusion. 18 n 19 B Discovery Rule Tolling 20 27. Plaintiff had no way of knowing about Defendant’s deception with respect to the 21 defect until the defect manifested itself and Defendant was unable to repair it after a reasonable 22 number of repair attempts. 23 28. Within the time period of any applicable statutes of limitation, Plaintiff could not 24 have discovered through the exercise of reasonable diligence that Defendant were concealing 25 the defect and conduct complained of herein and concealing the companies’ true position with 26 respect to the defect. 27 28 4 COMPLAINT; JURY TRIAL DEMANDED 29. Defendant was under a continuous duty to disclose to Plaintiff the true character, quality, and nature of the Vehicles suffering from the defect, and the inevitable repairs, costs, time, and monetary damage resulting from the defects. 30. Plaintiff did not discover, and did not know of, facts that would have caused a reasonable person to suspect that Defendants had concealed information about the defect in Defendants’ Vehicles prior to and at the time of sale and thereafter, which was discovered by Plaintiff shortly prior to the filing of this Complaint. C. The Repair Doctrine 10 31. The statute of limitations is tolled by various unsuccessful attempts to repair the 11 vehicle.” 12 32. Additionally, the limitations period for warranty claims is tolled against a 13 defendant whenever that defendant claims that the defect is susceptible to repair and attempts 14 to repair the defect.> 15 33. Here, Defendant (and its dealership) undertook to perform various repair 16 measures. During the time in which Defendant represented to Plaintiff that the Subject Vehicle 17 was fixable and attempted to fix it, the warranty period may have thus been tolled. 18 n 19 D. Fraudulent Concealment Tolling (Estoppel) 20 34. Separately, the statute of limitations is equitably tolled due to Defendant’s 21 fraudulent conduct alleged herein.* 22 23 ? See Aced v. Hobbs—Sesack Plumbing Co., 55 Cal.2d 573, 585 (1961) (“The statute of limitations is tolled 24 where one who has breached a warranty claims that the defect can be repaired and attempts to make repairs.”) and A&B Painting & Drywall, Inc. v. Sup. Ct., 25 Cal.App.4th 349, 355 (2002) (“Tolling during a period of repairs 25 rests upon the same basis as does an estoppel to assert the statute of limitations, i.e., reliance by the plaintiff upon the words or actions of the defendant that repairs will be made.”). 26 “Tolling during a period of repairs generally rests upon the same legal basis as does an estoppel to assert 27 the statute of limitations, i.e., reliance by the plaintiff on the words or actions of the defendant that repairs will be made.” Cardinal Health 301, Inc. v. Tyco Electronics Corp., 169 Cal.App.4th 116, 133-134 (2008). 28 4 Silence, when there is a duty to speak, may be the basis for equitable estoppel. See Dettamanti v. Lompoc Union High School Dist. of Santa Barbra Count, 143 Cal. App. 2d 715, 720 (1956) (“The basis for an COMPLAINT; JURY TRIAL DEMANDED 35. Defendant (and its agents, representatives, officers, directors, employees, affiliates, and/or dealerships) concealed the defects, minimized the scope, cause, and dangers of the defects with inadequate TSBs and/or Recalls, and refused to investigate, address, and remedy the defects as it pertains to all affected vehicles as set forth herein. 36. Furthermore, Defendant’s fraudulent concealment was ongoing. Defendant blamed the symptoms of the defects on other issues and not the actual defect itself and purported to be able to repair. 37. Based on the foregoing, Defendant is estopped from relying on any statutes of limitation in defense of this action. 10 38. By filing this Complaint, Plaintiff hereby revokes acceptance of the Subject 11 Vehicle yet again. 12 Defendant FMC Had Superior and/or Exclusive Knowledge of the Transmission Defect 13 39. Prior to Plaintiff purchasing the Vehicle, Defendant FMC knew that vehicles 14 equipped with the same 10-speed transmission as the Vehicle suffered from one or more defects 15 that can cause the vehicles and their 10-speed transmissions to experience hesitation and/or 16 delayed acceleration; harsh and/or hard shifting; jerking, shuddering, and/or juddering 17 ("Transmission Defect"). 18 n 40. Plaintiff is informed and believe, and thereon allege, that Defendant acquired this 19 knowledge prior to Plaintiff purchasing the Vehicle through various sources of information, 20 including but not limited to pre-production testing, pre-production design failure mode and 21 analysis data, production failure mode and analysis data, early consumer complaints made 22 exclusively to Ford's network of dealers and directly to Ford, aggregate warranty data compiled 23 from Ford's network of dealers, testing conducted by Ford in response to consumer complaints, 24 25 26 estoppel may be found in the failure of the party sought to be estopped to speak when he is under a duty to speak as well as in his speaking falsely and in a manner which tends to deceive.”). Estoppel to plead the statute of 27 limitations is a well-accepted doctrine under California law. See 3 Witkin Cal. Proc. 4th § 693 at 885 (“‘[T]he fraudulent concealment by the defendant of the facts upon which the existence of which the cause of action depends 28 tolls the statute,’ and that the statute does not begin to run until discovery . . o” (quoting Kimball v. Pacific Gas & Elec. Co.,220 Cal. 203, 215 (1934)). 6 COMPLAINT; JURY TRIAL DEMANDED and repair order and parts data received by Ford from Ford's network of dealers. Al. As a result of this internal knowledge and investigations, Defendant FMC subsequently issued technical service bulletins ("TSBs") concerning the Transmission Defect. 42. For example, on or about March 2, 2018, Defendant FMC issued TSB 18-2079, entitled "10R80 Automatic Transmission — Harsh or Delayed Shift Concerns And/Or Illuminated MIL — DTC P0711 — Built On or Before 1-Aug-2017," which covers 2017 F-150 vehicles equipped with a 10R80 automatic transmission (the same type of transmission in the Subject Vehicle). According to the TSB, "[s]ome 2017 F-150/Raptor vehicles equipped with a 10R80 automatic transmission built on or before 1-Aug-2017 may exhibit harsh or delayed 10 shifts and/or an illuminated malfunction indicator lamp (MIL) with diagnostic trouble code 11 (DTC) P0711 stored in the transmission control module (TCM)." om . 12 TECHNICAL SERVICE BULLETIN 18-2079 10R80 Automatic Transmission — Harsh Or Delayed Shift Concerns 02 March 13 And/Or Illuminated MIL - DTC P0711 - Built On Or Before 1-Aug-2017 2018 14 Model: Ford 15 2017 F-150 16 Issue: Some 2017 F-150/Raptor vehicles equipped with a 10R80 automatic transmission built on or before 1- ‘Aug-2017 may exhibit harsh or delayed shifts and/or an illuminated malfunction indicator lamp (MIL) with S diagnostic trouble code (DTC) P0711 stored in the transmission control module (TCM). 17 Action: Reprogram the powertrain control module (PCM) using Integrated Diagnostic System (IDS) or Ford J2534 Diagnostic Software (FJDS) release 108.04 or higher. Make sure you are connected to the internet when 18 entering module Programming to obtain the latest updates. Calibration files may also be obtained at www! rvice.com. 19 Warranty Status: Eligible Under Provisions Of New Vehicle Limited Warranty Coverage And Emissions Warranty Coverage Warranty/ESP coverage limits/policies/prior approvals are not altered a TSB. 20 Warranty/ESP coverage limits are determined by the identified causal part and verified using the OASIS part coverage tool. 21 Labor Times Operation Description Time 22 No. 2017 F-150 3.5L GTDI: Retrieve DTCs And Reprogram The PCM (Do Not Use With 182079A 03 23 Any Other Labor Operations) Hrs. 24 Repair/Claim Coding Causal Part: RECALEM 25 Condition Code: | 04 26 Service Procedure NOTE: ADVISE THE CUSTOMER THAT THIS VEHICLE IS EQUIPPED WITH AN ADAPTIVE TRANSMISSION 27 SHIFT STRATEGY WHICH ALLOWS THE VEHICLE'S COMPUTER TO LEARN THE TRANSMISSION'S UNIQUE PARAMETERS AND IMPROVE SHIFT QUALITY. WHEN THE ADAPTIVE STRATEGY IS RESET, THE COMPUTER WILL BEGIN A RE-LEARNING PROCESS. THIS RE-LEARNING PROCESS MAY RESULT 28 IN FIRMER THAN NORMAL UPSHIFTS AND DOWNSHIFTS FOR SEVERAL DAYS. 7 COMPLAINT; JURY TRIAL DEMANDED 43. In TSB 18-2079, Defendant FMC attributed the transmission issues to problems with the vehicles' powertrain control module ("PCM")—specifically, to problems with the vehicles’ mn, adaptive transmission shift strategy which allows the vehicle's computer to learn the transmission's unique parameters and improve shift quality." 44. Then, on or about September 7, 2018, Defendant FMC issued TSB 18-2274, entitled "2.7L/3.5L/5.0L Engine And 10R80 Transmission - Harsh/Bumpy Shift And/Or Engagement Concems - Built On Or Before 15-May-2018[,]" which covers 2018 F-150 vehicles. According to the TSB, "[s]ome 2018 F-150 vehicles equipped with a 2.7L, 3.5L or 5.0L engine and 10R80 automatic transmission and built on or before 15-May 2018 may exhibit 10 harsh/bumpy upshift, downshift and/or engagement concerns. Follow the Service Procedure 11 steps to correct the condition." om . 12 TECHNICAL SERVICE BULLETIN 18-2274 13 2.7L/3.5L/5.0L Engine And 10R80 Transmission - Harsh/Bumpy Shift or Seresoie And/Or Engagement Concerns - Built On Or Before 15-May-2018 14 Model: 15 Ford oS |2018 F-150 16 S Issue: Some 2018 F-150 vehicles equipped with a 2.7L, 3.5L or 5.0L engine and 10R80 automatic transmission and 17 built on or before 15-May 2018 may exhibit harsh/bumpy upshift, downshift and/or engagement concerns. Action: Follow the Service Procedure steps to correct the condition. 18 Warranty Status: Eligible Under Provisions Of New Vehicle Limited Warranty Warranty/ESP coverage limits/policies/prior approvals are not altered by a TSB. Warranty/ESP coverage limits are determined by the identified causal part and verified using the OASIS part coverage tool. 19 Labor Times 20 Description Operation Time No. 2018 F-150 2.7L/3.5L/5.0L: Reprogram The PCM (Do Not Use With Any Other Labor 182274A 03 21 Operations) rs. 22 Repair/Claim Coding Causal Part: RECAL 23 ‘Condition Code: |04 24 Service Procedure 41. Check the vehicle build date. Was the vehicle built on or before 15-May-2018? 25 (1), Yes - reprogram the powertrain contro! module (PCM) using the latest version of the appropriate Ford scan 26 +. NOTE: ADVISE THE CUSTOMER THAT THIS VEHICLE IS EQUIPPED WITH AN ADAPTIVE TRANSMISSION SHIFT STRATEGY WHICH ALLOWS THE VEHICLE'S COMPU’ (O LEARN THE TRANSMISSION'S UNIQUE PARAMETERS AND IMPROVE SHIFT QUALITY. WHEN THE ADAPTIVE STRATEGY IS RESET, THE COMPUTER WILL BEGIN A RE- 27 LEARNING PROCESS. THIS RE-LEARNING PROCESS MAY RESULT IN FIRMER THAN NORMAL UPSHIFTS AND DOWNSHIFTS FOR SEVERAL DAYS. (2). No - this article does not apply. Refer to Workshop Manual (WSM), Section 307-01 for normal diagnostics. 28 8 COMPLAINT; JURY TRIAL DEMANDED 45 Like TSB 18-2079, TSB 18-02274 attributed the transmission issues to problems with the vehicles' PCM—specifically, to problems with the vehicles 0 adaptive transmission shift strategy which allows the vehicle's computer to learn the transmission's unique parameters and improve shift quality 46 Then, on September 27, 2021, Defendant issued TSB 21-2315, entitled "10R80 — Harsh Engagement/Harsh Shift/Delayed Shift With or Without DTCs", which covers 2017 — 2020 Ford vehicles, including the Subject Vehicle. The TSB advised that "Some 2017-20220 F-150 vehicles equipped with a 10R80 automatic transmission may exhibit a harsh engagement/harsh shift/delayed shift...This may be due to incompatibility of the adaptive 10 calibration to adapt to hardware wear-in over time. To correct the condition, follow the Service 11 Procedure steps to overhaul the main control valve body and/or perform an adaptive learning 12 drive cycle 13 10R80 - Harsh Engagement/Harsh Shift/Delayed Shift With Or Without DTCs Vehicle > Technical Service Bulletins > 10R80- Harsh Engagement/Harsh ShifDelayed Shift Winn Or Wout OTs 14 15 TECHNICAL SERVICE BULLETIN, 22 ‘ORED- Harsh Engagement/Harsh Shif\/Delayed Shift With Or Without DTCs 27 September 2021 16 Moet Ferd ansmission/ Transaxle (10880) 17 editor OF anemic’ Transaxle (10°00) feover202t Wi ng [Transmission Transaxle: (1080 18 loove-2021 Ranger ansmissiony Transaxle (10880) iUneoln anmision/ Transaxle (10220} bate. 19 Issue: 0 F150, 2018-2021 Expedition/Navigator/Mustang and icles equipped witha TORE autor sy exit a harsh engagement/harsh s syed shit. Irispo .eiele may also have an ilumineted malfunction indiostor lamp ig ie wouble codes (OTC) PO7S1, PO75: 761, PO762, PO766, PO76T, POTT!,POT7: P2701, 20 PoT0: 704, P2705, P2TO , P2708, PO729, PO73 39, POT, 0736, POT6E PO7DS, PUTF6 and/or POTFT storedin the powertrain contol module (PCM) ortransmi 1 module (TOM). This may be due to incompaily ofthe adaptive cal to adapt toh rae wearin overtime. To correct the condition, fllow the Procedure steps to overhaul the main control valve body ‘end/or perform an adaptive leaming dive cycle. 21 ‘Action: Follow the Sarvs Procedure steps to core the constion on vehicles that meet all of the following erteria: One of the following vehicles. 22 2017-2020 F-150 2018-2021 Expedition/Navigator/Mustang 23 2019-2021 Ranger 10R80 automatic transmission At least one of the following symptoms 24 Harsh engagement Harsh shitt 25 Delayed shift NOTE: Part quantity refers tothe numberof that service part number required, which may be diferent than the number of individual pieces. Service part numbers contain 1 piece unless otherwise stated. ‘Ac 26 Needed” indicates the partis required but the number may vary oie nota whole number pats canbe billed out a¢ non-whole numbers, including lee than 1. if Needed” indicates the partis not mandatory 27 47 Like TSBs 18-2079 and 18-02274, TSB 21-2315 attributed the transmission 28 issues to similar "adaptive calibration" shift learning issues and the 10-speed Transmission. 9 COMPLAINT; JURY TRIAL DEMANDED 48. However, they fail to fix the transmission defects which affects the subject vehicle. 49. Plaintiff would not have purchased the Subject Vehicle, or would have paid less for it, had Plaintiff known of the Transmission Defect, given the unsafe nature of the Defect. Furthermore, Plaintiff unknowingly exposed themselves to the risk of accident, injury, and/or liability to others as a result of the nature or the Transmission Defect, which can lead to hesitation, loss of power, and other shifting issues while driving at highway speeds. Plaintiff is a reasonable consumers who expected the Subject Vehicle to be safe and free of defects, and that Defendant FMC would not sell or lease vehicles with known safety-related defects, such as 10 the Transmission Defect, and would disclose any such defects to its consumers when it learns 11 of them. 12 50. Although it has been fully aware of the Transmission Defect, Defendant FMC 13 actively concealed the existence and nature of the Defect from Plaintiffat the time of purchase, 14 repair, and thereafter. 15 FIRST CAUSE OF ACTION 16 BY PLAINTIFF AGAINST DEFENDANT FMC 17 VIOLATION OF SUBDIVISION (D) OF CIVIL CODE SECTION 1793.2 18 S51. Plaintiff incorporates by reference the allegations contained in the paragraphs set n 19 forth above. 20 §2. Defendant FMC and its representatives in this state have been unable to service 21 or repair the Vehicle to conform to the applicable express warranties after a reasonable number 22 of opportunities. Despite this fact, Defendant FMC failed to promptly replace the Vehicle or 23 make restitution to Plaintiffas required by Civil Code section 1793.2, subdivision (d) and Civil 24 Code section 1793.1, subdivision (a)(2). 25 53. Plaintiff has been damaged by Defendant FMC's failure to comply with its 26 obligations pursuant to Civil Code section 1793.2, subdivision (d) and Civil Code section 27 1793.1, subdivision (a)(2), and therefore bring this cause of action pursuant to Civil Code 28 section 1794. 10 COMPLAINT; JURY TRIAL DEMANDED 54. Defendant FMC's failure to comply with its obligations under Civil Code section 1793.2, subdivision (d) was willful, in that Defendant FMC and its representative were aware that they were unable to service or repair the Vehicle to conform to the applicable express warranties after a reasonable number of repair attempts, yet Defendant FMC failed and refused to promptly replace the Vehicle or make restitution. Accordingly, Plaintiff is entitled to a civil penalty of two times Plaintiff's actual damages pursuant to Civil Code section 1794, subdivision (c). 55. Defendant FMC does not maintain a qualified third-party dispute resolution process which substantially complies with Civil Code section 1793.22. Accordingly, Plaintiff 10 is entitled to a civil penalty of two times Plaintiffs' actual damages pursuant to Civil Code 11 section 1794, subdivision (e). 12 56. Plaintiff seeks civil penalties pursuant to Civil Code, section 1794, subdivisions 13 (c), and (e) in the alternative and does not seek to cumulate civil penalties, as provided in Civil 14 Code section 1794, subdivision (e). 15 SECOND CAUSE OF ACTION 16 BY PLAINTIFF AGAINST DEFENDANT FMC 17 VIOLATION OF SUBDIVISION (B) OF CIVIL CODE SECTION 1793.2 18 57. Plaintiff incorporates by reference the allegations contained in the paragraphs set n 19 forth above. 20 58. Although Plaintiff presented the Vehicle to Defendant FMC's representative in 21 this state, Defendant FMC and its representative failed to commence the service or repairs 22 within a reasonable time and failed to service or repair the Vehicle so as to conform to the 23 applicable warranties within 30 days, in violation of Civil Code section 1793.2, subdivision (b). 24 Plaintiff did not extend the time for completion of repairs beyond the 30-day requirement. 25 59. Plaintiff has been damaged by Defendant FMC's failure to comply with its 26 obligations pursuant to Civil Code section 1793.2(b), and therefore bring this Cause of Action 27 pursuant to Civil Code section 1794. 28 60. Plaintiff has rightfully rejected and/or justifiably revoked acceptance of the ll COMPLAINT; JURY TRIAL DEMANDED Vehicle and has exercised a right to cancel the purchase. By serving this Complaint, Plaintiff did so again. Accordingly, Plaintiff seeks the remedies provided in California Civil Code section 1794(b)(1), including the entire contract price. In the alternative, Plaintiff seeks the remedies set forth in California Civil Code section 1794(b)(2), including the diminution in value of the Vehicle resulting from its defects. Plaintiff believes that, at the present time, the Vehicle's value is de minimis. 61. Defendant FMC's failure to comply with its obligations under Civil Code section 1793.2(b) was willful, in that Defendant FMC and its representative were aware that they were obligated to service or repair the Vehicle to conform to the applicable express warranties within 10 30 days, yet they failed to do so. Accordingly, Plaintiff is entitled to a civil penalty of two times 11 Plaintiff's actual damages pursuant to Civil Code section 1794(c). 12 THIRD CAUSE OF ACTION 13 BY PLAINTIFF AGAINST DEFENDANT FMC 14 VIOLATION OF SUBDIVISION (A)(3) OF CIVIL CODE SECTION 1793.2 15 62. Plaintiff incorporates by reference the allegations contained in paragraphs set 16 forth above. 17 63. In violation of Civil Code section 1793.2, subdivision (a)(3), Defendant FMC 18 failed to make available to its authorized service and repair facilities sufficient service literature n 19 and replacement parts to effect repairs during the express warranty period. Plaintiff has been 20 damaged by Defendant FMC's failure to comply with its obligations pursuant to Civil Code 21 section 1793.2(a)(3), and therefore bring this Cause of Action pursuant to Civil Code section 22 1794. 23 64. Defendant FMC's failure to comply with its obligations under Civil Code section 24 1793.2, subdivision (a)(3) was wilful, in that Defendant FMC knew of its obligation to provide 25 literature and replacement parts sufficient to allow its repair facilities to effect repairs during 26 the warranty period, yet Defendant FMC failed to take any action to correct its failure to comply 27 with the law. Accordingly, Plaintiffis entitled to a civil penalty of two times Plaintiff's actual 28 damages, pursuant to Civil Code section 1794(c). 12 COMPLAINT; JURY TRIAL DEMANDED FOURTH CAUSE OF ACTION BY PLAINTIFF AGAINST DEFENDANT FMC BREACH OF THE IMPLIED WARRANTY OF MERCHANTABILITY (CIV. CODE, § 1791.1; § 1794; § 1795.5) 65. Plaintiff incorporates by reference the allegations contained in the paragraphs set forth above. 66. Pursuant to Civil Code section 1792, the sale of the Vehicle was accompanied by Defendant FMC's implied warranty of merchantability. Pursuant to Civil Code section 1791.1, the duration of the implied warranty is coextensive in duration with the duration of the 10 express written warranty provided by Defendant FMC, except that the duration is not to exceed 11 one-year. 12 67. Pursuant to Civil Code section 1791.1 (a), the implied warranty of 13 merchantability means and includes that the Vehicle will comply with each of the following 14 requirements: (1) The Vehicle will pass without objection in the trade under the contract 15 description; (2) The Vehicle is fit for the ordinary purposes for which such goods are used; (3) 16 The Vehicle is adequately contained, packaged, and labelled; (4) The Vehicle will conform to 17 the promises or affirmations of fact made on the container or label. 18 68. The subject vehicle was sold with one or more latent defect(s) set forth above. n 19 The existence of the said latent defect(s)constitutes a breach of the implied warranty because 20 the Vehicle (1) does not pass without objection in the trade under the contract description, (2) 21 is not fit for the ordinary purposes for which such goods are used, (3) is not adequately 22 contained, packaged, and labelled, and (4) does not conform to the promises or affirmations of 23 fact made on the container or label. 24 69. Plaintiff has been damaged by Defendant FMC's failure to comply with its 25 obligations under the implied warranty, and therefore bring this Cause of Action pursuant to 26 Civil Code section 1794. 27 FIFTH CAUSE OF ACTION 28 BY PLAINTIFF AGAINST DEFENDANT FMC 13 COMPLAINT; JURY TRIAL DEMANDED (Fraudulent Inducement - Concealment) 70. Plaintiff incorporates by reference the allegations contained in the paragraphs set forth above. 71. Plaintiff purchased the Vehicle as manufactured with Defendant's 10-Speed automatic transmission. 72. Defendant FMC committed fraud by allowing the Subject Vehicle to be sold to Plaintiff without disclosing that the Subject Vehicle and its transmission was defective and susceptible to sudden and premature failure. 73. In particular, the Plaintiff is informed, believe and thereon allege that prior to 10 Plaintiff acquiring the Vehicle, FMC was well aware and knew that the transmission installed in 11 the Vehicle was defective but failed to disclose this fact to the Plaintiff at the time of the sale and 12 thereafter. 13 74. Specifically, Defendant FMC knew that vehicles equipped with the same 10-speed 14 transmission as the Vehicle suffered from one or more defects that can cause the vehicles and 15 their 10-speed transmissions to experience hesitation and/or delayed acceleration; harsh and/or 16 hard shifting; jerking, shuddering, and/or juddering ("Transmission Defect"). These conditions 17 present a safety hazard and are unreasonably dangerous to consumers because they can suddenly 18 and unexpectedly affect the driver's ability to control the vehicle's speed, acceleration, n 19 deceleration, and/ or overall responsiveness ofthe vehicle in various driving conditions. 20 75. Plaintiff is informed, believe and thereon allege that FMC acquired its knowledge 21 of the Transmission Defect prior to Plaintiff acquiring the Subject Vehicle, through sources not 22 available to consumers such as Plaintiff, including but not limited to pre-production and post- 23 production testing data, early consumer complaints about the transmission defect made directly 24 to FMC and its network of dealers, aggregate warranty data compiled from FMC's network of 25 dealers, testing conducted by FMC in response to these complaints, as well warranty repair and 26 part replacements data received by FMC from FMC's network of dealers, amongst other sources 27 of internal information. 28 76. Plaintiff is informed, believe, and thereon allege that while Defendant knew about 14 COMPLAINT; JURY TRIAL DEMANDED the Transmission Defect, and its safety risks, Defendant nevertheless concealed and failed to disclose the defective nature of the Vehicle and its transmission to Plaintiff at the time of sale, repair, and thereafter. Had Plaintiff known that the Subject Vehicle suffered from the Transmission Defect, they would not have purchased the Subject Vehicle. 77. Indeed, Plaintiff alleges that Defendant knew that the Vehicle and its transmission suffered from an inherent defect, was defective, would fail prematurely, and was not suitable for its intended use. 78. Defendant FMC was under a duty to Plaintiff to disclose the defective nature of the Subject Vehicle and its transmission, its safety consequences and/or the associated repair costs 10 because: 11 a. Defendant FMC acquired its knowledge of the Transmission 12 Defect and its potential consequences prior to Plaintiff acquiring the Vehicle, 13 through sources not available to consumers such as Plaintiff, including but not 14 limited to pre-production testing data, early consumer complaints about the 15 Transmission Defect made directly to Defendant FMC and its network of dealers, 16 aggregate warranty data compiled from Defendant FMC's network of dealers, 17 testing conducted by Defendant FMC in response to these complaints, as well as 18 warranty repair and part replacements data received by Defendant FMC from n 19 Defendant FMC's network of dealers, amongst other sources of internal 20 information; 21 b. Defendant FMC was in a superior position from various internal 22 sources to know (or should have known) the true state of facts about the material 23 defects contained in vehicle equipped with the defective transmission; and; 24 Cc As early as January 2018, Consumers who purchased vehicles 25 equipped with Ford's 10-speed transmission have been complaining about the 26 transmission defect; and 27 d Plaintiff could not reasonably have been expected to learn or 28 discover of the Vehicle's Transmission Defect and its potential consequences 15 COMPLAINT; JURY TRIAL DEMANDED until well after Plaintiff purchased the Vehicle. 79. In failing to disclose the defects in the Vehicle's transmission, Defendant FMC has knowingly and intentionally concealed material facts and breached its duty not to do so. 80. The facts concealed or not disclosed by Defendant FMC to Plaintiff are material in that a reasonable person would have considered them to be important in deciding whether or not to purchase the Subject Vehicle. Had Plaintiff known that the Subject Vehicle and its transmissions were defective at the time of sale, they would not have purchased the Subject Vehicle. 81. Plaintiff is a reasonable consumer who does not expect his transmission to fail 10 and do not properly. Plaintiff furth