Preview
1 STRATEGIC LEGAL PRACTICES
A PROFESSIONAL CORPORATION
2 Tionna Carvalho (SBN 299010)
Email: tcarvalho@slpattorney.com
3
Sanam Vaziri (SBN 177384)
4 Email: svaziri@slpattorney.com
(emailservices@slpattorney.com)
5 1888 Century Park East, 19th Floor
Los Angeles, CA 90067
6 Telephone: (310) 929-4900
Facsimile: (310) 943-3838
7
8 Attorneys for Plaintiff:
STEPHANIE HERNANDEZ
9
10
SUPERIOR COURT OF THE STATE OF CALIFORNIA
11
STRATEGIC LEGAL PRACTICES, APC
COUNTY OF LOS ANGELES
1840 CENTURY PARK EAST, SUITE 430, LOS ANGELES, CA 90067
12
13
STEPHANIE HERNANDEZ, Case No.:
14
15 Plaintiff, Hon.
Dept.
16 vs.
17 KIA MOTORS AMERICA, INC.; and DOES 1 COMPLAINT FOR VIOLATION OF
through 10, inclusive, STATUTORY OBLIGATIONS
18
19 Defendants.
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,
4 STEPHANIE HERNANDEZ.
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 KIA MOTORS AMERICA, INC. ("Defendant KIA") 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
11 herein, Defendant was engaged in the business of designing, manufacturing, constructing,
STRATEGIC LEGAL PRACTICES, APC
1840 CENTURY PARK EAST, SUITE 430, 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 July 16, 2015, Plaintiff entered into a warranty contract with
20 Defendant regarding a Certified Pre-Owned 2014 Kia Optima, vehicle identification number
21 KNAGN4AD7E5063158 ("Vehicle"), which was manufactured and or distributed by Defendant.
22 7. The warranty contract contained various warranties, including but not limited to
23 the bumper-bumper warranty, powertrain warranty, emission warranty, etc. A true and correct
24 copy of the warranty contract is attached hereto as Exhibit A. The terms of the express warranty
25 are described in Exhibit A and are incorporated herein.
26 8. Pursuant to the Song-Beverly Consumer Warranty Act (the "Act") Civil Code
27 sections 1790 et seq. the Subject Vehicle constitutes "consumer goods" used primarily for
28 family or household purposes, and Plaintiff has used the vehicle primarily for those purposes.
1
COMPLAINT; JURY TRIAL DEMANDED
1 Plaintiff is a "buyer" of consumer goods under the Act. Defendant is a "manufacturer" and/or
2 "distributor" under the Act.
3 9. Plaintiff justifiably revokes acceptance of the Subject Vehicle under Civil Code,
4 section 1794, et seq. by filing this Complaint and/or did so prior to filing the instant Complaint.
5 10. These causes of action arise out of the warranty obligations of in connection with
6 a motor vehicle for which issued a written warranty.
7 11. Defects and nonconformities to warranty manifested themselves within the
8 applicable express warranty period, including but not limited to, transmission defects, electrical
9 defects, engine defects, battery defects; among other defects and non-conformities.
10 12. Said defects/nonconformities substantially impair the use, value, or safety of the
11 Vehicle.
STRATEGIC LEGAL PRACTICES, APC
1840 CENTURY PARK EAST, SUITE 430, LOS ANGELES, CA 90067
12 13. The value of the Subject Vehicle is worthless and/or de minimis.
13 14. Under the Song-Beverly Act, Defendant had an affirmative duty to promptly
14 offer to repurchase or replace the Subject Vehicle at the time if failed to conform the Subject
15 Vehicle to the terms of the express warranty after a reasonable number of repair attempts. 1
16 15. Defendant has failed to either promptly replace the Subject Vehicle or to promptly
17 make restitution in accordance with the Song-Beverly Act.
18 16. Under the Act, Plaintiff is entitled to reimbursement of the price paid for the
19 vehicle less that amount directly attributable to use by the Plaintiff prior to the first presentation
20 to an authorized repair facility for a nonconformity.
21
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.
3 18. Plaintiff is entitled to rescission of the contract pursuant to Civil Code, section
4 1794, et seq.
5 19. Plaintiff is entitled to recover any "cover" damages under section 1794, et seq.
6 20. Plaintiff is entitled to recover all incidental and consequential damages pursuant
7 to 1794 et seq.
8 21. Plaintiff suffered damages in a sum to be proven at trial in an amount that is not
9 less than $35,001.00.
10 22. Plaintiff is entitled to all incidental, consequential, and general damages resulting
11 from Defendants' failure to comply with its obligations under the Song-Beverly Act.
STRATEGIC LEGAL PRACTICES, APC
1840 CENTURY PARK EAST, SUITE 430, LOS ANGELES, CA 90067
12 Some Portions of the Subject Vehicle’s Repair History
13 23. On or about March 6, 2019 with approximately 44,176 miles on the odometer,
14 Plaintiff presented the Subject Vehicle to Defendant’s authorized repair facility with various
15 concerns, including electrical concerns and battery concerns. The authorized repair facility
16 performed warranty repairs and represented to the plaintiff that the Subject Vehicle had been
17 repaired.
18 24. On or about May 13, 2019, with approximately 45,717 miles on the odometer,
19 Plaintiff presented the Subject Vehicle to Defendant’s authorized repair facility with various
20 concerns, including electrical concerns and battery concerns. The authorized repair facility
21 performed warranty repairs and represented to the plaintiff that the Subject Vehicle had been
22 repaired.
23 25. On or about July 3, 2019, with approximately 46,961 miles on the odometer,
24 Plaintiff presented the Subject Vehicle to Defendant’s authorized repair facility with various
25 concerns, including transmission concerns. The authorized repair facility performed warranty
26 repairs and represented to the plaintiff that the Subject Vehicle had been repaired.
27 26. On or about January 31, 2020, with approximately 51,624 miles on the odometer,
28 Plaintiff presented the Subject Vehicle to Defendant’s authorized repair facility with various
3
COMPLAINT; JURY TRIAL DEMANDED
1 concerns, including transmission concerns. The authorized repair facility performed warranty
2 repairs over the course of 19 days, which included the replacement of Plaintiff’s transmission.
3 After which, the authorized repair facility represented to the plaintiff that the Subject Vehicle
4 had been repaired.
5 27. On or about August 22, 2020, with approximately 55,180 miles on the odometer,
6 Plaintiff presented the Subject Vehicle to Defendant’s authorized repair facility with various
7 concerns, including electrical concerns, battery concerns, and transmission concerns. The
8 authorized repair facility performed warranty repairs and represented to the plaintiff that the
9 Subject Vehicle had been repaired.
10 28. Thereafter, Plaintiff continued to experience symptoms of the defects despite
11 Defendant’s representation that the various defects were repaired.
STRATEGIC LEGAL PRACTICES, APC
1840 CENTURY PARK EAST, SUITE 430, LOS ANGELES, CA 90067
12 29. Plaintiff had no way of uncovering Defendant’s deception with respect to the
13 defects given that Defendant performed various diagnostics and/or undertook repairs and
14 claimed that nothing was wrong with the Subject Vehicle or that the Vehicle had been repaired.
15 30. Plaintiff discovered Defendant’s wrongful conduct alleged herein shortly before
16 filing this Complaint as the Subject Vehicle continued to exhibit symptoms of defects following
17 Defendant’s unsuccessful attempts to repair them. However, Defendant failed to provide
18 restitution pursuant to the Song-Beverly Consumer Warranty Act
19
TOLLING OF THE STATUTES OF LIMITATION
20
31. To the extent there are any statutes of limitation applicable to Plaintiff's claims-
21
including, without limitation, the express warranty, implied warranty, and negligent repair – the
22
running of the limitation periods have been tolled by, inter alia, the following doctrines or rules:
23
equitable tolling, the discovery rule, the fraudulent concealment rules, equitable estoppel, the
24
repair rule, and/or class action tolling (e.g., the American Pipe rule).
25
32. Plaintiff discovered Defendant's wrongful conduct alleged herein shortly before
26
filing this Complaint as the Subject Vehicle continued to exhibit symptoms of defects following
27
Defendant's unsuccessful attempts to repair them. However, Defendant failed to provide
28
restitution pursuant to the Song-Beverly Consumer Warranty Act.
4
COMPLAINT; JURY TRIAL DEMANDED
1 A. Class Action Tolling
2 33. Under the tolling rule articulated in Am. Pipe & Const. Co. v. Utah, 414 U.S. 538,
3 94 S. Ct. 756, 38 L. Ed. 2d 713 (1974) (“American Pipe”), the filing of a class action lawsuit in
4 federal court tolls the statute of limitations for the claims of unnamed class members until the
5 class certification issue is resolved. In applying American Pipe tolling to California cases, the
6 California Supreme Court summarized the tolling rule derived from American Pipe and stated
7 that the statute of limitations is tolled from the time of commencement of the suit to the time of
8 denial of certification for all purported members of the class. Jolly v. Eli Lilly & Co., 44 Cal.3d
9 1103, 1119 (1988). Tolling lasts from the day a class claim is asserted until the day the suit is
10 conclusively not a class action. Falk v. Children's Hosp. Los Angeles, 237 Cal. App. 4th 1454,
11 1464 (2015).
STRATEGIC LEGAL PRACTICES, APC
1840 CENTURY PARK EAST, SUITE 430, LOS ANGELES, CA 90067
12 34. The tolling of Plaintiff’s individual statute of limitations encourages the protection
13 of efficiency and economy in litigation as promoted by the class action devise, so that putative
14 class members would not find it necessary to seek to intervene or to join individually because of
15 fear the class might never be certified or putative class members may subsequently seek to request
16 exclusion.
17 B. Discovery Rule Tolling
18 35. Plaintiff had no way of knowing about Defendant’s deception with respect to the
19 defect until the defect manifested itself and Defendant was unable to repair it after a reasonable
20 number of repair attempts.
21 36. Within the time period of any applicable statutes of limitation, Plaintiff could not
22 have discovered through the exercise of reasonable diligence that Defendant were concealing the
23 defect and conduct complained of herein and concealing the companies’ true position with respect
24 to the defect.
25 37. Defendant was under a continuous duty to disclose to Plaintiff the true character,
26 quality, and nature of the Vehicles suffering from the defect, and the inevitable repairs, costs,
27 time, and monetary damage resulting from the defects.
28
5
COMPLAINT; JURY TRIAL DEMANDED
1 38. Plaintiff did not discover, and did not know of, facts that would have caused a
2 reasonable person to suspect that Defendants had concealed information about the defect in
3 Defendants’ Vehicles prior to and at the time of sale and thereafter, which was discovered by
4 Plaintiff shortly prior to the filing of this Complaint.
5 C. The Repair Doctrine
6 39. The statute of limitations is tolled by various unsuccessful attempts to repair the
7 vehicle.1
8 40. Additionally, the limitations period for warranty claims is tolled against a
9 defendant whenever that defendant claims that the defect is susceptible to repair and attempts to
10 repair the defect.2
11 41. Here, Defendant (and its dealership) undertook to perform various repair measures.
STRATEGIC LEGAL PRACTICES, APC
1840 CENTURY PARK EAST, SUITE 430, LOS ANGELES, CA 90067
12 During the time in which Defendant represented to Plaintiff that the Subject Vehicle was fixable
13 and attempted to fix it, the warranty period may have thus been tolled.
14 D. Fraudulent Concealment Tolling (Estoppel)
15 42. Separately, the statute of limitations is equitably tolled due to Defendant’s
16 fraudulent conduct alleged herein.3
17 43. Defendant (and its agents, representatives, officers, directors, employees,
18 affiliates, and/or dealerships) concealed the defects, minimized the scope, cause, and dangers of
19 the defects with inadequate TSBs and/or Recalls, and refused to investigate, address, and remedy
20 the defects as it pertains.
21 44. By filing this Complaint, Plaintiff hereby revokes acceptance of the Subject
22 Vehicle yet again.
23 FIRST CAUSE OF ACTION
24 BY PLAINTIFF AGAINST DEFENDANT KIA
25 VIOLATION OF SUBDIVISION (D) OF CIVIL CODE SECTION 1793.2
26 45. Plaintiff incorporates by reference the allegations contained in the paragraphs set
27 forth above.
28
6
COMPLAINT; JURY TRIAL DEMANDED
1 46. Defendant and its representatives in this state have been unable to service or repair
2 the Vehicle to conform to the applicable express warranties after a reasonable number of
3 opportunities. Despite this fact, Defendant failed to promptly replace the Vehicle or make
4 restitution to Plaintiff as required by Civil Code section 1793.2, subdivision (d) and Civil Code
5 section 1793.1, subdivision (a)(2).
6 47. Plaintiff has been damaged by Defendant's failure to comply with its obligations
7 pursuant to Civil Code section 1793.2, subdivision (d) and Civil Code section 1793.1, subdivision
8 (a)(2), and therefore brings this cause of action pursuant to Civil Code section 1794.
9 48. Defendant's failure to comply with its obligations under Civil Code section 1793.2,
10 subdivision (d) was willful, in that Defendant and its representative were aware that they were
11 unable to service or repair the Vehicle to conform to the applicable express warranties after a
STRATEGIC LEGAL PRACTICES, APC
1840 CENTURY PARK EAST, SUITE 430, LOS ANGELES, CA 90067
12 reasonable number of repair attempts, yet Defendant failed and refused to promptly replace the
13 Vehicle or make restitution. Accordingly, Plaintiff is entitled to a civil penalty of two times
14 Plaintiff's actual damages pursuant to Civil Code section 1794, subdivision (c).
15 49. Defendant does not maintain a qualified third-party dispute resolution process
16 which substantially complies with Civil Code section 1793.22. Accordingly, Plaintiff is entitled
17 to a civil penalty of two times Plaintiff's actual damages pursuant to Civil Code section 1794,
18 subdivision (e).
19 50. Plaintiff seeks civil penalties pursuant to section 1794, subdivisions (c), and (e) in
20 the alternative and does not seek to cumulate civil penalties, as provided in Civil Code section
21 1794, subdivision (e).
22 SECOND CAUSE OF ACTION
23 BY PLAINTIFF AGAINST DEFENDANT KIA
24 VIOLATION OF SUBDIVISION (B) OF CIVIL CODE SECTION 1793.2
25 51. Plaintiff incorporates by reference the allegations contained in the paragraphs set
26 forth above.
27 52. Although Plaintiff presented the Vehicle to Defendant's representative in this state,
28 Defendant and its representative failed to commence the service or repairs within a reasonable
7
COMPLAINT; JURY TRIAL DEMANDED
1 time and failed to service or repair the Vehicle so as to conform to the applicable warranties within
2 30 days, in violation of Civil Code section 1793.2, subdivision (b). Plaintiff did not extend the
3 time for completion of repairs beyond the 30-day requirement.
4 53. Plaintiff has been damaged by Defendant's failure to comply with its obligations
5 pursuant to Civil Code section 1793.2(b), and therefore brings this Cause of Action pursuant to
6 Civil Code section 1794.
7 54. Plaintiff has rightfully rejected and/or justifiably revoked acceptance of the
8 Vehicle and has exercised a right to cancel the purchase. By serving this Complaint, Plaintiff
9 does so again. Accordingly, Plaintiff seeks the remedies provided in California Civil Code section
10 1794(b)(1), including the entire contract price. In the alternative, Plaintiff seeks the remedies set
11 forth in California Civil Code section 1794(b)(2), including the diminution in value of the Vehicle
STRATEGIC LEGAL PRACTICES, APC
1840 CENTURY PARK EAST, SUITE 430, LOS ANGELES, CA 90067
12 resulting from its defects.
13 55. Plaintiff believes that, at the present time, the Vehicle's value is worthless and/or
14 de minimis.
15 56. Defendant's failure to comply with its obligations under Civil Code section
16 1793.2(b) was willful, in that Defendant and its representative were aware that they were obligated
17 to service or repair the Vehicle to conform to the applicable express warranties within 30 days,
18 yet they failed to do so. Accordingly, Plaintiff is entitled to a civil penalty of two times Plaintiff's
19 actual damages pursuant to Civil Code section 1794(c).
20 THIRD CAUSE OF ACTION
21 BY PLAINTIFF AGAINST DEFENDANT KIA
22 VIOLATION OF SUBDIVISION (A)(3) OF CIVIL CODE SECTION 1793.2
23 57. Plaintiff incorporates by reference the allegations contained in paragraphs set forth
24 above.
25 58. In violation of Civil Code section 1793.2, subdivision (a)(3), Defendant failed to
26 make available to its authorized service and repair facilities sufficient service literature and
27 replacement parts to effect repairs during the express warranty period. Plaintiff has been damaged
Preview
1 STRATEGIC LEGAL PRACTICES A PROFESSIONAL CORPORATION 2 Tionna Carvalho (SBN 299010) Email: tcarvalho@slpattorney.com 3 Sanam Vaziri (SBN 177384) 4 Email: svaziri@slpattorney.com (emailservices@slpattorney.com) 5 1888 Century Park East, 19th Floor Los Angeles, CA 90067 6 Telephone: (310) 929-4900 Facsimile: (310) 943-3838 7 8 Attorneys for Plaintiff: STEPHANIE HERNANDEZ 9 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 STRATEGIC LEGAL PRACTICES, APC COUNTY OF LOS ANGELES 1840 CENTURY PARK EAST, SUITE 430, LOS ANGELES, CA 90067 12 13 STEPHANIE HERNANDEZ, Case No.: 14 15 Plaintiff, Hon. Dept. 16 vs. 17 KIA MOTORS AMERICA, INC.; and DOES 1 COMPLAINT FOR VIOLATION OF through 10, inclusive, STATUTORY OBLIGATIONS 18 19 Defendants. 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, 4 STEPHANIE HERNANDEZ. 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 KIA MOTORS AMERICA, INC. ("Defendant KIA") 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 11 herein, Defendant was engaged in the business of designing, manufacturing, constructing, STRATEGIC LEGAL PRACTICES, APC 1840 CENTURY PARK EAST, SUITE 430, 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 July 16, 2015, Plaintiff entered into a warranty contract with 20 Defendant regarding a Certified Pre-Owned 2014 Kia Optima, vehicle identification number 21 KNAGN4AD7E5063158 ("Vehicle"), which was manufactured and or distributed by Defendant. 22 7. The warranty contract contained various warranties, including but not limited to 23 the bumper-bumper warranty, powertrain warranty, emission warranty, etc. A true and correct 24 copy of the warranty contract is attached hereto as Exhibit A. The terms of the express warranty 25 are described in Exhibit A and are incorporated herein. 26 8. Pursuant to the Song-Beverly Consumer Warranty Act (the "Act") Civil Code 27 sections 1790 et seq. the Subject Vehicle constitutes "consumer goods" used primarily for 28 family or household purposes, and Plaintiff has used the vehicle primarily for those purposes. 1 COMPLAINT; JURY TRIAL DEMANDED 1 Plaintiff is a "buyer" of consumer goods under the Act. Defendant is a "manufacturer" and/or 2 "distributor" under the Act. 3 9. Plaintiff justifiably revokes acceptance of the Subject Vehicle under Civil Code, 4 section 1794, et seq. by filing this Complaint and/or did so prior to filing the instant Complaint. 5 10. These causes of action arise out of the warranty obligations of in connection with 6 a motor vehicle for which issued a written warranty. 7 11. Defects and nonconformities to warranty manifested themselves within the 8 applicable express warranty period, including but not limited to, transmission defects, electrical 9 defects, engine defects, battery defects; among other defects and non-conformities. 10 12. Said defects/nonconformities substantially impair the use, value, or safety of the 11 Vehicle. STRATEGIC LEGAL PRACTICES, APC 1840 CENTURY PARK EAST, SUITE 430, LOS ANGELES, CA 90067 12 13. The value of the Subject Vehicle is worthless and/or de minimis. 13 14. Under the Song-Beverly Act, Defendant had an affirmative duty to promptly 14 offer to repurchase or replace the Subject Vehicle at the time if failed to conform the Subject 15 Vehicle to the terms of the express warranty after a reasonable number of repair attempts. 1 16 15. Defendant has failed to either promptly replace the Subject Vehicle or to promptly 17 make restitution in accordance with the Song-Beverly Act. 18 16. Under the Act, Plaintiff is entitled to reimbursement of the price paid for the 19 vehicle less that amount directly attributable to use by the Plaintiff prior to the first presentation 20 to an authorized repair facility for a nonconformity. 21 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. 3 18. Plaintiff is entitled to rescission of the contract pursuant to Civil Code, section 4 1794, et seq. 5 19. Plaintiff is entitled to recover any "cover" damages under section 1794, et seq. 6 20. Plaintiff is entitled to recover all incidental and consequential damages pursuant 7 to 1794 et seq. 8 21. Plaintiff suffered damages in a sum to be proven at trial in an amount that is not 9 less than $35,001.00. 10 22. Plaintiff is entitled to all incidental, consequential, and general damages resulting 11 from Defendants' failure to comply with its obligations under the Song-Beverly Act. STRATEGIC LEGAL PRACTICES, APC 1840 CENTURY PARK EAST, SUITE 430, LOS ANGELES, CA 90067 12 Some Portions of the Subject Vehicle’s Repair History 13 23. On or about March 6, 2019 with approximately 44,176 miles on the odometer, 14 Plaintiff presented the Subject Vehicle to Defendant’s authorized repair facility with various 15 concerns, including electrical concerns and battery concerns. The authorized repair facility 16 performed warranty repairs and represented to the plaintiff that the Subject Vehicle had been 17 repaired. 18 24. On or about May 13, 2019, with approximately 45,717 miles on the odometer, 19 Plaintiff presented the Subject Vehicle to Defendant’s authorized repair facility with various 20 concerns, including electrical concerns and battery concerns. The authorized repair facility 21 performed warranty repairs and represented to the plaintiff that the Subject Vehicle had been 22 repaired. 23 25. On or about July 3, 2019, with approximately 46,961 miles on the odometer, 24 Plaintiff presented the Subject Vehicle to Defendant’s authorized repair facility with various 25 concerns, including transmission concerns. The authorized repair facility performed warranty 26 repairs and represented to the plaintiff that the Subject Vehicle had been repaired. 27 26. On or about January 31, 2020, with approximately 51,624 miles on the odometer, 28 Plaintiff presented the Subject Vehicle to Defendant’s authorized repair facility with various 3 COMPLAINT; JURY TRIAL DEMANDED 1 concerns, including transmission concerns. The authorized repair facility performed warranty 2 repairs over the course of 19 days, which included the replacement of Plaintiff’s transmission. 3 After which, the authorized repair facility represented to the plaintiff that the Subject Vehicle 4 had been repaired. 5 27. On or about August 22, 2020, with approximately 55,180 miles on the odometer, 6 Plaintiff presented the Subject Vehicle to Defendant’s authorized repair facility with various 7 concerns, including electrical concerns, battery concerns, and transmission concerns. The 8 authorized repair facility performed warranty repairs and represented to the plaintiff that the 9 Subject Vehicle had been repaired. 10 28. Thereafter, Plaintiff continued to experience symptoms of the defects despite 11 Defendant’s representation that the various defects were repaired. STRATEGIC LEGAL PRACTICES, APC 1840 CENTURY PARK EAST, SUITE 430, LOS ANGELES, CA 90067 12 29. Plaintiff had no way of uncovering Defendant’s deception with respect to the 13 defects given that Defendant performed various diagnostics and/or undertook repairs and 14 claimed that nothing was wrong with the Subject Vehicle or that the Vehicle had been repaired. 15 30. Plaintiff discovered Defendant’s wrongful conduct alleged herein shortly before 16 filing this Complaint as the Subject Vehicle continued to exhibit symptoms of defects following 17 Defendant’s unsuccessful attempts to repair them. However, Defendant failed to provide 18 restitution pursuant to the Song-Beverly Consumer Warranty Act 19 TOLLING OF THE STATUTES OF LIMITATION 20 31. To the extent there are any statutes of limitation applicable to Plaintiff's claims- 21 including, without limitation, the express warranty, implied warranty, and negligent repair – the 22 running of the limitation periods have been tolled by, inter alia, the following doctrines or rules: 23 equitable tolling, the discovery rule, the fraudulent concealment rules, equitable estoppel, the 24 repair rule, and/or class action tolling (e.g., the American Pipe rule). 25 32. Plaintiff discovered Defendant's wrongful conduct alleged herein shortly before 26 filing this Complaint as the Subject Vehicle continued to exhibit symptoms of defects following 27 Defendant's unsuccessful attempts to repair them. However, Defendant failed to provide 28 restitution pursuant to the Song-Beverly Consumer Warranty Act. 4 COMPLAINT; JURY TRIAL DEMANDED 1 A. Class Action Tolling 2 33. Under the tolling rule articulated in Am. Pipe & Const. Co. v. Utah, 414 U.S. 538, 3 94 S. Ct. 756, 38 L. Ed. 2d 713 (1974) (“American Pipe”), the filing of a class action lawsuit in 4 federal court tolls the statute of limitations for the claims of unnamed class members until the 5 class certification issue is resolved. In applying American Pipe tolling to California cases, the 6 California Supreme Court summarized the tolling rule derived from American Pipe and stated 7 that the statute of limitations is tolled from the time of commencement of the suit to the time of 8 denial of certification for all purported members of the class. Jolly v. Eli Lilly & Co., 44 Cal.3d 9 1103, 1119 (1988). Tolling lasts from the day a class claim is asserted until the day the suit is 10 conclusively not a class action. Falk v. Children's Hosp. Los Angeles, 237 Cal. App. 4th 1454, 11 1464 (2015). STRATEGIC LEGAL PRACTICES, APC 1840 CENTURY PARK EAST, SUITE 430, LOS ANGELES, CA 90067 12 34. The tolling of Plaintiff’s individual statute of limitations encourages the protection 13 of efficiency and economy in litigation as promoted by the class action devise, so that putative 14 class members would not find it necessary to seek to intervene or to join individually because of 15 fear the class might never be certified or putative class members may subsequently seek to request 16 exclusion. 17 B. Discovery Rule Tolling 18 35. Plaintiff had no way of knowing about Defendant’s deception with respect to the 19 defect until the defect manifested itself and Defendant was unable to repair it after a reasonable 20 number of repair attempts. 21 36. Within the time period of any applicable statutes of limitation, Plaintiff could not 22 have discovered through the exercise of reasonable diligence that Defendant were concealing the 23 defect and conduct complained of herein and concealing the companies’ true position with respect 24 to the defect. 25 37. Defendant was under a continuous duty to disclose to Plaintiff the true character, 26 quality, and nature of the Vehicles suffering from the defect, and the inevitable repairs, costs, 27 time, and monetary damage resulting from the defects. 28 5 COMPLAINT; JURY TRIAL DEMANDED 1 38. Plaintiff did not discover, and did not know of, facts that would have caused a 2 reasonable person to suspect that Defendants had concealed information about the defect in 3 Defendants’ Vehicles prior to and at the time of sale and thereafter, which was discovered by 4 Plaintiff shortly prior to the filing of this Complaint. 5 C. The Repair Doctrine 6 39. The statute of limitations is tolled by various unsuccessful attempts to repair the 7 vehicle.1 8 40. Additionally, the limitations period for warranty claims is tolled against a 9 defendant whenever that defendant claims that the defect is susceptible to repair and attempts to 10 repair the defect.2 11 41. Here, Defendant (and its dealership) undertook to perform various repair measures. STRATEGIC LEGAL PRACTICES, APC 1840 CENTURY PARK EAST, SUITE 430, LOS ANGELES, CA 90067 12 During the time in which Defendant represented to Plaintiff that the Subject Vehicle was fixable 13 and attempted to fix it, the warranty period may have thus been tolled. 14 D. Fraudulent Concealment Tolling (Estoppel) 15 42. Separately, the statute of limitations is equitably tolled due to Defendant’s 16 fraudulent conduct alleged herein.3 17 43. Defendant (and its agents, representatives, officers, directors, employees, 18 affiliates, and/or dealerships) concealed the defects, minimized the scope, cause, and dangers of 19 the defects with inadequate TSBs and/or Recalls, and refused to investigate, address, and remedy 20 the defects as it pertains. 21 44. By filing this Complaint, Plaintiff hereby revokes acceptance of the Subject 22 Vehicle yet again. 23 FIRST CAUSE OF ACTION 24 BY PLAINTIFF AGAINST DEFENDANT KIA 25 VIOLATION OF SUBDIVISION (D) OF CIVIL CODE SECTION 1793.2 26 45. Plaintiff incorporates by reference the allegations contained in the paragraphs set 27 forth above. 28 6 COMPLAINT; JURY TRIAL DEMANDED 1 46. Defendant and its representatives in this state have been unable to service or repair 2 the Vehicle to conform to the applicable express warranties after a reasonable number of 3 opportunities. Despite this fact, Defendant failed to promptly replace the Vehicle or make 4 restitution to Plaintiff as required by Civil Code section 1793.2, subdivision (d) and Civil Code 5 section 1793.1, subdivision (a)(2). 6 47. Plaintiff has been damaged by Defendant's failure to comply with its obligations 7 pursuant to Civil Code section 1793.2, subdivision (d) and Civil Code section 1793.1, subdivision 8 (a)(2), and therefore brings this cause of action pursuant to Civil Code section 1794. 9 48. Defendant's failure to comply with its obligations under Civil Code section 1793.2, 10 subdivision (d) was willful, in that Defendant and its representative were aware that they were 11 unable to service or repair the Vehicle to conform to the applicable express warranties after a STRATEGIC LEGAL PRACTICES, APC 1840 CENTURY PARK EAST, SUITE 430, LOS ANGELES, CA 90067 12 reasonable number of repair attempts, yet Defendant failed and refused to promptly replace the 13 Vehicle or make restitution. Accordingly, Plaintiff is entitled to a civil penalty of two times 14 Plaintiff's actual damages pursuant to Civil Code section 1794, subdivision (c). 15 49. Defendant does not maintain a qualified third-party dispute resolution process 16 which substantially complies with Civil Code section 1793.22. Accordingly, Plaintiff is entitled 17 to a civil penalty of two times Plaintiff's actual damages pursuant to Civil Code section 1794, 18 subdivision (e). 19 50. Plaintiff seeks civil penalties pursuant to section 1794, subdivisions (c), and (e) in 20 the alternative and does not seek to cumulate civil penalties, as provided in Civil Code section 21 1794, subdivision (e). 22 SECOND CAUSE OF ACTION 23 BY PLAINTIFF AGAINST DEFENDANT KIA 24 VIOLATION OF SUBDIVISION (B) OF CIVIL CODE SECTION 1793.2 25 51. Plaintiff incorporates by reference the allegations contained in the paragraphs set 26 forth above. 27 52. Although Plaintiff presented the Vehicle to Defendant's representative in this state, 28 Defendant and its representative failed to commence the service or repairs within a reasonable 7 COMPLAINT; JURY TRIAL DEMANDED 1 time and failed to service or repair the Vehicle so as to conform to the applicable warranties within 2 30 days, in violation of Civil Code section 1793.2, subdivision (b). Plaintiff did not extend the 3 time for completion of repairs beyond the 30-day requirement. 4 53. Plaintiff has been damaged by Defendant's failure to comply with its obligations 5 pursuant to Civil Code section 1793.2(b), and therefore brings this Cause of Action pursuant to 6 Civil Code section 1794. 7 54. Plaintiff has rightfully rejected and/or justifiably revoked acceptance of the 8 Vehicle and has exercised a right to cancel the purchase. By serving this Complaint, Plaintiff 9 does so again. Accordingly, Plaintiff seeks the remedies provided in California Civil Code section 10 1794(b)(1), including the entire contract price. In the alternative, Plaintiff seeks the remedies set 11 forth in California Civil Code section 1794(b)(2), including the diminution in value of the Vehicle STRATEGIC LEGAL PRACTICES, APC 1840 CENTURY PARK EAST, SUITE 430, LOS ANGELES, CA 90067 12 resulting from its defects. 13 55. Plaintiff believes that, at the present time, the Vehicle's value is worthless and/or 14 de minimis. 15 56. Defendant's failure to comply with its obligations under Civil Code section 16 1793.2(b) was willful, in that Defendant and its representative were aware that they were obligated 17 to service or repair the Vehicle to conform to the applicable express warranties within 30 days, 18 yet they failed to do so. Accordingly, Plaintiff is entitled to a civil penalty of two times Plaintiff's 19 actual damages pursuant to Civil Code section 1794(c). 20 THIRD CAUSE OF ACTION 21 BY PLAINTIFF AGAINST DEFENDANT KIA 22 VIOLATION OF SUBDIVISION (A)(3) OF CIVIL CODE SECTION 1793.2 23 57. Plaintiff incorporates by reference the allegations contained in paragraphs set forth 24 above. 25 58. In violation of Civil Code section 1793.2, subdivision (a)(3), Defendant failed to 26 make available to its authorized service and repair facilities sufficient service literature and 27 replacement parts to effect repairs during the express warranty period. Plaintiff has been damaged