Motion for Writ in Karlin vs Ford Motor Company, et al| Trellis.Law

On April 19, 2024 a Complaint,Petition was filed involving a dispute between Karlin, Howard, and Ford Motor Company, Haidlen Ford Mercury, for (06) Unlimited Breach of Contract/Warranty in the District Court of Calaveras County.

Preview
Tionna Carvalho (SBN 299010)
Email: tearvalho@slpattorney.com
FILED 4/19/2024
Sanam Vaziri (SBN 177384)
Email: svaziri@slpattorney.com
(emailservices@slpattorney.com) Margaret L. Smith,
Clete of the Court
Strategic Legal Practices, APC
1888 Century Park East, 19" Floor
Superior Ci
‘County
.
gee
By
Los Angeles, CA 90067 Electronically Filed
Telephone: (310) 929-4900
Facsimile: (310) 943-3838

Attorney for Plaintiff:
HOWARD KARLIN

SUPERIOR COURT OF THE STATE OF CALIFORNIA

10 COUNTY OF CALAVERAS

HOWARD KARLIN, Case No.:
24CV47330
12

13 Plaintiff, Hon.
Dept.
14
vs.

15
FORD MOTOR COMPANY; HAIDLEN COMPLAINT FOR VIOLATION OF
16 FORD MERCURY; and DOES | through 10, STATUTORY OBLIGATIONS
inclusive,
17
Defendants. JURY TRIAL DEMANDED
18

COMPLAINT; JURY TRIAL DEMANDED
Plaintiff alleges as follows:

PARTIES

1 As used in this Complaint, the word "Plaintiff" shall refer to Plaintiff HOWARD

KARLIN.

2 Plaintiff is a resident of Calaveras 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
a.
12 the business of designing, manufacturing, constructing, assembling, marketing, distributing, and

13 selling automobiles and other motor vehicles and motor vehicle components in Calaveras

14 County, California.

15 5 Defendant HAIDLEN FORD MERCURY ("HAIDLEN") 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 Stanislaus County, California.

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 TOLLING OF THE STATUTES OF LIMITATION
7
24 To the extent there are any statutes of limitation applicable to Plaintiff's claims-

25 including, without limitation, the express warranty, implied warranty, and negligent repair— the

26 running of the limitation periods have been tolled by, inter alia, the following doctrines or rules:

27 equitable tolling, the discovery rule, the fraudulent concealment rules, equitable estoppel, the

28 repair rule, and/or class action tolling (e.g., the American Pipe rule).

1
COMPLAINT; JURY TRIAL DEMANDED
8 Plaintiff discovered Defendant's wrongful conduct alleged herein shortly before

the filing of the complaint, as the Vehicle continued to exhibit symptoms of defects following

FMC's unsuccessful attempts to repair them. However, FMC failed to provide restitution pursuant

to the Song — Beverly Consumer Warranty Act.

FACTUAL BACKGROUND

9 On or about September 17, 2022, Plaintiff entered into a warranty contract with

Defendant FMC regarding a Certified Pre-Owned 2020 Ford F150, vehicle identification

number 1FTEWI1ES4LFA29890 (hereafter "Vehicle"), which was manufactured and/or

distributed by Defendant FMC.

10 10. The warranty contract contained various warranties, including but not limited to

11 the bumper-bumper warranty, powertrain warranty, emission warranty, etc. A true and correct
a.
12 copy of the warranty contract is attached hereto as Exhibit A. The terms of the express warranty

13 are described in Exhibit A and are incorporated herein.

14 ll. Pursuant to the Song-Beverly Consumer Warranty Act (the "Act") Civil Code

15 sections 1790 et seq. the Subject Vehicle constitutes "consumer goods" used primarily for

16 family or household purposes, and Plaintiff has used the vehicle primarily for those purposes.

17 Plaintiffis a "buyer" of consumer goods under the Act. Defendant FMC is a "manufacturer" and/or

18 "distributor" under the Act.

19 12. Plaintiff justifiably revoke acceptance of the Subject Vehicle under Civil Code,

20 section 1794, et seq. by filing this Complaint and/or did so prior to filing the instant Complaint.

21 13. These causes of action arise out of the warranty obligations of FMC in connection

22 with a motor vehicle for which FMC issued a written warranty.

23 14. Defects and nonconformities to warranty manifested themselves within the

24 applicable express warranty period, including but not limited to, transmission defects, electrical

25 defects; among other defects and non-conformities.

26 15. Said defects/nonconformities substantially impair the use, value, or safety of the

27 Vehicle.

28 16. The value of the Vehicle is worthless and/or de minimis.

2
COMPLAINT; JURY TRIAL DEMANDED
17. Under the Song-Beverly Act, Defendant FMC had an affirmative duty to

promptly offer to repurchase or replace the Subject Vehicle at the time it failed to conform the

Subject Vehicle to the terms of the express warranty after a reasonable number of repair

attempts. !

18. Defendant FMC has failed to either promptly replace the Subject Vehicle or to

promptly make restitution in accordance with the Song-Beverly Act.

19. 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.

10 20. Plaintiff is entitled to replacement or reimbursement pursuant to Civil Code,

11 section 1794, et seq. Plaintiff is entitled to rescission of the contract pursuant to Civil Code,
a.
12 section 1794, et seq.

13 21. Plaintiff is entitled to recover any "cover" damages under Civil Code, section

14 1794, et seq.

15 22. Plaintiff is entitled to recover all incidental and consequential damages pursuant

16 to Civil Code, section 1794 et seq.

17 23. Plaintiff suffered damages in a sum to be proven at trial in an amount that is not

18 less than $35,001.00.

19 24. Plaintiffis entitled to all incidental, consequential, and general damages resulting

21
‘A manufacturer's duty to repurchase a vehicle does not depend on a consumer's
22 request, but instead 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,
23 301-302, 45 Cal.Rptr.2d 10.) Chrysler performed the bridge operation on Santana's vehicle in
August 2014 with 30,262 miles on the odometer—within the three-year, 36,000 mile warranty.
24 The internal e-mails demonstrating Chrysler's awareness of the safety risks inherent in the
bridge operation were sent in September 2013, and thus Chrysler was well aware of the problem
25 when it performed the bridge operation on Santana's vehicle. Thus, Chrysler's duty to repurchase
or provide restitution arose prior to the expiration of the three-year, 36,000 mile warranty.
26 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
27 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
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. Sth 334, 270 Cal. Rptr. 3d 335
(2020).
3
COMPLAINT; JURY TRIAL DEMANDED
from Defendant's failure to comply with its obligations under the Song-Beverly Act.

Defendant FMC Had Superior and/or Exclusive Knowledge of the Transmission Defect

25. Prior to Plaintiff purchasing the Vehicle, Defendant FMC knew that vehicles

equipped with the same 10-speed transmission as the Vehicle suffered from one or more defects

that can cause the vehicles and their 10-speed transmissions to experience hesitation and/or

delayed acceleration; harsh and/or hard shifting; jerking, shuddering, and/or juddering

("Transmission Defect").

26. Plaintiff is informed and believe, and thereon allege, that Defendant acquired this

knowledge prior to Plaintiff purchasing the Vehicle through various sources of information,

10 including but not limited to pre-production testing, pre-production design failure mode and

11 analysis data, production failure mode and analysis data, early consumer complaints made
a.
12 exclusively to Ford's network of dealers and directly to Ford, aggregate warranty data compiled

13 from Ford's network of dealers, testing conducted by Ford in response to consumer complaints,

14 and repair order and parts data received by Ford from Ford's network of dealers.

15 27. As a result of this internal knowledge and investigations, Defendant FMC

16 subsequently issued technical service bulletins ("TSBs") concerning the Transmission Defect.

17 28. For example, on or about March 2, 2018, Defendant FMC issued TSB 18-2079,

18 entitled "10R80 Automatic Transmission — Harsh or Delayed Shift Concerns And/Or

19 Illuminated MIL — DTC P0711 — Built On or Before 1-Aug-2017," which covers 2017 F-150

20 vehicles equipped with a 10R80 automatic transmission (the same type of transmission in the

21 Subject Vehicle). According to the TSB, "[s]ome 2017 F-150/Raptor vehicles equipped with a

22 10R80 automatic transmission built on or before 1-Aug-2017 may exhibit harsh or delayed

23 shifts and/or an illuminated malfunction indicator lamp (MIL) with diagnostic trouble code

24 (DTC) P0711 stored in the transmission control module (TCM)."

25 III

26 III

27 III

28 III

4
COMPLAINT; JURY TRIAL DEMANDED
TECHNICAL SERVICE BULLETIN 18-2079
10R80 Automatic Transmission — Harsh Or Delayed Shift Concerns 02 March
And/Or Illuminated MIL - DTC P0711 - Built On Or Before 1-Aug-2017 2018

Model:
Ford
2017 F-150

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
diagnostic trouble code (DTC) P0711 stored in the transmission control module (TCM).
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
ente: ring
‘ module pr rogramming to obtain the latest updates. Calibration files may also be obtained at
www. rvice.com.
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 by a TSB.
Warranty/ESP coverage limits are determined by the identified causal part and verified using the OASIS part
coverage tool.
10
Labor Times
11 Operation
a. Description Time
No.
12 2017 F-150 3.5L GTDI: Retrieve DTCs And Reprogram The PCM (Do Not Use With 182079A 03
Any Other Labor Operations) Hrs.
13
Repair/Claim Coding
14 Causal Part: RECALEM
Condition Code: | 04
15
g Service Procedure
16 NOTE: ADVISE THE CUSTOMER THAT THIS VEHICLE IS EQUIPPED WITH AN ADAPTIVE TRANSMISSION
SHIFT STRATEGY WHICH ALLOWS THE VEHICLE'S COMPUTER TO LEARN THE TRANSMISSION'S
17 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
IN FIRMER THAN NORMAL UPSHIFTS AND DOWNSHIFTS FOR SEVERAL DAYS.
18

19 29. In TSB 18-2079, Defendant FMC attributed the transmission issues to problems

20 with the vehicles' powertrain control module ("PCM")—specifically, to problems with the

21 vehicles’ mn adaptive transmission shift strategy which allows the vehicle's computer to learn the

22 transmission's unique parameters and improve shift quality."

23 30. Then, on or about September 7, 2018, Defendant FMC issued TSB 18-2274,

24 entitled "2.7L/3.5L/5.0L Engine And 10R80 Transmission - Harsh/Bumpy Shift And/Or

25 Engagement Concerns - Built On Or Before 15-May-2018[,]" which covers 2018 F-150

26 vehicles. According to the TSB, "[s]ome 2018 F-150 vehicles equipped with a 2.7L, 3.5L or

27 5.0L engine and 10R80 automatic transmission and built on or before 15-May 2018 may exhibit

28 harsh/bumpy upshift, downshift and/or engagement concerns. Follow the Service Procedure

5
COMPLAINT; JURY TRIAL DEMANDED
1 steps to correct the condition."

TECHNICAL SERVICE BULLETIN 18-2274
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

Model:
Ford
|2018 F-150

Issue: Some 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 harsh/bumpy upshift, downshift and/or engagement concerns.
Action: Follow the Service Procedure steps to correct the condition.
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.
Labor Times

10 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
11 Operations) rs.
a.
12 Repair/Claim Coding
Causal Part: RECAL
13 ‘Condition Code: |04

14 Service Procedure
41. Check the vehicle build date. Was the vehicle built on or before 15-May-2018?
15 (1), Yes - reprogram the powertrain contro! module (PCM) using the latest version of the appropriate Ford scan
g
16 +. 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-
17 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.
18

19 31. Like TSB 18-2079, TSB 18-02274 attributed the transmission issues to problems

20 with the vehicles' PCM—specifically, to problems with the vehicles on adaptive transmission

21 shift strategy which allows the vehicle's computer to learn the transmission's unique parameters

22 and improve shift quality."

23 32. Then, on September 27, 2021, Defendant issued TSB 21-2315, entitled "10R80

24 — Harsh Engagement/Harsh Shift/Delayed Shift With or Without DTCs", which covers 2017 —

25 2020 Ford vehicles, including the Subject Vehicle. The TSB advised that "Some 2017-20220

26 F-150 vehicles equipped with a 10R80 automatic transmission may exhibit a harsh

27 engagement/harsh shift/delayed shift...This may be due to incompatibility of the adaptive

28 calibration to adapt to hardware wear-in over time. To correct the condition, follow the Service

6
COMPLAINT; JURY TRIAL DEMANDED
1 Procedure steps to overhaul the main control valve body and/or perform an adaptive learning

drive cycle."

10R80 - Harsh Engagement/Harsh Shift/Delayed Shift With Or Without DTCs
Vehicle > Technical Service Bulletins > 1ORAD- Harsh Engagement/Harsh ShifyDelayed Shift With Or Withaut OTS

TECHNICAL SERVICE BULLETIN, . aaa
‘ORED- Harsh Engagement/Harsh Shif\/Delayed Shift With Or Without DTCs 27 September 2021
Moet
Ferd [ranemission Transaxle: (1020)
l2ate.2021 expeatior
baat7-2020 F150 [Feanamiasion/Transade:10R00]
feave-2021 Mustang [Transmission/ Transaxle: (10760)
loove-2021 Ranger [Transmissions Transaxle: (10820)
iUneoln iransmission/Transaxd:(10%20}
(2018-2021 Navigator
Issue: So oor: 20 F150,201 2021 Exsedition Navigator/Mustang and 2019-2021 Rar icles equipped witha 1OR60 automat rensmission may exhibit @harsh engegement/harsh shi syed shit.
Itis poss .eicle may also ohave an ilumineted malfunction indicator lamp (MIL) di sw wouble cod 0) PO7SI, PO 'PO7S6, PO7ST, PO76!, PO762, P0765, PO767, TTI, POT72. P2701,
10 2702 2702, P2704, P27O, 108, P0729, PO731, P0732, POT30, POT34, PO: 0795, POT6F PO7DS, andlor POTF7 st din the powerain contol module (PCM) or transmission. module
(TOM). This may b Jet0 ins ofthe adaptive calistetion to adapt to fe wearin overtime. To correct the condition fel ow the Service Procecure steps to overhaul
the main control valve body
end perform an edeniveleaming dive cycle
11 ‘Action: Follow the Sarvs Procedure steps to core the constion on vehicles that meet allof the following erteria:
a. * One of the following vehicles
12 2017-2020 F-150
- 2018-2021 Expedition/Navigator/Mustang
13 - 2019-2021 Ranger
+ 10R80 automatic transmission
+ At least one of the following symptoms
14 Harsh engagement
Harsh shitt
15 Delayed shift
g
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
16 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

17 33. Like TSBs 18-2079 and 18-02274, TSB 21-2315 attributed the transmission

18 issues to similar "adaptive calibration" shift learning issues and the 10-speed Transmission.

19 34. However, they fail to fix the transmission defects which affects the subject

20 vehicle.

21 35. Plaintiff would not have purchased the Subject Vehicle, or would have paid less

22 for it, had Plaintiff known of the Transmission Defect, given the unsafe nature of the Defect.

23 Furthermore, Plaintiff unknowingly exposed themselves to the risk of accident, injury, and/or

24 liability to others as a result of the nature or the Transmission Defect, which can lead to

25 hesitation, loss of power, and other shifting issues while driving at highway speeds. Plaintiff is

26 a reasonable consumers who expected the Subject Vehicle to be safe and free of defects, and

27 that Defendant FMC would not sell or lease vehicles with known safety-related defects, such as

28 the Transmission Defect, and would disclose any such defects to its consumers when it learns

7
COMPLAINT; JURY TRIAL DEMANDED
of them.

36. Although it has been fully aware of the Transmission Defect, Defendant FMC

actively concealed the existence and nature of the Defect from Plaintiff at the time of purchase,

repair, and thereafter.

FIRST CAUSE OF ACTION

BY PLAINTIFF AGAINST DEFENDANT FMC

VIOLATION OF SUBDIVISION (D) OF CIVIL CODE SECTION 1793.2

37. Plaintiff incorporates by reference the allegations contained in the paragraphs set

forth above.

10 38. Defendant FMC and its representatives in this state have been unable to service

11 or repair the Vehicle to conform to the applicable express warranties after a reasonable number
a.
12 of opportunities. Despite this fact, Defendant FMC failed to promptly replace the Vehicle or

13 make restitution to Plaintiff as required by Civil Code section 1793.2, subdivision (d) and Civil

14 Code section 1793.1, subdivision (a)(2).

15 39. Plaintiff has been damaged by Defendant FMC's failure to comply with its

16 obligations pursuant to Civil Code section 1793.2, subdivision (d) and Civil Code section

17 1793.1, subdivision (a)(2), and therefore bring this cause of action pursuant to Civil Code

18 section 1794.

19 40. Defendant FMC's failure to comply with its obligations under Civil Code section

20 1793.2, subdivision (d) was willful, in that Defendant FMC and its representative were aware

21 that they were unable to service or repair the Vehicle to conform to the applicable express

22 warranties after a reasonable number of repair attempts, yet Defendant FMC failed and refused

23 to promptly replace the Vehicle or make restitution. Accordingly, Plaintiff is entitled to a civil

24 penalty of two times Plaintiff's actual damages pursuant to Civil Code section 1794, subdivision

25 (c).
26 Al. Defendant FMC does not maintain a qualified third-party dispute resolution

27 process which substantially complies with Civil Code section 1793.22. Accordingly, Plaintiff

28 is entitled to a civil penalty of two times Plaintiffs' actual damages pursuant to Civil Code

8
COMPLAINT; JURY TRIAL DEMANDED
section 1794, subdivision (e).

42. Plaintiff seeks civil penalties pursuant to Civil Code, section 1794, subdivisions

(c), and (e) in the alternative and does not seek to cumulate civil penalties, as provided in Civil

Code section 1794, subdivision (e).

SECOND CAUSE OF ACTION

BY PLAINTIFF AGAINST DEFENDANT FMC

VIOLATION OF SUBDIVISION (B) OF CIVIL CODE SECTION 1793.2

43. Plaintiff incorporates by reference the allegations contained in the paragraphs set

forth above.

10 44. Although Plaintiff presented the Vehicle to Defendant FMC's representative in

11 this state, Defendant FMC and its representative failed to commence the service or repairs
a.
12 within a reasonable time and failed to service or repair the Vehicle so as to conform to the

13 applicable warranties within 30 days, in violation of Civil Code section 1793.2, subdivision (b).

14 Plaintiff
did not extend the time for completion of repairs beyond the 30-day requirement.

15 45. Plaintiff has been damaged by Defendant FMC's failure to comply with its

16 obligations pursuant to Civil Code section 1793.2(b), and therefore bring this Cause of Action

17 pursuant to Civil Code section 1794.

18 46. Plaintiff has rightfully rejected and/or justifiably revoked acceptance of the

19 Vehicle and has exercised a right to cancel the purchase. By serving this Complaint, Plaintiff

20 did so again. Accordingly, Plaintiff seeks the remedies provided in California Civil Code

21 section 1794(b)(1), including the entire contract price. In the alternative, Plaintiff seeks the

22 remedies set forth in California Civil Code section 1794(b)(2), including the diminution in value

23 of the Vehicle resulting from its defects. Plaintiff believes that, at the present time, the Vehicle's

24 value is de minimis.

25 47. Defendant FMC's failure to comply with its obligations under Civil Code section

26 1793.2(b) was willful, in that Defendant FMC and its representative were aware that they were

27 obligated to service or repair the Vehicle to conform to the applicable express warranties within

28 30 days, yet they failed to do so. Accordingly, Plaintiffis entitled to a civil penalty of two times

9
COMPLAINT; JURY TRIAL DEMANDED
Plaintiff's actual damages pursuant to Civil Code section 1794(c).

THIRD CAUSE OF ACTION

BY PLAINTIFF AGAINST DEFENDANT FMC

VIOLATION OF SUBDIVISION (A)(3) OF CIVIL CODE SECTION 1793.2

48. Plaintiff incorporates by reference the allegations contained in paragraphs set

forth above.

49. In violation of Civil Code section 1793.2, subdivision (a)(3), Defendant FMC

failed to make available to its authorized service and repair facilities sufficient service literature

and replacement parts to effect repairs during the express warranty period. Plaintiff has been

10 damaged by Defendant FMC's failure to comply with its obligations pursuant to Civil Code

11 section 1793.2(a)(3), and therefore bring this Cause of Action pursuant to Civil Code section
a.
12 1794.

13 50. Defendant FMC's failure to comply with its obligations under Civil Code section

14 1793.2, subdivision (a)(3) was wilful, in that Defendant FMC knew of its obligation to provide

15 literature and replacement parts sufficient to allow its repair facilities to effect repairs during

16 the warranty period, yet Defendant FMC failed to take any action to correct its failure to comply

17 with the law. Accordingly, Plaintiff is entitled to a civil penalty of two times Plaintiff's actual

18 damages, pursuant to Civil Code section 1794(c).

19 FOURTH CAUSE OF ACTION

20 BY PLAINTIFF AGAINST DEFENDANT FMC

21 BREACH OF THE IMPLIED WARRANTY OF MERCHANTABILITY

22 (CIV. CODE, § 1791.1; § 1794; § 1795.5)
23 51. Plaintiff incorporates by reference the allegations contained in the paragraphs set

24 forth above.

25 52. Pursuant to Civil Code section 1792, the sale of the Vehicle was accompanied

26 by Defendant FMC's implied warranty of merchantability. Pursuant to Civil Code section

27 1791.1, the duration of the implied warranty is coextensive in duration with the duration of the

28 express written warranty provided by Defendant FMC, except that the duration is not to exceed

10
COMPLAINT; JURY TRIAL DEMANDED
one-year.

53. Pursuant to Civil Code section 1791.1 (a), the implied warranty of

merchantability means and includes that the Vehicle will comply with each of the following

requirements: (1) The Vehicle will pass without objection in the trade under the contract

description; (2) The Vehicle is fit for the ordinary purposes for which such goods are used; (3)

The Vehicle is adequately contained, packaged, and labelled; (4) The Vehicle will conform to

the promises or affirmations of fact made on the container or label.

54. The subject vehicle was sold with one or more latent defect(s) set forth above.

The existence of the said latent defect(s)constitutes a breach of the implied warranty because

10 the Vehicle (1) does not pass without objection in the trade under the contract description, (2)

11 is not fit for the ordinary purposes for which such goods are used, (3) is not adequately
a.
12 contained, packaged, and labelled, and (4) does not conform to the promises or affirmations of

13 fact made on the container or label.

14 55. Plaintiff has been damaged by Defendant FMC's failure to comply with its

15 obligations under the implied warranty, and therefore bring this Cause of Action pursuant to

16 Civil Code section 1794.

17 FIFTH CAUSE OF ACTION

18 BY PLAINTIFF AGAINST DEFENDANT FMC

19 (Fraudulent Inducement - Concealment)

20 56. Plaintiff incorporates by reference the allegations contained in the paragraphs set

21 forth above.

22 57. Plaintiff purchased the Vehicle as manufactured with Defendant's 10-Speed

23 automatic transmission.

24 58. Defendant FMC committed fraud by allowing the Subject Vehicle to be sold to

25 Plaintiff without disclosing that the Subject Vehicle and its transmission was defective and

26 susceptible to sudden and premature failure.

27 59. In particular, the Plaintiff is informed, believe and thereon allege that prior to

28 Plaintiff acquiring the Vehicle, FMC was well aware and knew that the transmission installed in

ll
COMPLAINT; JURY TRIAL DEMANDED
the Vehicle was defective but failed to disclose this fact to the Plaintiff at the time of the sale and

thereafter.

60. Specifically, Defendant FMC knew that vehicles equipped with the same 10-speed

transmission as the Vehicle suffered from one or more defects that can cause the vehicles and

their 10-speed transmissions to experience hesitation and/or delayed acceleration; harsh and/or

hard shifting; jerking, shuddering, and/or juddering ("Transmission Defect"). These conditions

present a safety hazard and are unreasonably dangerous to consumers because they can suddenly

and unexpectedly affect the driver's ability to control the vehicle's speed, acceleration,

deceleration, and/ or overall responsiveness of the vehicle in various driving conditions.

10 61. Plaintiff is informed, believe and thereon allege that FMC acquired its knowledge

11 of the Transmission Defect prior to Plaintiff acquiring the Subject Vehicle, through sources not
a.
12 available to consumers such as Plaintiff, including but not limited to pre-production and post-

13 production testing data, early consumer complaints about the transmission defect made directly

14 to FMC and its network of dealers, aggregate warranty data compiled from FMC's network of

15 dealers, testing conducted by FMC in response to these complaints, as well warranty repair and

16 part replacements data received by FMC from FMC's network of dealers, amongst other sources

17 of internal information.

18 62. Plaintiffis informed, believe, and thereon allege that while Defendant knew about

19 the Transmission Defect, and its safety risks, Defendant nevertheless concealed and failed to

20 disclose the defective nature of the Vehicle and its transmission to Plaintiff at the time of sale,

21 repair, and thereafter. Had Plaintiff known that the Subject Vehicle suffered from the

22 Transmission Defect, they would not have purchased the Subject Vehicle.

23 63. Indeed, Plaintiff alleges that Defendant knew that the Vehicle and its transmission

24 suffered from an inherent defect, was defective, would fail prematurely, and was not suitable for

25 its intended use.

26 64. Defendant FMC was under a duty to Plaintiff to disclose the defective nature of

27 the Subject Vehicle and its transmission, its safety consequences and/or the associated repair costs

28 because:

12
COMPLAINT; JURY TRIAL DEMANDED
a. Defendant FMC acquired its knowledge of the Transmission

Defect and its potential consequences prior to Plaintiff acquiring the Vehicle,

through sources not available to consumers such as Plaintiff, including but not

limited to pre-production testing data, early consumer complaints about the

Transmission Defect made directly to Defendant FMC and its network of dealers,

aggregate warranty data compiled from Defendant FMC's network of dealers,

testing conducted by Defendant FMC in response to these complaints, as well as

warranty repair and part replacements data received by Defendant FMC from

Defendant FMC's network of dealers, amongst other sources of internal

10 information;

11 b. Defendant FMC was in a superior position from various internal
a.
12 sources to know (or should have known) the true state of facts about the material

13 defects contained in vehicle equipped with the defective transmission; and;

14 Cc As early as January 2018, Consumers who purchased vehicles

15 equipped with Ford's 10-speed transmission have been complaining about the

16 transmission defect; and

17 d Plaintiff could not reasonably have been expected to learn or

18 discover of the Vehicle's Transmission Defect and its potential consequences

19 until well after Plaintiff purchased the Vehicle.

20 65. In failing to disclose the defects in the Vehicle's transmission, Defendant FMC has

21 knowingly and intentionally concealed material facts and breached its duty not to do so.

22 66. The facts concealed or not disclosed by Defendant FMC to Plaintiff are material

23 in that a reasonable person would have considered them to be important in deciding whether or

24 not to purchase the Subject Vehicle. Had Plaintiff known that the Subject Vehicle and its

25 transmissions were defective at the time of sale, they would not have purchased the Subject

26 Vehicle.

27 67. Plaintiff is a reasonable consumer who does not expect his transmission to fail

28 and do not properly. Plaintiff further expects and assume that Defendant FMC will not sell or

13
COMPLAINT; JURY TRIAL DEMANDED
lease vehicles with know material defect, including but not limited to those involving the

vehicle's transmission and will disclose any such defect to it's consumer before selling such

vehicle.

68. Plaintiff only became suspicious that the Vehicle suffered from the transmission

defect after presenting the Vehicle to Defendant for a reasonable number of repair attempt to

no avail.

69. As a result of Defendant FMC's misconduct, Plaintiff has suffered and will

continue to suffer actual damages.

70. Plaintiff
was harmed by purchasing a vehicle that Plaintiff would not have leased

10 and/or purchased had Plaintiff known the true facts about the Transmission Defect.

11 Furthermore, Plaintiff unknowingly exposed themselves to the risk of liability, accident and
a.
12 injury as a result of Defendant's fraudulent concealment of the Transmission Defect.

13 71. Plaintiff
was harmed by purchasing a vehicle that Plaintiff would not have leased

14 and/or purchased had Plaintiff known the true facts about the Transmission Defect.

15 Furthermore, Plaintiff unknowingly exposed themselves to the risk of liability, accident and

16 injury as a result of Defendant's fraudulent concealment of the Transmission Defect.

17 SIXTH CAUSE OF ACTION

18 BY PLAINTIFF AGAINST DEFENDANT HAIDLEN

19 NEGLIGENT REPAIR

20 72. Plaintiff incorporates by reference the allegations contained in the paragraphs set

21 forth above.

22 23. Plaintiff delivered the Subject Vehicle to Defendant HAIDLEN for substantial

23 repair on at least one occasion.

24 74. Defendant HAIDLEN owed a duty to Plaintiff to use ordinary care and skill in

25 storage, preparation and repair of the Subject Vehicle in accordance with industry standards.

26 75. Defendant HAIDLEN breached its duty to Plaintiffto use ordinary care and skill

27 by failing to properly store, prepare and repair the Subject Vehicle in accordance with industry

28 standards.

14
COMPLAINT; JURY TRIAL DEMANDED
76. Defendant HAIDLEN's negligent breach of its duties owed to Plaintiff was a

proximate cause of Plaintiffs damages.

PRAYER

PLAINTIFF PRAYS for judgment against Defendants as follows:

For general, special and actual damages according to proof;

For restitution;

For any consequential and incidental damages;

For diminution in value;

For a civil penalty in the amount of two times Plaintiff's actual damages

10 pursuant to Civil Code section 1794, subdivision (c) or (e);

11 For prejudgment interest at the legal rate;
a.
12 g For punitive damages;

13 For costs of the suit and Plaintiff's reasonable attorney's fees pursuant to

14 Civil Code section 1794, subdivision (d) and (e);

15 For such other relief as the Court may deem proper.

16 DEMAND FOR JURY TRIAL

17 Plaintiff hereby demand a jury trial on all causes of action asserted herein.

18 Dated: January 31, 2024 STRATEGIC LEGAL PRACTICES, APC

19 a
_>
20
TIONNA CARVALHO
21 Attorney for Plaintiff
HOWARD KARLIN
22

15
COMPLAINT; JURY TRIAL DEMANDED
Exhibit A
2020 Model Year Ford Warranty Guide

CS ot-Jo) alo
lo 10a sol@ al ele k- tale k=l (-ldg(emia) (—-9)

ia:
Tal Acolce heels) brolfeber=}

on]

a ae
poe pee ws

4 i 2

Ere}
Geaann

For full print and download access, please subscribe at https://www.trellis.law/.

Complaint,Petition: Karlin vs Ford Motor Company, et al

Preview

Case Info

Parties

Complaint,Petition: Karlin vs Ford Motor Company, et al

Preview

Related Topics

Case Info

Parties