Preview
co Oe NA HW FF WN
Scott R. Kaufman, SBN 190129
Erika N. Kavicky, SBN 225052
Colin Welsh, SBN: 314103
KAUFMAN & KAVICKY
140 Third Street
Los Altos, California 94022
Telephone: (408) 727-8882
Facsimile: (408) 727-8883
lemonatty@gmail.com
Attorneys for Plaintiff, HUBERT HWANG
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SANTA CLARA
HUBERT HWANG, an individual, Case No.:
Plaintiff, COMPLAINT FOR DAMAGES:
1. BREACH OF EXPRESS
VS. WARRANTIES
TOYOTA MOTOR SALES, U.S.A, INC; and 2. BREACH OF IMPLIED
Does 1 - 20, Inclusive WARRANTIES
Defendants.
DEMAND FOR JURY
UNLIMITED CIVIL CASE
Plaintiff, HUBERT HWANG (hereafter "Plaintiff"), by and through his attorney(s),
hereby allege the following upon information and belief:
PARTIES AND VENUE
1. Plaintiff is a natural person residing in California.
2. Defendant, TOYOTA MOTOR SALES, U.S.A, INC., (hereafter "TMS") is a
corporation, authorized to do business in the State of California and, at all times relevant hereto,
was engaged in the manufacture, sale, distribution and/or importing of TMS motor vehicles
throughout the State of California.
3. The true names, capacities and nature and extent of participation in the alleged
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activities complained of herein by DOES 1-20, inclusive, are currently unknown to Plaintiff.
Therefore, Plaintiff sues these defendants by such fictitious names and will amend the Complaint
to allege their true names and capacities when ascertained.
4. Each of the defendants, whether actually named or fictitiously named, was the
agent of the other defendants, whether actually named or fictitiously named, and was at all times
acting within the purpose and scope of such agency.
5. The violations of law hereinafter described have been committed in State of
California. Defendant regularly conducts business and supplies products to buyers throughout
this state and specifically within the County of SANTA CLARA. Therefore, jurisdiction and venue
is proper within this Court.
GENERAL ALLEGATIONS
6. On or about August 20, 2019, Plaintiff purchased at retail, in this State, a new 2019
Toyota Camry, VIN 4T1B11HKoKU841762 ("Vehicle") for his personal and family use. The
actual price paid or payable by Plaintiff for the Vehicle was $27,827.99.
7. Defendant TMS provided Plaintiff multiple written, express warranties including,
but not limited to; a 3-year/36,000-mile basic warranty and a 5-year/60,000-mile powertrain
warranty.
8. Because TMS gave express warranties to Plaintiff, it was prohibited from limiting,
modifying, or disclaiming the implied warranty of merchantability (“Implied Warranty of
Merchantability” or “IWOM”). Therefore, the sale of the Vehicle was accompanied by TMS's
implied warranty that the Vehicle is merchantable. [Civil Code § 1792]
9. Plaintiff has properly used, maintained and cared for the Vehicle, meeting all
obligations and conditions of the express warranty.
10. _Plaintiffis a “buyer.” § 1791(b).
11. Defendant TMS is a “manufacturer” § 1791(j) and/or a “distributor.” § 1791(e).
12. The Vehicle is a “consumer good." § 1791(a).
13. The vehicle is a “new motor vehicle.” § 1793.22(e).
14. _ The Vehicle contains multiple nonconformities or defects that substantially impair
the use, value or safety of the vehicle, including, but not limited to the following drivability issues:
abnormal rattle/vibration from passenger area, abnormal “creaking” noise from rear passenger
area, scratches on front right side moldings and roof, abnormal noises from the right front door,
abnormal “buzzing” sound from dashboard, abnormal front passenger side window wind noise
and an abnormal “rattle” noise from the front of the vehicle
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Complaintceo NDA HW FF WN
15. The nonconformities substantially impair the use, value or safety of the Vehicle.
16. Plaintiff delivered the Vehicle to TMS or its authorized agents in this State on
THREE separate occasions for warranty related repair of all of the nonconformities alleged above.
[Civil Code § 1793.2(c).]
17. TMS has been unable or unwilling to bring the Vehicle into conformity with the
express warranties it gave.
18. The Vehicle has been out of service for manufacturer warranty covered repairs for
over 30 days.
19. _ Because the amount of time the Vehicle has been out of service for manufacturer
warranty covered repairs, and, because TMS or its representative failed to repair the Vehicle to
conform to the written warranty after a reasonable amount of opportunities to do so, Plaintiff has
lost faith in the Vehicle and is concerned about its safety.
FIRST CAUSE OF ACTION
BREACH OF EXPRESS WARRANTIES
Against TMS and DOES 1-20, Inclusive
Count One: Breach of Obligation to Repair or Replace After Reasonable Number of
Repair Attempts [Civil Code § 1793.2(d)]
20. Plaintiff re-alleges and incorporates all paragraphs above.
21. TMS has an affirmative duty to replace a vehicle or make restitution to the buyer if
it is unable to repair the Vehicle after a reasonable number of repair attempts, without Plaintiff
even requesting it do so. [Civil Code § 1793.2(d)(1).]
22. Plaintiff has given TMS more than a reasonable number of opportunities to
conform or match the Vehicle to its express warranties.
23. TMS has breached its affirmative duty to promptly replace a vehicle or make
restitution by willfully failing and refusing to replace the Vehicle or make restitution to Plaintiff of
the monies paid or payable towards the purchase of the Vehicle and any incidental and other
damages, as required by Civil Code § 1793.2(d)(2)
24. TMS has willfully failed and refused to promptly replace the Vehicle or make
restitution to Plaintiff of the monies paid or payable towards the purchase of the Vehicle and any
incidental and other damages.
MW
1
Count Two: Breach of Obligation to Bring Goods into Conformity with Warranty
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Complaintoe IN DH HW FF WN
Within go Days from delivery of the nonconforming goods to the manufacturer's
service and repair facility [Civil Code § 1793.2(b)]
25. Plaintiff re-alleges and incorporates all paragraphs above.
26. TMS has an affirmative duty to bring goods into conformity with the applicable
warranties within 30 days. [Civil Code § 1793.2(b).]
27. TMS failed to conform the Vehicle to its applicable warranties within 30 days'
time.
28. Plaintiff did not agree in writing to waive her right to have the Vehicle conform to
the applicable warranties within 30 days.
29. Noconditions beyond the control of TMS or its representatives existed to extend
the 30-day requirement.
30. TMS hasan affirmative duty to commence repairs within a reasonable time. [Civil
Code § 1793.2(b).]
31. TMS failed to commence service and repair within a reasonable time.
32. Plaintiff did not agree in writing to waive her right to have repairs commenced
within a reasonable time.
33. No conditions beyond the control of TMS or its representatives existed to extend
the duty to commence repairs within a reasonable time.
34. Alternatively, if conditions existed beyond the control of TMS or its
representatives, the Vehicle still was not made to conform nor was it tendered as soon as
possible, following termination of the condition giving rise to the delay.
As to All Counts
35. Asa direct result of TMS's acts and/or omissions, Plaintiff has been damaged in an
amount exceeding $25,000 for monies paid or payable in association with the purchase of the
defective Vehicle, including incidental and consequential damages.
36. Plaintiff is entitled, at her option, to a replacement vehicle or to restitution of the
monies paid or payable towards the purchase of the Vehicle and any incidental and other
damages.
37. _ As prevailing plaintiff in this matter, Plaintiff is entitled the aggregate amount of
costs, expenses and attorney’s fees, that the court deems to be reasonably incurred. [Civil Code §
1794(d).]
38. Plaintiff is entitled to a civil penalty pursuant to § 1794(c) or § 1794(e), of no more
than two times the amount of actual damages, based upon TMS's failure to promptly replace the
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ComplaintCe ND NH & WN
Vehicle or make restitution to Plaintiff of the monies paid or payable towards the purchase of the
Vehicle and any incidental and other damages.
SECOND CAUSE OF ACTION
BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY
Against TMS and DOES 1-20, Inclusive
39. _ Plaintiff re-alleges and incorporates all paragraphs above.
40. Because TMS gave express warranties to Plaintiff, it was prohibited from limiting,
modifying, or disclaiming the implied warranty of merchantability. [Civil Code § 1793.] Therefore,
the Vehicle came with an implied warranty that the goods were merchantable by operation of law.
41. At the time of sale, the Vehicle had the nonconformities or defects alleged above.
42. These nonconformities or defects substantially impair the use, value or safety of the
Vehicle and rendered the Vehicle dangerous to the driver, passengers and others on the road.
43. The Vehicle did not have the quality that a buyer would reasonably expect from a
Vehicle that was still under its new vehicle warranty.
44. Because of the Vehicle's nonconformities, described above, the Vehicle was not of
the same quality as those generally acceptable in the trade. [Civil Code § 1791.1(a)(1).]
45. Because of the Vehicle's nonconformities, described above, the Vehicle was not fit
for the ordinary purposes for which such goods are used—namely, safe and reliable
transportation. [Civil Code § 1791.1 (a)(2).]
46. Because of the Vehicle's nonconformities, described above, the Vehicle was not
adequately contained, packaged or labeled and did not conform to the promises or affirmations of
fact made on its label. [Civil Code §§ 1791.1(a)(3); (a)(4).)]
47. | Nowarning was provided at the time of sale—verbally or in writing—that the
Vehicle contained nonconformities or defects that substantially impaired its use, value or safety.
48. Plaintiff took reasonable steps to notify TMS within a reasonable time that the
Vehicle did not have the quality that a buyer would reasonable expect.
49. The above-described actions and/or omissions on the part of TMS constitute a
breach of the implied warranties of merchantability by TMS and are actionable. [Civil Code §§
1791.1, 1794(a).
50. Asa direct result of TMS’s acts and/or omissions, Plaintiff has been damaged in an
amount exceeding $25,000 for monies paid or payable in association with the purchase of the
defective Vehicle, including incidental and consequential damages.
§1. Plaintiff is entitled, at her option, to a replacement vehicle or to restitution of the
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Complaintmonies paid or payable towards the purchase of the Vehicle and any incidental and other
damages.
52. As prevailing plaintiff in this matter, Plaintiff is entitled the aggregate amount of
costs, expenses and attorney's fees, that the court deems to be reasonably incurred. [Civil Code §
1794(d).]
53. Plaintiff is entitled to a civil penalty pursuant to § 1794(c) or § 1794(e), of no more
than two times the amount of actual damages, based upon TMS's failure to promptly replace the
Vehicle or make restitution to Plaintiff of the monies paid or payable towards the purchase of the
Vehicle and any incidental and other damages.
54. Therefore a civil penalty should be awarded against TMS in an amount to be
proven at trial, up to maximum of two times the amount of Plaintiff's actual damages.
PRAYER FOR RELIEF
HW WHEREFORE, Plaintiff respectfully prays for judgment against Defendants, and each of
12 || them, as follows:
13 (a) Restitution in an amount equal to the actual price paid or payable by Plaintiff, which
14 exceeds $27,827.00, according to proof at trial;
(b) Restitution for any collateral charges such as sales or use tax, license fees, registration fees,
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8 and other official fees, according to proof at trial;
'6 1 () Incidental damages including, but not limited to, reasonable repair, towing, and rental car
17 costs actually incurred by Plaintiff, according to proof at trial;
18 (d) Aggregate amount of costs and expenses, which includes expert witnesses fees, if
19 applicable, and attorney's fees deemed by this court to have been reasonably incurred;
20 (e) A civil penalty as called for under Song Beverly, of no more than two times actual damage,
n according to proof;
(f) Prejudgment interest at the legal rate;
22 (g) Such other and further relief as this Court deems just and proper.
23
24 ||Dated: January 17, 2020 KAUFMAN & KAVICKY
25
26
27 By:
Colin Welsh,
28 Attorney for Plaintiff, HUBERT HWANG
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Complaint
Preview
co Oe NA HW FF WN Scott R. Kaufman, SBN 190129 Erika N. Kavicky, SBN 225052 Colin Welsh, SBN: 314103 KAUFMAN & KAVICKY 140 Third Street Los Altos, California 94022 Telephone: (408) 727-8882 Facsimile: (408) 727-8883 lemonatty@gmail.com Attorneys for Plaintiff, HUBERT HWANG SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA HUBERT HWANG, an individual, Case No.: Plaintiff, COMPLAINT FOR DAMAGES: 1. BREACH OF EXPRESS VS. WARRANTIES TOYOTA MOTOR SALES, U.S.A, INC; and 2. BREACH OF IMPLIED Does 1 - 20, Inclusive WARRANTIES Defendants. DEMAND FOR JURY UNLIMITED CIVIL CASE Plaintiff, HUBERT HWANG (hereafter "Plaintiff"), by and through his attorney(s), hereby allege the following upon information and belief: PARTIES AND VENUE 1. Plaintiff is a natural person residing in California. 2. Defendant, TOYOTA MOTOR SALES, U.S.A, INC., (hereafter "TMS") is a corporation, authorized to do business in the State of California and, at all times relevant hereto, was engaged in the manufacture, sale, distribution and/or importing of TMS motor vehicles throughout the State of California. 3. The true names, capacities and nature and extent of participation in the alleged -l- ComplaintCo ND WH BF WN activities complained of herein by DOES 1-20, inclusive, are currently unknown to Plaintiff. Therefore, Plaintiff sues these defendants by such fictitious names and will amend the Complaint to allege their true names and capacities when ascertained. 4. Each of the defendants, whether actually named or fictitiously named, was the agent of the other defendants, whether actually named or fictitiously named, and was at all times acting within the purpose and scope of such agency. 5. The violations of law hereinafter described have been committed in State of California. Defendant regularly conducts business and supplies products to buyers throughout this state and specifically within the County of SANTA CLARA. Therefore, jurisdiction and venue is proper within this Court. GENERAL ALLEGATIONS 6. On or about August 20, 2019, Plaintiff purchased at retail, in this State, a new 2019 Toyota Camry, VIN 4T1B11HKoKU841762 ("Vehicle") for his personal and family use. The actual price paid or payable by Plaintiff for the Vehicle was $27,827.99. 7. Defendant TMS provided Plaintiff multiple written, express warranties including, but not limited to; a 3-year/36,000-mile basic warranty and a 5-year/60,000-mile powertrain warranty. 8. Because TMS gave express warranties to Plaintiff, it was prohibited from limiting, modifying, or disclaiming the implied warranty of merchantability (“Implied Warranty of Merchantability” or “IWOM”). Therefore, the sale of the Vehicle was accompanied by TMS's implied warranty that the Vehicle is merchantable. [Civil Code § 1792] 9. Plaintiff has properly used, maintained and cared for the Vehicle, meeting all obligations and conditions of the express warranty. 10. _Plaintiffis a “buyer.” § 1791(b). 11. Defendant TMS is a “manufacturer” § 1791(j) and/or a “distributor.” § 1791(e). 12. The Vehicle is a “consumer good." § 1791(a). 13. The vehicle is a “new motor vehicle.” § 1793.22(e). 14. _ The Vehicle contains multiple nonconformities or defects that substantially impair the use, value or safety of the vehicle, including, but not limited to the following drivability issues: abnormal rattle/vibration from passenger area, abnormal “creaking” noise from rear passenger area, scratches on front right side moldings and roof, abnormal noises from the right front door, abnormal “buzzing” sound from dashboard, abnormal front passenger side window wind noise and an abnormal “rattle” noise from the front of the vehicle -2- Complaintceo NDA HW FF WN 15. The nonconformities substantially impair the use, value or safety of the Vehicle. 16. Plaintiff delivered the Vehicle to TMS or its authorized agents in this State on THREE separate occasions for warranty related repair of all of the nonconformities alleged above. [Civil Code § 1793.2(c).] 17. TMS has been unable or unwilling to bring the Vehicle into conformity with the express warranties it gave. 18. The Vehicle has been out of service for manufacturer warranty covered repairs for over 30 days. 19. _ Because the amount of time the Vehicle has been out of service for manufacturer warranty covered repairs, and, because TMS or its representative failed to repair the Vehicle to conform to the written warranty after a reasonable amount of opportunities to do so, Plaintiff has lost faith in the Vehicle and is concerned about its safety. FIRST CAUSE OF ACTION BREACH OF EXPRESS WARRANTIES Against TMS and DOES 1-20, Inclusive Count One: Breach of Obligation to Repair or Replace After Reasonable Number of Repair Attempts [Civil Code § 1793.2(d)] 20. Plaintiff re-alleges and incorporates all paragraphs above. 21. TMS has an affirmative duty to replace a vehicle or make restitution to the buyer if it is unable to repair the Vehicle after a reasonable number of repair attempts, without Plaintiff even requesting it do so. [Civil Code § 1793.2(d)(1).] 22. Plaintiff has given TMS more than a reasonable number of opportunities to conform or match the Vehicle to its express warranties. 23. TMS has breached its affirmative duty to promptly replace a vehicle or make restitution by willfully failing and refusing to replace the Vehicle or make restitution to Plaintiff of the monies paid or payable towards the purchase of the Vehicle and any incidental and other damages, as required by Civil Code § 1793.2(d)(2) 24. TMS has willfully failed and refused to promptly replace the Vehicle or make restitution to Plaintiff of the monies paid or payable towards the purchase of the Vehicle and any incidental and other damages. MW 1 Count Two: Breach of Obligation to Bring Goods into Conformity with Warranty -3- Complaintoe IN DH HW FF WN Within go Days from delivery of the nonconforming goods to the manufacturer's service and repair facility [Civil Code § 1793.2(b)] 25. Plaintiff re-alleges and incorporates all paragraphs above. 26. TMS has an affirmative duty to bring goods into conformity with the applicable warranties within 30 days. [Civil Code § 1793.2(b).] 27. TMS failed to conform the Vehicle to its applicable warranties within 30 days' time. 28. Plaintiff did not agree in writing to waive her right to have the Vehicle conform to the applicable warranties within 30 days. 29. Noconditions beyond the control of TMS or its representatives existed to extend the 30-day requirement. 30. TMS hasan affirmative duty to commence repairs within a reasonable time. [Civil Code § 1793.2(b).] 31. TMS failed to commence service and repair within a reasonable time. 32. Plaintiff did not agree in writing to waive her right to have repairs commenced within a reasonable time. 33. No conditions beyond the control of TMS or its representatives existed to extend the duty to commence repairs within a reasonable time. 34. Alternatively, if conditions existed beyond the control of TMS or its representatives, the Vehicle still was not made to conform nor was it tendered as soon as possible, following termination of the condition giving rise to the delay. As to All Counts 35. Asa direct result of TMS's acts and/or omissions, Plaintiff has been damaged in an amount exceeding $25,000 for monies paid or payable in association with the purchase of the defective Vehicle, including incidental and consequential damages. 36. Plaintiff is entitled, at her option, to a replacement vehicle or to restitution of the monies paid or payable towards the purchase of the Vehicle and any incidental and other damages. 37. _ As prevailing plaintiff in this matter, Plaintiff is entitled the aggregate amount of costs, expenses and attorney’s fees, that the court deems to be reasonably incurred. [Civil Code § 1794(d).] 38. Plaintiff is entitled to a civil penalty pursuant to § 1794(c) or § 1794(e), of no more than two times the amount of actual damages, based upon TMS's failure to promptly replace the -4- ComplaintCe ND NH & WN Vehicle or make restitution to Plaintiff of the monies paid or payable towards the purchase of the Vehicle and any incidental and other damages. SECOND CAUSE OF ACTION BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY Against TMS and DOES 1-20, Inclusive 39. _ Plaintiff re-alleges and incorporates all paragraphs above. 40. Because TMS gave express warranties to Plaintiff, it was prohibited from limiting, modifying, or disclaiming the implied warranty of merchantability. [Civil Code § 1793.] Therefore, the Vehicle came with an implied warranty that the goods were merchantable by operation of law. 41. At the time of sale, the Vehicle had the nonconformities or defects alleged above. 42. These nonconformities or defects substantially impair the use, value or safety of the Vehicle and rendered the Vehicle dangerous to the driver, passengers and others on the road. 43. The Vehicle did not have the quality that a buyer would reasonably expect from a Vehicle that was still under its new vehicle warranty. 44. Because of the Vehicle's nonconformities, described above, the Vehicle was not of the same quality as those generally acceptable in the trade. [Civil Code § 1791.1(a)(1).] 45. Because of the Vehicle's nonconformities, described above, the Vehicle was not fit for the ordinary purposes for which such goods are used—namely, safe and reliable transportation. [Civil Code § 1791.1 (a)(2).] 46. Because of the Vehicle's nonconformities, described above, the Vehicle was not adequately contained, packaged or labeled and did not conform to the promises or affirmations of fact made on its label. [Civil Code §§ 1791.1(a)(3); (a)(4).)] 47. | Nowarning was provided at the time of sale—verbally or in writing—that the Vehicle contained nonconformities or defects that substantially impaired its use, value or safety. 48. Plaintiff took reasonable steps to notify TMS within a reasonable time that the Vehicle did not have the quality that a buyer would reasonable expect. 49. The above-described actions and/or omissions on the part of TMS constitute a breach of the implied warranties of merchantability by TMS and are actionable. [Civil Code §§ 1791.1, 1794(a). 50. Asa direct result of TMS’s acts and/or omissions, Plaintiff has been damaged in an amount exceeding $25,000 for monies paid or payable in association with the purchase of the defective Vehicle, including incidental and consequential damages. §1. Plaintiff is entitled, at her option, to a replacement vehicle or to restitution of the -5- Complaintmonies paid or payable towards the purchase of the Vehicle and any incidental and other damages. 52. As prevailing plaintiff in this matter, Plaintiff is entitled the aggregate amount of costs, expenses and attorney's fees, that the court deems to be reasonably incurred. [Civil Code § 1794(d).] 53. Plaintiff is entitled to a civil penalty pursuant to § 1794(c) or § 1794(e), of no more than two times the amount of actual damages, based upon TMS's failure to promptly replace the Vehicle or make restitution to Plaintiff of the monies paid or payable towards the purchase of the Vehicle and any incidental and other damages. 54. Therefore a civil penalty should be awarded against TMS in an amount to be proven at trial, up to maximum of two times the amount of Plaintiff's actual damages. PRAYER FOR RELIEF HW WHEREFORE, Plaintiff respectfully prays for judgment against Defendants, and each of 12 || them, as follows: 13 (a) Restitution in an amount equal to the actual price paid or payable by Plaintiff, which 14 exceeds $27,827.00, according to proof at trial; (b) Restitution for any collateral charges such as sales or use tax, license fees, registration fees, oe YN DH HW FF WN 8 and other official fees, according to proof at trial; '6 1 () Incidental damages including, but not limited to, reasonable repair, towing, and rental car 17 costs actually incurred by Plaintiff, according to proof at trial; 18 (d) Aggregate amount of costs and expenses, which includes expert witnesses fees, if 19 applicable, and attorney's fees deemed by this court to have been reasonably incurred; 20 (e) A civil penalty as called for under Song Beverly, of no more than two times actual damage, n according to proof; (f) Prejudgment interest at the legal rate; 22 (g) Such other and further relief as this Court deems just and proper. 23 24 ||Dated: January 17, 2020 KAUFMAN & KAVICKY 25 26 27 By: Colin Welsh, 28 Attorney for Plaintiff, HUBERT HWANG -6- Complaint