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DAVID N. BARRY, ESQ. (SBN 219230)
THE BARRY LAW FIRM
11845 W. Olympic Blvd., Suite 1270
Los Angeles, CA 90064
Telephone: 310.684.5859
Facsimile: 310.862.4539
Attorneys for Plaintiff, LEONARDO GONZALEZ
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SANTA CLARA —- DOWNTOWN SUPERIOR COURT
ee Case No.
LEONARDO GONZALEZ, an individual,
Plaintiff, COMPLAINT FOR DAMAGES
FCA US, LLC, A Delaware Limited
Liability Company; NORMANDIN’S dba
Assigned for all purposes to the Hon.
NORMANDIN CHRYSLER JEEP DODGE, | in Dept.
A California Corporation; and DOES 1
through 20, inclusive,
Defendants.
1. Breach of Implied Warranty of Merchantability under the Song-Beverly Warranty Act.
2. Breach of Express Warranty under the Song-Beverly Warranty Act.
3. Negligent Repair.
JURY TRIAL DEMANDED.
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COMPLAINT FOR DAMAGESBR wWoN
PLAINTIFF LEONARDO GONZALEZ, an individual, hereby alleges and complains as
follows:
GENERAL ALLEGATIONS COMMON TO ALL CAUSES OF ACTION
1. Plaintiff is an individual, residing in the County of Santa Clara, in the State of
California.
De Defendant, FCA US, LLC (hereinafter referred to as “Manufacturer”), is a
corporation doing business in the County of Santa Clara, State of California, and, at all times
relevant herein, was/is engaged in the manufacture, sale, distribution, and/or importing of Dodge
motor vehicles and related equipment.
3. Defendant, NORMANDIN’S dba NORMANDIN CHRYSLER JEEP
DODGE, is a California corporation registered to do business in the State of California with its
registered office in the city of San Jose, County of Santa Clara, State of California.
4. The true names and capacities, whether individual, corporate, associate, or otherwise,
of the Defendants, Does 1 through 20, inclusive, are unknown to Plaintiff who therefore sues these
Defendants by such fictitious names. Plaintiff will seek leave to amend this Complaint to set forth
their true names and capacities when they have ascertained them. Further, Plaintiff is informed and
believes, and thereon alleges, that each of the Defendants designated herein as a “Doe” is
responsible in some manner for the events and happenings herein referred to and caused injury and
damage to Plaintiff as herein alleged.
5. Plaintiff is informed and believes, and thereon alleges, that at all times herein
mentioned, Defendants, and each of them, were the agents, servants, and/or employees of each of
their Co-Defendants. Plaintiff is informed and believes, and thereon alleges, that in doing the
things hereinafter alleged Defendants, and each of them, were acting in the course and scope of
their employment as such agents, servants, and/or employees, and with the permission, consent,
knowledge, and/or ratification of their Co-Defendants, principals, and/or employers.
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COMPLAINT FOR DAMAGES6. Onor about May 29, 2016, defendants Manufacturer and Does 1 through 20 inclusive,
manufactured and/or distributed into the stream of commerce a new 2016 Dodge Challenger, VIN
2C3CDZAG3GH221278 (hereinafter referred to as the “Vehicle”) for its eventual sale/lease in the
State of California.
7. Onor about June 29, 2016, Plaintiff purchased, for personal, family, and/or household
purposes, the subject Vehicle from the Seller for a total consideration over the term of the
installment contract of $47,973.24. The purchase agreement is in the possession of Defendants.
8. The subject Vehicle was/is a “new motor vehicle” under the Song-Beverly Warranty
Act.
9. Along with the purchase of the Vehicle, Plaintiff received written warranties and other
express and implied warranties including, but not limited to, warranties from Manufacturer and
Seller that the Vehicle and its components would be free from all defects in material and
workmanship; that the Vehicle would pass without objection in the trade under the contract
description; that the Vehicle would be fit for the ordinary purposes for which it was intended; that
the Vehicle would conform to the promises and affirmations of fact made; that Defendants, and
each of them, would perform any repairs, alignments, adjustments, and/or replacements of any
parts necessary to ensure that the Vehicle was free from any defects in material and workmanship;
that Defendants, and each of them, would maintain the utility of the Vehicle for Three (3) years or
36,000 miles and would conform the Vehicle to the applicable express warranties. (A copy of the
written warranty is in the possession of the Defendants).
10. Plaintiff has duly performed all the conditions on Plaintiffs part under the purchase
agreement and under the express and implied warranties given to plaintiff, except insofar as the
acts and/or omissions of the Defendants, and each of them, as alleged herein, prevented and/or
excused such performance.
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COMPLAINT FOR DAMAGES10
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11. Plaintiff has delivered the Vehicle to the Manufacturer’s authorized service and
repair facilities, agents and/or dealers, including Seller, on at least Seven (7) separate occasions
resulting in the Vehicle being out of service by reason of repair of nonconformities. Repair
Orders/Invoices are in the possession of Defendants.
12. By way of example, and not by way of limitation, the defects, malfunctions,
misadjustments, and/or nonconformities with Plaintiffs Vehicle include the following: Plaintiff
has submitted the subject Vehicle for defects and malfunctions, specifically for issues with Recall
#41009, transmission failure, engine component failures, radiator failure, catalytic converter
failure, air conditioning issues, battery issues, and check engine lights.
13. Each time Plaintiff delivered the nonconforming Vehicle to a Manufacturer-
authorized service and repair facility, Plaintiff notified Defendants, and each of them, of the
defects, malfunctions, misadjustments, and/or nonconformities existent with the Vehicle and
demanded that Manufacturer or its representatives repair, adjust, and/or replace any necessary parts
to conform the Vehicle to the applicable warranties.
14. Each time Plaintiff delivered the nonconforming Vehicle to a Manufacturer-
authorized service and repair facility, Defendants, and each of them, represented to Plaintiff that
they could and would conform the Vehicle to the applicable warranties, that in fact they did
conform the Vehicle to said warranties, and that all the defects, malfunctions, misadjustments,
and/or nonconformities have been repaired; however, Manufacturer or its representatives failed to
conform the Vehicle to the applicable warranties because said defects, malfunctions,
misadjustments, and/or nonconformities continue to exist even after a reasonable number of
attempts to repair was given.
15. The amount in controversy exceeds TWENTY FIVE THOUSAND DOLLARS
($25,000.00), exclusive of interest and costs, for which Plaintiff seeks judgment against
Defendants, together with equitable relief. In addition, Plaintiff seeks damages from Defendants,
and each of them, for incidental, consequential, exemplary, and actual damages including interest,
costs, and actual attorneys’ fees.
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COMPLAINT FOR DAMAGESFIRST CAUSE OF ACTION
Breach of Implied Warranty of Merchantability under Song-Beverly Warranty Act
Against FCA US, LLC only
16. Plaintiff realleges each and every paragraph (1-15) and incorporates them by this
reference as though fully set forth herein.
de The distribution and sale of the Vehicle was accompanied by the Manufacturer
implied warranty that the Vehicle was merchantable.
18. Furthermore, Defendants, and each of them, impliedly warranted, inter alia, that the
Vehicle would pass without objection in the trade under the contract description; that the Vehicle
was fit for the ordinary purposes for which it was intended; that the Vehicle was adequately
assembled; and/or that the Vehicle conformed to the promises or affirmations of fact made to
Plaintiff.
19. As evidenced by the defects, malfunctions, misadjustments, and/or nonconformities
alleged herein, the Vehicle was not merchantable because it did not have the quality that a buyer
would reasonably expect, because it could not pass without objection in the trade under the contract
description; because it was not fit for the ordinary purposes for which it was intended; because it
was not adequately assembled; and/or because it did not or could not be conformed to the promises
or affirmations of fact made to Plaintiff.
20. Upon discovery of the Vehicle’s nonconformities, Plaintiff took reasonable steps to
notify Defendants, and each of them, within a reasonable time that the Vehicle did not have the
quality that a buyer would reasonably expect and, further, justifiably revoked acceptance of the
nonconforming Vehicle.
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COMPLAINT FOR DAMAGESeo) tS)
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21. Plaintiff hereby gives written notice and justifiably revokes acceptance of the
nonconforming Vehicle under the Commercial Code sections 2607 and 2608. Plaintiff further
demands that the Manufacturer cancel the sale, take back the nonconforming Vehicle, refund all
the money expended, pay the difference between the value of the Vehicle as accepted and the value
the Vehicle would have had if it had been as warranted, and/or pay damages under the Commercial
Code sections 2711, 2714, and 2715. Defendants, and each of them, have, however, refused to
comply.
22. Plaintiff hereby gives written notice and makes demand upon Manufacturer for
replacement or restitution, pursuant to Song-Beverly. Defendants, and each of them, knew of their
obligations under Song-Beverly; however, despite Plaintiff's demand, Defendants and each of
them, have intentionally failed and refused to make restitution or replacement pursuant to Song-
Beverly.
23. As aresult of the acts and/or omissions of the Defendants, and each of them, Plaintiff
has sustained damage in the amount actually paid or payable under the contract, plus prejudgment
interest thereon at the legal rate. Plaintiff will seek leave to amend this Complaint to set forth the
exact amount thereof when that amount is ascertained.
24. As a further result of the actions of Defendants, and each of them, Plaintiff has
sustained incidental and consequential damages in an amount yet to be determined, plus interest
thereon at the legal rate. Plaintiff will seek leave to amend this Complaint to set forth the exact
amount of incidental damages when that amount is ascertained.
25. As a further result of the actions of Defendants, and each of them, Plaintiff has
sustained damages equal to the difference between the value of the Vehicle as accepted and the
value the Vehicle would have had if it had been as warranted.
26. Asa direct result of the acts and/or omissions of Defendants, and each of them, and
in pursuing Plaintiff's claim, it was necessary for Plaintiff to retain legal counsel. Pursuant to
Song-Beverly, Plaintiff, in addition to his other remedies, is entitled to the recovery of her
attorneys’ fees based upon actual time expended and reasonably incurred, in connection with the
commencement and prosecution of this action.
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COMPLAINT FOR DAMAGESoo
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SECOND CAUSE OF ACTION
Breach of Express Warranty under Song-Beverly Warranty Act
Against FCA US, LLC only
27. Plaintiff realleges each and every paragraph (1-26) and incorporates them by this
reference as though fully set forth herein.
28. The Vehicle had defects, malfunctions, misadjustments, and/or nonconformities
covered by the warranty that substantially impaired its value, use, or safety to Plaintiff.
29. Plaintiff delivered the Vehicle to Manufacturer or its authorized repair facilities for
repair.
30. Defendants, and each of them, failed to service or repair the Vehicle to match the
written warranty after a reasonable number of opportunities to do so.
31. The acts and/or omissions of Defendants, and each of them, in failing to perform the
proper repairs, part replacements, and/or adjustments, to conform the Vehicle to the applicable
express warranties constitute a breach of the express warranties that the Manufacturer provided to
Plaintiff, thereby breaching Defendants’ obligations under Song-Beverly.
32. Defendants, and each of them, failed to perform the necessary repairs and/or service
in good and workmanlike manner. The actions taken by Defendants, and each of them, were
insufficient to make the Subject Vehicle conform to the express warranties and/or proper
operational characteristics of like Vehicles, all in violation of Defendants’ obligations under Song-
Beverly.
33. Plaintiff hereby gives written notice and makes demand upon Manufacturer for
replacement or restitution, pursuant to Song-Beverly. Defendants and each of them, knowing their
obligations under Song-Beverly, and despite Plaintiff's demand, failed and refused to make
restitution or replacement according to the mandates of Song-Beverly. The failure of Defendants,
and each of them, to refund the price paid and payable or to replace the Vehicle was intentional and
justifies an award of a Civil Penalty in an amount not to exceed two times Plaintiffs actual
damages.
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COMPLAINT FOR DAMAGES34, As a result of the acts and/or omissions of Defendants, and each of them, and
pursuant to the provisions of the Song-Beverly, Plaintiff is entitled to replacement of the Vehicle or
restitution of the amount actually paid or payable under the contract, at Plaintiff's election, plus
prejudgment interest thereon at the legal rate. Plaintiff will seek leave of Court to amend this
Complaint to set forth the exact amount of restitution and interest, upon election, when that amount
has been ascertained.
35. Additionally, as a result of the acts and/or omissions of Defendants, and each of
them, and pursuant to Song-Beverly, Plaintiff has sustained and is entitled to consequential and
incidental damages in amounts yet to be determined, plus interest thereon at the legal rate. Plaintiff
will seek leave of the court to amend this complaint to set forth the exact amount of consequential
and/or incidental damages, when those amounts have been ascertained.
36. Asa direct result of the acts and/or omissions of Defendants, and each of them, and
in pursuing Plaintiff's claim, it was necessary for Plaintiff to retain legal counsel. Pursuant to
Song-Beverly, Plaintiff, in addition to other remedies, is entitled to the recovery of his attorneys’
fees based upon actual time expended and reasonably incurred, in connection with the
commencement and prosecution of this action.
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COMPLAINT FOR DAMAGESTHIRD CAUSE OF ACTION
Negligent Repair
Against NORMANDIN’S dba NORMANDIN CHRYSLER JEEP DODGE only
37. Plaintiff realleges each and every paragraph (1-36) and incorporates them by this
reference as though fully set forth herein.
38. Plaintiff delivered the Subject Vehicle to Defendant NORMANDIN’S dba
NORMANDIN CHRYSLER JEEP DODGE for repair on numerous occasions.
39. | Defendant NORMANDIN’S dba NORMANDIN CHRYSLER JEEP DODGE
owed a duty to Plaintiff to use ordinary care and skill in storage, diagnosis and repair of the Subject
Vehicle in accordance with industry standards.
40. | Defendant NORMANDIN’S dba NORMANDIN CHRYSLER JEEP DODGE
breached its duty to plaintiff to use ordinary care and skill by failing to properly store, diagnose,
and repair the Subject Vehicle in accordance with industry standards.
41. Defendant NORMANDIN’S dba NORMANDIN CHRYSLER JEEP
DODGE ’s negligent breach of its duties owed to Plaintiff was a proximate cause of plaintiff's
damages.
42. Plaintiff sustained damages due to Defendant NORMANDIN’S dba
NORMANDIN CHRYSLER JEEP DODGE’: failure to properly store, diagnose and repair the
Subject Vehicle in accordance with industry standards.
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COMPLAINT FOR DAMAGESfollows:
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays for judgment against all Defendants, and each of them, as
. For replacement or restitution, at Plaintiff's election, according to proof;
. For incidental damages, according to proof;
. For consequential damages, according to proof;
. For damages sustained from negligent auto repairs; according to proof;
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. For a civil penalty as provided in Song-Beverly, in an amount not to exceed two
times the amount of Plaintiffs actual damages;
F. For actual attorney’s fees, reasonably incurred;
G. For costs of suit and expenses, according to proof;
H. For the difference between the value of the Vehicle as accepted and the value the
Vehicle would have had if it had been as warranted;
I. For remedies provided in Chapters 6 and 7 of Division 2 of the Commercial Code;
J. For pre-judgment interest at the legal rate;
K. Such other relief the Court deems appropriate.
Date: February 25, 2019 THE BARRY LAW FIRM
\
Attorneys for Plaintiff,
LEONARDO GONZALEZ
105
COMPLAINT FOR DAMAGES
Preview
Soom DH BF WN NN YN YN NY NR KN NY Be Bee Be Be Be Be Be Be oN A AW BF YW NF SOD we NY DH BRB WwW N DAVID N. BARRY, ESQ. (SBN 219230) THE BARRY LAW FIRM 11845 W. Olympic Blvd., Suite 1270 Los Angeles, CA 90064 Telephone: 310.684.5859 Facsimile: 310.862.4539 Attorneys for Plaintiff, LEONARDO GONZALEZ SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA —- DOWNTOWN SUPERIOR COURT ee Case No. LEONARDO GONZALEZ, an individual, Plaintiff, COMPLAINT FOR DAMAGES FCA US, LLC, A Delaware Limited Liability Company; NORMANDIN’S dba Assigned for all purposes to the Hon. NORMANDIN CHRYSLER JEEP DODGE, | in Dept. A California Corporation; and DOES 1 through 20, inclusive, Defendants. 1. Breach of Implied Warranty of Merchantability under the Song-Beverly Warranty Act. 2. Breach of Express Warranty under the Song-Beverly Warranty Act. 3. Negligent Repair. JURY TRIAL DEMANDED. -l- COMPLAINT FOR DAMAGESBR wWoN PLAINTIFF LEONARDO GONZALEZ, an individual, hereby alleges and complains as follows: GENERAL ALLEGATIONS COMMON TO ALL CAUSES OF ACTION 1. Plaintiff is an individual, residing in the County of Santa Clara, in the State of California. De Defendant, FCA US, LLC (hereinafter referred to as “Manufacturer”), is a corporation doing business in the County of Santa Clara, State of California, and, at all times relevant herein, was/is engaged in the manufacture, sale, distribution, and/or importing of Dodge motor vehicles and related equipment. 3. Defendant, NORMANDIN’S dba NORMANDIN CHRYSLER JEEP DODGE, is a California corporation registered to do business in the State of California with its registered office in the city of San Jose, County of Santa Clara, State of California. 4. The true names and capacities, whether individual, corporate, associate, or otherwise, of the Defendants, Does 1 through 20, inclusive, are unknown to Plaintiff who therefore sues these Defendants by such fictitious names. Plaintiff will seek leave to amend this Complaint to set forth their true names and capacities when they have ascertained them. Further, Plaintiff is informed and believes, and thereon alleges, that each of the Defendants designated herein as a “Doe” is responsible in some manner for the events and happenings herein referred to and caused injury and damage to Plaintiff as herein alleged. 5. Plaintiff is informed and believes, and thereon alleges, that at all times herein mentioned, Defendants, and each of them, were the agents, servants, and/or employees of each of their Co-Defendants. Plaintiff is informed and believes, and thereon alleges, that in doing the things hereinafter alleged Defendants, and each of them, were acting in the course and scope of their employment as such agents, servants, and/or employees, and with the permission, consent, knowledge, and/or ratification of their Co-Defendants, principals, and/or employers. Mit it Mf 2- COMPLAINT FOR DAMAGES6. Onor about May 29, 2016, defendants Manufacturer and Does 1 through 20 inclusive, manufactured and/or distributed into the stream of commerce a new 2016 Dodge Challenger, VIN 2C3CDZAG3GH221278 (hereinafter referred to as the “Vehicle”) for its eventual sale/lease in the State of California. 7. Onor about June 29, 2016, Plaintiff purchased, for personal, family, and/or household purposes, the subject Vehicle from the Seller for a total consideration over the term of the installment contract of $47,973.24. The purchase agreement is in the possession of Defendants. 8. The subject Vehicle was/is a “new motor vehicle” under the Song-Beverly Warranty Act. 9. Along with the purchase of the Vehicle, Plaintiff received written warranties and other express and implied warranties including, but not limited to, warranties from Manufacturer and Seller that the Vehicle and its components would be free from all defects in material and workmanship; that the Vehicle would pass without objection in the trade under the contract description; that the Vehicle would be fit for the ordinary purposes for which it was intended; that the Vehicle would conform to the promises and affirmations of fact made; that Defendants, and each of them, would perform any repairs, alignments, adjustments, and/or replacements of any parts necessary to ensure that the Vehicle was free from any defects in material and workmanship; that Defendants, and each of them, would maintain the utility of the Vehicle for Three (3) years or 36,000 miles and would conform the Vehicle to the applicable express warranties. (A copy of the written warranty is in the possession of the Defendants). 10. Plaintiff has duly performed all the conditions on Plaintiffs part under the purchase agreement and under the express and implied warranties given to plaintiff, except insofar as the acts and/or omissions of the Defendants, and each of them, as alleged herein, prevented and/or excused such performance. Ml I Mt If 3- COMPLAINT FOR DAMAGES10 11 R BW N n 11. Plaintiff has delivered the Vehicle to the Manufacturer’s authorized service and repair facilities, agents and/or dealers, including Seller, on at least Seven (7) separate occasions resulting in the Vehicle being out of service by reason of repair of nonconformities. Repair Orders/Invoices are in the possession of Defendants. 12. By way of example, and not by way of limitation, the defects, malfunctions, misadjustments, and/or nonconformities with Plaintiffs Vehicle include the following: Plaintiff has submitted the subject Vehicle for defects and malfunctions, specifically for issues with Recall #41009, transmission failure, engine component failures, radiator failure, catalytic converter failure, air conditioning issues, battery issues, and check engine lights. 13. Each time Plaintiff delivered the nonconforming Vehicle to a Manufacturer- authorized service and repair facility, Plaintiff notified Defendants, and each of them, of the defects, malfunctions, misadjustments, and/or nonconformities existent with the Vehicle and demanded that Manufacturer or its representatives repair, adjust, and/or replace any necessary parts to conform the Vehicle to the applicable warranties. 14. Each time Plaintiff delivered the nonconforming Vehicle to a Manufacturer- authorized service and repair facility, Defendants, and each of them, represented to Plaintiff that they could and would conform the Vehicle to the applicable warranties, that in fact they did conform the Vehicle to said warranties, and that all the defects, malfunctions, misadjustments, and/or nonconformities have been repaired; however, Manufacturer or its representatives failed to conform the Vehicle to the applicable warranties because said defects, malfunctions, misadjustments, and/or nonconformities continue to exist even after a reasonable number of attempts to repair was given. 15. The amount in controversy exceeds TWENTY FIVE THOUSAND DOLLARS ($25,000.00), exclusive of interest and costs, for which Plaintiff seeks judgment against Defendants, together with equitable relief. In addition, Plaintiff seeks damages from Defendants, and each of them, for incidental, consequential, exemplary, and actual damages including interest, costs, and actual attorneys’ fees. Mf -4- COMPLAINT FOR DAMAGESFIRST CAUSE OF ACTION Breach of Implied Warranty of Merchantability under Song-Beverly Warranty Act Against FCA US, LLC only 16. Plaintiff realleges each and every paragraph (1-15) and incorporates them by this reference as though fully set forth herein. de The distribution and sale of the Vehicle was accompanied by the Manufacturer implied warranty that the Vehicle was merchantable. 18. Furthermore, Defendants, and each of them, impliedly warranted, inter alia, that the Vehicle would pass without objection in the trade under the contract description; that the Vehicle was fit for the ordinary purposes for which it was intended; that the Vehicle was adequately assembled; and/or that the Vehicle conformed to the promises or affirmations of fact made to Plaintiff. 19. As evidenced by the defects, malfunctions, misadjustments, and/or nonconformities alleged herein, the Vehicle was not merchantable because it did not have the quality that a buyer would reasonably expect, because it could not pass without objection in the trade under the contract description; because it was not fit for the ordinary purposes for which it was intended; because it was not adequately assembled; and/or because it did not or could not be conformed to the promises or affirmations of fact made to Plaintiff. 20. Upon discovery of the Vehicle’s nonconformities, Plaintiff took reasonable steps to notify Defendants, and each of them, within a reasonable time that the Vehicle did not have the quality that a buyer would reasonably expect and, further, justifiably revoked acceptance of the nonconforming Vehicle. Mit If It It Ii If -5- COMPLAINT FOR DAMAGESeo) tS) a 21. Plaintiff hereby gives written notice and justifiably revokes acceptance of the nonconforming Vehicle under the Commercial Code sections 2607 and 2608. Plaintiff further demands that the Manufacturer cancel the sale, take back the nonconforming Vehicle, refund all the money expended, pay the difference between the value of the Vehicle as accepted and the value the Vehicle would have had if it had been as warranted, and/or pay damages under the Commercial Code sections 2711, 2714, and 2715. Defendants, and each of them, have, however, refused to comply. 22. Plaintiff hereby gives written notice and makes demand upon Manufacturer for replacement or restitution, pursuant to Song-Beverly. Defendants, and each of them, knew of their obligations under Song-Beverly; however, despite Plaintiff's demand, Defendants and each of them, have intentionally failed and refused to make restitution or replacement pursuant to Song- Beverly. 23. As aresult of the acts and/or omissions of the Defendants, and each of them, Plaintiff has sustained damage in the amount actually paid or payable under the contract, plus prejudgment interest thereon at the legal rate. Plaintiff will seek leave to amend this Complaint to set forth the exact amount thereof when that amount is ascertained. 24. As a further result of the actions of Defendants, and each of them, Plaintiff has sustained incidental and consequential damages in an amount yet to be determined, plus interest thereon at the legal rate. Plaintiff will seek leave to amend this Complaint to set forth the exact amount of incidental damages when that amount is ascertained. 25. As a further result of the actions of Defendants, and each of them, Plaintiff has sustained damages equal to the difference between the value of the Vehicle as accepted and the value the Vehicle would have had if it had been as warranted. 26. Asa direct result of the acts and/or omissions of Defendants, and each of them, and in pursuing Plaintiff's claim, it was necessary for Plaintiff to retain legal counsel. Pursuant to Song-Beverly, Plaintiff, in addition to his other remedies, is entitled to the recovery of her attorneys’ fees based upon actual time expended and reasonably incurred, in connection with the commencement and prosecution of this action. -6- COMPLAINT FOR DAMAGESoo eo SECOND CAUSE OF ACTION Breach of Express Warranty under Song-Beverly Warranty Act Against FCA US, LLC only 27. Plaintiff realleges each and every paragraph (1-26) and incorporates them by this reference as though fully set forth herein. 28. The Vehicle had defects, malfunctions, misadjustments, and/or nonconformities covered by the warranty that substantially impaired its value, use, or safety to Plaintiff. 29. Plaintiff delivered the Vehicle to Manufacturer or its authorized repair facilities for repair. 30. Defendants, and each of them, failed to service or repair the Vehicle to match the written warranty after a reasonable number of opportunities to do so. 31. The acts and/or omissions of Defendants, and each of them, in failing to perform the proper repairs, part replacements, and/or adjustments, to conform the Vehicle to the applicable express warranties constitute a breach of the express warranties that the Manufacturer provided to Plaintiff, thereby breaching Defendants’ obligations under Song-Beverly. 32. Defendants, and each of them, failed to perform the necessary repairs and/or service in good and workmanlike manner. The actions taken by Defendants, and each of them, were insufficient to make the Subject Vehicle conform to the express warranties and/or proper operational characteristics of like Vehicles, all in violation of Defendants’ obligations under Song- Beverly. 33. Plaintiff hereby gives written notice and makes demand upon Manufacturer for replacement or restitution, pursuant to Song-Beverly. Defendants and each of them, knowing their obligations under Song-Beverly, and despite Plaintiff's demand, failed and refused to make restitution or replacement according to the mandates of Song-Beverly. The failure of Defendants, and each of them, to refund the price paid and payable or to replace the Vehicle was intentional and justifies an award of a Civil Penalty in an amount not to exceed two times Plaintiffs actual damages. Mt -7- COMPLAINT FOR DAMAGES34, As a result of the acts and/or omissions of Defendants, and each of them, and pursuant to the provisions of the Song-Beverly, Plaintiff is entitled to replacement of the Vehicle or restitution of the amount actually paid or payable under the contract, at Plaintiff's election, plus prejudgment interest thereon at the legal rate. Plaintiff will seek leave of Court to amend this Complaint to set forth the exact amount of restitution and interest, upon election, when that amount has been ascertained. 35. Additionally, as a result of the acts and/or omissions of Defendants, and each of them, and pursuant to Song-Beverly, Plaintiff has sustained and is entitled to consequential and incidental damages in amounts yet to be determined, plus interest thereon at the legal rate. Plaintiff will seek leave of the court to amend this complaint to set forth the exact amount of consequential and/or incidental damages, when those amounts have been ascertained. 36. Asa direct result of the acts and/or omissions of Defendants, and each of them, and in pursuing Plaintiff's claim, it was necessary for Plaintiff to retain legal counsel. Pursuant to Song-Beverly, Plaintiff, in addition to other remedies, is entitled to the recovery of his attorneys’ fees based upon actual time expended and reasonably incurred, in connection with the commencement and prosecution of this action. Ii Ml Mf If Mf Mit Mt Mit Mit Mit Mf Mf -8- COMPLAINT FOR DAMAGESTHIRD CAUSE OF ACTION Negligent Repair Against NORMANDIN’S dba NORMANDIN CHRYSLER JEEP DODGE only 37. Plaintiff realleges each and every paragraph (1-36) and incorporates them by this reference as though fully set forth herein. 38. Plaintiff delivered the Subject Vehicle to Defendant NORMANDIN’S dba NORMANDIN CHRYSLER JEEP DODGE for repair on numerous occasions. 39. | Defendant NORMANDIN’S dba NORMANDIN CHRYSLER JEEP DODGE owed a duty to Plaintiff to use ordinary care and skill in storage, diagnosis and repair of the Subject Vehicle in accordance with industry standards. 40. | Defendant NORMANDIN’S dba NORMANDIN CHRYSLER JEEP DODGE breached its duty to plaintiff to use ordinary care and skill by failing to properly store, diagnose, and repair the Subject Vehicle in accordance with industry standards. 41. Defendant NORMANDIN’S dba NORMANDIN CHRYSLER JEEP DODGE ’s negligent breach of its duties owed to Plaintiff was a proximate cause of plaintiff's damages. 42. Plaintiff sustained damages due to Defendant NORMANDIN’S dba NORMANDIN CHRYSLER JEEP DODGE’: failure to properly store, diagnose and repair the Subject Vehicle in accordance with industry standards. Mf Mf if Mf Ml If Ii /it If -9- COMPLAINT FOR DAMAGESfollows: PRAYER FOR RELIEF WHEREFORE, Plaintiff prays for judgment against all Defendants, and each of them, as . For replacement or restitution, at Plaintiff's election, according to proof; . For incidental damages, according to proof; . For consequential damages, according to proof; . For damages sustained from negligent auto repairs; according to proof; eo oO . For a civil penalty as provided in Song-Beverly, in an amount not to exceed two times the amount of Plaintiffs actual damages; F. For actual attorney’s fees, reasonably incurred; G. For costs of suit and expenses, according to proof; H. For the difference between the value of the Vehicle as accepted and the value the Vehicle would have had if it had been as warranted; I. For remedies provided in Chapters 6 and 7 of Division 2 of the Commercial Code; J. For pre-judgment interest at the legal rate; K. Such other relief the Court deems appropriate. Date: February 25, 2019 THE BARRY LAW FIRM \ Attorneys for Plaintiff, LEONARDO GONZALEZ 105 COMPLAINT FOR DAMAGES