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BRIAN K. CLINE, SBN 246747
MICHAEL G. DEVLIN, SBN 265365
CLINE APC
7855 Ivanhoe Avenue, Suite 408
La Jolla, California 92037
Telephone: 858.373.9337
Facsimile: 858.454.3548
Attorneys for Plaintiff CATHERINE CALDERON
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA
DOWNTOWN COURTHOUSE
CATHERINE CALDERON Case No. 8CV328598
Plaintiff, FIRST AMENDED COMPLAINT
FOR VIOLATION OF STATUTORY
OBLIGATIONS
GENERAL MOTORS, and DOES 1
to ,
Defendants.
Plaintiff alleges as follows:
Plaintiff CATHERINE CALDERON (Plaintiff) at all material times, a
competent adult and resident of Santa Clara County, in the State of California.
Plaintiff is informed and believes and thereupon alleges that defendant
GENERAL MOTORS LLC. (Defendant) is a limited liability company organized and
in existence under the laws of the State of Delaware and registered with the
California Department of Corporations to conduct business in California. At all
times relevant herein, Defendant was engaged in the business of designing,
manufacturing, constructing, assembling, marketing, distributing, and selling
PLAINTIFF COMPLAINT FOR DAMAGES
automobiles and other motor vehicles and motor vehicle components in Santa Clara
County.
Plaintiff ignorant of the true names and capacities of the Defendants sued
under the fictitious names DOES 1 to 10. They are sued pursuant to Code of Civil
Procedure section 474, and are each independently, or as a representative of another
defendant in this suit, responsible in some manner for the causes of action set forth
herein and the damages sustained by Plaintiff. When Plaintiff become aware of
the true names and capacities of the Defendants sued as DOES 1 to 10, Plaintiff
will amend this Complaint to state their true names and capacities.
FIRST CAUSE OF ACTION
VIOLATION OF SUBDIVISION (D) OF CIVIL CODE SECTION 1793.2
On or about August 10, 201 Plaintiff leased/purchased (hereinafter referred
to as “purchase”) 201 Chevrolet Malibu vehicle identification number
1G11E5SA0DU126827, (Vehicle) which was manufactured and or distributed by
Defendant. The Vehicle was purchased primarily for personal, family, or household
purposes. Plaintiff purchased the Vehicle from a person or entity engaged in the
business of manufacturing, distributing, or selling consumer goods at retail.
In connection with the purchase, Plaintiff received an express written
warranty in which Defendant undertook to preserve or maintain the utility or
performance of the Vehicle or to provide compensation if there is a failure in utility
or performance for a specified period of time. The warranty provided, in relevant
part, that in the event a defect developed with the Vehicle during the warranty
period, Plaintiff could deliver the Vehicle for repair services to Defendant's
representative and the Vehicle would be repaired.
During the warranty period, the Vehicle contained or developed defect
ich have manifested in the recurrent disengagement of the transmission at stops
hard shifts between gears, transmission fluid leaks,, transmission pump failure,
exhibition of the check engine light, intake and/or exhaust camshaft solenoid valve
PLAINTIFF COMPLAINT FOR DAMAGES
failure, ngine overheating, water thermostat malfunction and irregular engine
shaking Said defects substantially impair the use, value, or safety of the Vehicle.
Defendant and its representatives in this state have been unable to service
or repair the Vehicle to conform to the applicable express warranties after a
reasonable number of opportunities. Despite this fact, Defendant failed to promptly
replace the Vehicle or make restitution to Plaintiff as required by Civil Code section
1793.2, subdivision (d) and Civil Code section 1793.1, subdivision (a)(2).
Plaintiff has been damaged by Defendant's failure to comply with its
obligations pursuant to Civil Code section 1793.2, subdivision (d) and Civil Code
section 1793.1, subdivision (a)(2), and therefore brings this cause of action pursuant
to Civil Code section 1794.
Plaintiff suffered damages in a sum to be proven at trial but not less than
$25,000.00.
Defendant's failure to comply with its obligations under Civil Code section
1793.2, subdivision (d) was willful, in that Defendant and its representative were
aware that they were unable to service or repair the Vehicle to conform to the
applicable express warranties after a reasonable number of repair attempts, yet
Defendant failed and refused to promptly replace the Vehicle or make restitution.
Accordingly, Plaintiff entitled to a civil penalty of two times Plaintiff s actual
damages pursuant to Civil Code section 1794, subdivision (c).
Defendant does not maintain a qualified third party dispute resolution
process which substantially complies with Civil Code section 1793.22. Accordingly,
Plaintiff entitled to a civil penalty of two times Plaintiff actual damages
pursuant to Civil Code section 1794, subdivision (e).
Plaintiff seek civil penalties pursuant to 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 (f).
PLAINTIFF COMPLAINT FOR DAMAGES
SECOND CAUSE OF ACTION
VIOLATION OF SUBDIVISION (B) OF CIVIL CODE SECTION 1793.2
Plaintiff incorporate by reference the allegations contained in the
paragraphs set forth above.
Although Plaintiff presented the Vehicle to Defendant's representative in this
state, Defendant and its representative failed to commence the service or repairs
within a reasonable time and failed to service or repair the Vehicle so as to conform
to the applicable warranties within 30 days, in violation of Civil Code section 1793.2,
subdivision (b). Plaintiff did not extend the time for completion of repairs beyond
the 30 day requirement.
Plaintiff has been damaged by Defendant's failure to comply with its
obligations pursuant to Civil Code section 1793.2(b), and therefore brings this Cause
of Action pursuant to Civil Code section 179
Plaintiff rightfully rejected and/or justifiably revoked acceptance of the
Vehicle and has exercised a right to cancel the sale. By serving this Complaint,
Plaintiff do so again. Accordingly, Plaintiff seek the remedies provided in
California Civil Code section 1794(b)(1), including the entire purchase price. In the
alternative, Plaintiff seek the remedies set forth in California Civil Code section
1794(b)(2), including the diminution in value of the Vehicle resulting from its
defects. Plaintiff believe that, at the present time, the Vehicle’s value is de
minimis
Defendant's failure to comply with its obligations under Civil Code section
1793.2(b) was willful, in that Defendant and its representative were aware that they
were obligated to service or repair the Vehicle to conform to the applicable express
warranties within 30 days, yet they failed to do so. Accordingly, Plaintiff entitled
to a civil penalty of two times Plaintiff actual damages pursuant to Civil Code
section 1794(c).
PLAINTIFF COMPLAINT FOR DAMAGES
THIRD CAUSE OF ACTION
VIOLATION OF SUBDIVISION (A)(3) OF CIVIL CODE SECTION 1793.2
Plaintiff incorporate by reference the allegations contained in paragraphs
set forth above.
In violation of Civil Code section 1793.2, subdivision (a)(3), Defendant 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 been damaged by Defendant's failure to comply with its
obligations pursuant to Civil Code section 1793.2(a)(3), and therefore brings this
Cause of Action pursuant to Civil Code section 1794.
Defendant's failure to comply with its obligations under Civil Code section
1793.2, subdivision (a)(3) was wilful, in that Defendant knew of its obligation to
provide literature and replacement parts sufficient to allow its repair facilities to
effect repairs during the warranty period, yet Defendant failed to take any action to
correct its failure to comply with the law. Accordingly, Plaintiff entitled to a civil
penalty of two times Plaintiff actual damages; pursuant to Civil Code section
1794(c)
FOURTH CAUSE OF ACTION
BREACH OF EXPRESS WRITTEN WARRANTY
CIV. CODE, § 1791.2, SUBD. (a); § 1794)
Plaintiff incorporate by reference the allegations contained in paragraphs
set forth above.
In accordance with Defendant's warranty, Plaintiff delivered the Vehicle to
Defendant's representative in this state to perform warranty repairs. Plaintiff
so within a reasonable time. Each time Plaintiff delivered the Vehicle, Plaintiff
notified Defendant and its representative of the characteristics of the Defects.
However, the representative failed to repair the Vehicle, breaching the terms of the
written warranty on each occasion.
PLAINTIFF COMPLAINT FOR DAMAGES
Plaintiff has been damaged by Defendant's failure to comply with its
obligations under the express warranty, and therefore brings this Cause of Action
pursuant to Civil Code section 1794.
Defendant's failure to comply with its obligations under the express warranty
was willful, in that Defendant and its authorized representative were aware that
they were obligated to repair the Defects, but they intentionally refused to do so.
Accordingly, Plaintiff entitled to a civil penalty of two times of Plaintiff actual
damages pursuant to Civil Code section 1794(c).
FIFTH CAUSE OF ACTION
BREACH OF THE IMPLIED WARRANTY OF MERCHANTABILITY
(CIV. CODE, § 1791.1; § 1794)
Plaintiff incorporate by reference the allegations contained in the
paragraphs set forth above.
Pursuant to Civil Code section 1792, the sale of the Vehicle was accompanied
by Defendant implied warranty of merchantability. Pursuant to Civil Code section
1791.1, the duration of the implied warranty is coextensive in duration with the
duration of the express written warranty provided by Defendant, except that the
duration is not to exceed one year.
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.
On the date of purchase or within one year thereafter, the Vehicle contained
or developed the defects set forth above. The existence of each of these defects
constitutes a breach of the implied warranty because the Vehicle (1) does not pass
PLAINTIFF COMPLAINT FOR DAMAGES
without objection in the trade under the contract description, (2) is not fit for the
ordinary purposes for which such goods are used, (3) is not adequately contained,
packaged, and labelled, and (4) does not conform to the promises or affirmations of
fact made on the container or label.
Plaintif been damaged by Defendant failure to comply with its
obligations under the implied warranty, and therefore brings this Cause of Action
pursuant to Civil Code section 1794.
IXTH CAUSE OF ACTION
BY PLAINTIFF AGAINST DEFENDANT
FOR VIOLATION OF BUSINESS AND PROFESSIONS CODE
Against all Defendants)
Plaintiff incorporate by reference the allegations contained in the
paragraphs set forth above.
Defendant is alleged to have committed several statutory violations, as
alleged in the preceding causes of actions which provide a predicate for violations of
B & P 17200. Et seq. detailed above such violations include Civil Code
1793.2(d), 3.2(b), 1793.2(a)(3), 1791.2(a), 1794, and 1791.1.
Defendant required to comply with the Song Beverly Act and the common
law duties as well. alleged herein, Defendant , including GENERAL MOTORS
LLC. violated these statutes and duties. These violations of law serve as a basis for
unlawful business practice under B & P § 17200 As a result of the
aforementioned actions the Plaintiff was harmed and injunctive relief and
restitution, including disgorgement of improper fees penalties and interest, is
appropriate.
PLAINTIFF COMPLAINT FOR DAMAGES
WHERERFORE, PLAINTIFF PRAY for judgment against Defendant as
follows:
For Plaintiff actual damages in an amount according to proof;
For restitution;
For a civil penalty in the amount of two times Plaintiff actual damages
pursuant to Civil Code section 1794, subdivision (c) or (e);
For any consequential and incidental damages;
For costs of the suit and Plaintiff reasonable attorneys’ fees pursuant to
Civil Code section 1794, subdivision (d);
For prejudgment interest at the legal rate;
For such other relief as the Court may deem proper.
DEMAND FOR JURY TRIAL
Plaintiff hereby demand a jury trial on all causes of action asserted herein.
DATED October 25, 2018 CLINE APC
By: _________________________
ichael Devlin
Attorneys for Plaintiff
PLAINTIFF COMPLAINT FOR DAMAGES
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BRIAN K. CLINE, SBN 246747 MICHAEL G. DEVLIN, SBN 265365 CLINE APC 7855 Ivanhoe Avenue, Suite 408 La Jolla, California 92037 Telephone: 858.373.9337 Facsimile: 858.454.3548 Attorneys for Plaintiff CATHERINE CALDERON SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA DOWNTOWN COURTHOUSE CATHERINE CALDERON Case No. 8CV328598 Plaintiff, FIRST AMENDED COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS GENERAL MOTORS, and DOES 1 to , Defendants. Plaintiff alleges as follows: Plaintiff CATHERINE CALDERON (Plaintiff) at all material times, a competent adult and resident of Santa Clara County, in the State of California. Plaintiff is informed and believes and thereupon alleges that defendant GENERAL MOTORS LLC. (Defendant) is a limited liability company organized and in existence under the laws of the State of Delaware and registered with the California Department of Corporations to conduct business in California. At all times relevant herein, Defendant was engaged in the business of designing, manufacturing, constructing, assembling, marketing, distributing, and selling PLAINTIFF COMPLAINT FOR DAMAGES automobiles and other motor vehicles and motor vehicle components in Santa Clara County. Plaintiff ignorant of the true names and capacities of the Defendants sued under the fictitious names DOES 1 to 10. They are sued pursuant to Code of Civil Procedure section 474, and are each independently, or as a representative of another defendant in this suit, responsible in some manner for the causes of action set forth herein and the damages sustained by Plaintiff. When Plaintiff become aware of the true names and capacities of the Defendants sued as DOES 1 to 10, Plaintiff will amend this Complaint to state their true names and capacities. FIRST CAUSE OF ACTION VIOLATION OF SUBDIVISION (D) OF CIVIL CODE SECTION 1793.2 On or about August 10, 201 Plaintiff leased/purchased (hereinafter referred to as “purchase”) 201 Chevrolet Malibu vehicle identification number 1G11E5SA0DU126827, (Vehicle) which was manufactured and or distributed by Defendant. The Vehicle was purchased primarily for personal, family, or household purposes. Plaintiff purchased the Vehicle from a person or entity engaged in the business of manufacturing, distributing, or selling consumer goods at retail. In connection with the purchase, Plaintiff received an express written warranty in which Defendant undertook to preserve or maintain the utility or performance of the Vehicle or to provide compensation if there is a failure in utility or performance for a specified period of time. The warranty provided, in relevant part, that in the event a defect developed with the Vehicle during the warranty period, Plaintiff could deliver the Vehicle for repair services to Defendant's representative and the Vehicle would be repaired. During the warranty period, the Vehicle contained or developed defect ich have manifested in the recurrent disengagement of the transmission at stops hard shifts between gears, transmission fluid leaks,, transmission pump failure, exhibition of the check engine light, intake and/or exhaust camshaft solenoid valve PLAINTIFF COMPLAINT FOR DAMAGES failure, ngine overheating, water thermostat malfunction and irregular engine shaking Said defects substantially impair the use, value, or safety of the Vehicle. Defendant and its representatives in this state have been unable to service or repair the Vehicle to conform to the applicable express warranties after a reasonable number of opportunities. Despite this fact, Defendant failed to promptly replace the Vehicle or make restitution to Plaintiff as required by Civil Code section 1793.2, subdivision (d) and Civil Code section 1793.1, subdivision (a)(2). Plaintiff has been damaged by Defendant's failure to comply with its obligations pursuant to Civil Code section 1793.2, subdivision (d) and Civil Code section 1793.1, subdivision (a)(2), and therefore brings this cause of action pursuant to Civil Code section 1794. Plaintiff suffered damages in a sum to be proven at trial but not less than $25,000.00. Defendant's failure to comply with its obligations under Civil Code section 1793.2, subdivision (d) was willful, in that Defendant and its representative were aware that they were unable to service or repair the Vehicle to conform to the applicable express warranties after a reasonable number of repair attempts, yet Defendant failed and refused to promptly replace the Vehicle or make restitution. Accordingly, Plaintiff entitled to a civil penalty of two times Plaintiff s actual damages pursuant to Civil Code section 1794, subdivision (c). Defendant does not maintain a qualified third party dispute resolution process which substantially complies with Civil Code section 1793.22. Accordingly, Plaintiff entitled to a civil penalty of two times Plaintiff actual damages pursuant to Civil Code section 1794, subdivision (e). Plaintiff seek civil penalties pursuant to 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 (f). PLAINTIFF COMPLAINT FOR DAMAGES SECOND CAUSE OF ACTION VIOLATION OF SUBDIVISION (B) OF CIVIL CODE SECTION 1793.2 Plaintiff incorporate by reference the allegations contained in the paragraphs set forth above. Although Plaintiff presented the Vehicle to Defendant's representative in this state, Defendant and its representative failed to commence the service or repairs within a reasonable time and failed to service or repair the Vehicle so as to conform to the applicable warranties within 30 days, in violation of Civil Code section 1793.2, subdivision (b). Plaintiff did not extend the time for completion of repairs beyond the 30 day requirement. Plaintiff has been damaged by Defendant's failure to comply with its obligations pursuant to Civil Code section 1793.2(b), and therefore brings this Cause of Action pursuant to Civil Code section 179 Plaintiff rightfully rejected and/or justifiably revoked acceptance of the Vehicle and has exercised a right to cancel the sale. By serving this Complaint, Plaintiff do so again. Accordingly, Plaintiff seek the remedies provided in California Civil Code section 1794(b)(1), including the entire purchase price. In the alternative, Plaintiff seek the remedies set forth in California Civil Code section 1794(b)(2), including the diminution in value of the Vehicle resulting from its defects. Plaintiff believe that, at the present time, the Vehicle’s value is de minimis Defendant's failure to comply with its obligations under Civil Code section 1793.2(b) was willful, in that Defendant and its representative were aware that they were obligated to service or repair the Vehicle to conform to the applicable express warranties within 30 days, yet they failed to do so. Accordingly, Plaintiff entitled to a civil penalty of two times Plaintiff actual damages pursuant to Civil Code section 1794(c). PLAINTIFF COMPLAINT FOR DAMAGES THIRD CAUSE OF ACTION VIOLATION OF SUBDIVISION (A)(3) OF CIVIL CODE SECTION 1793.2 Plaintiff incorporate by reference the allegations contained in paragraphs set forth above. In violation of Civil Code section 1793.2, subdivision (a)(3), Defendant 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 been damaged by Defendant's failure to comply with its obligations pursuant to Civil Code section 1793.2(a)(3), and therefore brings this Cause of Action pursuant to Civil Code section 1794. Defendant's failure to comply with its obligations under Civil Code section 1793.2, subdivision (a)(3) was wilful, in that Defendant knew of its obligation to provide literature and replacement parts sufficient to allow its repair facilities to effect repairs during the warranty period, yet Defendant failed to take any action to correct its failure to comply with the law. Accordingly, Plaintiff entitled to a civil penalty of two times Plaintiff actual damages; pursuant to Civil Code section 1794(c) FOURTH CAUSE OF ACTION BREACH OF EXPRESS WRITTEN WARRANTY CIV. CODE, § 1791.2, SUBD. (a); § 1794) Plaintiff incorporate by reference the allegations contained in paragraphs set forth above. In accordance with Defendant's warranty, Plaintiff delivered the Vehicle to Defendant's representative in this state to perform warranty repairs. Plaintiff so within a reasonable time. Each time Plaintiff delivered the Vehicle, Plaintiff notified Defendant and its representative of the characteristics of the Defects. However, the representative failed to repair the Vehicle, breaching the terms of the written warranty on each occasion. PLAINTIFF COMPLAINT FOR DAMAGES Plaintiff has been damaged by Defendant's failure to comply with its obligations under the express warranty, and therefore brings this Cause of Action pursuant to Civil Code section 1794. Defendant's failure to comply with its obligations under the express warranty was willful, in that Defendant and its authorized representative were aware that they were obligated to repair the Defects, but they intentionally refused to do so. Accordingly, Plaintiff entitled to a civil penalty of two times of Plaintiff actual damages pursuant to Civil Code section 1794(c). FIFTH CAUSE OF ACTION BREACH OF THE IMPLIED WARRANTY OF MERCHANTABILITY (CIV. CODE, § 1791.1; § 1794) Plaintiff incorporate by reference the allegations contained in the paragraphs set forth above. Pursuant to Civil Code section 1792, the sale of the Vehicle was accompanied by Defendant implied warranty of merchantability. Pursuant to Civil Code section 1791.1, the duration of the implied warranty is coextensive in duration with the duration of the express written warranty provided by Defendant, except that the duration is not to exceed one year. 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. On the date of purchase or within one year thereafter, the Vehicle contained or developed the defects set forth above. The existence of each of these defects constitutes a breach of the implied warranty because the Vehicle (1) does not pass PLAINTIFF COMPLAINT FOR DAMAGES without objection in the trade under the contract description, (2) is not fit for the ordinary purposes for which such goods are used, (3) is not adequately contained, packaged, and labelled, and (4) does not conform to the promises or affirmations of fact made on the container or label. Plaintif been damaged by Defendant failure to comply with its obligations under the implied warranty, and therefore brings this Cause of Action pursuant to Civil Code section 1794. IXTH CAUSE OF ACTION BY PLAINTIFF AGAINST DEFENDANT FOR VIOLATION OF BUSINESS AND PROFESSIONS CODE Against all Defendants) Plaintiff incorporate by reference the allegations contained in the paragraphs set forth above. Defendant is alleged to have committed several statutory violations, as alleged in the preceding causes of actions which provide a predicate for violations of B & P 17200. Et seq. detailed above such violations include Civil Code 1793.2(d), 3.2(b), 1793.2(a)(3), 1791.2(a), 1794, and 1791.1. Defendant required to comply with the Song Beverly Act and the common law duties as well. alleged herein, Defendant , including GENERAL MOTORS LLC. violated these statutes and duties. These violations of law serve as a basis for unlawful business practice under B & P § 17200 As a result of the aforementioned actions the Plaintiff was harmed and injunctive relief and restitution, including disgorgement of improper fees penalties and interest, is appropriate. PLAINTIFF COMPLAINT FOR DAMAGES WHERERFORE, PLAINTIFF PRAY for judgment against Defendant as follows: For Plaintiff actual damages in an amount according to proof; For restitution; For a civil penalty in the amount of two times Plaintiff actual damages pursuant to Civil Code section 1794, subdivision (c) or (e); For any consequential and incidental damages; For costs of the suit and Plaintiff reasonable attorneys’ fees pursuant to Civil Code section 1794, subdivision (d); For prejudgment interest at the legal rate; For such other relief as the Court may deem proper. DEMAND FOR JURY TRIAL Plaintiff hereby demand a jury trial on all causes of action asserted herein. DATED October 25, 2018 CLINE APC By: _________________________ ichael Devlin Attorneys for Plaintiff PLAINTIFF COMPLAINT FOR DAMAGES