Motion for Summary Judgment in Alan Travasso v. Bolea Motors, Inc., et al.| Trellis.Law

On August 28, 2017 a Motion-Secondary was filed involving a dispute between Alan D Travasso, and Bolea Motors, Inc., Frank Bolea, Gilroy Toyota, for civil in the District Court of Santa Clara County.

Preview
FILED
2651 Glenview Drive DEC 2 8 2018
(831) 207-0001 .

_w u

BY
BMOouum
. u I.

WM .J

Superior Court of the State of California
R. ARA
7
County of Santa Clara

ALAN D. TRAVASSO Case No. 17CV31 51 1 8

Plaintiff, OPPOSITION TO MOTION FOR SUMMARY
JUDGMENT OR IN THE ALTERNATIVE
10
VS. SUMMARY ADJUDICATION; MEMORANDUM
OF POINTS AND AUTHORITIES; SEPARATE
ll
BOLEA MOTORS, INC. dba GILROY TOYOTA; STATEMENT IN OPPOSITION TO MOTION FOR
SUMMARY JUDGMENT;
vvvvvvvvvvvvvvv
DECLARATION OF
12
FRANK BOLEA Robert D. Ebin; 2-EXHIBITS

l3
Defendants. DATE: January 31, 2019
TIME: 9:00am
14
PLACE: Department 19

l7
Plaintiff “Alan Travasso” herein submits an Opposition to the Motion for Summary Judgment
18
ﬁled by Defendant Bolea Motors, Inc. dba Gilroy Toyota “Gilroy Toyota”.
19

20 The Opposition shall be based on this Opposition Declaration Notice, the attached

21 Memorandum 0f Points and Authorities, responses t0 the Declaration of Robert D. Ebin and Exhibits

22
attached thereto, and the Separate Statement 0f Undisputed Material Facts, concurrently ﬁled and

23
on the complete ﬁles

/
served, and records of this action, and on such other oral and/or documentary
24
evidence as may be presented at the hearing on the Motion.
25

28
Dated: 12-27-2018
/
/‘
&;
Alpa‘ﬁ
:AN
Trévasso, Plaintiff in Pro Per
TABLE OF CONTENTS

I. STATEMENT OF FACTS, Pages 4-11

A. History and Procedural Background .......................................................... 4-6

B. CLRA preﬁling notice. 6-7;8
.......................................................................

E. Failure to plead justiﬁable reliance. ............................................................. 7

F. Uncertainty. 7- 1 0
......................................................................................

II. LEGAL ARGUMENT, Pages 11-13

10
A. THE COURT SHOULD DENY THE MOTION AS SUMMARY JUDGMENT CAN ONLY
ll BE GRANTED WHEN NO TRIABLE ISSUE EXISTS AS TO ANY MATERIAL
FACT ...................................................................................................
11—12
12

l3
B. ANY DOUBTS REGARDING A SUMMARY JUDGMENT MOTION MUST BE
RESOLVED IN FAVOR OF THE OPPOSING PARTY 12-13
......................................
l4
C. THE POLICY OF LAW IS TO HAVE EVERY CASE HEARD ON ITS MERITS ..................... 13
15

l7 III.CONCLUSION .......................................................................................... 14

28
TABLE 0f AUTHORTIES

Cases

Assem. Com. on Judiciary, Rep. on Assem. Bill No. 292 (Sept. 30, 1970) 4 Assem. J. (1970 Reg. Sess.) p. 8466.........7-8
Colgan v. Leatherman Tool Group, Inc. (2006) 135 Cal.App.4th 663, 680 ......................................................... 7
Colores v. Board ofTrustees (2003) 105 Cal. App. 4th 1293, 1305 ............................................................ 12-13
Committee on Children’ s Television, Inc. V. General Foods Corp. (1983) 35 Cal.3d 197, 213 — 214 ........................ 6-7
Eott Energy Corp. v.Storebrand Intemat. Ins. Co. (1996) 45 Cal. App.4th 565 ..............................................
11-12
Financial Corp.ofAmerica v.Wilbum (1987) 189 Ca1.App.3d 764,778 6-7
.........................................................

Gonzales v. Stateof California (1977) 68 Cal.App.3d 621, 631 7—8
...................................................................

Grant-Burton v. Covenant Care, (2002) 99 Cal. App. 4th 1361,
Inc., 1369 ................................................... 12-13
Guz v. Bechtel National, Inc. (2000) 24 Ca1.4th 317, 334. 12-13
......................................................................

Hoover v.City of Fresno (1969) 272 Cal.App.2d 7, 14. 12—13
.........................................................................

IFS Industries, Stephens (1984) 159 Cal. App. 3d 740, 756.
Inc. v. ........................................................... 12-13

II, Inc. v. Superior Court (1995) 33 Cal.App.4th
1680, 1682 ....................................................................... 6-7
Khoury v. Maly’ s of California, Inc. (1993) 14 Cal.App.4th 612, 616 ...........................................................
7-8
Kids' Universe v. In21abs, (2002) 95 Cal.App. 4th 870, 881 .....................................................................
12-13
10
Kramer (2004)
v. Intuit Inc. 121 Cal.App.4th 574, 580 ............................................................................. 7-8
Leach v. Home Savings & Loan Assn., (1986) 185 Cal. App. 3d 1295, 1303 (citing Rowland v. Christian (1968) 69
ll
Cal.2d 108, 111 l3
.............................................................................................................................

McManis v.San Diego Postal Credit Union, (1998) 61 Cal. App. 4th 547, 555 ............................................. 12-13
12
Northrop Corp. v. Stinson Sales Corp., (1984) 151Cal. App. 3d 653, 657. ................................................... 12-13

Outboard Marine Corp. v. Superior Court (1975) 52 Cal.App.3d 30, 40—41 (Outboard) ..................................... 6-7
l3
Pointe San Diego Residential Community, L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP (201 1) 195 Cal.App.4th
265, 274 ....................................................................................................................................
6-7
14
v. Superior Court (2009)
Princess Cruise Lines, Ltd. 179 Cal.App.4th 36, 46 ...................................................... 7
Purdum v.Holmes (2010) 187 Cal.App.4th 916, 924 ............................................................................... 6—7
15
Shamblin v.Brattain (1988) 44 Cal.3d 474, 478. .....................................................................................
13
Stern,BUS. & PROF. C. §17200 PRACTICE (The Rutter Group 2018) 1110:55-59 citing Outboard, supra,52 Cal.App.3d
l6 41
at p. 6—7
......................................................................................................................................

Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App. 4th 1081, 1086 ............................................................ 11-12
l7
Villa v.McFerren (1995) 35 Cal. App.4th 733, 741 ..............................................................................
11-12

19 Statutes

20 1. California CivilCode § 1750, et seq.Consumer Legal Remedies (“CLRA”) ........................................... 6
2. California CivilCode § 4
1761(a) ................................................................................................
21 California CivilCode §
3. 1761(c) ................................................................................................. 4
4. California CivilCode § 1761(d) ................................................................................................. 41
22 5. California CivilCode § 4
1761(c) ................................................................................................
6. California CivilCode § 1770(a): ............................................................................................... 6
23 Code §
7. California Civil l782(a)(1) and (2) ................................................................................... 6
8. California CivilCode § 1783 ...................................................................................................
6
24 9. California CivilCode Procedure §430. 10.) ................................................................................... 6

28
MEMORANDUM OF POINTS AND AUTHORITIES

l. STATEMENT OF FACTS

1. This cause of action arises out of Defendants’ misrepresentations, breach of contract,

and other violations of law hereinafter alleged. The amount in controversy does exceeds $25,000.00,

exclusive 0f interest and costs, for which Plaintiff seeks judgment against Defendant(s), alltogether

with equitable relief. In addition, Plaintiff seeks damages from Defendants for incidental,

consequential, exemplary, and actual damages, including interest, costs, and all applicable fees.

FIRST CAUSE OF ACTION
Violation of the Consumers Legal Remedies Act

10
2. Plaintiff incorporates every paragraph above by this reference.
11
3. The Vehicle is a “good” as deﬁned by California Civil Code § 1761(a).
12
4. Defendants are “persons” as deﬁned by California Civil Code § 1761(c).
l3
5. Plaintiff is a “consumer” as deﬁned by California Civil Code § 1761(d).
l4
6. The sale of the vehicle and related representations constitute a “transaction” as deﬁned
15
by California Civil Code § 1761(c).

l6 7. By virtue of the misrepresentations regarding the terms of the sales contract(s),

l7 Defendants have engaged, or attempted to engage, in unlawful methods, acts, or practices during the

18 relevant time period herein pursuant t0 CLRA, including, but not limited to, California Civil Code §

19 1770(a):

20
(5) Representing that goods or services have sponsorship, approval, characteristics,

21 ingredients, uses, beneﬁts, or quantities which they do not have.

22 (9) Advertising goods 0r services with intent not to sell them as advertised;

23
(14) Representing that a transaction confers or involves rights, remedies, 0r obligations
24 which it does not have or involve, or which are prohibited by law.

25 (16) Representing that the subject of a transaction has been supplied in accordance with a
previous representation when ithas not.
26

27 (17) Representing that the consumer will receive a rebate, discount, or other economic
beneﬁt, if the earning of the beneﬁt is contingent on an event to occur subsequent to
28 the consummation of the transaction.
(1 8) Misrepresenting the authority 0f a salesperson, representative, or agent to negotiate the
ﬁnal terms of a transaction with a consumer.

8. Defendants were properly notiﬁed of their violations pursuant to California Civil Code

§ 1782(a)(1) and (2), given more than 30 days to remedy the complaints, and refused to take any

remedial action. Notices sent in 2017 are on ﬁle with Courts.

9. As a direct result of Defendants’ acts and omissions, Plaintiff has suffered damages.

10. Following the June 19‘“201 8 Order by the Court, and prior to the ﬁling of Summary

Judgement ﬁled by the Defendant, 0n October the 19m 201 8, the Clerk of Court, by Mrs. Elizabeth

lO Pierce, serviced both parties in this case that the Plaintiff is entitled for a Settlement Conference and

ll
15‘
Trial in the Santa Clara County Court and are directed to appear at 191 N. Street San Jose
12
California, CA, 951 l3. A settlement conference has been scheduled for March 6‘“, 2019, at 9:00 am
l3
in Dept. l9; and for; Trial set for March 11'“, 2018 at8:45 am in Department 19.
l4

15 l l. Defendant ﬁled their Motion for Summary Judgment contending that they are entitled

16 to judgement as a matter of law. The Plaintiff opposes Defended on the grounds that there are triable

l7
issues as a matter of fact in that Defendant Bolea Motors Inc., dba Gilroy Toyota’s Demurrer to

18
Plaintiffs Unveriﬁed First Complaint; and (2) Defendant Bolea Motors Inc., dba Gilroy Toyota’s
19
Motion to Strike portions of Plaintiffs First Amended Complaint came before a hearing before the
20

21 Honorable Peter H. Kirwan on June 19‘“,201 8 at 9:00 am in Department l9. The matters have been

22 submitted and the Court Ordered on June 19‘“, 2018 the following:

23 “On or about November 5, 201 5, plaintiff Alan Travasso (“Travasso”) went to defendant Bolea Motors, Inc. dba Gilroy
Toyota (erroneously sued as Bolea Motors Inc, a limited liability company, Independent Dealer, dba Gilroy Toyota;
24 hereafter, “Bolea”) to purchase a 2015 Toyota Sienna. (First Amended Complaint (“FAC”), 115.)
Plaintiff is informed, believes, and alleges that at all times mentioned here, Defendants, and each of them, were the
25 agents, servants, and/or employees of each of their Co-Defendants.” Plaintiff is informed, believes, and alleges that in
doing the things hereinafter, alleged Defendants, and each 0f them, were acting in the course and scope of their
26 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. “While at defendant Bolea, plaintiff Travasso discovered and
27 disputed issues regarding obligations stated within an August 25, 2012 purchase contract administered
by Bolea. (FAC,
‘ll6-)
28
Defendant Bolea orally represented a purchase contract would be administered but instead sold plaintiff Travasso a
vehicle lease. (FAC, — 8.) After taking possession of the vehicle, plaintiff Travasso discovered numerous problems
11117

with the contract administered by defendant Bolea including a misrepresentation of a lease instead of a purchase;
misrepresentation of own payment ﬁgures; undisclosed prior debt balances, and rental charges applied. (FAC, 119.) After
attempting to remedy the issues by telephone to no avail, plaintiff Travasso took the vehicle back t0 the dealer on or about
February l 1,2016 and requested amendments be made pursuant
to the written contract to theverbally agreed upon
purchase aspects. (FAC, 0.)
111 Bolea agreed toamend the contract and represented to plaintiff Travasso that he
would
receive rebates and discounts on the Sienna purchase price aﬁer consummation of a sales transaction for Scion IA, if full
payment for both vehicles ($40,492) was received. (FAC, 111 1.) Bolea misrepresented the terms of the November 2015
was
sales contract stating that there tobe a purchase agreement when, was
in fact, there not. (FAC, 1112.)

Bolea misrepresented the terms of the February 201 6 sales contract, stating there was to be a purchase contract for the
delivery of a 2016 ScionIA and discounts applied to the sale of the 2015 Sienna aﬁer fully payment was received when,
was
in fact, there not.(FAC, 1113.)Bolea’ sreasons for denying claims for the2016 Scion IA was because a contract had
previously been signed and the sales agent did not have authorization to conduct the sale of the Scion
IA on behalfof
Bolea. (Id.)

Bolea misrepresented the terms of the August 20 l 2 sales contract by stating conﬂicting information including obligations
in the sale purchase agreement when, in fact, there was not. (FAC, 1114.) On August 28, 2017, plaintiﬁTravasso
ﬁled a
10
Judicial Council form complaint against Bolea. Paragraph 8 of the form complaint states, “The following causes of action
are attached breach of contract - verbal; other: #37, other contractual dispute/ contractual ﬁ'aud.” Paragraph 9 of the form
ll
complaint states, “Other allegations: - general negligence.” Bolea thereafter attached a one page, typewritten single-
spaced “Statement of Claim to the Court” along with various exhibits.
12

On October 16,201 7,defendant Bolea ﬁled a demurrer and motion to strike plaintiff Travasso’scomplaint. Plaintiff ﬁled
l3
no opposition to Bolea’ sdemurrer and motion to strike.On January 23, 2019, the coun sustained Bolea’ s demurrer and
l4 granted Bolea’ smotion to strike.The order ﬁled January 24, 2018, granted plaintiffTravasso
after hearing, 10 days leave
toamend. On February 2, FAC
2018, plaintiff Travasso ﬁled the operative which of action
asserts a single cause entitled,
15 “Violation of the Consumers Legal Remedies Act.”

l6
On March 23, 2018, defendant Bolea ﬁled the two motions now before the court, a demurrer and motion to strike portions
FAC.
ofplaintiff Travasso’ s As
Plaintiff s requests in opposition. a preliminary matter, plaintiffTravassomakes certain
l7 requests in his opposition to the demurrer. For instance, plaintiff Travasso asks this court to enter default judgment
against defendant Bolea and for leave to amend. Plaintiff Travasso’
s requests are not properly before the court.

18 Consequently, the court declines to rule on any of the requests for afﬁrmative relief sought by plaintiff Travasso in
opposmon.
19

20 B.CLRA preﬁling notice.

21 Plaintiff Travasso’
s FAC of action
asserts a single cause for violationof the Consumer Legal Remedies Act, Civil Code
sections (“CLRA”). “The
1750, et seq. CLRA has a unique CC
preﬁling notice requirement, set forth in § 1782, designed
22 topromote early settlement of consumer suits.” (Stern, BUS. & PROF. C. §17200 PRACTICE (The Rutter Group 201 8)
1110255.) “CC § 1782 provides that “thirty days or more” prior to ﬁling a CLRA action “for damages” the consumer
“shall” notify the potential defendant “of the particular alleged violations of 1770” and demand that he or she
23 Section
“correct, repair, replace or otherwise rectify the goods or services alleged to be in violation of Section
1770.” (Id. at

24 1110:56.)The purpose of the notice requirement of section1782 is togive the manufacturer or vendor sufﬁcient notice of
alleged defects to permit appropriate corrections or replacements. [Footnote] The notice requirement commences the

25 running of certain time constraints upon the manufacturer or vendor within which to comply with the corrective
provisions. The clear intent of the act is to provide and facilitate pre-complaint settlements of consumer actions wherever

26 possible and to establish a limited period during which such settlement
may be accomplished. This clear purpose may
only be accomplished by a literal application of the notice provisions. (Outboard Marine Corp. v. Superior Court (1975)

27 52 Cal.App.3d 30, 40—41 (Outboard).) “The 30-day letter is required as a condition precedent to maintaining an action for
‘damages’ under the CLRA. However, it may be waived by the defendant.” (Stem, BUS. & PROF. C. §17200
28 PRACTICE (The Rutter Group 2018) 1110259 citing Outboard, supra, 52 Cal.App.3d at p. 41.)
Defendant Bolea demurs to plaintiffTravasso’ s FAC by arguing that plaintiff has not alleged any facts demonstrating
compliance with the preﬁling notice requirement except to make a “self-serving boilerplate allegation.” This allegation
is

found atparagraph 22 of the FAC wherein plaintiff Travasso alleges, “Defendants were properly notiﬁed of their
violations pursuant to California Civil Code §
1782(a)(1) and (2), given more than 30 days to remedy the complaints, and
refused to take any remedial action.” Plaintiff has adequately alleged compliance with the preﬁling notice. “A demurrer
tests It admits the truth of all material factual allegations in the complaint; the
only the legal sufﬁciency of the pleading.
question of plaintiff
s ability toprove these allegations, or the possible difﬁculty in making such proof does not concern
the reviewing court.” (Committee on Children’ s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213 —

214.) C.Beyond the scope of permissible amendment, Defendant Bolea argues next that plaintiffTravasso’ s CLRA
claim goes beyond the scope of permissible amendment. However, this is not a ground for demurrer. (See Code Civ.
Proc., §430.10.) D. Statute of limitations. Defendant Bolea demurs further on the basis that plaintiff Travasso’ s CLRA

A claim under the
claim, to the extent it is based upon an August 25, 2012 contract, is barred by the statute of limitations.
CLRA is subject to a three-year statute of limitations which runs from the commission of the unfair commercial practice
Code, §1783; Purdum v. Holmes (2010)
at issue. (Civ. 187 Cal.App.4th 916, 924.) Regardless of the merits of this
argument, a defendant cannot demur to a portion of a cause of action. (See Financial Corp. of America v. Wilbum (1987)
189 Cal.App.3d 764,778—“ [A] defendant cannot demur generally to part of a cause of action;” see also PH II, Inc. v.
Superior Court (1995) 33 Cal.App.4th 1680, 1682—“ A demurrer does not lie to a portion of a cause of action;” Pointe
San Diego Residential Community, LP. v. Procopio, Cory, Hargreaves & Savitch, LLP (201 1) 195 Cal.App.4th 265,
274—“ A demurrer challenges a cause of action and cannot be used to attack a portion of a cause of action.” )
10

E. Failure to plead justiﬁable reliance.
11

12
The CLRA declares unlawful a variety of “unfair methods of competition and unfair or deceptive acts or practices” used
or lease of goods or services to a consumer. (Civ. Code, §l770, subd. (a).) “The standards for determining
in the sale

whether a representation is misleading under the False Advertising Law apply equally to claims under the CLR A.
l3
[Citation] Conduct that is ‘likely to mislead a reasonable consumer’ thus violates the CLRA. (Colgan
[Citation.]” v.

l4
Leatherman Tool Group, Inc. (2006) 135 Cal.App.4th 663, 680.) Defendant Bolea argues the CLRA claim because
fails

CLRA actions.” (Princess Cruise Lines, Ltd. v.
plaintiff cannot plead justiﬁable reliance. “[R]eliance is required for
Superior Court (2009) 179 Cal.App.4th 36, 46.) Defendant Bolea focuses on plaintiff Travasso’ s allegation that Bolea
15
misrepresented the November 2015 contract was for a purchase rather than a lease of the Sienna vehicle. Defendant Bolea
also focuses on the allegation that it allegedly misrepresented the February 2016 contract included the purchase of a Scion
l6
vehicle. Defendant Bolea contends plaintiff Travasso cannot justiﬁably rely
on these misrepresentations because plaintiff
Travasso attached copies of these two contracts to his original complaint and the contracts, on their face, disclose,
l7
respectively, that they were for a lease of the Sienna, not a purchase, and that the purchase was for a single vehicle
(Sienna), not the purchase of two vehicles (Sienna and Scion). Again, regardless ofthe merits, defendant Bolea’ s
18
demurrer cannot be sustained because itattacks only a portion of the cause of action. Plaintiff Travasso’ s cause of action
and are not limited
alleges multiple misrepresentations to thetwo that defendant Bolea focuses on in demurring.
l9

F. Uncertainty.
20

As a ﬁnal basis for demurrer, defendantBolea contends the FAC is uncertain. For instance, paragraph 21 refers to a
21
“service contract”when there isno mention of a service contract anywhere else in the pleading. Defendant Bolea also
contends the FAC is uncertain because it alleges seven different acts which are prohibited by the CLRA but some or all of
22
them are not supported by the factual allegations. For instance, plaintiff Travasso alleges defendant Bolea violated Civil
Code section 1770, subdivision (a)(2) by “Misrepresenting the source, sponsorship, approval, or certiﬁcation of goods or
23
no allegations regarding any such misrepresentations. Instead, the misrepresentations are with
services,” but there are
regard to “contract types being administered as a lease vs purchase, misrepresented down payment ﬁgures,
24
discrepant/undisclosed obligated prior debt balances, and rental charges applied.” (FAC, 119.) Bolea is also alleged to have
“misrepresented the terms of theNovember2015 sales contract, stating that there was to be a purchase agreement
25
administered when was not.” (FAC, 1112.) Bolea allegedly “misrepresented the terms of the February 201 6
in fact there

sales contract, stating that there was to be a purchase agreement administered for the delivery of a 2016 Scion IA, and
26
discounts applied to the sale of the 2015 Sienna after full payment was received, when in fact there was not.” (FAC, 1113.)
Bolea allegedly “misrepresented the terms 0f the August 2012 sales contract, by stating conﬂicting information both
27
verbally and on the face of the contract by including obligations in the sale purchase agreement administered when in fact
there was not.” (FAC, 1114.) The court agrees with Bolea that the alleged misrepresentations do not concern “the source,
28
sponsorship, approval, or certiﬁcation of goods 0r services.” While the facts do not appear to support a violation of Civil
Code section 1770, subdivision (a)(2), plaintiff Travasso alleges several other violations including a violation of Civil
“
Code section 1770, subdivision (a)(l7), Representing that a consumer will receive a rebate, discount, or other economic
beneﬁt if theearning of the beneﬁtiscontingent on an event to occur subsequent to the consummation of the transaction.”
With intended to prohibit merchants from advertising a rebate or discount
this particular subdivision, the Legislature

when they conceal from consumers the conditions to be satisﬁed to receive the rebate or discount. Speciﬁcally, the
relevantAssembly Committee Report explains by way of example that this subdivision would revent a situation where
the consumer would “be required to buy an additional product before he could receive the advertised discount, or that he
buy a more expensive and high quality product than the one advertised.” (Assem. Com. on Judiciary, Rep. on Assem. Bill
No. 292 (Sept. 30, 1970) 4 Assem. J. (1970 Reg. Sess.) p.8466.) (Kramer v. Intuit Inc. (2004) 121 Cal.App.4th 574, 580.)

CLRA
Defendant Bolea argues certain alleged violations of the are uncertain, but does not claim uncertainty with regard
to plaintiffTravasso’ of Civil Code section
s alleged violation 1770, subdivision “A demurrer
(a)(l 7). for uncertaintyis

construed, even where a complaint
strictly is insome respects uncertain, because ambiguities can be clariﬁed under
modern discovery procedures.” (Khoury v. Maly’ s ofCalifomia, Inc. (1993) 14 Cal.App.4th 612, 616.) Although
plaintiff Travasso’ s CLRA claim is in some respects uncertain, “the allegations are sufﬁciently clear to apprise the
defendant of the issues that must be met.” (Gonzales v. State of California (1977) 68 Cal.App.3d 621, 631.) Accordingly,
defendant Bolea’ s demurrer to plaintiff Travasso’ s FAC on the ground that the pleading does not state facts sufﬁcient to
constitute a cause of action
[Code Civ. Proc., §430.10, subd. (6)]and on the ground that the pleadingisuncertain [Code

10
Civ. Proc., §430.10, subd. OVERRULED...”
(f)] is

ll Furthermore, the order on the 19m states the following with regards to the Motion to Strike ﬁled
concurrently with the demur:
12
“E. CLRA preﬁling notice.
l3
Defendant Bolea moves to monetary damages on the basis
strike plaintiff Travasso’ s claim for has not ﬁled
that plaintiff
l4 the requisiteCLRA preﬁling notice. As discussed above, plaintiff Travasso has adequately alleged compliance with the
preﬁling notice at paragraph 22 of the FAC. Accordingly, defendant Bolea’ s motion to strike plaintiff Travasso’ s
15 claims for monetary damages is DENIED...”

l7
12. A letter was delivered t0 the Plaintiff from Toyota Financial Services indicating

18 several “errors and omissions” were found on the contract originated and produced from the

l9 Defendant Gilroy Toyota dated 8-25-2012 included in the case. There mere fact that this letter from
20
Toyota Financial Services, dated September 2012 exists demonstrates a direct violation of the terms
21
and conditions listed on the face on the 8-25—2012 contract. The terms and conditions violated by the
22

Defendant directly stated in the contract stipulates the following: “. ..After this contract is signed, the
23

24 seller (Defendant) may not change the ﬁnancing terms or payment terms unless you (Plaintiff), agree

25 in writing to the change. You do not have to agree to any change, and it isan unfair or deceptive

26
practice for the seller to make a unilateral change. .
.”

28
13. No such supplemental amendment or other written agreements exists or is in

existence that demonstrates buyers (Plaintiffs) agreement to ANY changes in ﬁnancing and or
payment terms after signing of the contract dated 8-25-2012. Therefore, due to the fact that no such

agreements exist, the Plaintiff argles that deceptive, unfair and unilateral changes were made by the

seller, “Defendant”, altering both the ﬁnancing and payment terms alike, then following conditions

were subsequently and unfairly imposed upon the Plaintiff by the Defendant, directly violating of

the terms and conditions stated on the face of the contract dated 8-25-2012 for the Rav-4.

10
14. The Plaintiff argues that the 8-25-2012 contract is essentially rendered null and
ll

voided, and unenforceable as evidenced by the fact of the September 2012 letter exists, and the
12

13 contents of the letter describes and indicate several contractual error and omitted details exist in the

14 contracts terms, as described in prior case ﬁlings by the Plaintiff. Likewise, the fact of the letter

15
existing, its existence demonstrates that unfair and unilateral changes were applied and made to the
16
payment structure altering and changing the contracts “original” terms without agreement from the
l7

buyer. See image below of actual from the contract statement:
18

22 15. The errors and omission demonstrated and detailed in the 8-25—2012 contract

23 correction letter sent from Toyota Financial were unfairly applied into the 11-5—201 5 contracts terms

24
and conditions with reckless negligent actions and caused damages as argued by the Plaintiff, due to
25
the actions and sales process conducted by Gilroy Toyota. The fact that the errors detailed in the ﬁrst
26
contract entered into the ﬁnal third contract causing even more damages, both signed by Eduardo
27

28 Mendoza, on 8-25-2012, and 2-12-2016, demonstrates the inﬂiction of intended malice though
inclusion of the erroneous details disputed in the two prior contracts, even after a letter from Toyota

Financial detailing the errors was issued and made known to Gilroy Toyota prior to the 11-5—2015

contract development and ﬁnalization, and due to the fact that the development was involving and

completed by the exact same sales staff persons in all instances and transactions. This same sales

person was representing that the Plantiff would receive a rebate, discount (economic beneﬁt), and 0r

earning of the beneﬁt contingent on an event t

Case Info

Judge

Peter H. Kirwan Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

December 28, 2018

Case Filing Date

August 28, 2017

County

Parties

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

Motion-Secondary: Alan Travasso v. Bolea Motors, Inc., et al.

Preview

Related Topics

Case Info

Parties