Complaint,Petition: Gustavo Ballejo Chagolla vs. General Motors LLC

On October 05, 2020 a Complaint,Petition was filed involving a dispute between Ballejo Chagolla, Gustavo, and General Motors Llc, for 06 Unlimited - Breach of Contract/Warranty in the District Court of Fresno County.

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QUILL & ARROW, LLP E-FILED
1
Kevin Y. Jacobson, Esq. (SBN 320532) 10/5/2020 4:04 PM
2 10900 Wilshire Boulevard, Suite 300 Superior Court of California
Los Angeles, California 90024 County of Fresno
3 Telephone: (310) 933-4271 By: C. York, Deputy
Facsimile: (310) 889-0645
4 E-mail: kjacobson@quillarrowlaw.com
5

6 Attorney for Plaintiff,
GUSTAVO BALLEJO CHAGOLLA
7

8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF FRESNO
10

11 Case No.: 20CECG02936
GUSTAVO BALLEJO CHAGOLLA, an
individual, Unlimited Jurisdiction
12
COMPLAINT
13 Plaintiff,

14 1. VIOLATION OF SONG-BEVERLY
vs. ACT - BREACH OF EXPRESS
WARRANTY
15
GENERAL MOTORS LLC, a Delaware 2. VIOLATION OF SONG-BEVERLY
16 Limited Liability Company, and DOES 1 ACT - BREACH OF IMPLIED
through 10, inclusive, WARRANTY
17 3. VIOLATION OF THE SONG-
BEVERLY ACT SECTION 1793.2
18 Defendants.
4. VIOLATION OF THE SONG-
19 BEVERLY ACT SECTION 1793.22—
TANNER CONSUMER
20 PROTECTION ACT

26
27

COMPLAINT
1 Plaintiff, GUSTAVO BALLEJO CHAGOLLA, an individual, alleges as follows against
2 Defendants GENERAL MOTORS LLC, a Delaware Limited Liability Company (“GENERAL

3 MOTORS LLC”), and DOES 1 through 10 inclusive, on information and belief, formed after a

4 reasonable inquiry under the circumstances:

5 DEMAND FOR JURY TRIAL

6 1. Plaintiff, GUSTAVO BALLEJO CHAGOLLA, hereby demands trial by jury in this
action.
7
GENERAL ALLEGATIONS
8
2. Plaintiff, GUSTAVO BALLEJO CHAGOLLA, is an individual residing in the City
9
of Reedley, State of California.
10
3. Defendant GENERAL MOTORS LLC is and was a Delaware Limited Liability
11
Company operating and doing business in the State of California.
12
4. These causes of action arise out of the warranty obligations of GENERAL
13
MOTORS LLC in connection with a vehicle purchased by Plaintiff and for which GENERAL
14
MOTORS LLC issued a written warranty.
15
5. Plaintiff does not know the true names and capacities, whether corporate,
16 partnership, associate, individual or otherwise of Defendant issued herein as Does 1 through 10,
17 inclusive, under the provisions of section 474 of the California Code of Civil Procedure. Defendant
18 Does 1 through 10, inclusive, are in some manner responsible for the acts, occurrences and
19 transactions set forth herein, and are legally liable to Plaintiff. Plaintiff will seek leave to amend
20 this Complaint to set forth the true names and capacities of the fictitiously named Defendant,

21 together with appropriate charging allegations, when ascertained.

22 6. All acts of corporate employees as alleged were authorized or ratified by an officer,

23 director, or managing agent of the corporate employer.

24 7. Each Defendant, whether actually or fictitiously named herein, was the principal,
agent (actual or ostensible), or employee of each other Defendant, and in acting as such principal
25
or within the course and scope of such employment or agency, took some part in the acts and
26
omissions hereinafter set forth by reason of which each Defendant is liable to Plaintiff for the relief
27
prayed for herein.
28 -2-
COMPLAINT
1 8. On October 20, 2019, Plaintiff purchased a new 2019 GMC Sierra , having VIN
2 No. 3GTP8DED9KG299805 ("the Subject Vehicle”). Express warranties accompanied the sale of

3 the Subject Vehicle to Plaintiff by which GENERAL MOTORS LLC undertook to preserve or

4 maintain the utility or performance of Plaintiff’s vehicle or to provide compensation if there was a

5 failure in such utility or performance.

6 9. The Subject Vehicle was delivered to Plaintiff with serious defects and
nonconformities to warranty and developed other serious defects and nonconformities to warranty
7
including, but not limited to, the engine, suspension, and electrical system defects.
8
10. Plaintiff hereby revokes acceptance of the sales contract.
9
11. Pursuant to the Song-Beverly Consumer Warranty Act (herein after the "Act") Civil
10
Code sections 1790 et seq. the Subject Vehicle constitutes "consumer goods” used primarily for
11
family or household purposes, and Plaintiff has used the vehicle primarily for those purposes.
12
12. Plaintiff is a "buyer" of consumer goods under the Act
13
13. Defendant GENERAL MOTORS LLC is a "manufacturer" and/or “distributor"
14
under the Act.
15
14. Plaintiff hereby demands trial by jury in this action.
16 FIRST CAUSE OF ACTION
17 Violation of the Song-Beverly Act – Breach of Express Warranty
18 15. Plaintiff incorporates herein by reference each and every allegation contained in the
19 preceding and succeeding paragraphs as though herein fully restated and re-alleged.
20 16. Express warranties accompanied the sale of the vehicle to Plaintiff by which

21 GENERAL MOTORS LLC, undertook to preserve or maintain the utility or performance of

22 Plaintiff’s vehicle or to provide compensation if there was a failure in such utility or performance.

23 17. The Subject Vehicle was delivered to Plaintiff with serious defects and

24 nonconformities to warranty and developed other serious defects and nonconformities to warranty
including, but not limited to, engine, suspension, and electrical system defects.
25
18. Pursuant to the Song-Beverly Consumer Warranty Act (herein after the "Act") Civil
26
Code sections 1790 et seq. the vehicle constitutes "consumer goods” used primarily for family or
27
household purposes, and Plaintiff has used the Subject Vehicle primarily for those purposes.
28 -3-
COMPLAINT
1 19. Plaintiff is the "buyer" of consumer goods under the Act.
2 20. Defendant GENERAL MOTORS LLC is a "manufacturer" and/or “distributor"

3 under the Act.

4 21. The foregoing defects and nonconformities to warranty manifested themselves in

5 the Subject Vehicle within the applicable express warranty period. The nonconformities

6 substantially impair the use, value and/or safety of the vehicle.
22. Plaintiff delivered the vehicle to an authorized GENERAL MOTORS LLC repair
7
facility for repair of the nonconformities.
8
23. Defendant was unable to conform Plaintiff’s vehicle to the applicable express after
9
a reasonable number of repair attempts.
10
24. Notwithstanding Plaintiff’s entitlement, Defendant GENERAL MOTORS LLC has
11
failed to either promptly replace the new motor vehicle or to promptly make restitution in
12
accordance with the Song-Beverly Act.
13
25. By failure of Defendant to remedy the defects as alleged above, or to issue a refund
14
or replacement vehicle, Defendant is in breach of its obligations under the Song-Beverly Act.
15
26. Under the Act, Plaintiff is entitled to reimbursement of the price paid for the vehicle
16 less that amount directly attributable to use by the Plaintiff prior to the first presentation of the
17 nonconformities.
18 27. Plaintiff is entitled to all incidental, consequential, and general damages resulting
19 from Defendant’s failure to comply with its obligations under the Song-Beverly Act.
20 28. Plaintiff is entitled under the Song-Beverly Act to recover as part of the judgment a

21 sum equal to the aggregate amount of costs and expenses, including attorney's fees, reasonably

22 incurred in connection with the commencement and prosecution of this action.

23 29. Because Defendant willfully violated the Song-Beverly Act, Plaintiff is entitled in

24 addition to the amounts recovered, a civil penalty of up to two times the amount of actual damages
for GENERAL MOTORS LLC’s willful failure to comply with its responsibilities under the Act.
25
SECOND CAUSE OF ACTION
26
Violation of the Song-Beverly Act – Breach of Implied Warranty
27
30. Plaintiff incorporates herein by reference each and every allegation contained in the
28 -4-
COMPLAINT
1 preceding and succeeding paragraphs as though herein fully restated and re-alleged.
2 31. GENERAL MOTORS LLC and its authorized dealership at which Plaintiff

3 purchased the subject vehicle had reason to know the purpose of the Subject Vehicle at the time of

4 sale of the subject vehicle. The sale of the Subject Vehicle was accompanied by implied warranties

5 provided for under the law.

6 32. Among other warranties, the sale of the Subject Vehicle was accompanied by an
implied warranty that the Subject vehicle was merchantable pursuant to Civil Code section 1792.
7
33. The Subject Vehicle was not fit for the ordinary purpose for which such goods are
8
used because it was equipped with one or more defective vehicle systems/components.
9
34. The Subject Vehicle did not measure up to the promises or facts stated on the
10
container or label because it was equipped with one or more defective vehicle systems/components.
11
35. The Subject Vehicle was not of the same quality as those generally acceptable in the
12
trade because it was sold with one or more defective vehicle systems/components which manifested
13
engine, suspension, and electrical system defects.
14
36. Upon information and belief, the defective vehicle systems and components were
15
present at the time of sale of the Subject Vehicle; thus, extending the duration of any implied
16 warranty under Mexia v. Rinker Boat Co., Inc. (2009) 174 Cal.App.4th 1297, 1304–1305 and other
17 applicable laws.
18 37. Plaintiff is entitled to justifiably revoke acceptance of the subject vehicle under Civil
19 Code, section 1794, et seq;
20 38. Plaintiff hereby revokes acceptance of the Subject Vehicle.

21 39. Plaintiff is entitled to replacement or reimbursement pursuant to Civil Code, section

22 1794, et seq.

23 40. Plaintiff is entitled to rescission of the contract pursuant to Civil Code, section 1794,

24 et seq. and Commercial Code, section 2711.
41. Plaintiff is entitled to recover any incidental, consequential, and/or “cover” damages
25
under Commercial Code, sections 2711, 2712, and Civil Code, section 1794, et seq.
26
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28 -5-
COMPLAINT
1 THIRD CAUSE OF ACTION
2 Violation of the Song-Beverly Act Section 1793.2(b)

3 42. Plaintiff incorporates herein by reference each and every allegation contained in the

4 preceding and succeeding paragraphs as though herein fully restated and re-alleged.

5 43. Pursuant to Civil Code, section 1793.2, subdivision (a) a manufacturer that sells

6 consumer goods in California, for which it has made an express warranty, shall maintain service
and repair facilities or designate and authorize independent service and repair facilities to carry out
7
the terms of those warranties.
8
44. Pursuant to Civil Code, section 1793.2, subdivision (b), when service and repair of
9
goods is necessary because they do not conform with the applicable express warranties, service and
10
repair shall be commenced within a reasonable time by the manufacturer or its representative.
11
45. Civil Code, section 1793.2, subdivision (b) further states that goods shall be serviced
12
or repaired so as to conform to the applicable warranties within 30 days and/or within a reasonable
13
time.
14
46. The sale of the Subject Vehicle was accompanied by express warranties, including
15
a warranty guaranteeing that the subject vehicle was safe to drive and not equipped with defective
16 parts, including the electrical system.
17 47. Plaintiff delivered the subject vehicle to GENERAL MOTORS LLC’s authorized
18 service representatives on multiple occasions. The subject vehicle was delivered for repairs of
19 defects, which amount to a nonconformities to the express warranties that accompanied the sale of
20 the subject vehicle.

21 48. Defendant’s authorized facilities did not conform the Subject Vehicle to warranty

22 within 30-days and/or commence repairs within a reasonable time and GENERAL MOTORS LLC

23 has failed to tender the subject vehicle back to Plaintiff in conformance with its warranties within

24 the timeframes set forth in Civil Code section 1793.2(b).
49. Plaintiff is entitled to justifiably revoke acceptance of the subject vehicle under Civil
25
Code, section 1794, et seq;
26
50. Plaintiff hereby revokes acceptance of the subject vehicle.
27
51. Plaintiff is entitled to replacement or reimbursement pursuant to Civil Code, section
28 -6-
COMPLAINT
1 1794, et seq.
2 52. Plaintiff is entitled to rescission of the contract pursuant to Civil Code section 1794,

3 et seq. and Commercial Code, section 2711.

4 53. Plaintiff is entitled to recover any “cover” damages under Commercial Code

5 sections 2711, 2712, and Civil Code, section 1794, et seq.

6 54. Plaintiff is entitled to recover all incidental and consequential damages pursuant to
1794 et seq and Commercial Code sections, 2711, 2712, and 2713 et seq.
7
55. Plaintiff is entitled in addition to the amounts recovered, a civil penalty of up to two
8
times the amount of actual damages in that GENERAL MOTORS LLC has willfully failed to
9
comply with its responsibilities under the Act.
10
FOURTH CAUSE OF ACTION
11
Violation of the Song-Beverly Act Section 1793.22—Tanner Consumer Protection
12
Act
13
56. Plaintiff incorporates herein by reference each and every allegation contained in the
14
preceding and succeeding paragraphs as though herein fully restated and re-alleged.
15
57. Pursuant to the Tanner Consumer Protection Act, Civil Code sections 1793.22 et
16 seq., a reasonable number of attempts have been made to confirm the vehicle to the applicable
17 express warranties within 18 months from delivery to Plaintiff.
18 58. Pursuant to the Tanner Consumer Protection Act, Civil Code sections 1793.22 et
19 seq., a reasonable number of attempts have been made to confirm the vehicle to the applicable
20 express warranties within 18,000 miles on the odometer of the vehicle.

21 59. In the first 18 months/18,000 miles Plaintiff has owned the vehicle GENERAL

22 MOTORS LLC has been given sufficient repair opportunities under Civil Code section § 1793.22

23 (b)(1), (b)(2), and/or (b)(3); but failed to conform the vehicle to warranty. Plaintiff hereby asserts

24 the presumption that GENERAL MOTORS LLC has been given a reasonable number of repair
attempts and/or days to conform this vehicle to the warranty under Civil Code section § 1793.22
25
(b)(1), (b)(2), and/or (b)(3).
26
60. The same nonconformity or nonconformities resulted in a condition or conditions
27
likely to cause death or serious bodily injury if the vehicle is driven and the nonconformity has
28 -7-
COMPLAINT
1 been subject to repair two or more times by the manufacturer its agents.
2 61. The same nonconformity has been subject to repair four or more times by the

3 manufacturer or its agents.

4 62. Defendant did not conform the Subject Vehicle to warranty within the parameters

5 set forth in 1793.22.

6 63. Plaintiff is entitled to justifiably revoke acceptance of the subject vehicle under Civil
Code, section 1794, et seq;
7
64. Plaintiff hereby revokes acceptance of the subject vehicle.
8
65. Plaintiff is entitled to replacement or reimbursement pursuant to Civil Code, section
9
1794, et seq.
10
66. Plaintiff is entitled to rescission of the contract pursuant to Civil Code section 1794,
11
et seq. and Commercial Code, section 2711.
12
67. Plaintiff is entitled to recover any “cover” damages under Commercial Code
13
sections 2711, 2712, and Civil Code, section 1794, et seq.
14
68. Plaintiff is entitled to recover all incidental and consequential damages pursuant to
15
1794 et seq and Commercial Code sections, 2711, 2712, and 2713 et seq.
16 69. Plaintiff is entitled in addition to the amounts recovered, a civil penalty of up to two
17 times the amount of actual damages in that GENERAL MOTORS LLC has willfully failed to
18 comply with its responsibilities under the Act.
19 ///
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21 ///

22 ///

23 ///

24 ///
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25
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27
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28 -8-
COMPLAINT
1 PRAYER FOR RELIEF
WHEREFORE, Plaintiffs pray for judgment against Defendants, as follows:
2
1. For general, special and actual damages according to proof at trial;
3
2. For rescission of the purchase contract and restitution of all monies expended;
4
3. For diminution in value;
5
4. For incidental and consequential damages according to proof at trial;
6
5. For civil penalty in the amount of two times Plaintiffs’ actual damages;
7 6. For prejudgment interest at the legal rate;
8 7. For reasonable attorney's fees and costs of suit; and
9 For such other and further relief as the Court deems just and proper under the circumstances.
10
Dated: October 5, 2020
11 QUILL & ARROW, LLP
12

13 ________________________
Kevin Y. Jacobson, Esq.
14 Attorneys for Plaintiff,
GUSTAVO BALLEJO CHAGOLLA
15

16
Plaintiff, GUSTAVO BALLEJO CHAGOLLA, hereby demands trial by jury in this
17
action.
18

20
21

26
27

28 -9-
COMPLAINT

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Complaint,Petition: Gustavo Ballejo Chagolla vs. General Motors LLC

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