Complaint,Petition: Clark, Gregory L. vs. John L. Sullivan, Inc. et al

On January 16, 2018 a Complaint,Petition was filed involving a dispute between Gregory Clark, and John L. Sullivan, Inc., Sierra Central Credit Union, for Civil-Roseville in the District Court of Placer County.

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1 cers Smith

| Johan ae SBN:
a 265444 Superior Court of California
3.| 9685 Via Excelencia, Suite 108 bunty of Placer
4| THE: (888) 907-6107 | JAN 16 2018
; FAX: (858) 263-0218 _Exsod dake Chatters

6 sharon@ californiaconsumerattorneys. com Y Of
' chris@californiacofisumerattorneys.com
7 josh @californiaconsumerattorneys. com

8.| Attorneys forPlaintiff |

9
10 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
il vIN AND FOR THE COUNTY OF PLACER
12 BILL SANTUCCIJUSTICE CENTER, an
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14 | Gregory L. Claris, anid ia, Case No. Sey y 0 a] L QA 5 h a

15 Plaintiff, Complaint

16 | v.
17} John L. Sullivan, Inc., a California corporation;

18} Sierra Central Credit Union, a California a

19 Docs | hrough
throws 79,75 in
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20 Defendants. &
21
22 |
23 |
24
25
26
27 |
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Complaint
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Parties and Venue
L Plaintiff Gregory L. Clark isan individual.

2. Defendant John I..
Sullivan, Inc. (“Dealer”) is,and at allmaterial times was, a California
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corporation. Dealer isand was at allmaterial times registered to do business in the State of California asa
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vehicle dealer licensed by the California Department of Motor Vehicles (DMV). Dealer's dealer license
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number is 08610. The California address for Dealer’s main location isin the City of Roseville, County of
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Placer, State:of California. Therefore, Plaintiff commenced the instant action in the proper venue.

3. Defendant Sierra Central Credit Union ("Sierra Central”) is,and at allmaterial times was,
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a California domestic nonprofit. .
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4, Plaintiff doés not know the true names and capacities, whether corporate, partnership,
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associate,individual orotherwise, of Defendants sued hereinas Does 1 through 75, inclusive,and thusnames
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them under the provisions of section 474 ofthe Code of CivilProcedure. Defendants, Does 1 through 75,
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inclusive, arein some manner responsible for the acts,occurrences and transactions set forth herein, and are
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legallyliableto Plaintiffand/or they are the alter-ego ofthe Defendants named herein. Plaintiffwill setforth
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the true names and capacities of the fictitiouslynamed Defendants together with appropriate charging
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allegations when ssnoctatnad,
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5. Alt actgof ‘Dealer'semployeesas hereinafter alleged were authorized orratified by theowner
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or managing agents ofDealer.

6. Ail acts of Sierra Central's employees ashereinafter alleged were authorized or ratified by
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the owner ormanaging agents of Sierra Central.
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7. Each Defendant, whether actually orfictitiouslynamed here, was the principal, agent (actual
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or ostensible),ci caneparateh or employee of eachother Defendant and in actingas such principal orwithin
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the course and scope ofsuch.employment, sent or conspiracy, took some part inthe actsand omissions
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hereinafter setforth by reason ofwhich each Defendant is liable
to Plaintiff for the reliefprayed forherein.
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Summary ofAllegations
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8. Plaintiff is a100% disabled veteran. The Department of Veterans Affairs (VA) made a
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finding, effective October 31, 2016, that Plaintiffwas not competent to handle the disbursement of funds.
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Based upon the VA’s finding, the VA appointed:Plaintiff’s wife, Lorraine Clark, as Plaintiff'sfiduciary to
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Complaint
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oe manage Plaintiff'sVA benefits. Plaintiff issubstantially unable to manage his own financial resources.

9. In August 2017, Plaintiffwas interested inpurchasing aChevrolet Camaro for hispersonal
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use.Plaintiff visitedDealer tolookat Camaro vehicles availablefor sale.Dealer employee and salesassociate
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Jake Zrelak assisted in Plaintiff'ssearch for a Camaro. Eventually, Plaintiff was interested in purchasing a
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2010 Chevrolet Camaro SS; VIN: 2G1FK1EJ1A9141025 (“subject vehicle”).
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10. Based upon Plaintiff'sinterest,Plaintiff filledout a creditapplication to apply forcredit to

purchase the subject vehicle.While fillingout the credit application, Plaintiffprovided Dealer, including
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Mr. Zrelak and Dealer employee and finance manager Magdi Gendi, with Plaintiff's personal identifying
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information. This included Plaintiff ssocialsecurity number, aswell asinformation regarding Plaintiff'sVA

benefits. Plaintiffauthorized Dealer to use Plaintiff'spersonal identifying information to apply forcredit
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only for the purpose ofpurchasing the subject vehicle.

11. Due to Plaintiff's 100% disability,Plaintiff-was not employed: Piaintiff provided Dealer,
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including Mr. Zrelak and Mr. Gendi, with documents stating theamount of Plaintiff'sVA disabilitybenefit,
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as well asdocuments sen that the VA found Plaintiff 100% incompetent effective October 31, 2016.
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12. Thedocuments Piaintiff provided Dealer included a letter
from the VA dated July 13,2017,
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hereinafter referred to as theJuly 13 VA letter.
Because the lettercontains private and sensitiveinformation
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regarding Plaintiff'smedical information and mental health information, Plaintiffdid not attach a copy of
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the letteras an exhibit to thiscomplaint.
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13. Plaintiff'discussed theJuly 13 VA letterwith Mr. Gendi. Plaintiffprovided Mr. Gendi with
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a copy of the July 13 VA letter,of which Mr. Gendi photocopied. In discussing the July 13 VA letter,
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Plaintiff asked Mr. Gendi ifMrs. Clark, Plaintiff'swife, needed to approve of the purchase of the subject
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vehicle—including the purchase contract. Mr. Gendi represented to Plaintiffthat “it was ok” and that
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Plaintiff did not need to talk tohis wife to purchase the subject vehicle.
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14. Dealer prepared a Retail Installment Sale Contract (RISC)-that set forth the terms of
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Dealer's sale ofthe subject vehicle to Plaintiff. Atrue and correct copy ofthe RISC, dated August 15,2017,
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is attached hereto as Exhibit 1.The terms ofthe RISC included thecash priceof the subject vehicle,the price
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of optional. goods and services, the total amount financed of the purchase price of the subject vehicle, the
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annual percentage rate,and therepayment term. The optional goods and services included Cilajet,asurface
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Complaint
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Oe protection product. Plaintiffalsoagreed tomake a $500 deferred downpayment by a hold check to becashed

on September 5,2017.

15. Because Plaintiffwas 100% incompetent, Plaintiff did not have theability toconsent freely
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to the terms ofthe RISC. Dealer obtained Plaintiff'sconsent to the terms of the RISC by duress, menace,
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fraud, undue influence, or mistake. But, Plaintiffsigned the RISC and took delivery of the subject vehicle
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on August 15, 2017.

16. At the time Plaintiff took delivery of the subject vehicle, the Cilajet surface protection
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product was not added to the subject vehicle. Pursuant to the Due Bill,Dealer agreed to add the Cilajet to
owe

the subject vehicle after the sale.A true and correct copy of the Due Billisattached hereto as Exhibit 2.

17. . Plaintiff brought the subject vehicle to Dealer on or around August 18,2017, for Dealer to
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apply the Cilajet product. Plaintiffleftthe subject vehicle atDealer’s service department. Dealer's service
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department provided Plaintiffa work order invoice dated August 18,2017. A trueand correct copy of this
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work order isattached hereto as Exhibit 3.
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18. . The RISC wasa conditional salecontract for Plaintiff'spurchase of the subject vehicle. In
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the Federal Trade Commission (FTC) holder language, included on the bottom of the backside of the
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contract, theRISC identified itselfasa “consumer credit contract.” The RISC gave Plaintiff the right to
possession of the subject vehicle.Dealer delivered possession of the subject vehicle to Plaintiff. The top
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right-hand corner ofthe RISC identified Dealer as the Seller-Creditor. The RISC granted Dealera security

interest in the subject vehicle. Further, the RISC contained the language required by Civil Code section
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2982, subsection (r),
that stated “California does not provide for a‘cooling-off orother cancellation period

for vehicle sales.”
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19. The RISC set forth a single provision that allowed Dealer to cancel the RISC. This
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provision, entitled the “Seller'sRight to Cancel,” only provided Dealer the right to cancel the RISC if Dealer
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was unable to assign the RISC to a lender or other financial institution. Further, Dealer could only invoke
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the cancellation provision by providing notice to Plaintiff within ten (10) days of date ofthe RISC.
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20. During the 10-day period from the date of the RISC, Dealer finance manager Mr. Gendi
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contacted Plaintiff.Mr. Geridi gave Plaintiffactual notice of Dealer's election to cancel the RISC because
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Dealer was unable toassign the RISC forthe subject vehicle to alender orother financial institution,Dealer

Complaint
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EH was electing tocancel the RISC.

21. Plaintiff advised Mr. Gendi that the subject vehicle was at Dealer forthe Cilajet product
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application. Mr. Gendi notified Plaintiffthat if there were any changes, Dealer ‘would contact Plaintiff.
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22. Inreliance on Mr. Gendi’s notice of cancellation of the RISC, Plaintiffand hiswife placed
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a stop payment on the'$500 deferred downpayment check. Plaintiffalso purchased a different Camaro
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vehicle from a different dealership.
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23. But, instead of canceling the RISC, Dealer illegally
and improper attempted to assign the

RISC for the subject vehicle to a lender or financial institution. Dealer eventually assigned the RISC to
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Sierra Central. The California Department of Motor Vehicles (DMV) issued aregistration card for the

subject vehicle on September 13, 2017—nearly amonth after Plaintiff purchased the subject vehicle. This
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registration card listedPlaintiff asthe registered owner and SierraCentral as the lienholder and legalowner.
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A true and correct copy of the registration card is attached hereto as Exhibit 4.
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24, Plaintiff did not apply for credit directlywith Sierra Central for the purchase of the subject
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vehicle. |
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25. Inthebeginning of November 2017, Plaintiffreceived a flurryof mail from various financial
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institutions regarding the subject vehicle, including Sierra Central. This mail was dated in August and
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September 2017. Plaintiff does not have any information as to the reason for the delay in receipt of the
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correspondence.
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26. Some of the mail included adverse action notices regarding the denial of extension of credit.
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Curiously. Plaintiffreceived an adverse action notice from Sierra Central, dated September 8, 2017, along
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with a lettercongratulating: Plaintiff for his purchase of the vehicle dated August 30, 2017. A true and
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correct copy of theSeptanibed 8 adverse action notice isattached hereto asExhibit 5, Atrueand correct copy
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of the August 30 congratulation letterisattached hereto.as.Exhibit 6. The terms.of financing setforth in
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Sierra Central's congratulatory letter did not match the terms of financing set forth in the RISC.
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27. Plaintiff also began receiving communications from Sierra Central, including past due
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notices andremittance statements for a creditaccount forthe subject vehicle. A true and correct copy ofthe
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past due notice for a payment Plaintiffallegedly owed Sierra Central on September 29, 2017, isattached
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hereto asExhibit 7.
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Complaint
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le 28. Sierra Central's past due notice requested a payment from Plaintiff in an amount not

authorized by the RISC for the subject vehicle.The payment amount did not match the payment terms set
forth in the Truth in Lending Act (TILA) disclosures inthe RISC.
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29. _ Plaintiffcontacted SierraCentral regarding the credit account, the subject vehicle,and the
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RISC. Plaintifftold Sierra Central that Dealer cancelled the RISC, that Plaintiff did not have possession of
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the subject vehicle, and that Dealer had possession ofthe subject vehicle. Sierra Central stated that Dealer
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alleged Plaintiffwas stillin possession of the subject vehicle.
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30. ——- Plaintiff: and
his wife contacted Dealer regarding Sierra Central's representations regarding
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the RISC forthe subject vehicle. In November 2017, Plaintiff and his wife returned to Dealer. Plaintiffand

his wife saw the subject vehicle in the same place Plaintiffleftthe subject vehicle in Dealer's servicedrive in
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August 2017. Plaintiff spoke with two of Dealer's managers and told them that Mr. Gendi gave Plaintiff
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notice of Dealer’s election to cancel the RISC. Dealer's. managers, whose names Plaintiff does not recall,
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advised Plaintiff that Mr. Gendi no longer worked atDealer. Dealer told Plaintiff that Plaintiffwould have
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to take possession of the subject vehicle.
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31. Plaintiff also received an adverse action notice from Travis Credit Union regarding an
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application forcredit from Dealer on November 7, 2017—nearly three months afterPlaintiff'spurchase of
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thesubject vehicle,nearly three months afterDealer cancelled the RISC, and nearly two monthsafter Dealer
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assigned the RISC for the subject vehicle to Sierra Central. A true and correct copy ofthe Travis Credit
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Union adverse action notice, dated November 21, 2017, isattached hereto asExhibit 8.
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32. After Mr. Gendi cancelled the RISC, Plaintiffdid not give Dealer authorization toapply
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for credit in:Plairitiff's
name for the purchase fo the subject vehicle..Dealer used Plaintiff's personal
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information without Plaintiff's consent or authorization. Plaintiff isinformed and believes and thereon
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allegesthat Dealer continued to attempt to assignthe RISC for thesabject vehicle after Dealer cancelled the
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RISC.
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Sierra Central’s Liability as the Holder of the RISC
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33. Plaintiff ncaRgoRatES herein each and every allegation set forth in the preceding and
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following paragraphs of this complaint, as though fully setforth herein.
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34. _ Plaintiff signed the RISC to purchase the subject vehicle.
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Complaint
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35. Dealer assigned the RISC to Sierra Central.

36. Sierra Central accepted assignment ofthe RISC.

37. The RISC included the following language:
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NOTICE: ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS
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SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD
ASSERT ACAINST THE SELLER OF GOODS OR SERVICES OBTAINED
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PURSUANT HERETO OR WITH THE PROCEEDS HEREOF, RECOVERY
HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY
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THE DEBTOR HEREUNDER.
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38. Thisnoticemakes SierraCentral liableforallclaims and defenses that Plaintiff canmaintain
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against Dealer. Sierra Central's liability isbased in contract, under the Automobile Sales Finance Act
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(ASFA), and under California case law.
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39. Therefore, Sierra Central isliablefor the acts ofDealer as stated herein, separate and apart
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from Sierra Central's individual and independent wrongdoings.
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! First Cause ofAction
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Action ona Written Contract
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As to Dealer and Sierra Central
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40. Plaintiff incorporates herein each and every allegation set forth in the preceding and

following paragraphs of this complaint, as though fully setforth herein.
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41. Plaintiff and Dealer entered into the RISC for Dealer's sale ofthe subject vehicle.
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42. The consent of the parties to.acontract must be free.(Civ. Code, § 1565.) Consent isnot
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free when obtained by duress, menace, fraud, undue influence, or mistake. (Civ. Code, § 1567.) These are
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grounds forrescission under Civil Code section 1689.
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43. Here, Plaintiffallegesthere was no contract because Plaintiff was mistaken about hisability
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to consent freelyto the terms ofthe RISC due his status as a 100% disabled veteran. Dealer knew or should
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have known of Plaintiff'smistake and Dealer used that mistake to take advantage of Plaintiff.Plaintiff's
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mistake was not caused by his excessive carelessness. Plaintiff would not have agreed toenter into theRISC
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if hehad known about the mistake.
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Complaint
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44, Further, Plaintiffalleges his consent to the RISC was given under duress. Dealer used a

wrongful act or threat to pressure Plaintiffinto consenting to the RISC. A reasonable person in Plaintiff's

position would have believedhe had.no reasonable alternative except toconsent to the RISC, Plaintiff would
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not have consented tothe RISC without Dealer's wrongful act or wrongful threat.
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45. Moreover, PlaintiffallegesDealer unfairly pressured Plaintiffinto consenting to the RISC.
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Deaier used a relationship of trust and confidence with Plaintiff to induce or pressure Plaintiff into

consenting to the RISC. Dealer used Plaintiff'sweakness of mind to induce or pressure Plaintiff into
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consenting to the RISC. Dealer used Plaintiff's
needs to induce or pressure Plaintiff into consenting to the
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RISC. Plaintiffwould not otherwise have consented to the contract but forDealer's inducement or pressure
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to.consent to the RISC.
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46. Additionally, Plaintiff allegesDealer obtained hisconsent to the RISC by fraud. Dealer,
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including finance manager Mr. Gendi, represented to Plaintiffthat Plaintiffhad the abilityto consent freely
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to the RISC after Plaintiff told Dealer that Plaintiffwas a 100% disabled-veteran. Dealer, incliding Mr.
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Gendi, knew the representation was not true. Dealer, including: Mr. Gendi, made the representation to
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Plaintiff topersuade Plaintiffto agree to the RISC. Plaintiffreasonably reliedon Dealer's representation.
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Plaintiff would not have entered into the RISC if Plaintiff
had known the representation was not true.
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47. Lastly, Plaintiffalleges Dealer waived and gave up itsright to have Plaintiff perform the
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obligations under the RISC, Dealer knew Plaintiff was required to perform under the RISC. Dealer freely
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and knowingly gave up itsright to have Plaintiff perform the obligations under the RISC. when Dealer's

finance manager Mr. Gendi timely provided Plaintiffwith actual notice of Dealer's election to cancel the
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RISC.
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48. Dealer's actions harmed Plaintiff.
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49; As the holder of the RISC, SierraCentral is liablefor the acts of Dealer as stated herein.
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50. Based upon the wrongful actions set forth above, Plaintiff seeks rescission of the RISC,
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restitution, actual damages, special damages, and reliance damages.
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51. Plaintiff alsoseeks recovery of attorney's feesand costspermissible by law, under CivilCode
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section 1717, and under. the terms ofthe RISC.
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Second Cause of Action

Breach of Contract

As to Dealer-and Sierra Central
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52. Plaintiff incorporates herein each and every allegation. set forth in the preceding and
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following paragraphs of this:complaint, as though fullyset forth herein,
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53. ° Plaintiff and Dealer entered into the RISC for Dealer's sale of the subject vehicle.

54. Plaintiffdid all,orsubstantially all,of thesignificant things that the RISC required Plaintiff
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to do.
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55. - Dealer failed to do something that the RISC required Dealer-to do. Dealer failed to
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implement and maintain reasonable security procedures. and. practices appropriate to the nature of the
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information, to protect the personal information from unauthorized access, destruction, use, modification,
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or disclosure.
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56: Further, Dealer did something the RISC prohibited Dealer from doing. Even though Dealer
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provide Plaintiffproper notice ofDealer's election tocancel theRISC, Dealer attempted toand did assign
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the RISC after the cancellation.
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57. Dealer's breaches of the RISC were asubstantial factor in causing Plaintiff harm.
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58. Dealer’s breaches of the RISC harmed and continue to harm Plaintiff.
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59. As the holder of the RISC, SierraCentral is liablefor the acts of Dealer as stated-herein.
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60. Plaintiff seeks rescission of the RISC, restitution, actual damages, special damages, and
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reliance damages.
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61. _ Plaintiffalsoseeks recovery of attorney's feesand costs permissible by law, under Civil Code
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section 1717, and under the terms of the RISC.
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Third Cause of Action
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Breach of Implied Covenant of Good Faith and Fair Dealing
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As to Dealer and Sierra Central
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62. Plaintiff incorporates herein each and every allegation set forth in the preceding and
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following paragraphs of this complaint, as though fully setforth herein.
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63. Plaintiff aridDealer entered into the RISC.
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Complaint
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64. Plaintiffdid all,or substantiallyall,of thesignificant things that the RISC required Plaintiff
to do.
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65. All conditions required for Dealer’s performance had occurred.
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66. Dealer unfairly interfered with Plaintiff'sright to receive the benefits of the RISC. Dealer
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failedto implement and maintain reasonable security procedures and practices appropriate to the nature of
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the information, to protect the personal information from unauthorized access, destruction, use,
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modification, or disclosure.

67. Dealer used Plaintiff'spersonal identifying information, which Plaintiffprovided toDealer
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for the sole purpose of applying for credit for the purchase of the subject vehicle, to apply for and obtain

consumer credit in Plaintiff'sname without Plaintiff'sauthorization and afterDealer cancelled the RISC.
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68. Plaintiff was harmed by Dealer’s conduct.
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69. As the holder of the RISC, SierraCentral is liablefor the'acts of Dealer as stated herein.
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70. Plaintiff seeks rescission of the RISC, restitution, actual damages, special damages, and
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reliance damages.
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71. Plaintiffalso seeks recovery of attorney's feesand costspermissible by law, under CivilCode
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section 1717, and under the terms of the RISC.

Fourth Cause of Action
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Breach of Implied Duty to Perform With Reasonable Care
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Asto Dealer and Sierra Central
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72. Plaintiff incorporates herein each and every allegation set forth in the preceding and
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following paragraphs of this complaint, as though fully setforth herein.
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73. Plaintiff and Dealer entered into.the RISC.

74. Dealer failed.tousereasonable care inprotecting Plaintiff'spersonal identifying information.
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Dealer failedto implement and maintain reasonable security procedures and practices appropriate to the
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nature of theinformation, toprotect the personal information from unauthorized access, destruction, use,
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modification, or disclosure. Dealer failed to usereasonable care in obtaining Plaintiff'spersonal identifying
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information. Dealer used Plaintiff's personal identifying information, which Plaintiffprovided toDealer
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for the sole purpose of applying for credit for the purchase of the subject vehicle,to apply for and obtain
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Complaint
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consumer credit in Plaintiff'sname without Plaintiff's
authorization and afterDealer cancelled the RISC.
75. Plaintiff was harmed by Dealer's conduct.
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76. As the holder of the RISC, Sierra Central is liablefor the acts.ofDealer as stated herein.

77. Plaintiff seeks rescission of the RISC, restitution, actual damages, special damages, and
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reliance damages.
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78. Plaintiffalsoseeks recovery of attorney's feesand costs permissible by law, under CivilCode

section 1717, and under the terms of the RISC.
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Fifth Cause of Action
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Violation ofthe Customer Records Act
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10 Civil Code section 1785.1, et seg.
ll As to Dealer and Sierra Central
12 79. Plaintiff incorporates herein each and every allegation set forth in the preceding and
13 following paragraphs of this complaint, as though fully setforth herein.

14 80. Dealer is a business, as Civil Code section 1798.80, subdivision (a), defines the term
15 “business.”

16 81. Plaintiff isan individual, as Civil Code section 1798.80, subdivision (d), defines the term
17 “individual.”
18 82. Piaintiff isa customer, as Civil Code section 1798.80, subdivision (c),defines the term
19 “individual.”

20 83. Dealer maintains records, as Civil Code section 1798.80, subdivision (b),defines the term

21 “records.”

22 84. Dealer obtairied Plaintiff'spersonal information, as Civil Code section 1798.80, subdivision
23 (e),defines the term “personal information.”
24 85. Dealer maintains personal information about California residents, as Civil Code section

25 1798.81.5, subdivision (a)(2), defines the term “maintain” and Civil Codesection 1798.81.5, subdivision
26 (d)(1) (A), defines the term “personal information.”

27 86. Dealer was required to implement and maintain reasonable security procedures and practices
28 appropriate to the nature of the information, toprotect thepersonal information from unauthorized access,

Complaint

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Document Filed Date

January 16, 2018

Case Filing Date

January 16, 2018

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Complaint,Petition: Clark, Gregory L. vs. John L. Sullivan, Inc. et al

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