Motion for Settlement in Achstein, Steven vs. Mercedes-Benz USA, LLC| Trellis.Law

On August 20, 2019 a Conference was filed involving a dispute between Steven Achstein, and Mercedes-Benz Usa, Llc, for Civil-Roseville in the District Court of Placer County.

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CENTURY LAW GROUP LLP 11-9-20
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Edward O. Lear (SBN 132699)
2 Rizza Gonzales (SBN 268118)
5200 W. Century Boulevard, Suite 345
3 Los Angeles, California 90045
Ph.: (310) 642-6900
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Fax: (310) 642-6910
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Attorneys for Plaintiff,
6 Steven Achstein
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SUPERIOR COURT FOR THE STATE OF CALIFORNIA
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IN AND FOR THE COUNTY OF PLACER
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Case No.: SCV0043589
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STEVEN ACHSTEIN;
12 PLAINTIFF STEVEN ACHSTEIN’S
Plaintiff,
13 MANDATORY SETTLEMENT
v. CONFERENCE STATEMENT
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MERCEDES-BENZ USA, LLC; et al.
Date: November 13, 2020
15 Time: 8:30 a.m.
Defendants.
16 Place: TBD

17 Date Filed: August 20, 2019
Trial Date: November 30, 2020
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PLAINTIFF’S MANDATORY SETTLEMENT CONFERENCE STATEMENT
1 1. ATTORNEY/PARTY SUBMITTING THE STATEMENT
2 Plaintiff Steven Achstein (“Plaintiff” and/or “Mr. Achstein”)’s counsel Edward O. Lear
3 Rizza Gonzales submit this settlement conference statement on his behalf.
4 2. COUNSEL FOR PARTIES
5 Edward O. Lear
6 Rizza Gonzales
7 Century Law Group LLP
8 5200 W. Century Blvd. Ste. 345
9 Los Angeles, CA 90045
10 Lead counsel for Plaintiff Steven Achstein
11
12 Jon Universal
13 Nejla Nassirian
14 Universal & Shannon LLP
15 2240 Douglas Boulevard, Suite 290
16 Roseville, California 95661
17 Lead counsel for Defendant MBUSA
18 3. STATEMENT OF FACTS
19 Plaintiff Steven Achstein leased a new 2018 Mercedes-Benz C43 (“Subject Vehicle”) from
20 distributor Mercedes-Benz USA, LLC (“MBUSA”). Plaintiff alleges that MBUSA violated the
21 refund-or-replace provision Song-Beverly Consumer Warranty Act (the “Song-Beverly Act”),
22 Civ. Code, § 1790 et seq. as the Subject Vehicle was delivered with serious defects and
23 nonconformities to warranty. Plaintiff alleges Defendant breached its written express warranty by
24 failing to repair the Subject Vehicle to match the written warranty after being afforded a reasonable
25 number of opportunities to do so. In addition, Plaintiff alleges Defendant breached the implied
26 warranty of merchantability because the Subject Vehicle was not of the same quality as those
27 generally acceptable in the trade and was not fitfor the ordinary purposes for which his high
28 performance vehicle is used.

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PLAINTIFF’S MANDATORY SETTLEMENT CONFERENCE STATEMENT
1 Under the Song-Beverly Act, Plaintiff seeks a refund of the amount paid or payable for the
2 Subject Vehicle, actual damages and a civil penalty of two (2) times the amount of Plaintiff’s
3 damages.
4 A. Sale of the Subject Vehicle
5 Plaintiff leased the Subject Vehicle new on February 27, 2018. The total amount of
6 payments to be made by Plaintiff by the end of the four-year lease is $50,591.14. The value of the

7 Subject Vehicle at the time of the lease was $76,563.05. Plaintiff’s lease of the Subject Vehicle

8 came with MBUSA’s new vehicle warranty which is effective for four years (48 months) or 50,000

9 miles. Plaintiff’s vehicle is still covered by the warranty in terms of time and mileage as of the

10 last visit to MBUSA’s authorized repair facility, Mercedes-Benz of Rocklin on October 1, 2020,

11 with a mileage of 45,829.

12 The lease of the Subject Vehicle also included an implied warranty of merchantability that

13 the Subject Vehicle would have the same quality as those vehicles generally acceptable in the trade

14 and would be fit for the ordinary purpose for which comparable vehicles are intended.

15 B. Plaintiff’s Concerns with the Subject Vehicle

16 Plaintiff’s concerns with the vehicle began shortly after it was purchased and continue to

17 persist to the present. Plaintiff’s main concern with the Subject Vehicle involves a harsh downshift

18 which manifests as a clunk when shifting from 2nd to first after coming from a stop when in Sport+

19 mode and using the distronic package for which Plaintiff paid extra. After months of

20 communication back and forth between the dealership, MBUSA, and MBUSA’s manufacturers,

21 Plaintiff was told that the vehicle is “operating as designed.” Plaintiff contends that this is a defect

22 with the vehicle and no vehicle would be “designed” to operate in this manner.

23 In addition to this issue, Plaintiff has experienced a number of persistent issues which

24 MBUSA has failed to adequately address including issues with the electronic system acting
improperly, various noises within the vehicle including with the AC, steering wheel column, and
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other issues which substantially impair the vehicle’s use, safety, or value. A summary is below
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for each of Plaintiff’s fifteen visits to the authorized repair facility within the first three years of
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leasing the Subject Vehicle.
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PLAINTIFF’S MANDATORY SETTLEMENT CONFERENCE STATEMENT
1 Date Summary
2 1. 6/27/18 a. Phone intermittently will not connect to Bluetooth
3 b. Front side marker out displayed
4 2. 10/25/18 a. Harsh shift when accelerating from a stop.
5 b. Front exterior lamp malfunction displayed
6 3. 3/11/19 a. Harsh shift
7 4. 8/19/19 a. Harsh shift
8 b. Clunk when backing out
9 c. Vehicle sticks in 3rd or 4th gear
10 5. 9/16/19 a. Squeaking noise when put car in park from Spork + or change mode
11 b. Center console mouse cracking
12 c. Driver side marker bulb warning light displayed
13 d. Harsh shift
14 e. Odor from AC vents when using AC
15 6. 9/20/19 a. Squeaking noise from exhaust. Code for exhaust system flap
16 malfunction.
17 7. 11/19/19 a. Whining noise while driving at 35-45 mph
18 b. Clicking marbles noise when using AC
19 c. Harsh shift
20 d. Air flow vent issue
21 8. 11/29/19 a. Warning message key of key missing but key in cupholder.
22 b. Volume unresponsive and fluctuating from loud to quiet. Going
23 haywire.
24 c. Interior lamp turning on and off with no control

25 d. Harsh shift

26 e. Problem connecting to Bluetooth

27 9. 12/9/19 a. Center console lid binding when opening/closing. Scratch on leather

28 console.

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PLAINTIFF’S MANDATORY SETTLEMENT CONFERENCE STATEMENT
1 10. 12/16/19 a. Ticking noise from AC vents
2 b. Phone won’t connect to Bluetooth
3 c. Dome light has delay at times before going dim.
4 d. Harsh shift
5 11. 12/26/19 a. AC ticking intermittently.
6 b. Bluetooth connection issue
7 c. Harsh shift
8 12. 1/14/20 a. Buzzing noise from center controls.
9 b. Ticking noise when blower is on
10 13. 2/28/20 a. Steering column is creaking
11 b. High pitch noise from passenger side dash area
12 c. AC ticking
13 d. Vehicle holds onto first gear when accelerating from stop on a slope
14 e. Harsh shift

15 f. Bluetooth connection issue

16 14. 4/7/20 a. Harsh shift

17 b. Sunroof creaking and rattle noise

18 c. Buzzing noise when accelerating

19 d. Ticking noise from dash when at a stop

20 15. 10/1/20 a. Check engine light flashed on and off and vehicle jerked like a mad

21 misfire.

22 b. Harsh shift

23 c. Problem with distronics system (lane assist inoperative, brake assist

24 limited, blind spot assist warning lights, parking brake activated)

25 d. Radio playing but no display

26 e. Starter battery failing

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PLAINTIFF’S MANDATORY SETTLEMENT CONFERENCE STATEMENT
1 4. FACTUAL STIPULATIONS
2 a. Plaintiff leased a new C43 (“Subject Vehicle”) on February 27, 2018
3 b. MBUSA is the distributor of the Subject Vehicle
4 c. The Subject Vehicle is covered by an express warranty issued by MBUSA
5 d. The Subject Vehicle has been brought in for repair at an MBUSA-authorized
6 repair facility
7 e. MBUSA has not offered replacement or restitution
8 5. CONTESTED ISSUES OF FACT
9 a. Whether the Subject Vehicle had warrantable defects which substantially
10 impaired its use, value, or safety to a reasonable person in Plaintiff’s situation
11 b. Whether MBUSA’s authorized-repair facility repaired the Subject Vehicle to
12 match the written warranty after a reasonable number of opportunities
13 c. Whether MBUSA promptly replaced or bought back the Subject Vehicle
14 d. Whether the Subject Vehicle was of the same quality as those generally
15 acceptable in the trade
16 e. Whether the Subject Vehicle was fit for the ordinary purposes for which the
17 goods are used
18 6. CONTESTED ISSUES OF LAW
19 Overview of the Song Beverly Act.
20 The Song-Beverly Act is a remedial statute designed to protect consumers who have
21 purchased products covered by an express warranty. It requires the distributor to repurchase or
22 replace a buyer in the amount of the purchase price paid if the vehicle cannot be made to conform
23 the vehicle to the written warranty after a reasonable number of opportunities. (Civ. Code, §
24 1793.2(d); Martinez v. Kia Motors America, Inc. (2011) 193 Cal.App.4th 187, 191.)

25 The elements that must be proved in a Song-Beverly Act claim are:

26 1. That Plaintiff purchased or leased a new motor vehicle distributed by
27 Defendant;

28 2. That Defendant gave Plaintiff a written warranty;

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PLAINTIFF’S MANDATORY SETTLEMENT CONFERENCE STATEMENT
3. That the vehicle had defects that were covered by the warranty and that
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substantially impaired its use, value, or safety to a reasonable person in
2 Plaintiff’s situation;

3 4. That Plaintiff delivered the vehicle to Defendant or its authorized repair
facility for repair of the defects;
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5. That Defendant or its authorized repair facility failed to repair the vehicle to
5 match the written warranty after a reasonable number of opportunities to do
so; and
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6. That Defendant did not promptly replace or buy back the vehicle.
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8 (Civ. Code, § 1793.2(d); CACI 3201 (Elements 1, 2, and 4 are not at issue).)

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Defects that Substantially Impaired Use, Value or Safety
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As set forth above, Plaintiff will be able to prove that the Subject Vehicle had warrantable
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defects that impaired its use, value, or safety. Plaintiff has brought the Subject Vehicle in on fifteen
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separate occasions for repairs in less than 3 years. Mr. Achstein testified at his deposition about
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how the numerous and repeated issues with the Subject Vehicle have impaired his use of the
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vehicle, the value of the vehicle, and his safety. As to use, Plaintiff has had to bring in the Subject
15 Vehicle on 15 separate occasions. He experiences a harsh shift/clunk whenever he uses the Sport+
16 mode and the distronic package for which he paid extra. As such, Plaintiff is also not getting the
17 value for which he paid for the vehicle. As to safety, Plaintiff testified at his deposition that he
18 does not feel safe driving the vehicle and that his wife does not want to drive the vehicle.
19 Failure to Repair After a Reasonable Number of Opportunities
20 Each time the Subject Vehicle was given to Defendant or its authorized repair facility for
21 repair counts as an opportunity to repair, even if they did not do any repair work. (CACI No. 3202;
22 Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1103–04.) The trier of fact
23 should consider all the circumstances surrounding each repair visit in determining whether a
24 manufacturer had a reasonable number of opportunities to fix the vehicle. (CACI No. 3202; Silvio
25 v. Ford Motor Co. (2003) 109 Cal.App.4th 1205, 1208.) Further, Civil Code section 1793.2(b)
26 requires that vehicles be “repaired so as to conform to the applicable warranties within 30 days.”
27 (See also CACI No. 3205.) Here, Plaintiff has brought the vehicle in for repair on fifteen
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PLAINTIFF’S MANDATORY SETTLEMENT CONFERENCE STATEMENT
1 occasions. Defendant has been unable to conform the vehicle to its warranty during those fifteen
2 occasions.
3 Defendant Did Not Repurchase or Replace the Vehicle
4 A consumer need not make an affirmative request for their vehicle to be repurchased in
5 order to trigger a manufacturer or distributor’s duty to promptly repurchase or replace. (Krotin v.
6 Porsche Cars (1995) 38 Cal.App.4th 294, 301.) “[T]he only affirmative step the Act imposes on

7 consumers is to ‘permit the manufacturer a reasonable opportunity to repair the vehicle.’ Whether

8 or not the manufacturer’s agents choose to take advantage of the opportunity, or are unable despite

9 that opportunity to isolate and make an effort to repair the problem, are matters for which the

10 consumer is not responsible.” (Oregel, supra, 90 Cal.App.4th at 1103–04 (internal citation

11 omitted).)

12 In fact, the Act imposes an affirmative duty upon the manufacturer/distributor. In Krotin

13 v. Porsche, the court addressed the “interplay between the manufacturer's responsibility under the

14 Act to provide prompt restitution or replacement and the buyer's obligation under the Commercial

15 Code to reject or revoke acceptance of the vehicle a reasonable time after discovery of defects

16 covered under warranty.” (Krotin, supra, 38 Cal.App.4th at 301.) The court held:

17 [T]he manufacturer has an affirmative duty to replace a vehicle or make
restitution to the buyer if the manufacturer is unable to repair the new vehicle
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after a reasonable number of repair attempts, and the buyer need not reject or
19 revoke acceptance of the vehicle at any time. The buyer need only provide the
manufacturer with a reasonable opportunity to fix the vehicle.
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21 (Krotin, supra, 38 Cal.App.4th at 303.)
The court recognized that manufacturers/distributors have the data and are “capable of
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becoming aware of every failed repair attempt” and have access to the information required to
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determine whether vehicles are lemons without a consumer’s specific request for relief:
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25 An automobile manufacturer need not read minds to determine which vehicles are
defective; it need only read its dealers' service records. The Act requires the
26 manufacturer to maintain or to designate and authorize service and repair facilities
27 in the state (Civ. Code, § 1793.2, subd. (a)(l)(A)); i.e., usually, automobile
dealerships with service departments. Computerized recordkeeping at dealership
28 service departments could easily facilitate this task, even without any direct contact

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PLAINTIFF’S MANDATORY SETTLEMENT CONFERENCE STATEMENT
from the consumer to the manufacturer or any request for replacement or
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reimbursement to the dealership. It is thus apparent that a manufacturer need not be
2 "clairvoyant"; it need only demonstrate more initiative in honoring warranties.

3 (Id., emphasis added.)

4 The holding of the court in Krotin was reaffirmed in Lukather v. General Motors (2010)

5 181 Cal.App.4th 1041, 1049.) The court stated, “the Act does not require consumers to take any

6 affirmative steps to secure relief for the failure of a manufacturer to service or repair a vehicle to

7 conform to applicable warranties—other than, of course, permitting the manufacturer a reasonable

8 opportunity to repair the vehicle.” (Id. at 1050.) It further affirmed Krotin stating that “the

9 manufacturer has an affirmative duty to replace a vehicle or make restitution to the buyer if the
manufacturer is unable to repair the new vehicle after a reasonable number of repair attempts, and
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the buyer need not reject or revoke acceptance of the vehicle at any time. The buyer need only
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provide the manufacturer with a reasonable opportunity to fix the vehicle.” (Ibid.)
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Here, Defendant will argue that Plaintiff did not affirmatively request a buyback from
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MBUSA. However, Plaintiff need not do so in order to have MBUSA repurchase or replace the
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Subject Vehicle. When Defendant could not conform the vehicle to the written warranty after a
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reasonable number of repair attempts, Defendant had an affirmative duty to look at the Subject
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Vehicle’s repair history and offer a repurchase or replacement. This is especially true given
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MBUSA’s involvement in February through June 2019 trying to repair the Subject Vehicle’s harsh
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shift issue.
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MBUSA’s argument that any repair attempts made after the complaint was filed in August
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2019, are not relevant is unavailing. The Subject Vehicle is still currently under warranty. The
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filing of litigation by Plaintiff does not excuse MBUSA’s compliance with the requirements
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imposed upon it by the Song-Beverly Act. Indeed, the pending litigation makes it abundantly clear
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that MBUSA knew of the problems with the Subject Vehicle and has still not made any affirmative
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offer to repurchase the Subject Vehicle to this date.
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Plaintiff Is Entitled to a Civil Penalty
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Under the Song-Beverly Act, Plaintiff is entitled to general, special, and actual damages,
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rescission of the sales contract and restitution of the purchase price, diminution in value,
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PLAINTIFF’S MANDATORY SETTLEMENT CONFERENCE STATEMENT
1 prejudgment interest, incidental and consequential damages, attorney fees, and civil penalties
2 associated with the purchase of the subject vehicle. (Civ. Code, § 1793.2(d).) With regard to the
3 remedy of restitution, the Act provides as follows:
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In the case of restitution, the manufacturer shall make restitution in an amount equal
5 to the actual price paid or payable by the buyer, including any charges for
transportation and manufacturer-installed options, but excluding nonmanufacturer
6 items installed by a dealer or the buyer, and including any collateral charges such as
sales tax, license fees, registration fees, and other official fees, plus any incidental
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damages to which the buyer is entitled under Section 1794, including, but not limited
8 to, reasonable repair, towing, and rental car costs actually incurred by the buyer.

9 The Song-Beverly Act also allows a prevailing consumer to recover “a sum equal to the
10 aggregate amount of costs and expenses, including attorney’s fees based on actual time expended.”
11 (Civ. Code, § 1794(d).)
12 Moreover, the Song-Beverly Act allows a jury to impose a civil penalty if it is determined
13 that a distributor willfully failed to comply with the law. The act reads as follows:
14 If the buyer establishes that the failure to comply was willful, the judgment may
15 include, in addition to the amounts recovered under subdivision (a), a civil penalty
which shall not exceed two times the amount of actual damages.
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(Civ. Code, § 1794, subd. (c).)
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California appellate courts have held that a willful violation occurs if a jury finds that a
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manufacturer knew of its obligations and intentionally refused to fulfill them. (See Schreidel v.
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American Honda Motor Co., Inc. (1995) 34 Cal. App. 4th 1242, 1249-1250.) A consumer need
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not prove malice or moral turpitude to recover a civil penalty. (Id.) The purpose of the civil
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penalty is to deter manufacturers from refusing to comply with the act or implementing policies to
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circumvent the act’s protections and remedies. (See Jensen v. BMW of North America, Inc. (1995)
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35 Cal. App. 4th 112, 134.) Some of the considerations include: (1) whether the manufacturer
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knew that a vehicle had not been repaired after a reasonable number of repair attempts or (2)
25 whether the manufacturer had a policy not to comply with the act. (Id.)
26 In the present case, MBUSA will be subject to civil penalties due to its willful violation of
27 the Act by refusing to buyback Plaintiff’s vehicle both before and after the filing of the complaint.
28 (See Civ. Code, § 1794(c) (“If the buyer establishes that the failure to comply was willful, the

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PLAINTIFF’S MANDATORY SETTLEMENT CONFERENCE STATEMENT
1 judgment may include, in addition to the amounts recovered under subdivision (a), a civil penalty
2 which shall not exceed two times the amount of actual damages”); Jensen v. BMW of North
3 America, Inc. (1995) 35 Cal. App. 4th 112, 134; Kwan v. Mercedes-Benz of North America, Inc.
4 (1994) 23 Cal.App.4th 174, 187.) This is especially true given Defendant’s knowledge of
5 Plaintiff’s numerous concerns and repairs done to the Subject Vehicle in less than three years.
6 BREACH OF IMPLIED WARRANTY

7 Civil Code, section 1792 provides that “every sale of consumer goods that are sold at retail

8 in this state shall be accompanied by the manufacturer’s and the retail seller’s implied warranty

9 that the goods are merchantable.” (Hicks v. Superior Court (2004) 115 Cal.App.4th 77, 84-85; Civ.

10 Code, § 1792; 15 U.S.C. § 2308.) Plaintiff must prove that the Subject Vehicle the Subject Vehicle

11 was not of the same quality as those generally acceptable in the trade or that it was not fit for the

12 ordinary purposes for which the goods are used. (CACI 3210). In the context of the Song-Beverly

13 Act, “fitness for the ordinary purpose of a vehicle means that the vehicle should be in safe condition

14 and substantially free of defects.” (Isip v. Mercedes-Benz USA, LLC (2007) 155 Cal.App.4th 19,

15 23.)

16 7. PREVIOUS SETTLEMENT DISCUSSIONS

17 None.

18 8. INSURANCE COVERAGE

19 Not applicable.

20 9. ARBITRATION

21 Not applicable.

22 10. SPECIAL PROBLEMS RELATING TO SETTLEMENT

23 The Song-Beverly Act awards attorney’s fees, costs and expenses to Plaintiff as the

24 prevailing party. (Code Civ. Proc. § 1032(a)(4); Civ. Code § 1794(d); Graham v. DaimlerChrysler

25 Corp. (2004) 34 Cal.4th 553, 557; Reveles v. Toyota by the Bay (1997) 57 Cal.App.4th 1139.)

26 ///

27 ///

28 ///

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PLAINTIFF’S MANDATORY SETTLEMENT CONFERENCE STATEMENT
1 Date: November 9, 2020 CENTURY LAW GROUP LLP
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4 By:
RIZZA GONZALES
5 Attorneys for Plaintiff
Steven Achstein
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PLAINTIFF’S MANDATORY SETTLEMENT CONFERENCE STATEMENT
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EXHIBIT A
PROOF OF SERVICE
1
(1013a, 2015.5 C.C.P.)
2
Re: Steven Achstein v. Mercedes -Benz USA., LLC; et al.
3 Case No.: SCV0043589
4
I, Kathy Ferrera, am employed in the County of Los Angeles, State of California. I am
5 over the age of 18 and not a party to the within action; my business address is 5200 W. Century
Blvd Suite 345 Los Angeles, CA 90045
6

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On November 9, 2020, I served the following document(s) described as:

8 PLAINTIFF STEVEN ACHSTEIN’S MANDATORY SETTLEMENT CONFERENCE
STATEMENT
9

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on the interested parties in this action as follows:
12 JON D. UNIVERSAL
NEJLA NASSIRIAN
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UNIVERSAL & SHANNON, LLP
14 2240 Douglas Boulevard, Suite 290
Roseville, California 95661
15 eservice@uswlaw.com
juniversal@uswlaw.com
16

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[X] (BY MAIL)
18 On said date I placed such envelope with postage thereon fully prepaid in the United
States mail at Los Angeles, California.
19

20 [ ] I am "readily familiar" with the firm's practice of collection and processing correspondence
for mailing. It is deposited with the U.S. postal service on that same day in the ordinary course
21 of business. I am aware that on motion of party served, service is presumed invalid if postal
cancellation date or postage meter date is more than 1 day after date of deposit for mailing in
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affidavit.
23
[X ] (BY E-MAIL)
24 On said date I e-mailed the above-referenced document to the attention of: Jon Universal, and
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eservice@uswlaw.com.

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I declare under penalty of perjury that the above is true and correct and that this
27 declaration/certificate is executed at Los Angeles, California on November 9, 2020

Kathy Ferrera
28

______________________
Kathy Ferrera

Case Info

Case No.

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Document Filed Date

November 09, 2020

Case Filing Date

August 20, 2019

County

Parties

Bullock, Patrea R. Law Office Patrea R. Bullock Attorneys for Plaintiffs
Gonzales, Rizza Diaz Century Law Group LLP Attorney for the Plaintiff
Mercedes-Benz USA, LLC Defendant
Steven Achstein Plaintiff
Universal, Jon D. Universal, Shannon & Wheeler, LLP Attorney for the Defendant
Edward Lear Attorneys for Plaintiffs
Brett Wanner Attorneys for Defendants
Nejla Nassirian Attorneys for Defendants
Adam Khan Attorneys for Defendants
Bobby Walker Attorneys for Defendants

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Conference: Achstein, Steven vs. Mercedes-Benz USA, LLC

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