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  • Collins, David vs FCA US, LLC et al(37) Unlimited Other Contract document preview
  • Collins, David vs FCA US, LLC et al(37) Unlimited Other Contract document preview
  • Collins, David vs FCA US, LLC et al(37) Unlimited Other Contract document preview
  • Collins, David vs FCA US, LLC et al(37) Unlimited Other Contract document preview
  • Collins, David vs FCA US, LLC et al(37) Unlimited Other Contract document preview
  • Collins, David vs FCA US, LLC et al(37) Unlimited Other Contract document preview
  • Collins, David vs FCA US, LLC et al(37) Unlimited Other Contract document preview
  • Collins, David vs FCA US, LLC et al(37) Unlimited Other Contract document preview
						
                                

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1 JILL L. HARRIS, SBN 276832 HARRIS CONSUMER LAW 2 1809 S Street, Ste. 101-174 3 Sacramento, CA 95811 6/19/2020 T: (916) 572-9410 ▪ F: (916) 905-3888 4 Email: jill@harrisconsumerlaw.com 5 Attorney for Plaintiff DAVID COLLINS 6 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 FOR THE COUNTY OF BUTTE 9 DAVID COLLINS CASE NO.: 20CV01210 10 Plaintiffs, COMPLAINT 11 v. DEMAND FOR JURY TRIAL 12 FCA US, LLC; HOBLIT CHRYSLER JEEP 13 DODGE AND DOES 1 to 50 14 Defendants. 15 Plaintiffs alleges as follows: 16 PARTIES 17 1. As used in this Complaint, the word “Plaintiff” shall mean Plaintiff DAVID COLLINS 18 2. As used in this Complaint, the word “Defendant,” when used without reference to a 19 specific named Defendant shall mean Defendants FCA US, LLC and DOES 1 to 50. 20 3. Plaintiff is ignorant of the true names and capacities of the Defendants sued under the 21 fictitious names DOES 1 to 50. They are sued pursuant to Code of Civil Procedure section 474. When 22 Plaintiff becomes aware of the true names and capacities of the Defendants sued as DOES 1 to 50, 23 Plaintiff will amend this Complaint to state their true names and capacities. 24 25 /// 26 27 /// 28 1 Complaint, Demand for Jury Trial 1 FIRST CAUSE OF ACTION 2 BY PLAINTIFF DAVID COLLINS AGAINST 3 DEFENDANTS FCA US, LLC; 4 HOBLIT CHRYSLER JEEP DODGE AND DOES 1 TO 50 5 BREACH OF THE IMPLIED WARRANTY OF MERCHANTABILITY 6 CAL. CIV. CODE § 1794 7 4. On or about May 11, 2019, Plaintiff purchased a 2018 RAM 2500, VIN 8 3C6UR5NL9JG412056 (hereafter “Vehicle”) which was manufactured, distributed, or sold by 9 Defendant. The total consideration which Plaintiff paid or agreed to pay, including taxes, license, and 10 finance charges is $63,492.00. The Vehicle was purchased and/or used primarily for personal, family, or 11 household purposes, or qualifies as a new motor vehicle under subdivision (e)(2) of Civil Code section 12 1793.22. Plaintiff purchased the Vehicle from a person or entity engaged in the business of 13 manufacturing, distributing, or selling consumer goods at retail. 14 5. In connection with the purchase, Plaintiff received an express written warranty in which 15 Defendant undertook to preserve or maintain the utility or performance of the Vehicle or to provide 16 compensation if there is a failure in utility or performance for a specified period of time. The warranty 17 provided, in relevant part, that in the event a defect developed with the Vehicle during the warranty 18 period, Plaintiff could deliver the Vehicle for repair services to Defendant’s representative and the 19 Vehicle would be repaired. 20 6. During the warranty period, the Vehicle contained or developed various defects, 21 including but not limited to defects which caused the paint to peal, revealing rust and prior repair/s made 22 to the vehicle. The vehicle was purchased brand new and Plaintiff was unaware of any prior damage or 23 rust condition to the subject vehicle. 24 7. Pursuant to Civil Code §§ 1792 and 1791.1, the sale of the Vehicle was accompanied by 25 Defendant’s implied warranty of merchantability. The duration of the implied warranty is coextensive in 26 duration with the duration of the express written warranty provided by Defendant. 27 8. The implied warranty of merchantability means and includes that the Vehicle will comply 28 with each of the following requirements: 2 Complaint, Demand for Jury Trial 1 (1) The Vehicle will pass without objection in the trade under the contract description; (2) 2 The Vehicle is fit for the ordinary purposes for which such goods are used; (3) The 3 Vehicle is adequately contained, packaged, and labeled; and (4) The Vehicle will 4 conform to the promises or affirmations of fact made on the container or label. 5 9. During the time period in which the implied warranty was in effect, the Vehicle 6 contained or developed the defects stated in paragraph 6, above. The existence of each of these defects 7 constitutes a breach of the implied warranty because the Vehicle (1) does not pass without objection in 8 the trade under the contract description, (2) is not fit for the ordinary purposes for which such goods are 9 used, (3) is not adequately contained, packaged, and labeled, and (4) does not conform to the promises or 10 affirmations of frat made on the container or label. 11 10. Plaintiff has rightfully rejected and/or justifiably revoked acceptance of the Vehicle and 12 has exercised a right to cancel the sale. By serving this Complaint, Plaintiff does so again. Accordingly, 13 Plaintiff seeks the remedies provided in California Civil Code section 1794(b)(1), including the entire 14 purchase price. In the alternative, Plaintiff seeks the remedies set forth in California Civil Code section 15 1794(b)(2), including the diminution in value of the Vehicle resulting from its defects. Plaintiff believes 16 that, at the present time, the Vehicle’s value is de minimis. 17 11. Plaintiff has been damaged by Defendant’s failure to comply with its obligations under 18 the implied warranty, and therefore brings this claim pursuant to Civil Code §1794. 19 12. Plaintiff’s agreement to purchase the Vehicle was memorialized in a written document 20 which provides, among other things, that “ANY HOLDER OF THIS CONSUMER CREDIT 21 CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD 22 ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO 23 WITH THE PROCEEDS HEREOF.” Defendants DOES 10 through 19 are or, at one time, were holders 24 of the contract and are thus subject to all claims and defenses which Plaintiff could assert against the 25 seller. 26 27 /// 28 3 Complaint, Demand for Jury Trial 1 2 SECOND CAUSE OF ACTION 3 BY PLAINTIFFS DAVID COLLINS AND AGAINST 4 DEFENDANTS FCA US LLC; HOBLIT CHRYSLER JEEP DODGE AND DOES 1 TO 50 5 BREACH OF THE IMPLIED WARRANTY OF FITNESS 6 CAL. CIV. CODE § 1794 7 13. Plaintiff incorporates by reference the allegations contained in paragraphs 4 through 6 and 8 paragraph 10, above. 9 14. Defendant is a manufacturer, distributor, or seller who had reason to know at the time of 10 the retail sale that the Vehicle was required for a particular purpose and that the Plaintiff was relying on 11 the Defendant’s skill or judgment to select or furnish suitable goods 12 15. Pursuant to Civil Code § 1792.1, the sale of the Vehicle was accompanied by Defendant’s 13 implied warranty that the Vehicle would be fitfor Plaintiff’s particular purpose. The duration of the 14 implied warranty is coextensive in duration with the duration of the express written warranty provided by 15 Defendant. 16 16. On or about March 18, 2018, or during the time period in which the implied warranty was 17 in effect, the Vehicle contained or developed the defects stated in paragraph 6, above. The existence of 18 each of these defects constitutes a breach of the implied warranty because the Vehicle is not fit for 19 Plaintiff’s particular purpose. 20 17. Plaintiff has been damaged by Defendant’s failure to comply with its obligations under the 21 implied warranty, and therefore brings this claim pursuant to Civil Code § 1794. 22 18. Plaintiff’s agreement to purchase the Vehicle was memorialized in a written document 23 which provides, among other things, that “ANY HOLDER OF THIS CONSUMER CREDIT CONTRAT 24 IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT 25 AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO OR WITH 26 THE PROCEEDS HEREOF.” Defendants DOES 1 through 19 are or, at one time, were holders of the 27 contract and are thus subject to all claims and defenses which Plaintiff could assert against the seller. 28 4 Complaint, Demand for Jury Trial 1 2 THIRD CAUSE OF ACTION 3 BY PLAINTIFF DAVID COLLINS AGAINST 4 FCA US LLC; HOBLIT CHRYSLER JEEP DODGE AND DOES 1 to 50 5 SALE OF DEFECTIVE MERCHANDISE WITHOUT DISCLOSING DEFECTS 6 BUS. & PROF. CODE, § 17531; § 17535 7 19. On or about May 11, 2019 Defendant, Hoblit Chrysler Jeep Dodge advertised, called 8 attention to, or gave publicity to the sale of merchandise, which merchandise was defective in any 9 manner, without conspicuously displaying directly in connection with the name and description of that 10 merchandise and each article, unit, or part thereof, a direct and unequivocal statement, phrase, or word 11 which clearly indicated that the merchandise or each article, unit, or part thereof so advertised was 12 defective, in violation of Business & Professions Code Section 17531. 13 20. The representations were made in a newspaper, magazine, circular, form letter or in an 14 open publication, published, distributed, or circulated in this state, including over the Internet, or on any 15 billboard, card, label, or other advertising medium, or by means of another advertising device. 16 21. Plaintiff has suffered injury in fact and has lost money or property as a result of 17 Defendant’s violation of Business & Professions Code section 17531. Pursuant to Business & 18 Professions Code section 17535, the Court may enjoin Defendant from engaging in any future violations 19 of section 17531, and may make such orders or judgments, including the appointment of a receiver, as 20 may be necessary to restore to Plaintiff any money or property, real or personal, which may have been 21 acquired by means of the violation of Business & Professions Code section 17531. 22 22. Plaintiff’s agreement to purchase the Vehicle was memorialized in a written document 23 which provides, among other things, that “ANY HOLDER OF THIS CONSUMER CREDIT 24 CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD 25 ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO 26 OR WITH THE PROCEEDS HEREOF.” Defendants DOES 10 through 19 are or, at one time, were 27 holders of the contract and are thus subject to all claims and defenses which Plaintiff could assert against 28 the seller. 5 Complaint, Demand for Jury Trial 1 FOURTH CAUSE OF ACTION 2 3 BY PLAINTIFF DAVID COLLINS 4 AGAINST DEFENDANT FCA US, LLC AND DOES 1 to 50 5 BREACH OF EXPRESS WARRANTY CAL. CIV. CODE § 1794 6 23. Plaintiff incorporates by reference all allegations contained in paragraphs 4 through 6 and 7 paragraph 10, above. 8 24. In accordance with Defendant’s warranty, Plaintiff delivered the Vehicle to Defendant’s 9 representative in this state to perform warranty repairs. Plaintiff may continue to do so even after this 10 lawsuit is filed. Plaintiff did so within a reasonable time. Each time Plaintiff delivered the Vehicle, 11 Plaintiff notified Defendant and its representative of the characteristics of the defects. However, the 12 representative failed to repair the Vehicle, breaching the terms of the written warranty on each occasion. 13 25. In addition, Defendant provided a warranty by virtue of a sample or model. However, the 14 Vehicle did not conform to the sample or model that Defendant provided. 15 26. Plaintiff has been damaged by Defendant’s failure to comply with tits obligations under 16 the express warranty, and therefore brings this claim pursuant to Civil Code § 1794. 17 27. Defendant’s failure to comply with its obligations under the express warranty was willful, 18 in that Defendant and its representative were aware of their obligation to repair the Vehicle under the 19 express warranty, but they intentionally declined to fulfill that obligation. Accordingly, Plaintiff is 20 entitled to a civil penalty of two times Plaintiff’s actual damages pursuant to Civil Code § 1794(c). 21 28. Plaintiff’s agreement to purchase the Vehicle was memorialized in a written document 22 which provides, among other things, that “ANY HOLDER OF THIS CONSUMER CREDIT 23 CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD 24 ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO 25 OR WITH THE PROCEEDS HEREOF.” Defendants DOES 10 through 19 are or, at one time, were 26 holders of the contract and are thus subject to all claims and defenses which Plaintiff could assert against 27 the seller. 28 6 Complaint, Demand for Jury Trial 1 FIFTH CAUSE OF ACTION 2 3 BY PLAINTIFF DAVID COLLINS 4 AGAINST DEFENDANT FCA USA, LLC AND DOES 1 to 50 5 FAILURE TO PROMPTLY REPURCHASE PRODUCT 6 CAL. CIV. DOES § 1793.2(d) 7 29. Plaintiff incorporates by reference the allegations contained in paragraphs 4 through 6, 8 above. 9 30. Defendant and its representatives in this state have been unable to service or repair the 10 Vehicle to conform to the applicable express warranties after a reasonable number of attempts. Despite 11 this fact, Defendant failed to promptly replace the Vehicle or make restitution to Plaintiff as required by 12 Civil Code §§ 1793.2(d) and 1793.1(a)(2) and will continue to fail to promptly do so even after this 13 lawsuit is filed. 14 31. Plaintiff has been damaged by Defendant’s failure to comply with its obligations pursuant 15 to Civil Code §§ 1793.2(d) and 1793.1(a)(2), and therefore brings this claim pursuant to § 1794. 16 32. Plaintiff’s agreement to purchase the Vehicle was memorialized in a written document 17 which provides, among other things, that “ANY HOLDER OF THIS CONSUMER CREDIT 18 CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD 19 ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO 20 OR WITH THE PROCEEDS HEREOF.” Defendants DOES 10 through 19 are or, at one time, were 21 holders of the contract and are thus subject to all claims and defenses which Plaintiff could assert against 22 the seller. 23 33. Civil Code § 1793.2(d) is a statute that imposes strict liability without regard to intent and 24 which is intended to protect the general welfare. Defendants DOES 20 to 40 are persons who are in a 25 position of responsibility which allows them to influence business policies or the activities of the entity 26 Defendants in this action. There is a nexus between their position in the entity and the violation alleged 27 here such that they could have influenced the actions which constituted the violations. 28 7 Complaint, Demand for Jury Trial 1 Their actions or inactions facilitated the violations alleged herein. 2 34. Defendants DOES 30 to 50 are persons who aided, abetted, and/or ratified the violations 3 of Civil Code § 1793.2(d) alleged in this cause of action. 4 35. Defendant’s failure to comply with its obligations under § 1793.2(d) was willful, in that 5 Defendant and its representative were aware that they were unable to service or repair the Vehicle to 6 conform to the applicable express warranties after a reasonable number of repair attempts, yet Defendant 7 failed and refused to promptly replace the Vehicle or make a restitution despite Plaintiff’s demand. 8 Accordingly, Plaintiff is entitled to a civil penalty of two times Plaintiff’s actual damages pursuant to § 9 1794(c). 10 36. Defendant does not maintain a qualified third-party dispute resolution process which 11 substantially complies with § 1793.22. Despite Defendant’s violation of §1793.2(d) and its notice 12 thereof, Defendant filed to comply with its obligations within a reasonable time. Accordingly, Plaintiff is 13 entitled to a civil penalty of two times Plaintiff’s actual damages pursuant to Civil Code § 1794(e). 14 37. Plaintiff seeks civil penalties pursuant to § 1794, subdivisions (c) and (e) in the 15 alternative and does not seek to cumulate civil penalties, as provided in § 1794(f). 16 SIXTH CAUSE OF ACTION 17 BY PLAINTIFF DAVID COLLINS AGAINST 18 DEFENDANT FCA USA, LLC AND DOES 1 to 50 19 FAILURE TO COMMENCE REPAIRS WITHIN A REASONABLE TIME AND TO 20 COMPLETE THEM WITHIN 30 DAYS CAL. CIV. CODE § 1794 21 38. Plaintiff incorporates by reference the allegations contained in paragraphs 4 through 6 22 and paragraph 10, above. 23 39. Although Plaintiff delivered the Vehicle to Defendant’s representative in this state and 24 may continue to do so even after this lawsuit is filed, Defendant and its representative failed to commence 25 the service or repairs within a reasonable time and failed to service or repair the Vehicle so as to conform 26 to the applicable warranties within 30 days, in violation of Civil Code § 1793.2(b). Plaintiff did not 27 extend the time for completion of repairs beyond the 30-day requirement. 28 40. Plaintiff has been damaged by Defendant’s failure to comply with its obligations pursuant 8 Complaint, Demand for Jury Trial 1 to § 1793.2(b), and therefore brings this claim pursuant to § 1794. 2 41. Plaintiff’s agreement to purchase the Vehicle was memorialized in a written document 3 which provides, among other things, that “ANY HOLDER OF THIS CONSUMER CREDIT 4 CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD 5 ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO 6 OR WITH THE PROCEEDS HEREOF.” Defendants DOES 10 through 19 are or, at one time, were 7 holders of the contract and are thus subject to all claims and defenses which Plaintiff could assert against 8 the seller. 9 42. Defendant’s failure to comply with its obligations under § 1793.2(b) was willful, in that 10 Defendant and its representative were aware that they were obligated to service or repair the Vehicle to 11 conform to the applicable express warranties within 30 days, yet they failed to do so. Accordingly, 12 Plaintiff is entitled to a civil penalty of two times Plaintiff’s actual damages pursuant to § 1794(c). 13 14 PRAYER 15 PLAINTIFF PRAYS for judgment against Defendant as follows: 16 1. For Plaintiff’s damages in the amount of at least $63,492.00. 17 2. For restitution to Plaintiff in the amount of $63,492.00. 18 3. For an order enjoining Defendants from engaging in any act or practice constituting a 19 violation of Business & Professions Code section 17531. 20 4. On Plaintiff’s Fourth Cause of Action, for a civil penalty for each violation in the amount 21 of $126,984.00 which is two times Plaintiff’s total damages, pursuant to Civil Code § 1794(c). 22 5. On Plaintiff’s Fifth Cause of Action, for a declaration that Defendant is obligated to make 23 restitution to Plaintiff pursuant to subdivision (d) of Civil Code section 1793.2 and to brand the title as 24 required by subdivision (c) of Civil Code section 1793.23 25 6. On Plaintiff’s Fifth Cause of Action, for a civil penalty for each violation in the amount 26 of $126,984.00, which is two times Plaintiff’s total damages, pursuant to Civil Code § 1794(c) and (e). 27 7. On Plaintiff’s Sixth Cause of Action, for a civil penalty for each violation in the amount 28 of $126,984.00, which is two times Plaintiff’s total damages, pursuant to Civil Code § 1794(c). 9 Complaint, Demand for Jury Trial 1 8. For any consequential and incidental damages. 2 9. For costs of the suit and Plaintiff’s reasonable attorneys’ fees. 3 10. For prejudgment interest at the legal rate. 4 11. And for such other relief as the Court may deem proper. 5 June 12, 2020 DATED: __________ HARRIS CONSUMER LAW 6 7 _______________________________ 8 Jill L. Harris Attorney for Plaintiff, 9 10 DEMAND FOR JURY TRIAL 11 Plaintiff hereby demands a jury trial on all causes of action asserted herein. 12 13 DATED: June 12, 2020 _______________ HARRIS CONSUMER LAW 14 ____________________________ 15 Jill L. Harris Attorney for Plaintiff 16 David Collins 17 18 19 20 21 22 23 24 25 26 27 28 10 Complaint, Demand for Jury Trial