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  • SANTANA, JOSE M vs NISSAN NORTH AMERICA INCBreach of Contract/Warranty: Unlimited document preview
  • SANTANA, JOSE M vs NISSAN NORTH AMERICA INCBreach of Contract/Warranty: Unlimited document preview
  • SANTANA, JOSE M vs NISSAN NORTH AMERICA INCBreach of Contract/Warranty: Unlimited document preview
  • SANTANA, JOSE M vs NISSAN NORTH AMERICA INCBreach of Contract/Warranty: Unlimited document preview
  • SANTANA, JOSE M vs NISSAN NORTH AMERICA INCBreach of Contract/Warranty: Unlimited document preview
  • SANTANA, JOSE M vs NISSAN NORTH AMERICA INCBreach of Contract/Warranty: Unlimited document preview
  • SANTANA, JOSE M vs NISSAN NORTH AMERICA INCBreach of Contract/Warranty: Unlimited document preview
  • SANTANA, JOSE M vs NISSAN NORTH AMERICA INCBreach of Contract/Warranty: Unlimited document preview
						
                                

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Electronically Filed CALIFORNIA CONSUMER ATTORNEYS, P.C. 1/22/2020 12:09 PM 1 Superior Court of California Michael H. Rosenstein (SBN 169091) 2 mhr@calattorneys.com County of Stanislaus Sepehr Daghighian (SBN 239349) Clerk of the Court 3 sd@calattorneys.com By: Carly Bonzi, Deputy 10900 Wilshire Blvd, Suite 300 4 Los Angeles, CA 90024 $435 PAID 5 Telephone: (310) 872-2600 Facsimile: (310) 730-7377 6 Attorneys for Plaintiffs, 7 JOSE M. SANTANA AND ARANTXA Y. SANTANA 8 SUPERIOR COURT OF CALIFORNIA 9 10 COUNTY OF STANISLAUS 11 CV-20-000478 JOSE M. SANTANA, an individual, and Case No.: ____________________ 12 ARANTXA Y. SANTANA, an individual, Unlimited Jurisdiction 13 Plaintiffs, COMPLAINT 14 vs. 1. VIOLATION OF SONG- 15 BEVERLY ACT - BREACH NISSAN NORTH AMERICA, INC., a California OF EXPRESS WARRANTY 16 Corporation, and DOES 1 through 10, inclusive, 2. VIOLATION OF SONG- 17 BEVERLY ACT - BREACH OF IMPLIED WARRANTY 18 Defendants. 3. VIOLATION OF THE SONG- BEVERLY ACT SECTION 19 1793.2(b) 20 4. VIOLATION OF THE SONG- BEVERLY ACT SECTION 21 1793.22—TANNER CONSUMER PROTECTION 22 ACT 5. FRAUD - FRAUDULENT 23 INDUCEMENT – CONCEALMENT 24 25 26 27 Speiller, Stacy Dept. 22 28 -1- COMPLAINT 1 Plaintiffs, JOSE M. SANTANA, an individual, and ARANTXA Y. SANTANA, an 2 individual, allege as follows against Defendants NISSAN NORTH AMERICA, INC., a California 3 Corporation (“NNA” or “Defendant”), and DOES 1 through 10 inclusive, on information and belief, 4 formed after a reasonable inquiry under the circumstances: 5 DEMAND FOR JURY TRIAL 6 1. Plaintiffs, Jose M. Santana and Arantxa Y. Santana, hereby demand trial by jury in 7 this action. 8 GENERAL ALLEGATIONS 9 2. Plaintiffs, Jose M. Santana and Arantxa Y. Santana, are individuals residing in the 10 City of Patterson, State of California. 11 3. Defendant NNA is and was a California Corporation operating and doing business in 12 the State of California. 13 4. Plaintiffs’ causes of action arise out of the disclosure and warranty obligations of 14 NNA in connection with a vehicle purchased by Plaintiffs and for which NNA issued a written 15 warranty. Plaintiffs allege that NNA concealed a known defect from Plaintiffs, which rendered the 16 vehicle unmerchantable, and which NNA was unable to repair in accordance with the written 17 warranty or the consumer protection and warranty laws of the State of California. 18 5. Plaintiffs do not know the true names and capacities, whether corporate, partnership, 19 associate, individual or otherwise of Defendant issued herein as Does 1 through 10, inclusive, under 20 the provisions of section 474 of the California Code of Civil Procedure. Defendant Does 1 through 21 10, inclusive, are in some manner responsible for the acts, occurrences and transactions set forth 22 herein, and are legally liable to Plaintiffs. Plaintiffs will seek leave to amend this Complaint to set 23 forth the true names and capacities of the fictitiously named Defendant, together with appropriate 24 charging allegations, when ascertained. 25 6. All acts of corporate employees as alleged were authorized or ratified by an officer, 26 director, or managing agent of the corporate employer. 27 7. Each Defendant, whether actually or fictitiously named herein, was the principal, 28 agent (actual or ostensible), or employee of each other Defendant, and in acting as such principal or -2- COMPLAINT 1 within the course and scope of such employment or agency, took some part in the acts and omissions 2 hereinafter set forth by reason of which each Defendant is liable to Plaintiffs for the relief prayed for 3 herein. 4 8. On January 2, 2015, Plaintiffs purchased a used 2013 Nissan Sentra, having VIN No. 5 3N1AB7AP0DL710630 ("the Subject Vehicle”). Express warranties accompanied the sale of the 6 Subject Vehicle to Plaintiffs by which NNA undertook to preserve or maintain the utility or 7 performance of Plaintiffs’ vehicle or to provide compensation if there was a failure in such utility or 8 performance. 9 9. The Subject Vehicle was delivered to Plaintiffs with serious defects and 10 nonconformities to warranty and developed other serious defects and nonconformities to warranty 11 including, but not limited to, the serious, dangerous, and unfixable transmission defects. The Subject 12 Vehicle sold to Plaintiffs was backed by NNA’s Vehicle Limited Warranty (“Warranty”), by which 13 NNA undertook to preserve or maintain the utility or performance of the Subject Vehicle or provide 14 compensation if there was a failure in such utility or performance. The Warranty covers any repairs 15 needed to correct defects in materials or workmanship of covered parts. The basic coverage period 16 lasts 36 months or 36,000 miles, whichever comes first, and the powertrain coverage lasts 60 months 17 or 60,000 miles, whichever comes first. The powertrain coverage specifically applies to the engine, 18 transmission and transaxle, drivetrain, and restraint system. The Warranty assured consumers that 19 NNA would repair any defect in materials or workmanship under normal use. 20 10. An implied warranty of merchantability also accompanied the sale of the Subject 21 Vehicle by operation of law, which requires that the Subject Vehicle was merchantable and was 22 properly equipped for the use for which it was intended. 23 11. NNA breached these express and implied warranties because the Subject Vehicle was 24 delivered to Plaintiffs with serious defects and nonconformities to warranty and developed other 25 serious defects and nonconformities to warranty including, but not limited to, serious powertrain 26 issues resulting in hesitations during acceleration, vehicle shaking and jerking, transmission defects, 27 and other serious nonconformities, which NNA was unable to repair within a reasonable amount of 28 time and opportunities to do so. -3- COMPLAINT 1 12. Plaintiffs hereby revoke acceptance of the sales contract. 2 13. Pursuant to the Song-Beverly Consumer Warranty Act (herein after the "Act") Civil 3 Code sections 1790 et seq. the Subject Vehicle constitutes "consumer goods” used primarily for 4 family or household purposes, and Plaintiffs have used the vehicle primarily for those purposes. 5 14. Plaintiffs are a "buyer" of consumer goods under the Act. 6 15. Defendant NNA is a "manufacturer" and/or “distributor" under the Act. 7 16. To the extent that one or more class action lawsuits have been filed or are filed with 8 respect to the nonconformities affecting Plaintiffs’ vehicle, without conceding the necessity of 9 supplying such notice, Plaintiffs hereby provide notice to Defendant and/or Defendant’s agents of 10 Plaintiffs’ intent to opt-out and be excluded from the settlement class of said class action lawsuit(s). 11 17. Plaintiffs hereby demands trial by jury in this action. 12 FIRST CAUSE OF ACTION 13 Violation of the Song-Beverly Act – Breach of Express Warranty 14 18. Plaintiffs incorporate herein by reference each and every allegation contained in the preceding and 15 succeeding paragraphs as though herein fully restated and re-alleged. 16 19. Express warranties accompanied the sale of the vehicle to Plaintiffs by which NNA 17 undertook to preserve or maintain the utility or performance of Plaintiffs’ vehicle or to provide 18 compensation if there was a failure in such utility or performance. 19 20. The Subject Vehicle was delivered to Plaintiffs with serious defects and 20 nonconformities to warranty and developed other serious defects and nonconformities to warranty 21 including, but not limited to, serious powertrain issues resulting in hesitations during acceleration, 22 vehicle shaking and jerking, transmission defects, and other serious nonconformities. 23 21. Pursuant to the Song-Beverly Consumer Warranty Act (herein after the "Act") Civil 24 Code sections 1790 et seq. the vehicle constitutes "consumer goods” used primarily for family or 25 household purposes, and Plaintiffs have used the Subject Vehicle primarily for those purposes. 26 22. Plaintiffs are the "buyer" of consumer goods under the Act. 27 23. Defendant NNA is a "manufacturer" and/or “distributor" under the Act. 28 24. The foregoing defects and nonconformities to warranty manifested themselves in the -4- COMPLAINT 1 Subject Vehicle within the applicable express warranty period. The nonconformities substantially 2 impair the use, value and/or safety of the vehicle. 3 25. Plaintiffs delivered the vehicle to an authorized NNA repair facility for repair of the 4 nonconformities. 5 26. Defendant was unable to conform Plaintiffs’ vehicle to the applicable express after a 6 reasonable number of repair attempts. 7 27. Notwithstanding Plaintiffs’ entitlement, Defendant NNA has failed to either 8 promptly replace the new motor vehicle or to promptly make restitution in accordance with the Song- 9 Beverly Act. 10 28. By failure of Defendant to remedy the defects as alleged above, or to issue a refund 11 or replacement vehicle, Defendant is in breach of its obligations under the Song-Beverly Act. 12 29. Under the Act, Plaintiffs are entitled to reimbursement of the price paid for the 13 vehicle less that amount directly attributable to use by the Plaintiffs prior to the first presentation of 14 the nonconformities. 15 30. Plaintiffs are entitled to all incidental, consequential, and general damages resulting 16 from Defendant’s failure to comply with its obligations under the Song-Beverly Act. 17 31. Plaintiffs are entitled under the Song-Beverly Act to recover as part of the judgment 18 a sum equal to the aggregate amount of costs and expenses, including attorney's fees, reasonably 19 incurred in connection with the commencement and prosecution of this action. 20 32. Because Defendant willfully violated the Song-Beverly Act, Plaintiffs are entitled in 21 addition to the amounts recovered, a civil penalty of up to two times the amount of actual damages 22 for NNA’s willful failure to comply with its responsibilities under the Act. 23 SECOND CAUSE OF ACTION 24 Violation of the Song-Beverly Act – Breach of Implied Warranty 25 33. Plaintiffs incorporate herein by reference each and every allegation contained in the 26 preceding and succeeding paragraphs as though herein fully restated and re-alleged. 27 34. NNA and its authorized dealership at which Plaintiffs purchased the subject vehicle 28 had reason to know the purpose of the Subject Vehicle at the time of sale of the subject vehicle. The -5- COMPLAINT 1 sale of the Subject Vehicle was accompanied by implied warranties provided for under the law. 2 35. Among other warranties, the sale of the Subject Vehicle was accompanied by an 3 implied warranty that the Subject vehicle was merchantable pursuant to Civil Code section 1792. 4 36. The Subject Vehicle was not fit for the ordinary purpose for which such goods are 5 used because it was equipped with one or more defective vehicle systems/components. 6 37. The Subject Vehicle did not measure up to the promises or facts stated on the 7 container or label because it was equipped with one or more defective vehicle systems/components. 8 38. The Subject Vehicle was not of the same quality as those generally acceptable in the 9 trade because it was sold with one or more defective vehicle systems/components which manifest as 10 serious powertrain issues resulting in hesitations during acceleration, vehicle shaking and jerking, 11 transmission defects, and other serious nonconformities. 12 39. Upon information and belief, the defective vehicle systems and components were 13 present at the time of sale of the Subject Vehicle; thus, extending the duration of any implied 14 warranty under Mexia v. Rinker Boat Co., Inc. (2009) 174 Cal.App.4th 1297, 1304–1305 and other 15 applicable laws. 16 40. Plaintiffs are entitled to justifiably revoke acceptance of the subject vehicle under 17 Civil Code, section 1794, et seq; 18 41. Plaintiffs hereby revoke acceptance of the Subject Vehicle. 19 42. Plaintiffs are entitled to replacement or reimbursement pursuant to Civil Code, 20 section 1794, et seq. 21 43. Plaintiffs are entitled to rescission of the contract pursuant to Civil Code, section 22 1794, et seq. and Commercial Code, section 2711. 23 44. Plaintiffs are entitled to recover any incidental, consequential, and/or “cover” 24 damages under Commercial Code, sections 2711, 2712, and Civil Code, section 1794, et seq. 25 THIRD CAUSE OF ACTION 26 Violation of the Song-Beverly Act Section 1793.2(b) 27 45. Plaintiffs incorporate herein by reference each and every allegation contained in the 28 preceding and succeeding paragraphs as though herein fully restated and re-alleged. -6- COMPLAINT 1 46. Pursuant to Civil Code, section 1793.2, subdivision (a) a manufacturer that sells 2 consumer goods in California, for which it has made an express warranty, shall maintain service and 3 repair facilities or designate and authorize independent service and repair facilities to carry out the 4 terms of those warranties. 5 47. Pursuant to Civil Code, section 1793.2, subdivision (b), when service and repair of 6 goods is necessary because they do not conform with the applicable express warranties, service and 7 repair shall be commenced within a reasonable time by the manufacturer or its representative. 8 48. Civil Code, section 1793.2, subdivision (b) further states that goods shall be serviced 9 or repaired so as to conform to the applicable warranties within 30 days and/or within a reasonable 10 time. 11 49. The sale of the Subject Vehicle was accompanied by express warranties, including a 12 warranty guaranteeing that the subject vehicle was safe to drive and not equipped with defective 13 parts, including the electrical system. 14 50. Plaintiffs delivered the subject vehicle to NNA’s authorized service representatives 15 on multiple occasions. The subject vehicle was delivered for repairs of defects, which amount to a 16 nonconformities to the express warranties that accompanied the sale of the subject vehicle. 17 51. Defendant’s authorized facilities did not conform the Subject Vehicle to warranty 18 within 30-days and/or commence repairs within a reasonable time and NNA has failed to tender the 19 subject vehicle back to Plaintiffs in conformance with its warranties within the timeframes set forth 20 in Civil Code section 1793.2(b). 21 52. Plaintiffs are entitled to justifiably revoke acceptance of the subject vehicle under 22 Civil Code, section 1794, et seq; 23 53. Plaintiffs hereby revoke acceptance of the subject vehicle. 24 54. Plaintiffs are entitled to replacement or reimbursement pursuant to Civil Code, 25 section 1794, et seq. 26 55. Plaintiffs are entitled to rescission of the contract pursuant to Civil Code section 1794, 27 et seq. and Commercial Code, section 2711. 28 56. Plaintiffs are entitled to recover any “cover” damages under Commercial Code -7- COMPLAINT 1 sections 2711, 2712, and Civil Code, section 1794, et seq. 2 57. Plaintiffs are entitled to recover all incidental and consequential damages pursuant to 3 1794 et seq and Commercial Code sections, 2711, 2712, and 2713 et seq. 4 58. Plaintiffs are entitled in addition to the amounts recovered, a civil penalty of up to 5 two times the amount of actual damages in that NNA has willfully failed to comply with its 6 responsibilities under the Act. 7 FOURTH CAUSE OF ACTION 8 Violation of the Song-Beverly Act Section 1793.22—Tanner Consumer Protection Act 9 59. Plaintiffs incorporate herein by reference each and every allegation contained in the 10 preceding and succeeding paragraphs as though herein fully restated and re-alleged. 11 60. Pursuant to the Tanner Consumer Protection Act, Civil Code sections 1793.22 et seq., 12 a reasonable number of attempts have been made to conform the vehicle to the applicable express 13 warranties within 18 months from delivery to Plaintiffs. 14 61. Pursuant to the Tanner Consumer Protection Act, Civil Code sections 1793.22 et seq., 15 a reasonable number of attempts have been made to confirm the vehicle to the applicable express 16 warranties within 18,000 miles on the odometer of the vehicle. 17 62. In the first 18 months/18,000 miles Plaintiffs have owned the vehicle, NNA has been 18 given sufficient repair opportunities under Civil Code section § 1793.22 (b)(1), (b)(2), and/or (b)(3); 19 but failed to conform the vehicle to warranty. Plaintiffs hereby assert the presumption that NNA 20 has been given a reasonable number of repair attempts and/or days to conform this vehicle to the 21 warranty under Civil Code section § 1793.22 (b)(1), (b)(2), and/or (b)(3). 22 63. The same nonconformity or nonconformities resulted in a condition or conditions 23 likely to cause death or serious bodily injury if the vehicle is driven and the nonconformity has been 24 subject to repair two or more times by the manufacturer its agents. 25 64. The same nonconformity has been subject to repair four or more times by the 26 manufacturer or its agents. 27 65. Defendant did not conform the Subject Vehicle to warranty within the parameters set 28 forth in 1793.22. -8- COMPLAINT 1 66. Plaintiffs are entitled to justifiably revoke acceptance of the subject vehicle under 2 Civil Code, section 1794, et seq; 3 67. Plaintiffs hereby revoke acceptance of the subject vehicle. 4 68. Plaintiffs are entitled to replacement or reimbursement pursuant to Civil Code, 5 section 1794, et seq. 6 69. Plaintiffs are entitled to rescission of the contract pursuant to Civil Code section 1794, 7 et seq. and Commercial Code, section 2711. 8 70. Plaintiffs are entitled to recover any “cover” damages under Commercial Code 9 sections 2711, 2712, and Civil Code, section 1794, et seq. 10 71. Plaintiffs are entitled to recover all incidental and consequential damages pursuant to 11 1794 et seq and Commercial Code sections, 2711, 2712, and 2713 et seq. 12 72. Plaintiffs are entitled in addition to the amounts recovered, a civil penalty of up to 13 two times the amount of actual damages in that NNA has willfully failed to comply with its 14 responsibilities under the Act. 15 FIFTH CAUSE OF ACTION 16 Fraud - Fraudulent Inducement – Concealment 17 73. Plaintiffs incorporate herein by reference each and every allegation contained in the 18 preceding and succeeding paragraphs as though herein fully restated and re-alleged. 19 74. NNA and its agents intentionally concealed and failed to disclose facts relating to the 20 defective transmission as explained hereinabove. 21 75. Defendant was the only party with knowledge of the defective transmission because 22 that knowledge came from internal reports such as pre-release testing data, customer complaints 23 made directly to Defendant, and technical service bulletins. None of this information was available 24 to the public, nor did Defendant publicly or privately disclose any of the information to Plaintiffs. 25 NISSAN had exclusive knowledge of the defect as described in detail hereinabove. 26 76. NNA actively concealed information from the public, preventing Plaintiffs from 27 discovering any of the concealed facts as described in detail hereinabove. 28 77. Prior to the date of sale, on the date of sale, and on the date of each of the repair -9- COMPLAINT 1 attempts, Defendant had an opportunity to disclose the defective transmission to Plaintiffs; but 2 instead concealed from and failed to disclose to Plaintiffs, any of the known irreparable issues with 3 the Subject Vehicle. 4 78. NNA intended to deceive Plaintiffs by concealing the known issues with the CVT 5 transmission in an effort to sell the Subject Vehicle at a maximum price. 6 79. NNA knew of the specific issues affecting the Subject Vehicle, including the 7 defective CVT transmission, prior to the sale of the Subject Vehicle. Plaintiffs’ Vehicle was sold 8 after NNA acknowledged these problems in TSBs without making any sort of disclosure to Plaintiffs 9 regarding same. When Plaintiffs experienced repeated problems with the CVT transmission in his 10 Vehicle and delivered the Subject Vehicle to NNA’s authorized repair facility for evaluation and 11 repair, NNA and its agents continued to conceal the known defective transmission and repeatedly 12 represented to Plaintiffs that it was able to and did fix the issue. 13 80. Plaintiffs did not know about the defective transmission at the time of sale. Plaintiffs 14 also did not know of the irreparable nature of the problems at the time of any of the repair attempts 15 because NNA and its agents repeatedly represented that it was able to fix the Vehicle upon return of 16 the Subject Vehicle to Plaintiffs. 17 81. Had NNA and/or its agents publicly or privately disclosed the defective transmission 18 to Plaintiffs at or prior to the sale, Plaintiffs would not have purchased the Subject Vehicle. 19 82. Plaintiffs were harmed by Defendant’s concealment of the defective transmission 20 because Plaintiffs were induced to enter into the sale of a vehicle that Plaintiffs would not have 21 otherwise purchased. 22 83. Defendant’s concealment of the defects was a substantial factor in causing Plaintiffs’ 23 harm. 24 PRAYER FOR RELIEF 25 WHEREFORE, Plaintiffs pray for judgment against Defendants, as follows: 26 1. For general, special and actual damages according to proof at trial; 27 2. For rescission of the purchase contract and restitution of all monies expended; 28 3. For diminution in value; -10- COMPLAINT 1 4. For incidental and consequential damages according to proof at trial; 2 5. For civil penalty in the amount of two times Plaintiffs’ actual damages; 3 6. For punitive damages where available; 4 7. For prejudgment interest at the legal rate; 5 8. For reasonable attorney's fees and costs and expenses of suit; and 6 9. For such other and further relief as the Court deems just and proper under the 7 circumstances. 8 Dated: January 22, 2020 9 CALIFORNIA CONSUMER ATTORNEYS, P.C. 10 11 ________________________ Michael H. Rosenstein, Esq. 12 Sepehr Daghighian, Esq. 13 Attorneys for Plaintiffs, JOSE M. SANTANA AND 14 ARANTXA Y. SANTANA 15 Plaintiffs, JOSE M. SANTANA AND ARANTXA Y. SANTANA, hereby demand trial by 16 jury in this action. 17 18 19 20 21 22 23 24 25 26 27 28 -11- COMPLAINT