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Electronically Filed
1 DAVION. BARRY, ESQ. (SBN 219230) 2/26/2021 4:11 PM
THE BARRY LAW FIRM Superior Court of California
2 11845 W. Olympic Blvd., Suite 1270
Los Angeles, CA 90064 County of Stanislaus
3 Telephone: 310.684.5859 Clerk of the Court
Facsimile: 310.862.4539 By: James Xiong, Deputy
4
Attorneys for Plaintiffs, EV A LEDOUX and DOUGLAS TURNER
5
6 $435 PAID
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8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF STANISLAUS - CITY TOWERS COURTHOUSE
10 Case No. CV-21-000904
EV A LEDOUX, an individual;
11
DOUGLAS TURNER, an individual,
12 COMPLAINT FOR DAMAGES
13 Plaintiffs,
14 V.
15
16 GENERAL MOTORS, LLC, A Delaware
Assigned for all purposes to the Hon.
17 Limited Liability Company; and DOES 1 in Dept.
18 through 20, inclusive,
Sandhu, Sonny S.
19 Defendants. Dept. 24
20
21 1. Breach oflmplied Warranty of Merchantability under the Song-Beverly Warranty Act.
22 2. Breach of Express Warranty under the Song-Beverly Warranty Act.
23 JURY TRIAL DEMANDED.
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COMPLAINT FOR DAMAGES
1 PLAINTIFFS EVA LEDOUX, an individual, and DOUGLAS TURNER, an individual,
2 hereby allege and complain as follows:
3 GENERAL ALLEGATIONS COMMON TO ALL CAUSES OF ACTION
4 1. Defendant, GENERAL MOTORS, LLC (hereinafter referred to as
5 "Manufacturer"), is a limited liability company doing business in the County of Stanislaus, State of
6 California, and, at all times relevant herein, was/is engaged in the manufacture, sale, distribution,
7 and/or importing of Chevrolet motor vehicles and related equipment.
8 2. The true names and capacities, whether individual, corporate, associate, or otherwise,
9 of the Defendants, Does 1 through 20, inclusive, are unknown to Plaintiffs who therefore sue these
10 Defendants by such fictitious names. Plaintiffs will seek leave to amend this Complaint to set forth
11 their true names and capacities when they have ascertained them. Further, Plaintiffs are informed
12 and believe, and thereon allege, that each of the Defendants designated herein as a "Doe" is
13 responsible in some manner for the events and happenings herein referred to and caused injury and
14 damage to Plaintiffs as herein alleged.
15 3. Plaintiffs are informed and believe, and thereon allege, that at all times herein
16 mentioned, Defendants, and each of them, were the agents, servants, and/or employees of each of
17 their Co-Defendants. Plaintiffs are informed and believe, and thereon allege, that in doing the
18 things hereinafter alleged Defendants, and each of them, were acting in the course and scope of
19 their employment as such agents, servants, and/or employees, and with the permission, consent,
20 knowledge, and/or ratification of their Co-Defendants, principals, and/or employers.
21 4. On or about February 19, 2019, Defendants Manufacturer and Does 1 through 20
22 inclusive, manufactured and/or distributed into the stream of commerce a new 2019 Chevrolet
23 Malibu, VIN 101ZB5ST8KF175241 (hereinafter referred to as the "Vehicle") for its eventual
24 sale/lease in the State of California.
25 5. On or about March 19, 2019, Plaintiffs purchased, a new 2019 Chevrolet Malibu, for
26 personal, family, and/or household purposes. The purchase agreement is in the possession of
27 Defendants.
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COMPLAINT FOR DAMAGES
6. The Subject Vehicle was/is a "new motor vehicle" under the Song-Beverly Warranty
2 Act.
3 7. Along with the purchase of the Vehicle, Plaintiffs received written warranties and
4 other express and implied warranties including, but not limited to, warranties from Manufacturer
5 that the Vehicle and its components would be free from all defects in material and workmanship;
6 that the Vehicle would pass without objection in the trade under the contract description; that the
7 Vehicle would be fit for the ordinary purposes for which it was intended; that the Vehicle would
8 conform to the promises and affirmations of fact made; that Defendants, and each of them, would
9 perform any repairs, alignments, adjustments, and/or replacements of any parts necessary to ensure
10 that the Vehicle was free from any defects in material and workmanship; that Defendants, and each
11 of them, would maintain the utility of the Vehicle for Three (3) years or 36,000 miles and would
12 conform the Vehicle to the applicable express warranties. (A copy of the written warranty is in the
13 possession of the Defendants).
14 8. Plaintiffs have duly performed allthe conditions on Plaintiffs' part under the purchase
15 agreement and under the express and implied warranties given to Plaintiffs, except insofar as the
16 acts and/or omissions of the Defendants, and each of them, as alleged herein, prevented and/or
17 excused such performance.
18 9. Plaintiffs have delivered the Vehicle to the Manufacturer's authorized service and
19 repair facilities, agents and/or dealers, on at least Three (3) separate occasions resulting in the
20 Vehicle being out of service by reason of repair of nonconformities. Repair Orders/Invoices are in
21 the possession of Defendants.
22 By way of example, and not by way of limitation, Plaintiffs have submitted the
23 subject Vehicle for defects and malfunctions, specifically with Recall N192271200 for Charge Air
24 Cooler Duct Disconnect at Throttle Body, the transmission jerking and surging, and acceleration
25 issues in multiple occasions.
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COMPLAINT FOR DAMAGES
1 11. Each time Plaintiffs delivered the nonconforming Vehicle to a Manufacturer-
2 authorized service and repair facility, Plaintiffs notified Defendants, and each of them, of the
3 defects, malfunctions, misadjustments, and/or nonconformities existent with the Vehicle and
4 demanded that Manufacturer or its representatives repair, adjust, and/or replace any necessary parts
5 to conform the Vehicle to the applicable warranties.
6 12. Each time Plaintiffs delivered the nonconforming Vehicle to a Manufacturer-
7 authorized service and repair facility, Defendants, and each of them, represented to Plaintiffs that
8 they could and would conform the Vehicle to the applicable warranties, that in fact they did
9 conform the Vehicle to said warranties, and that all the defects, malfunctions, misadjustments,
10 and/or nonconformities have been repaired; however, Manufacturer or its representatives failed to
11 conform the Vehicle to the applicable warranties because said defects, malfunctions,
12 misadjustments, and/or nonconformities continue to exist even after a reasonable number of
13 attempts to repair was given.
14 13. The amount in controversy exceeds TWENTY-FIVE THOUSAND DOLLARS
15 ($25,000.00), exclusive of interest and costs, for which Plaintiffs seek judgment against
16 Defendants, together with equitable relief. In addition, Plaintiffs seek damages from Defendants,
17 and each of them, for incidental, consequential, exemplary, and actual damages including interest,
18 costs, and actual attorneys' fees.
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COMPLAINT FOR DAMAGES
1 FIRST CAUSE OF ACTION
2 Breach of Implied Warranty of Merchantability under Song-Beverly Warranty Act
3 Against all Defendants
4 14. Plaintiffs reallege each and every paragraph (1-13) and incorporates them by this
5 reference as though fully set forth herein.
6 15. The distribution and sale of the Vehicle was accompanied by the Manufacturer
7 implied warranty that the Vehicle was merchantable.
8 16. Furthermore, Defendants, and each of them, impliedly warranted, inter alia, that the
9 Vehicle would pass without objection in the trade under the contract description; that the Vehicle
10 was fit for the ordinary purposes for which it was intended; that the Vehicle was adequately
11 assembled; and/or that the Vehicle conformed to the promises or affirmations of fact made to
12 Plaintiffs.
13 17. As evidenced by the defects, malfunctions, misadjustments, and/or nonconformities
14 alleged herein, the Vehicle was not merchantable because it did not have the quality that a buyer
15 would reasonably expect, because it could not pass without objection in the trade under the contract
16 description; because it was not fit for the ordinary purposes for which it was intended; because it
17 was not adequately assembled; and/or because it did not or could not be conformed to the promises
18 or affirmations of fact made to Plaintiffs.
19 18. Upon discovery of the Vehicle's nonconformities, Plaintiffs took reasonable steps to
20 notify Defendants, and each of them, within a reasonable time that the Vehicle did not have the
21 quality that a buyer would reasonably expect and, further, justifiably revoked acceptance of the
22 nonconforming Vehicle.
23 19. Plaintiffs hereby give written notice and justifiably revokes acceptance of the
24 nonconforming Vehicle under the Commercial Code sections 2607 and 2608. Plaintiffs further
25 demand that the Manufacturer cancel the sale, take back the nonconforming Vehicle, refund all the
26 money expended, pay the difference between the value of the Vehicle as accepted and the value the
27 Vehicle would have had if it had been as warranted, and/or pay damages under the Commercial
28 Code sections 2711, 2714, and 2715. Defendants, and each of them, have, however, refused to
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COMPLAINT FOR DAMAGES
1 comply.
2 20. Plaintiffs hereby give written notice and make demand upon Manufacturer for
3 replacement or restitution, pursuant to Song-Beverly. Defendants, and each of them, knew of their
4 obligations under Song-Beverly; however, despite Plaintiffs' demand, Defendants and each of
5 them, have intentionally failed and refused to make restitution or replacement pursuant to Song-
6 Beverly.
7 21. As a result of the acts and/or omissions of the Defendants, and each of them,
8 Plaintiffs have sustained damage in the amount actually paid or payable under the contract, plus
9 prejudgment interest thereon at the legal rate. Plaintiffs will seek leave to amend this Complaint to
10 set forth the exact amount thereof when that amount is ascertained.
11 22. As a further result of the actions of Defendants, and each of them, Plaintiffs have
12 sustained incidental and consequential damages in an amount yet to be determined, plus interest
13 thereon at the legal rate. Plaintiffs will seek leave to amend this Complaint to set forth the exact
14 amount of incidental damages when that amount is ascertained.
15 23. As a further result of the actions of Defendants, and each of them, Plaintiffs have
16 sustained damages equal to the difference between the value of the Vehicle as accepted and the
17 value the Vehicle would have had if it had been as warranted.
18 24. As a direct result of the acts and/or omissions of Defendants, and each of them, and
19 in pursuing Plaintiffs' claim, it was necessary for Plaintiffs to retain legal counsel. Pursuant to
20 Song-Beverly, Plaintiffs, in addition to other remedies, are entitled to the recovery of attorneys'
21 fees based upon actual time expended and reasonably incurred, in connection with the
22 commencement and prosecution of this action.
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COMPLAINT FOR DAMAGES
1 SECOND CAUSE OF ACTION
2 Breach of Express Warranty under Song-Beverly Warranty Act
3 Against all Defendants
4 25. Plaintiffs reallege each and every paragraph (1-24) and incorporates them by this
5 reference as though fully set forth herein.
6 25. The Vehicle had defects, malfunctions, misadjustments, and/or nonconformities
7 covered by the warranty that substantially impaired its value, use, or safety to Plaintiffs.
8 26. Plaintiffs delivered the Vehicle to Manufacturer or itsauthorized repair facilities for
9 repair.
27. Defendants, and each of them, failed to service or repair the Vehicle to match the
11 written warranty after a reasonable number of opportunities to do so.
12 28. The acts and/or omissions of Defendants, and each of them, in failing to perform the
13 proper repairs, part replacements, and/or adjustments, to conform the Vehicle to the applicable
14 express warranties constitute a breach of the express warranties that the Manufacturer provided to
15 Plaintiffs, thereby breaching Defendants' obligations under Song-Beverly.
16 29. Defendants, and each of them, failed to perform the necessary repairs and/or service
17 in good and workmanlike manner. The actions taken by Defendants, and each of them, were
18 insufficient to make the Subject Vehicle conform to the express warranties and/or proper
19 operational characteristics of like Vehicles, all in violation of Defendants' obligations under Song-
20 Beverly.
21 30. Plaintiffs hereby give written notice and make demand upon Manufacturer for
22 replacement or restitution, pursuant to Song-Beverly. Defendants and each of them, knowing their
23 obligations under Song-Beverly, and despite Plaintiffs' demand, failed and refused to make
24 restitution or replacement according to the mandates of Song-Beverly. The failure of Defendants,
25 and each of them, to refund the price paid and payable or to replace the Vehicle was intentional and
26 justifies an award of a Civil Penalty in an amount not to exceed two times Plaintiffs' actual
27 damages.
28 31. As a result of the acts and/or omissions of Defendants, and each of them, and
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COMPLAINT FOR DAMAGES
1 pursuant to the provisions of the Song-Beverly, Plaintiffs are entitled to replacement of the Vehicle
2 or restitution of the amount actually paid or payable under the contract, at Plaintiffs' election, plus
3 prejudgment interest thereon at the legal rate. Plaintiffs will seek leave of Court to amend this
4 Complaint to set forth the exact amount of restitution and interest, upon election, when that amount
5 has been ascertained.
6 32. Additionally, as a result of the acts and/or omissions of Defendants, and each of
7 them, and pursuant to Song-Beverly, Plaintiffs have sustained and are entitled to consequential and
8 incidental damages in amounts yet to be determined, plus interest thereon at the legal rate.
9 Plaintiffs will seek leave of the court to amend this complaint to set forth the exact amount of
10 consequential and/or incidental damages, when those amounts have been ascertained.
11 33. As a direct result of the acts and/or omissions of Defendants, and each of them, and
12 in pursuing Plaintiffs' claim, it was necessary for Plaintiffs to retain legal counsel. Pursuant to
13 Song-Beverly, Plaintiffs, in addition to other remedies, are entitled to the recovery of attorneys'
14 fees based upon actual time expended and reasonably incurred, in connection with the
15 commencement and prosecution of this action.
16 ///
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COMPLAINT FOR DAMAGES
1 PRAYER FOR RELIEF
2 WHEREFORE, Plaintiffs pray for judgment against all Defendants, and each of them, as
3 follows:
4 A. For replacement or restitution, at Plaintiffs' election, according to proof;
5 B. For incidental damages, according to proof;
6 C. For consequential damages, according to proof;
7 D. For a civil penalty as provided in Song-Beverly, in an amount not to exceed two
8 times the amount of Plaintiffs' actual damages;
9 E. For actual attorney's fees, reasonably incurred;
10 F. For costs of suit and expenses, according to proof;
11 G. For the difference between the value of the Vehicle as accepted and the value the
12 Vehicle would have had if it had been as warranted;
13 H. For remedies provided in Chapters 6 and 7 of Division 2 of the Commercial Code;
14 I. For pre-judgment interest at the legal rate;
15 J. Such other relief the Court deems appropriat .
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Date: February 23, 2021
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By.---='-----------
20 DAVID N. BARRY, ESQ.
Attorney for Plaintiffs,
21 EV A LEDOUX and
DOUGLAS TURNER
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COMPLAINT FOR DAMAGES
Preview
Electronically Filed 1 DAVION. BARRY, ESQ. (SBN 219230) 2/26/2021 4:11 PM THE BARRY LAW FIRM Superior Court of California 2 11845 W. Olympic Blvd., Suite 1270 Los Angeles, CA 90064 County of Stanislaus 3 Telephone: 310.684.5859 Clerk of the Court Facsimile: 310.862.4539 By: James Xiong, Deputy 4 Attorneys for Plaintiffs, EV A LEDOUX and DOUGLAS TURNER 5 6 $435 PAID 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF STANISLAUS - CITY TOWERS COURTHOUSE 10 Case No. CV-21-000904 EV A LEDOUX, an individual; 11 DOUGLAS TURNER, an individual, 12 COMPLAINT FOR DAMAGES 13 Plaintiffs, 14 V. 15 16 GENERAL MOTORS, LLC, A Delaware Assigned for all purposes to the Hon. 17 Limited Liability Company; and DOES 1 in Dept. 18 through 20, inclusive, Sandhu, Sonny S. 19 Defendants. Dept. 24 20 21 1. Breach oflmplied Warranty of Merchantability under the Song-Beverly Warranty Act. 22 2. Breach of Express Warranty under the Song-Beverly Warranty Act. 23 JURY TRIAL DEMANDED. 24 25 26 27 28 -1- COMPLAINT FOR DAMAGES 1 PLAINTIFFS EVA LEDOUX, an individual, and DOUGLAS TURNER, an individual, 2 hereby allege and complain as follows: 3 GENERAL ALLEGATIONS COMMON TO ALL CAUSES OF ACTION 4 1. Defendant, GENERAL MOTORS, LLC (hereinafter referred to as 5 "Manufacturer"), is a limited liability company doing business in the County of Stanislaus, State of 6 California, and, at all times relevant herein, was/is engaged in the manufacture, sale, distribution, 7 and/or importing of Chevrolet motor vehicles and related equipment. 8 2. The true names and capacities, whether individual, corporate, associate, or otherwise, 9 of the Defendants, Does 1 through 20, inclusive, are unknown to Plaintiffs who therefore sue these 10 Defendants by such fictitious names. Plaintiffs will seek leave to amend this Complaint to set forth 11 their true names and capacities when they have ascertained them. Further, Plaintiffs are informed 12 and believe, and thereon allege, that each of the Defendants designated herein as a "Doe" is 13 responsible in some manner for the events and happenings herein referred to and caused injury and 14 damage to Plaintiffs as herein alleged. 15 3. Plaintiffs are informed and believe, and thereon allege, that at all times herein 16 mentioned, Defendants, and each of them, were the agents, servants, and/or employees of each of 17 their Co-Defendants. Plaintiffs are informed and believe, and thereon allege, that in doing the 18 things hereinafter alleged Defendants, and each of them, were acting in the course and scope of 19 their employment as such agents, servants, and/or employees, and with the permission, consent, 20 knowledge, and/or ratification of their Co-Defendants, principals, and/or employers. 21 4. On or about February 19, 2019, Defendants Manufacturer and Does 1 through 20 22 inclusive, manufactured and/or distributed into the stream of commerce a new 2019 Chevrolet 23 Malibu, VIN 101ZB5ST8KF175241 (hereinafter referred to as the "Vehicle") for its eventual 24 sale/lease in the State of California. 25 5. On or about March 19, 2019, Plaintiffs purchased, a new 2019 Chevrolet Malibu, for 26 personal, family, and/or household purposes. The purchase agreement is in the possession of 27 Defendants. 28 Ill -2- COMPLAINT FOR DAMAGES 6. The Subject Vehicle was/is a "new motor vehicle" under the Song-Beverly Warranty 2 Act. 3 7. Along with the purchase of the Vehicle, Plaintiffs received written warranties and 4 other express and implied warranties including, but not limited to, warranties from Manufacturer 5 that the Vehicle and its components would be free from all defects in material and workmanship; 6 that the Vehicle would pass without objection in the trade under the contract description; that the 7 Vehicle would be fit for the ordinary purposes for which it was intended; that the Vehicle would 8 conform to the promises and affirmations of fact made; that Defendants, and each of them, would 9 perform any repairs, alignments, adjustments, and/or replacements of any parts necessary to ensure 10 that the Vehicle was free from any defects in material and workmanship; that Defendants, and each 11 of them, would maintain the utility of the Vehicle for Three (3) years or 36,000 miles and would 12 conform the Vehicle to the applicable express warranties. (A copy of the written warranty is in the 13 possession of the Defendants). 14 8. Plaintiffs have duly performed allthe conditions on Plaintiffs' part under the purchase 15 agreement and under the express and implied warranties given to Plaintiffs, except insofar as the 16 acts and/or omissions of the Defendants, and each of them, as alleged herein, prevented and/or 17 excused such performance. 18 9. Plaintiffs have delivered the Vehicle to the Manufacturer's authorized service and 19 repair facilities, agents and/or dealers, on at least Three (3) separate occasions resulting in the 20 Vehicle being out of service by reason of repair of nonconformities. Repair Orders/Invoices are in 21 the possession of Defendants. 22 By way of example, and not by way of limitation, Plaintiffs have submitted the 23 subject Vehicle for defects and malfunctions, specifically with Recall N192271200 for Charge Air 24 Cooler Duct Disconnect at Throttle Body, the transmission jerking and surging, and acceleration 25 issues in multiple occasions. 26 Ill 27 Ill 28 Ill -3- COMPLAINT FOR DAMAGES 1 11. Each time Plaintiffs delivered the nonconforming Vehicle to a Manufacturer- 2 authorized service and repair facility, Plaintiffs notified Defendants, and each of them, of the 3 defects, malfunctions, misadjustments, and/or nonconformities existent with the Vehicle and 4 demanded that Manufacturer or its representatives repair, adjust, and/or replace any necessary parts 5 to conform the Vehicle to the applicable warranties. 6 12. Each time Plaintiffs delivered the nonconforming Vehicle to a Manufacturer- 7 authorized service and repair facility, Defendants, and each of them, represented to Plaintiffs that 8 they could and would conform the Vehicle to the applicable warranties, that in fact they did 9 conform the Vehicle to said warranties, and that all the defects, malfunctions, misadjustments, 10 and/or nonconformities have been repaired; however, Manufacturer or its representatives failed to 11 conform the Vehicle to the applicable warranties because said defects, malfunctions, 12 misadjustments, and/or nonconformities continue to exist even after a reasonable number of 13 attempts to repair was given. 14 13. The amount in controversy exceeds TWENTY-FIVE THOUSAND DOLLARS 15 ($25,000.00), exclusive of interest and costs, for which Plaintiffs seek judgment against 16 Defendants, together with equitable relief. In addition, Plaintiffs seek damages from Defendants, 17 and each of them, for incidental, consequential, exemplary, and actual damages including interest, 18 costs, and actual attorneys' fees. 19 Ill 20 Ill 21 Ill 22 Ill 23 Ill 24 Ill 25 Ill 26 Ill 27 Ill 28 Ill -4- COMPLAINT FOR DAMAGES 1 FIRST CAUSE OF ACTION 2 Breach of Implied Warranty of Merchantability under Song-Beverly Warranty Act 3 Against all Defendants 4 14. Plaintiffs reallege each and every paragraph (1-13) and incorporates them by this 5 reference as though fully set forth herein. 6 15. The distribution and sale of the Vehicle was accompanied by the Manufacturer 7 implied warranty that the Vehicle was merchantable. 8 16. Furthermore, Defendants, and each of them, impliedly warranted, inter alia, that the 9 Vehicle would pass without objection in the trade under the contract description; that the Vehicle 10 was fit for the ordinary purposes for which it was intended; that the Vehicle was adequately 11 assembled; and/or that the Vehicle conformed to the promises or affirmations of fact made to 12 Plaintiffs. 13 17. As evidenced by the defects, malfunctions, misadjustments, and/or nonconformities 14 alleged herein, the Vehicle was not merchantable because it did not have the quality that a buyer 15 would reasonably expect, because it could not pass without objection in the trade under the contract 16 description; because it was not fit for the ordinary purposes for which it was intended; because it 17 was not adequately assembled; and/or because it did not or could not be conformed to the promises 18 or affirmations of fact made to Plaintiffs. 19 18. Upon discovery of the Vehicle's nonconformities, Plaintiffs took reasonable steps to 20 notify Defendants, and each of them, within a reasonable time that the Vehicle did not have the 21 quality that a buyer would reasonably expect and, further, justifiably revoked acceptance of the 22 nonconforming Vehicle. 23 19. Plaintiffs hereby give written notice and justifiably revokes acceptance of the 24 nonconforming Vehicle under the Commercial Code sections 2607 and 2608. Plaintiffs further 25 demand that the Manufacturer cancel the sale, take back the nonconforming Vehicle, refund all the 26 money expended, pay the difference between the value of the Vehicle as accepted and the value the 27 Vehicle would have had if it had been as warranted, and/or pay damages under the Commercial 28 Code sections 2711, 2714, and 2715. Defendants, and each of them, have, however, refused to -5- COMPLAINT FOR DAMAGES 1 comply. 2 20. Plaintiffs hereby give written notice and make demand upon Manufacturer for 3 replacement or restitution, pursuant to Song-Beverly. Defendants, and each of them, knew of their 4 obligations under Song-Beverly; however, despite Plaintiffs' demand, Defendants and each of 5 them, have intentionally failed and refused to make restitution or replacement pursuant to Song- 6 Beverly. 7 21. As a result of the acts and/or omissions of the Defendants, and each of them, 8 Plaintiffs have sustained damage in the amount actually paid or payable under the contract, plus 9 prejudgment interest thereon at the legal rate. Plaintiffs will seek leave to amend this Complaint to 10 set forth the exact amount thereof when that amount is ascertained. 11 22. As a further result of the actions of Defendants, and each of them, Plaintiffs have 12 sustained incidental and consequential damages in an amount yet to be determined, plus interest 13 thereon at the legal rate. Plaintiffs will seek leave to amend this Complaint to set forth the exact 14 amount of incidental damages when that amount is ascertained. 15 23. As a further result of the actions of Defendants, and each of them, Plaintiffs have 16 sustained damages equal to the difference between the value of the Vehicle as accepted and the 17 value the Vehicle would have had if it had been as warranted. 18 24. As a direct result of the acts and/or omissions of Defendants, and each of them, and 19 in pursuing Plaintiffs' claim, it was necessary for Plaintiffs to retain legal counsel. Pursuant to 20 Song-Beverly, Plaintiffs, in addition to other remedies, are entitled to the recovery of attorneys' 21 fees based upon actual time expended and reasonably incurred, in connection with the 22 commencement and prosecution of this action. 23 Ill 24 Ill 25 Ill 26 Ill 27 Ill 28 Ill -6- COMPLAINT FOR DAMAGES 1 SECOND CAUSE OF ACTION 2 Breach of Express Warranty under Song-Beverly Warranty Act 3 Against all Defendants 4 25. Plaintiffs reallege each and every paragraph (1-24) and incorporates them by this 5 reference as though fully set forth herein. 6 25. The Vehicle had defects, malfunctions, misadjustments, and/or nonconformities 7 covered by the warranty that substantially impaired its value, use, or safety to Plaintiffs. 8 26. Plaintiffs delivered the Vehicle to Manufacturer or itsauthorized repair facilities for 9 repair. 27. Defendants, and each of them, failed to service or repair the Vehicle to match the 11 written warranty after a reasonable number of opportunities to do so. 12 28. The acts and/or omissions of Defendants, and each of them, in failing to perform the 13 proper repairs, part replacements, and/or adjustments, to conform the Vehicle to the applicable 14 express warranties constitute a breach of the express warranties that the Manufacturer provided to 15 Plaintiffs, thereby breaching Defendants' obligations under Song-Beverly. 16 29. Defendants, and each of them, failed to perform the necessary repairs and/or service 17 in good and workmanlike manner. The actions taken by Defendants, and each of them, were 18 insufficient to make the Subject Vehicle conform to the express warranties and/or proper 19 operational characteristics of like Vehicles, all in violation of Defendants' obligations under Song- 20 Beverly. 21 30. Plaintiffs hereby give written notice and make demand upon Manufacturer for 22 replacement or restitution, pursuant to Song-Beverly. Defendants and each of them, knowing their 23 obligations under Song-Beverly, and despite Plaintiffs' demand, failed and refused to make 24 restitution or replacement according to the mandates of Song-Beverly. The failure of Defendants, 25 and each of them, to refund the price paid and payable or to replace the Vehicle was intentional and 26 justifies an award of a Civil Penalty in an amount not to exceed two times Plaintiffs' actual 27 damages. 28 31. As a result of the acts and/or omissions of Defendants, and each of them, and -7- COMPLAINT FOR DAMAGES 1 pursuant to the provisions of the Song-Beverly, Plaintiffs are entitled to replacement of the Vehicle 2 or restitution of the amount actually paid or payable under the contract, at Plaintiffs' election, plus 3 prejudgment interest thereon at the legal rate. Plaintiffs will seek leave of Court to amend this 4 Complaint to set forth the exact amount of restitution and interest, upon election, when that amount 5 has been ascertained. 6 32. Additionally, as a result of the acts and/or omissions of Defendants, and each of 7 them, and pursuant to Song-Beverly, Plaintiffs have sustained and are entitled to consequential and 8 incidental damages in amounts yet to be determined, plus interest thereon at the legal rate. 9 Plaintiffs will seek leave of the court to amend this complaint to set forth the exact amount of 10 consequential and/or incidental damages, when those amounts have been ascertained. 11 33. As a direct result of the acts and/or omissions of Defendants, and each of them, and 12 in pursuing Plaintiffs' claim, it was necessary for Plaintiffs to retain legal counsel. Pursuant to 13 Song-Beverly, Plaintiffs, in addition to other remedies, are entitled to the recovery of attorneys' 14 fees based upon actual time expended and reasonably incurred, in connection with the 15 commencement and prosecution of this action. 16 /// 17 Ill 18 Ill 19 Ill 20 Ill 21 Ill 22 Ill 23 Ill 24 Ill 25 Ill 26 Ill 27 Ill 28 Ill -8- COMPLAINT FOR DAMAGES 1 PRAYER FOR RELIEF 2 WHEREFORE, Plaintiffs pray for judgment against all Defendants, and each of them, as 3 follows: 4 A. For replacement or restitution, at Plaintiffs' election, according to proof; 5 B. For incidental damages, according to proof; 6 C. For consequential damages, according to proof; 7 D. For a civil penalty as provided in Song-Beverly, in an amount not to exceed two 8 times the amount of Plaintiffs' actual damages; 9 E. For actual attorney's fees, reasonably incurred; 10 F. For costs of suit and expenses, according to proof; 11 G. For the difference between the value of the Vehicle as accepted and the value the 12 Vehicle would have had if it had been as warranted; 13 H. For remedies provided in Chapters 6 and 7 of Division 2 of the Commercial Code; 14 I. For pre-judgment interest at the legal rate; 15 J. Such other relief the Court deems appropriat . 16 Date: February 23, 2021 17 18 19 By.---='----------- 20 DAVID N. BARRY, ESQ. Attorney for Plaintiffs, 21 EV A LEDOUX and DOUGLAS TURNER 22 23 24 25 26 27 28 -9- COMPLAINT FOR DAMAGES