Preview
Michael G. Devlin, SBN 265365 E-FILED
LAW OFFICES OF MICHAEL DEVLIN 3/15/2021 4:58 PM
12575 Beatrice Street Superior Court of California
Los Angeles, California 90066 County of Fresno
424.277.9768
michael@michaeldevlinlaw.com By: A. Rodriguez, Deputy
Attorneys for Plaintiffs EVAJO EVELINE BABCOCK
And RACQUEL ASHLEY ALEC
SUPERIOR COURT OF CALIFORNIA
COUNTY OF FRESNO
10
11
EVAJO EVELINE BABCOCK and ) Case No.: 21CECG00748
12 RACQUEL ASHLEY ALEC,
) COMPLAINT FOR VIOLATION OF
13 Plaintiffs, STATUTORY OBLIGATIONS AND
) NEGLIGENCE
14 Vv. )
15 GENERAL MOTORS, LLC; and DOES 1 )
to 10,
16
Defendants.
17
18
19
Plaintiffs allege as follows:
20
1 Plaintiffs EVAJO EVELINE BABCOCK and RACQUEL ASHLEY ALEC
21
(Plaintiffs) were at all material times, competent adults and residents of the State of
22
California.
23
2 Plaintiffs are informed and believes and thereupon alleges that defendant
24
GENERAL MOTORS, LLC (Defendant) is a limited liability company organized and
25
in existence under the laws of the State of Delaware and registered with the
26
California Department of Corporations to conduct business in California. At all
27
times relevant herein, Defendant was engaged in the business of designing,
28
1
PLAINTIFFS’ COMPLAINT FOR DAMAGES,
manufacturing, constructing, assembling, marketing, distributing, and selling
automobiles and other motor vehicles and motor vehicle components in Los Angeles
County.
3 Plaintiffs are ignorant of the true names and capacities of the Defendants
sued under the fictitious names DOES 1 to 10. They are sued pursuant to Code of
Civil Procedure section 474, and are each independently, or as a representative of
another defendant in this suit, responsible in some manner for the causes of action
set forth herein and the damages sustained by Plaintiffs. When Plaintiffs become
aware of the true names and capacities of the Defendants sued as DOES 1 to 10,
10 Plaintiffs will amend this Complaint to state their true names and capacities.
11 FIRST CAUSE OF ACTION
12 VIOLATION OF SUBDIVISION (D) OF CIVIL CODE SECTION 1793.2
13 4 On or about April 4, 2019 Plaintiffs purchased a 2019 Chevrolet Silverado
14 1500 vehicle identification number 1GCUYEED8KZ102308, (Vehicle) which was
15 manufactured and or distributed by Defendant. Later, Plaintiffs purchased the
16 Vehicle. The Vehicle was leased/purchased primarily for personal, family, or
17 household purposes. Plaintiffs purchased the Vehicle from a person or entity
18 engaged in the business of manufacturing, distributing, or selling consumer goods
19 at retail.
20 5 In connection with the ownership, Plaintiffs received an express written
21 warranty in which Defendant undertook to preserve or maintain the utility or
22 performance of the Vehicle or to provide compensation if there is a failure in utility
23 or performance for a specified period of time. The warranty provided, in relevant
24 part, that in the event a defect developed with the Vehicle during the warranty
25 period, Plaintiffs could deliver the Vehicle for repair services to Defendant's
26 representative and the Vehicle would be repaired.
27 6 During the warranty period, the Vehicle contained or developed defect(s),
28 which have manifested in the recurrent malfunction of the brakes, activation of the
2
PLAINTIFFS’ COMPLAINT FOR DAMAGES
brake system light, need to replace the brake system control module, and other
brake related symptoms documented in the repair history of the Vehicle. Said
defect(s) substantially impair the use, value, or safety of the Vehicle.
7 Defendant and its representatives in this state have been unable to service
or repair the Vehicle to conform to the applicable express warranties after a
reasonable number of opportunities. Despite this fact, Defendant failed to promptly
replace the Vehicle or make restitution to Plaintiff as required by Civil Code section
1793.2, subdivision (d) and Civil Code section 1793.1, subdivision (a)(2).
8 Plaintiffs have been damaged by Defendant's failure to comply with its
10 obligations pursuant to Civil Code section 1793.2, subdivision (d) and Civil Code
11 section 1793.1, subdivision (a)(2), and therefore brings this cause of action pursuant
12 to Civil Code section 1794.
13 9 Plaintiffs suffered damages in a sum to be proven at trial but not less than
14 $25,000.00.
15 10. Defendant's failure to comply with its obligations under Civil Code section
16 1793.2, subdivision (d) was willful, in that Defendant and its representative were
17 aware that they were unable to service or repair the Vehicle to conform to the
18 applicable express warranties after a reasonable number of repair attempts, yet
19 Defendant failed and refused to promptly replace the Vehicle or make restitution.
20 Accordingly, Plaintiffs are entitled to a civil penalty of two times Plaintiffs’ actual
21 damages pursuant to Civil Code section 1794, subdivision (c).
22 11. Defendant does not maintain a qualified third-party dispute resolution
23 process which substantially complies with Civil Code section 1793.22. Accordingly,
24 Plaintiffs are entitled to a civil penalty of two times Plaintiffs’ actual damages
25 pursuant to Civil Code section 1794, subdivision (e).
26 12. Plaintiffs seek civil penalties pursuant to section 1794, subdivisions (c), and
27 (e) in the alternative and does not seek to cumulate civil penalties, as provided in
28 Civil Code section 1794, subdivision (f).
3
PLAINTIFFS’ COMPLAINT FOR DAMAGES
SECOND CAUSE OF ACTION
VIOLATION OF SUBDIVISION (B) OF CIVIL CODE SECTION 1793.2
13. Plaintiffs incorporate by reference the allegations contained in the
paragraphs set forth above.
14. Although Plaintiffs presented the Vehicle to Defendant's representative in
this state, Defendant and its representative failed to commence the service or
repairs within a reasonable time and failed to service or repair the Vehicle so as to
conform to the applicable warranties within 30 days, in violation of Civil Code
section 1793.2, subdivision (b). Plaintiffs did not extend the time for completion of
10 repairs beyond the 30-day requirement.
11 15. Plaintiffs have been damaged by Defendant's failure to comply with its
12 obligations pursuant to Civil Code section 1793.2(b), and therefore brings this Cause
13 of Action pursuant to Civil Code section 1794.
14 16. Plaintiffs have rightfully rejected and/or justifiably revoked acceptance of the
15 Vehicle, and has exercised a right to cancel the sale. By serving this Complaint,
16 Plaintiffs do so again. Accordingly, Plaintiffs seek the remedies provided in
17 California Civil Code section 1794(b)(1), including the entire purchase price. In the
18 alternative, Plaintiffs seek the remedies set forth in California Civil Code section
19 1794(b)(2), including the diminution in value of the Vehicle resulting from its
20 defects. Plaintiffs believe that, at the present time, the Vehicle’s value is de
21 minimis.
22 17. Defendant's failure to comply with its obligations under Civil Code section
23 1793.2(b) was willful, in that Defendant and its representative were aware that they
24 were obligated to service or repair the Vehicle to conform to the applicable express
25 warranties within 30 days, yet they failed to do so. Accordingly, Plaintiffs are
26 entitled to a civil penalty of two times Plaintiffs’ actual damages pursuant to Civil
27 Code section 1794(c).
28 Ml
4
PLAINTIFFS’ COMPLAINT FOR DAMAGES
THIRD CAUSE OF ACTION
VIOLATION OF SUBDIVISION (A)(3) OF CIVIL CODE SECTION 1793.2
18. Plaintiffs incorporate by reference the allegations contained in paragraphs
set forth above.
19. In violation of Civil Code section 1793.2, subdivision (a)(3), Defendant failed
to make available to its authorized service and repair facilities sufficient service
literature and replacement parts to effect repairs during the express warranty
period. Plaintiffs have been damaged by Defendant's failure to comply with its
obligations pursuant to Civil Code section 1793.2(a)(3), and therefore brings this
10 Cause of Action pursuant to Civil Code section 1794.
11 20. Defendant's failure to comply with its obligations under Civil Code section
12 1793.2, subdivision (a)(3) was wilful, in that Defendant knew of its obligation to
13 provide literature and replacement parts sufficient to allow its repair facilities to
14 effect repairs during the warranty period, yet Defendant failed to take any action to
15 correct its failure to comply with the law. Accordingly, Plaintiffs are entitled to a
16 civil penalty of two times Plaintiffs’ actual damages; pursuant to Civil Code section
17 1794(c)
18 FOURTH CAUSE OF ACTION
19 BREACH OF EXPRESS WRITTEN WARRANTY
20 CIV. CODE,§ 1791.2, SUBD. (a);§ 1794)
21 21. Plaintiffs incorporate by reference the allegations contained in paragraphs
22 set forth above.
23 22. In accordance with Defendant's warranty, Plaintiffs delivered the Vehicle to
24 Defendant's representative in this state to perform warranty repairs. Plaintiffs did
25 so within a reasonable time. Each time Plaintiffs delivered the Vehicle, Plaintiffs
26 notified Defendant and its representative of the characteristics of the Defects.
27 However, the representative failed to repair the Vehicle, breaching the terms of the
28 written warranty on each occasion.
5
PLAINTIFFS’ COMPLAINT FOR DAMAGES
23. Plaintiffs have been damaged by Defendant's failure to comply with its
obligations under the express warranty, and therefore brings this Cause of Action
pursuant to Civil Code section 1794.
24, Defendant's failure to comply with its obligations under the express warranty
was willful, in that Defendant and its authorized representative were aware that
they were obligated to repair the Defects, but they intentionally refused to do so.
Accordingly, Plaintiffs are entitled to a civil penalty of two times of Plaintiffs’ actual
damages pursuant to Civil Code section 1794(c).
FIFTH CAUSE OF ACTION
10 BREACH OF THE IMPLIED WARRANTY OF MERCHANTABILITY
11 (CIV. CODE,§ 1791.1; § 1794)
12 25. Plaintiffs incorporate by reference the allegations contained in the
13 paragraphs set forth above.
14 26. Pursuant to Civil Code section 1792, the sale of the Vehicle was accompanied
15 by Defendants’ implied warranty of merchantability. Pursuant to Civil Code section
16 1791.1, the duration of the implied warranty is coextensive in duration with the
17 duration of the express written warranty provided by Defendant, except that the
18 duration is not to exceed one-year.
19 27. Pursuant to Civil Code section 1791.1 (a), the implied warranty of
20 merchantability means and includes that the Vehicle will comply with each of the
21 following requirements: (1) The Vehicle will pass without objection in the trade
22 under the contract description; (2) The Vehicle is fit for the ordinary purposes for
23 which such goods are used; (3) The Vehicle is adequately contained, packaged, and
24 labelled; (4) The Vehicle will conform to the promises or affirmations of fact made
25 on the container or label.
26 28. On the date of purchase or within one-year thereafter, the Vehicle contained
27 or developed the defects set forth above. The existence of each of these defects
28 constitutes a breach of the implied warranty because the Vehicle (1) does not pass
6
PLAINTIFFS’ COMPLAINT FOR DAMAGES
without objection in the trade under the contract description, (2) is not fit for the
ordinary purposes for which such goods are used, (3) is not adequately contained,
packaged, and labelled, and (4) does not conform to the promises or affirmations of
fact made on the container or label.
29. Plaintiffs have been damaged by Defendants’ failure to comply with its
obligations under the implied warranty, and therefore brings this Cause of Action
pursuant to Civil Code section 1794.
SIXTH CAUSE OF ACTION
VIOLATION OF THE MAGNUSON-MOSS WARRANTY ACT
10 30. Plaintiffs incorporate by reference the allegations contained in the
11 paragraphs set forth above.
12 31. Plaintiffs are a “consumer” as defined in the Magnuson-Moss Warranty Act
13 (referred to as “Mag-Moss’”), 15 U.S.C. § 2301(3).
14 32. Defendant is a “supplier” and “warrantor” as defined in the Mag-Moss Act,
15 15 U.S.C. § 2301(4), 15 U.S.C. § 2301(5).
16 33. The vehicle is a “consumer product” as defined in the Mag-Moss Act, 15 U.S.C.
17 § 2301(1).
18 34, In addition to the express warranty, in connection with the sale of the vehicle
19 to Plaintiffs, an implied warranty of merchantability was created under California
20 law. The vehicle’s implied warranties were not disclaimed using a Buyer’s Guide
21 displayed on the vehicle; thus any purported disclaimers were ineffective pursuant
22 to 15 U.S.C. § 2308(¢)
23 35. Defendant violated the Mag-Moss Act when it breached the express warranty
24 and implied warranties by failing to repair the defects and nonconformities, or to
25 replace the vehicle.
26 36. Plaintiffs performed all terms, conditions, covenants, promises and
27 obligations required to be performed on Plaintiffs’ part under the terms of the
28 purchase agreement, and express warranty and implied warranty except for those
7
PLAINTIFFS’ COMPLAINT FOR DAMAGES
terms and conditions, covenants, promises and obligations or payments for which
performance and/or compliance has been excused by the acts and/or conduct of the
Defendant and/or by operation of law.
37. As a direct and proximate result of the acts and omissions of the Defendant,
Plaintiffs have been damaged in the form of general, special and actual damages in
an amount within the jurisdiction of this Court, according to proof at trial.
38. Under the Act, Plaintiffs are entitled to reimbursement of the entire amount
paid or payable.
39. Plaintiffs are entitled to all incidental, consequential and general damages
10 resulting from Defendant’s failure to comply with their obligations under the Mag-
11 Moss Act.
12 40. Plaintiffs are entitled under the Mag-Moss Act to recover as part of the
13 judgment a sum equal to the aggregate amount of costs and expenses, including
14 attorney’s fees, reasonably incurred in connection with the commencement and
15 prosecution of this action pursuant to 15 U.S.C. § 2310(d)(2).
16 SEVENTH CAUSE OF ACTION
17 BY PLAINTIFFS AGAINST DEFENDANT
18 NEGLIGENCE
19 4l. Plaintiffs hereby incorporate by reference the allegations contained in the
20 preceding paragraphs of this Complaint.
21 42. Defendant was negligent in its production/manufacture of Plaintiffs’ Vehicle.
22 43. Plaintiffs were harmed because of Defendant’s negligent
23 production/manufacture of the Vehicle. Plaintiffs purchased a Vehicle containing a
24 defect. Said defect made the Vehicle a “lemon.” Therefore, not worth the actual price
25 paid for the Vehicle.
26 44, Defendant had/has a duty to promptly repurchase or replace the Vehicle
27 pursuant to California’s civil code. Defendant violated this code section in its refusal
28 to promptly repurchase and/or replace the Vehicle.
8
PLAINTIFFS’ COMPLAINT FOR DAMAGES
45. Defendant’s negligence and/or violation was a substantial factor in bringing
about harm and/or damages to Plaintiffs.
46. Plaintiffs’ damages include the amount paid or payable with respect to the
Vehicle, including any down payment, loan payments, interest payments, loan payoff,
and DMV registration.
EIGHTH CAUSE OF ACTION
BY PLAINTIFFS AGAINST DEFENDANT
FOR VIOLATION OF BUSINESS AND PROFESSIONS CODE § 17200
(Against all Defendants)
10 47. Plaintiffs incorporate by reference the allegations contained in the
11 paragraphs set forth above.
12 48. Defendant is alleged to have committed several statutory violations, as
13 alleged in the preceding causes of actions which provide a predicate for violations of
14 B & P § 17200. Et seq.
15 49. Defendants were required to comply with the Song-Beverly Act, the Mag-Moss
16 Act and the common-law duties as well. As alleged, herein, Defendants, including
17 GENERAL MOTORS, LLC, violated these statutes and duties. These violations of
18 law serve as a basis for a per se unlawful business practice under B & P § 17200. As
19 a result of the aforementioned actions the plaintiff were harmed and injunctive relief
20 and restitution, including disgorgement of improper fees penalties and interest, is
21 appropriate.
22 WHERERFORE, PLAINTIFF PRAYS for judgment against Defendants as
23 follows:
24 A For Plaintiffs’ actual damages in an amount according to proof;
25 B For restitution;
26 Cc For a civil penalty in the amount of two times Plaintiffs’ actual damages
27 pursuant to Civil Code section 1794, subdivision (c) or (e);
28 For any consequential and incidental damages;
9
PLAINTIFFS’ COMPLAINT FOR DAMAGES
1 E. For costs of the suit and Plaintiffs’ reasonable attorneys’ fees pursuant to
2 Civil Code section 1794, subdivision (d) and/or the Magnusson-Moss
3 Warranty Act pursuant to 15 U.S.C. § 2310(d)(2);
4 F. For prejudgment interest at the legal rate; and
5 G. For such other relief as the Court may deem proper.
6 DEMAND FOR JURY TRIAL
7
Plaintiffs hereby demand a jury trial on all causes of action asserted herein.
8
9|| DATED: March 15, 2021 Law Offices of Michael Devlin
10
> - e
11 =
By:
12 MICHAEL DEVLIN
Attorneys for Plaintiffs
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
10
PLAINTIFFS’ COMPLAINT FOR DAMAGES
Preview
Michael G. Devlin, SBN 265365 E-FILED LAW OFFICES OF MICHAEL DEVLIN 3/15/2021 4:58 PM 12575 Beatrice Street Superior Court of California Los Angeles, California 90066 County of Fresno 424.277.9768 michael@michaeldevlinlaw.com By: A. Rodriguez, Deputy Attorneys for Plaintiffs EVAJO EVELINE BABCOCK And RACQUEL ASHLEY ALEC SUPERIOR COURT OF CALIFORNIA COUNTY OF FRESNO 10 11 EVAJO EVELINE BABCOCK and ) Case No.: 21CECG00748 12 RACQUEL ASHLEY ALEC, ) COMPLAINT FOR VIOLATION OF 13 Plaintiffs, STATUTORY OBLIGATIONS AND ) NEGLIGENCE 14 Vv. ) 15 GENERAL MOTORS, LLC; and DOES 1 ) to 10, 16 Defendants. 17 18 19 Plaintiffs allege as follows: 20 1 Plaintiffs EVAJO EVELINE BABCOCK and RACQUEL ASHLEY ALEC 21 (Plaintiffs) were at all material times, competent adults and residents of the State of 22 California. 23 2 Plaintiffs are informed and believes and thereupon alleges that defendant 24 GENERAL MOTORS, LLC (Defendant) is a limited liability company organized and 25 in existence under the laws of the State of Delaware and registered with the 26 California Department of Corporations to conduct business in California. At all 27 times relevant herein, Defendant was engaged in the business of designing, 28 1 PLAINTIFFS’ COMPLAINT FOR DAMAGES, manufacturing, constructing, assembling, marketing, distributing, and selling automobiles and other motor vehicles and motor vehicle components in Los Angeles County. 3 Plaintiffs are ignorant of the true names and capacities of the Defendants sued under the fictitious names DOES 1 to 10. They are sued pursuant to Code of Civil Procedure section 474, and are each independently, or as a representative of another defendant in this suit, responsible in some manner for the causes of action set forth herein and the damages sustained by Plaintiffs. When Plaintiffs become aware of the true names and capacities of the Defendants sued as DOES 1 to 10, 10 Plaintiffs will amend this Complaint to state their true names and capacities. 11 FIRST CAUSE OF ACTION 12 VIOLATION OF SUBDIVISION (D) OF CIVIL CODE SECTION 1793.2 13 4 On or about April 4, 2019 Plaintiffs purchased a 2019 Chevrolet Silverado 14 1500 vehicle identification number 1GCUYEED8KZ102308, (Vehicle) which was 15 manufactured and or distributed by Defendant. Later, Plaintiffs purchased the 16 Vehicle. The Vehicle was leased/purchased primarily for personal, family, or 17 household purposes. Plaintiffs purchased the Vehicle from a person or entity 18 engaged in the business of manufacturing, distributing, or selling consumer goods 19 at retail. 20 5 In connection with the ownership, Plaintiffs received an express written 21 warranty in which Defendant undertook to preserve or maintain the utility or 22 performance of the Vehicle or to provide compensation if there is a failure in utility 23 or performance for a specified period of time. The warranty provided, in relevant 24 part, that in the event a defect developed with the Vehicle during the warranty 25 period, Plaintiffs could deliver the Vehicle for repair services to Defendant's 26 representative and the Vehicle would be repaired. 27 6 During the warranty period, the Vehicle contained or developed defect(s), 28 which have manifested in the recurrent malfunction of the brakes, activation of the 2 PLAINTIFFS’ COMPLAINT FOR DAMAGES brake system light, need to replace the brake system control module, and other brake related symptoms documented in the repair history of the Vehicle. Said defect(s) substantially impair the use, value, or safety of the Vehicle. 7 Defendant and its representatives in this state have been unable to service or repair the Vehicle to conform to the applicable express warranties after a reasonable number of opportunities. Despite this fact, Defendant failed to promptly replace the Vehicle or make restitution to Plaintiff as required by Civil Code section 1793.2, subdivision (d) and Civil Code section 1793.1, subdivision (a)(2). 8 Plaintiffs have been damaged by Defendant's failure to comply with its 10 obligations pursuant to Civil Code section 1793.2, subdivision (d) and Civil Code 11 section 1793.1, subdivision (a)(2), and therefore brings this cause of action pursuant 12 to Civil Code section 1794. 13 9 Plaintiffs suffered damages in a sum to be proven at trial but not less than 14 $25,000.00. 15 10. Defendant's failure to comply with its obligations under Civil Code section 16 1793.2, subdivision (d) was willful, in that Defendant and its representative were 17 aware that they were unable to service or repair the Vehicle to conform to the 18 applicable express warranties after a reasonable number of repair attempts, yet 19 Defendant failed and refused to promptly replace the Vehicle or make restitution. 20 Accordingly, Plaintiffs are entitled to a civil penalty of two times Plaintiffs’ actual 21 damages pursuant to Civil Code section 1794, subdivision (c). 22 11. Defendant does not maintain a qualified third-party dispute resolution 23 process which substantially complies with Civil Code section 1793.22. Accordingly, 24 Plaintiffs are entitled to a civil penalty of two times Plaintiffs’ actual damages 25 pursuant to Civil Code section 1794, subdivision (e). 26 12. Plaintiffs seek civil penalties pursuant to section 1794, subdivisions (c), and 27 (e) in the alternative and does not seek to cumulate civil penalties, as provided in 28 Civil Code section 1794, subdivision (f). 3 PLAINTIFFS’ COMPLAINT FOR DAMAGES SECOND CAUSE OF ACTION VIOLATION OF SUBDIVISION (B) OF CIVIL CODE SECTION 1793.2 13. Plaintiffs incorporate by reference the allegations contained in the paragraphs set forth above. 14. Although Plaintiffs presented the Vehicle to Defendant's representative in this state, Defendant and its representative failed to commence the service or repairs within a reasonable time and failed to service or repair the Vehicle so as to conform to the applicable warranties within 30 days, in violation of Civil Code section 1793.2, subdivision (b). Plaintiffs did not extend the time for completion of 10 repairs beyond the 30-day requirement. 11 15. Plaintiffs have been damaged by Defendant's failure to comply with its 12 obligations pursuant to Civil Code section 1793.2(b), and therefore brings this Cause 13 of Action pursuant to Civil Code section 1794. 14 16. Plaintiffs have rightfully rejected and/or justifiably revoked acceptance of the 15 Vehicle, and has exercised a right to cancel the sale. By serving this Complaint, 16 Plaintiffs do so again. Accordingly, Plaintiffs seek the remedies provided in 17 California Civil Code section 1794(b)(1), including the entire purchase price. In the 18 alternative, Plaintiffs seek the remedies set forth in California Civil Code section 19 1794(b)(2), including the diminution in value of the Vehicle resulting from its 20 defects. Plaintiffs believe that, at the present time, the Vehicle’s value is de 21 minimis. 22 17. Defendant's failure to comply with its obligations under Civil Code section 23 1793.2(b) was willful, in that Defendant and its representative were aware that they 24 were obligated to service or repair the Vehicle to conform to the applicable express 25 warranties within 30 days, yet they failed to do so. Accordingly, Plaintiffs are 26 entitled to a civil penalty of two times Plaintiffs’ actual damages pursuant to Civil 27 Code section 1794(c). 28 Ml 4 PLAINTIFFS’ COMPLAINT FOR DAMAGES THIRD CAUSE OF ACTION VIOLATION OF SUBDIVISION (A)(3) OF CIVIL CODE SECTION 1793.2 18. Plaintiffs incorporate by reference the allegations contained in paragraphs set forth above. 19. In violation of Civil Code section 1793.2, subdivision (a)(3), Defendant failed to make available to its authorized service and repair facilities sufficient service literature and replacement parts to effect repairs during the express warranty period. Plaintiffs have been damaged by Defendant's failure to comply with its obligations pursuant to Civil Code section 1793.2(a)(3), and therefore brings this 10 Cause of Action pursuant to Civil Code section 1794. 11 20. Defendant's failure to comply with its obligations under Civil Code section 12 1793.2, subdivision (a)(3) was wilful, in that Defendant knew of its obligation to 13 provide literature and replacement parts sufficient to allow its repair facilities to 14 effect repairs during the warranty period, yet Defendant failed to take any action to 15 correct its failure to comply with the law. Accordingly, Plaintiffs are entitled to a 16 civil penalty of two times Plaintiffs’ actual damages; pursuant to Civil Code section 17 1794(c) 18 FOURTH CAUSE OF ACTION 19 BREACH OF EXPRESS WRITTEN WARRANTY 20 CIV. CODE,§ 1791.2, SUBD. (a);§ 1794) 21 21. Plaintiffs incorporate by reference the allegations contained in paragraphs 22 set forth above. 23 22. In accordance with Defendant's warranty, Plaintiffs delivered the Vehicle to 24 Defendant's representative in this state to perform warranty repairs. Plaintiffs did 25 so within a reasonable time. Each time Plaintiffs delivered the Vehicle, Plaintiffs 26 notified Defendant and its representative of the characteristics of the Defects. 27 However, the representative failed to repair the Vehicle, breaching the terms of the 28 written warranty on each occasion. 5 PLAINTIFFS’ COMPLAINT FOR DAMAGES 23. Plaintiffs have been damaged by Defendant's failure to comply with its obligations under the express warranty, and therefore brings this Cause of Action pursuant to Civil Code section 1794. 24, Defendant's failure to comply with its obligations under the express warranty was willful, in that Defendant and its authorized representative were aware that they were obligated to repair the Defects, but they intentionally refused to do so. Accordingly, Plaintiffs are entitled to a civil penalty of two times of Plaintiffs’ actual damages pursuant to Civil Code section 1794(c). FIFTH CAUSE OF ACTION 10 BREACH OF THE IMPLIED WARRANTY OF MERCHANTABILITY 11 (CIV. CODE,§ 1791.1; § 1794) 12 25. Plaintiffs incorporate by reference the allegations contained in the 13 paragraphs set forth above. 14 26. Pursuant to Civil Code section 1792, the sale of the Vehicle was accompanied 15 by Defendants’ implied warranty of merchantability. Pursuant to Civil Code section 16 1791.1, the duration of the implied warranty is coextensive in duration with the 17 duration of the express written warranty provided by Defendant, except that the 18 duration is not to exceed one-year. 19 27. Pursuant to Civil Code section 1791.1 (a), the implied warranty of 20 merchantability means and includes that the Vehicle will comply with each of the 21 following requirements: (1) The Vehicle will pass without objection in the trade 22 under the contract description; (2) The Vehicle is fit for the ordinary purposes for 23 which such goods are used; (3) The Vehicle is adequately contained, packaged, and 24 labelled; (4) The Vehicle will conform to the promises or affirmations of fact made 25 on the container or label. 26 28. On the date of purchase or within one-year thereafter, the Vehicle contained 27 or developed the defects set forth above. The existence of each of these defects 28 constitutes a breach of the implied warranty because the Vehicle (1) does not pass 6 PLAINTIFFS’ COMPLAINT FOR DAMAGES without objection in the trade under the contract description, (2) is not fit for the ordinary purposes for which such goods are used, (3) is not adequately contained, packaged, and labelled, and (4) does not conform to the promises or affirmations of fact made on the container or label. 29. Plaintiffs have been damaged by Defendants’ failure to comply with its obligations under the implied warranty, and therefore brings this Cause of Action pursuant to Civil Code section 1794. SIXTH CAUSE OF ACTION VIOLATION OF THE MAGNUSON-MOSS WARRANTY ACT 10 30. Plaintiffs incorporate by reference the allegations contained in the 11 paragraphs set forth above. 12 31. Plaintiffs are a “consumer” as defined in the Magnuson-Moss Warranty Act 13 (referred to as “Mag-Moss’”), 15 U.S.C. § 2301(3). 14 32. Defendant is a “supplier” and “warrantor” as defined in the Mag-Moss Act, 15 15 U.S.C. § 2301(4), 15 U.S.C. § 2301(5). 16 33. The vehicle is a “consumer product” as defined in the Mag-Moss Act, 15 U.S.C. 17 § 2301(1). 18 34, In addition to the express warranty, in connection with the sale of the vehicle 19 to Plaintiffs, an implied warranty of merchantability was created under California 20 law. The vehicle’s implied warranties were not disclaimed using a Buyer’s Guide 21 displayed on the vehicle; thus any purported disclaimers were ineffective pursuant 22 to 15 U.S.C. § 2308(¢) 23 35. Defendant violated the Mag-Moss Act when it breached the express warranty 24 and implied warranties by failing to repair the defects and nonconformities, or to 25 replace the vehicle. 26 36. Plaintiffs performed all terms, conditions, covenants, promises and 27 obligations required to be performed on Plaintiffs’ part under the terms of the 28 purchase agreement, and express warranty and implied warranty except for those 7 PLAINTIFFS’ COMPLAINT FOR DAMAGES terms and conditions, covenants, promises and obligations or payments for which performance and/or compliance has been excused by the acts and/or conduct of the Defendant and/or by operation of law. 37. As a direct and proximate result of the acts and omissions of the Defendant, Plaintiffs have been damaged in the form of general, special and actual damages in an amount within the jurisdiction of this Court, according to proof at trial. 38. Under the Act, Plaintiffs are entitled to reimbursement of the entire amount paid or payable. 39. Plaintiffs are entitled to all incidental, consequential and general damages 10 resulting from Defendant’s failure to comply with their obligations under the Mag- 11 Moss Act. 12 40. Plaintiffs are entitled under the Mag-Moss Act to recover as part of the 13 judgment a sum equal to the aggregate amount of costs and expenses, including 14 attorney’s fees, reasonably incurred in connection with the commencement and 15 prosecution of this action pursuant to 15 U.S.C. § 2310(d)(2). 16 SEVENTH CAUSE OF ACTION 17 BY PLAINTIFFS AGAINST DEFENDANT 18 NEGLIGENCE 19 4l. Plaintiffs hereby incorporate by reference the allegations contained in the 20 preceding paragraphs of this Complaint. 21 42. Defendant was negligent in its production/manufacture of Plaintiffs’ Vehicle. 22 43. Plaintiffs were harmed because of Defendant’s negligent 23 production/manufacture of the Vehicle. Plaintiffs purchased a Vehicle containing a 24 defect. Said defect made the Vehicle a “lemon.” Therefore, not worth the actual price 25 paid for the Vehicle. 26 44, Defendant had/has a duty to promptly repurchase or replace the Vehicle 27 pursuant to California’s civil code. Defendant violated this code section in its refusal 28 to promptly repurchase and/or replace the Vehicle. 8 PLAINTIFFS’ COMPLAINT FOR DAMAGES 45. Defendant’s negligence and/or violation was a substantial factor in bringing about harm and/or damages to Plaintiffs. 46. Plaintiffs’ damages include the amount paid or payable with respect to the Vehicle, including any down payment, loan payments, interest payments, loan payoff, and DMV registration. EIGHTH CAUSE OF ACTION BY PLAINTIFFS AGAINST DEFENDANT FOR VIOLATION OF BUSINESS AND PROFESSIONS CODE § 17200 (Against all Defendants) 10 47. Plaintiffs incorporate by reference the allegations contained in the 11 paragraphs set forth above. 12 48. Defendant is alleged to have committed several statutory violations, as 13 alleged in the preceding causes of actions which provide a predicate for violations of 14 B & P § 17200. Et seq. 15 49. Defendants were required to comply with the Song-Beverly Act, the Mag-Moss 16 Act and the common-law duties as well. As alleged, herein, Defendants, including 17 GENERAL MOTORS, LLC, violated these statutes and duties. These violations of 18 law serve as a basis for a per se unlawful business practice under B & P § 17200. As 19 a result of the aforementioned actions the plaintiff were harmed and injunctive relief 20 and restitution, including disgorgement of improper fees penalties and interest, is 21 appropriate. 22 WHERERFORE, PLAINTIFF PRAYS for judgment against Defendants as 23 follows: 24 A For Plaintiffs’ actual damages in an amount according to proof; 25 B For restitution; 26 Cc For a civil penalty in the amount of two times Plaintiffs’ actual damages 27 pursuant to Civil Code section 1794, subdivision (c) or (e); 28 For any consequential and incidental damages; 9 PLAINTIFFS’ COMPLAINT FOR DAMAGES 1 E. For costs of the suit and Plaintiffs’ reasonable attorneys’ fees pursuant to 2 Civil Code section 1794, subdivision (d) and/or the Magnusson-Moss 3 Warranty Act pursuant to 15 U.S.C. § 2310(d)(2); 4 F. For prejudgment interest at the legal rate; and 5 G. For such other relief as the Court may deem proper. 6 DEMAND FOR JURY TRIAL 7 Plaintiffs hereby demand a jury trial on all causes of action asserted herein. 8 9|| DATED: March 15, 2021 Law Offices of Michael Devlin 10 > - e 11 = By: 12 MICHAEL DEVLIN Attorneys for Plaintiffs 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 PLAINTIFFS’ COMPLAINT FOR DAMAGES