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DAVID N. BARRY, ESQ. (SBN 219230)
THE BARRY LAW FIRM
11845 W. Olympic Blvd., Suite 1270
Los Angeles, CA 90064
FILED.
ALAMEDA COUNTY |
Telephone: 310.684.5859
Facsimile: 310.862.4539 ‘SEP 23 2021 |
Attorneys for Plaintiff, ANDREA APODACA CLERK OF THE SUPERIOR COURT
By ble Lasdas
eputy
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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FOR THE COUNTY OF ALAMEDA —- HAYWARD HALL OF JUSTICE
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ANDREA APODACA, an individual,
cose NoHG 91113904
12 Plaintiff,
COMPLAINT FOR DAMAGE
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15 AMERICAN HONDA MOTOR CO., INC.,
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16 A California Corporation; and DOES 1
17 through 20, inclusive,
Assigned for all purposes to the Hon.
18 Defendants. in Dept.
19
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21 1. Breach of Implied Warranty of Merchantability under the Song-Beverly Consumer
22 Warranty Act. i
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4
23 2. Breach of Express Warranty under the Song-Beverly Consumer Warranty Act.
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24
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JURY TRIAL DEMANDED. 4
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SEP 23 2024
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COMPLAINT FOR DAMAGES
PLAINTIFF ANDREA APODACA, an individual, hereby alleges and complains as follows:
GENERAL ALLEGATIONS COMMON TO ALL CAUSES OF ACTION:
1. Defendant, AMERICAN HONDA MOTOR CO., INC., is A California Corporation
doing business in the County of Alameda, State of California, and, at all times relevant herein, was/is
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engaged in the manufacture, sale, distribution, and/or importing of Honda motor vehicles and related
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equipment.
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2. The true names and capacities, whether individual, corporate, associate, or otherwise,
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of the Defendants, Does 1 through 20, inclusive, are unknown to Plaintiff who therefore sues these
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Defendants by such fictitious names. Plaintiff will seek leave to amend this Complaint'to set forth
10 their true names and capacities when they have ascertained them. Further, Plaintiff is informed and
11 believes, and thereon alleges, that each of the Defendants designated herein as a “Doe” is responsible
12 in some manner for the events and happenings herein referred to and caused injury and damage to
13 Plaintiff as herein alleged.
14 3. AMERICAN HONDA MOTOR CO., INC. and Defendants, Does 1 through 20,
15 inclusive, are collectively hereinafter referred to as “Defendants.”
16 4. Plaintiff is informed and believes, and thereon alleges, that at all times herein
17 mentioned, Defendants, and each of them, were the agents, servants, and/or employees of each of
18 their Co-Defendants. Plaintiff is informed and believes, and thereon alleges, that in doing ne things
19 hereinafter alleged Defendants, and each of them, were acting in the course and scope of their
20 employment as such agents, servants, and/or employees, and with the permission,| consent,
21 knowledge, and/or ratification of their Co-Defendants, principals, and/or employers.
22 5. On October 9, 2019, Plaintiff purchased, a new 2019 Honda Odyssey, VIN
23 S5FNRL6H93KB084338 (hereinafter referred to as the “Vehicle”), for personal, family, and/or
24 household purposes. The Vehicle was purchased new with only fifty (50) existing miles, for a total
25 consideration over the term of the installment contract of $61,522.52. The purchase agreement is in
26 the possession of Defendants.
27 6. The Vehicle was/is a “new motor vehicle” under the Song-Beverly Consumer Warranty
28 Act (the “Song-Beverly Act”).
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COMPLAINT FOR DAMAGES
7. Along with the purchase of the Vehicle, Plaintiff received written warranties and other
express and implied warranties including, but not limited to, warranties from Defendants that the
Vehicle and its components would be free from all defects in material and workmanship; that the
Vehicle would pass without objection in the trade under the Contract description; that’ the Vehicle
would be fit for the ordinary purposes for which it was intended; that the Vehicle would conform to
the promises and affirmations of fact made; that Defendants would perform any cepairs alignments,
adjustments, and/or replacements of any parts necessary to ensure that the Vehicle was free from any
defects in material and workmanship.
8. Defendants provide all Honda customers, including Plaintiff, with a Honda Vehicle
10 Limited Warranty with the purchase or lease of a Honda vehicle. The Honda Vehicle Limited
1] Warranty for the Vehicle, which includes a Basic warranty as well as a Powertrain warranty, includes
12 in relevant part!:
“New Vehicle Limited Warranty
13
Basic Coverage:
14 The coverage period is for 3 years or 36,000 miles, whichever comes first.
Powertrain:
15 The coverage period is for 5 years or 60,000 miles, whichever comes first.
Warranty Applies:
16 The warranty coverages in this booklet are offered only to the owner or
lessee of a 2019 Honda automobile. To be covered, the vehicle must be
17
distributed by American Honda through the Honda Automobile Division,
18 and sold or leased by a Honda automobile dealer in the United States, Puerto:
Rico, the U.S. Virgin Islands, Guam, and the Commonwealth of the
19 Northern Mariana Islands. |
No Charge: |
20 The repair or replacement will be done with no charge for parts or labor.
Obtaining Repairs:
21
The people at your Honda automotive dealer are fully trained and
22 equipped to efficiently perform scheduled maintenance on your 2020
Honda. If you regularly take your vehicle to the Honda automobile dealer
23 for scheduled maintenance, the dealership personnel will know its history
if you need to make a warranty claim.
24 Warranty Period:
25 This warranty begins on the date the vehicle is put into use in one of the
following ways; a) the vehicle is delivered to the first purchaser by an |
26 authorized Honda automobile dealer; b) the vehicle is leased; c) the vehicle
is used as a demonstrator or company vehicle.
27
28 'https://owners.honda.com/Documentum/Warranty/Handbooks/2019_Honda_Warranty_Basebook_AWL07531_ Petrol
_Hybrid_PHEV__SIS.pdf (Last accessed September 3, 2021) i
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COMPLAINT FOR DAMAGES
Basic Coverage:
Honda will repair or replace any part that is defective in material or
workmanship under normal use. See Proper Operation and Maintenance of
Your Honda on page 36. All repairs/replacements made under this warranty
are free of charge. The replaced or repaired parts are covered only until this
New Vehicle Limited Warranty expires.
Powertrain Coverage:
Honda will repair or replace any part that is defective in material -or
workmanship under normal use. See Proper Operation and Maintenanceof
Your Honda on page 36. All repairs/replacements made under this warranty
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are free of charge. The replaced or repaired parts are covered only until this
Powertrain Limited Warranty expires.
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Engine Coverage includes:
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Cylinder block and head and all internal parts, timing gears and gaskets,
timing chain/belt and cover, flywheel, valve covers, oil pan, oil pump,
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intake and exhaust manifolds, engine mounts, engine/powertrain control
module, water pump, fuel pump, seals and gaskets.
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Transmission/Transaxle Coverage:
1] Case and all internal parts, torque converter, transfer case and all internal
parts, transmission/powertrain control module, seals and gaskets.”
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9. Plaintiff has duly performed all the conditions on Plaintiffs part under the Contract
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and under the express and implied warranties given to Plaintiff, except insofar as the acts and/or
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omissions of the Defendants, and each of them, as alleged herein, prevented and/or excused such
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performance.
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10. Plaintiff has delivered the Vehicle to the Defendants’ authorized service and repair
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facilities, agents and/or dealers, on at least three (3) separate occasions resulting in the Vehicle being
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out of service by reason of repair of nonconformities. Repair orders and/or invoices related to said
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repair presentations are in the possession of Defendants.
20
11. By way of example, and not by way of limitation, Plaintiff has presented the Vehicle
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to Defendants for defects related to: (a) infotainment system failure causing screen going black,
22
crackle sound coming from the speakers, radio crackling, and Bluetooth not working on three (3)
23
separate occasions; and (b) horn beeping automatically when starting the Vehicle.
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12. Each time Plaintiff delivered the nonconforming Vehicle to Defendants’ authorized
25
service and repair facility, Plaintiff notified Defendants, and each of them, of the defects,
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malfunctions, misadjustments, and/or nonconformities existent with the Vehicle and demanded that ~
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Defendants or its representatives repair, adjust, and/or replace any necessary parts to conform the
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COMPLAINT FOR DAMAGES
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Vehicle to the applicable warranties.
13. Each time Plaintiff delivered the nonconforming Vehicle to Defendants’ authorized
service and repair facility, Defendants, and each of them, represented to Plaintiff that they could and
would conform the Vehicle to the applicable warranties, that in fact they did conform the Vehicle to
said warranties, and that all the defects, malfunctions, misadjustments, and/or nonconformities have
been repaired; however, Defendants or their representatives failed to conform the Vehicle to the
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applicable warranties because said defects, malfunctions, misadjustments, and/or nonconformities
continue to exist even after a reasonable number of attempts to repair was given.
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14. The amount in controversy exceeds TWENTY-FIVE THOUSAND DOLLARS
10 ($25,000.00), exclusive of interest and costs, for which Plaintiff seeks judgment against Defendants,
11 together with equitable relief. In addition, Plaintiff seeks damages from Defendants, and each of
12 them, for incidental, consequential, exemplary, and actual damages including interest, 'costs, and
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13 actual attorneys’ fees.
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COMPLAINT FOR DAMAGES
FIRST CAUSE OF ACTION
Breach of Implied Warranty of Merchantability under the Song-Beverly Act
Against all Defendants
15. Plaintiff realleges each and every paragraph (1-14) and incorporates them by this
reference as though fully set forth herein.
16. The distribution and sale of the Vehicle was accompanied by the Defendants’ implied
warranty that the Vehicle was merchantable.
17. | Furthermore, Defendants, and each of them, impliedly warranted, inter alia, that the
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
1] assembled; and/or that the Vehicle conformed to the promises or affirmations of fact made to
12 Plaintiff. :
13 18. As evidenced by the defects, malfunctions, misadjustments, and/or nonconformities
14 allegesd 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 was
17 not adequately assembled; and/or because it did not or could not be conformed to the promises or
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18 affirmations of fact made to Plaintiff.
19 19. Upon discovery of the Vehicle’s nonconformities, Plaintiff 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 20. Plaintiff hereby gives written notice and justifiably revokes acceptance of the
24 nonconforming Vehicle under the Commercial Code sections 2607 and 2608. Plaintiff further
25 demands that Defendants cancel the sale, take back the nonconforming Vehicle, refund all the money
26 expended, pay the difference between the value of the Vehicle as accepted and the value the Vehicle
27 would have had if it had been as warranted, and/or pay damages under the Commercial Code sections
28 2711, 2714, and 2715. Defendants, and each of them, have, however, refused to comply.
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COMPLAINT FOR DAMAGES
21. Plaintiff hereby gives written notice and makes demand upon Defendants for
replacement or restitution, pursuant to the Song-Beverly Act. Defendants, and each of them, knew
of their obligations under the Song-Beverly Act; however, despite Plaintiff's demand. Defendants
and each of them, have intentionally failed and refused to make restitution or replacement pursuant
to the Song-Beverly Act.
22. Asaresult of the acts and/or omissions of the Defendants, and each of them, Plaintiff
has sustained damage in the amount actually paid or payable under the contract, plus prejudgment
interest thereon at the legal rate. Plaintiff will seek leave to amend this Complaint to set forth the
exact amount thereof when that amount is ascertained. !
10 23. Asa further result of the actions of Defendants, and each of them, Plaintiff has sustained
11 incidental and consequential damages in an amount yet to be determined, plus interest thereon at the
12 legal rate. Plaintiff will seek leave to amend this Complaint to set forth the exact amount of incidental
13 damages when that amount is ascertained.
14 24. Asa further result of the actions of Defendants, and each of them, Plaintiff has sustained
15 damages equal to the difference between the value of the Vehicle as accepted and the value the
16 Vehicle would have had if it had been as warranted.
17 25. Asadirect result of the acts and/or omissions of Defendants, and each of them, and in
18 pursuing Plaintiff's claim, it was necessary for Plaintiff to retain legal counsel. Pursuant to the Song-
19 Beverly Act, Plaintiff, in addition to other remedies, is entitled to the recovery of attorneys’ fees
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20 based upon actual time expended and reasonably incurred, in connection with the commencement
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21 and prosecution of this action.
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COMPLAINT FOR DAMAGES
SECOND CAUSE OF ACTION
Breach of Express Warranty under the Song-Beverly Act |
Against all Defendants \
26. Plaintiff realleges each and every paragraph (1-25) and incorporates them by this
reference as though fully set forth herein.
27. The Vehicle had defects, malfunctions, misadjustments, and/or nonconformities
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covered by the warranty that substantially impaired its value, use, or safety to Plaintiff.,
28. Plaintiff delivered the Vehicle to Defendants or their authorized repair facilities for
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repair.
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29. Defendants, and each of them, failed to service or repair the Vehicle to match the
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1] written warranty after a reasonable number of opportunities to do so.
12 30. 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 Defendants provided to Plaintiff,
15 thereby breaching Defendants’ obligations under the Song-Beverly Act.
16 31. Defendants, and each of them, failed to perform the necessary repairs and/or service in
17 good and workmanlike manner. The actions taken by Defendants, and each of them, were insufficient
18 to make the Vehicle conform to the express warranties and/or proper operational characteristic of
19 like vehicles, all in violation of Defendants’ obligations under the Song-Beverly Act.
20 32. Plaintiff hereby gives written notice and makes demand upon Defendants for
2) replacement or restitution, pursuant to the Song-Beverly Act. Defendants and each of them, ‘knowing
22 their obligations under the Song-Beverly Act, and despite Plaintiff’s demand, failed and refused to
23 make restitution or replacement according to the mandates of the Song-Beverly Act. The failure of
24 Defendants, and each of them, to refund the price paid and payable or to replace the Vehicle was
25 intentional and justifies an award of a Civil Penalty in an amount not to exceed two times Plaintiff’s
26 actual damages.
27 33. Asaresult of the acts and/or omissions of Defendants, and each of them, and pursuant
28 to the provisions of the Song-Beverly Act, Plaintiff is entitled to replacement of the Vehicle or
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COMPLAINT FOR DAMAGES
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restitution of the amount actually paid or payable under the contract, at Plaintiff's election, plus
prejudgment interest thereon at the legal rate. Plaintiff will seek leave to amend this Complaint to set
forth the exact amount of restitution and interest, upon election, when that amount has been
ascertained.
34. Additionally, as a result of the acts and/or omissions of Defendants, and each of them,
and pursuant to the Song-Beverly Act, Plaintiff has sustained and is entitled to consequential and
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incidental damages in amounts yet to be determined, plus interest thereon at the legal rate. Plaintiff
will seek leave to amend this Complaint to set forth the exact amount of consequential and/or
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incidental damages, when those amounts have been ascertained.
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10 35. Asadirect result of the acts and/or omissions of Defendants, and each of them, and in
11 pursuing Plaintiffs claim, it was necessary for Plaintiff to retain legal counsel. Pursuant t the Song-
12 Beverly Act, Plaintiff, in addition to other remedies, is entitled to the recovery of attorneys’ fees
13 based upon actual time expended and reasonably incurred, in connection with the comniencement
14 and prosecution of this action.
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COMPLAINT FOR DAMAGES
PRAYER FOR RELIEF |
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WHEREFORE, Plaintiff prays for judgment against all Defendants, and each of them, as
follows:
For replacement or restitution, at Plaintiffs election, according to proof;
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For incidental damages, according to proof;
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For consequential damages, according to proof;
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For acivil penalty as provided in the Song-Beverly Act, in an amount not to exceed
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two times the amount of Plaintiff's actual damages;
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For actual attorneys’ fees, reasonably incurred;
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10 For costs of suit and expenses, according to proof;
11 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 For remedies provided in Chapters 6 and 7 of Division 2 of the Commercial Code;
14 For pre-judgment interest at the legal rate;
15 Such other relief the Court deems appropriate.
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Date: September 3, 2021 THE BARRY LAW FIRM
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if \
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20 DAVID N. BARRY-£ESQ.
Attorney for Plaintiff,
21 ANDREA APODACA
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COMPLAINT FOR DAMAGES
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@ ‘w ana wr) __.. | 23128170 ®@ DAVID N. BARRY, ESQ. (SBN 219230) THE BARRY LAW FIRM 11845 W. Olympic Blvd., Suite 1270 Los Angeles, CA 90064 FILED. ALAMEDA COUNTY | Telephone: 310.684.5859 Facsimile: 310.862.4539 ‘SEP 23 2021 | Attorneys for Plaintiff, ANDREA APODACA CLERK OF THE SUPERIOR COURT By ble Lasdas eputy NHN SUPERIOR COURT OF THE STATE OF CALIFORNIA CO FOR THE COUNTY OF ALAMEDA —- HAYWARD HALL OF JUSTICE Oo 10 1 ANDREA APODACA, an individual, cose NoHG 91113904 12 Plaintiff, COMPLAINT FOR DAMAGE | 13 14 15 AMERICAN HONDA MOTOR CO., INC., || 16 A California Corporation; and DOES 1 17 through 20, inclusive, Assigned for all purposes to the Hon. 18 Defendants. in Dept. 19 20 21 1. Breach of Implied Warranty of Merchantability under the Song-Beverly Consumer 22 Warranty Act. i i 4 23 2. Breach of Express Warranty under the Song-Beverly Consumer Warranty Act. 4 24 ' JURY TRIAL DEMANDED. 4 i 25 26 SEP 23 2024 27 28 -]- COMPLAINT FOR DAMAGES PLAINTIFF ANDREA APODACA, an individual, hereby alleges and complains as follows: GENERAL ALLEGATIONS COMMON TO ALL CAUSES OF ACTION: 1. Defendant, AMERICAN HONDA MOTOR CO., INC., is A California Corporation doing business in the County of Alameda, State of California, and, at all times relevant herein, was/is £ engaged in the manufacture, sale, distribution, and/or importing of Honda motor vehicles and related WN equipment. NWN 2. The true names and capacities, whether individual, corporate, associate, or otherwise, ~s of the Defendants, Does 1 through 20, inclusive, are unknown to Plaintiff who therefore sues these oe Defendants by such fictitious names. Plaintiff will seek leave to amend this Complaint'to set forth 10 their true names and capacities when they have ascertained them. Further, Plaintiff is informed and 11 believes, and thereon alleges, that each of the Defendants designated herein as a “Doe” is responsible 12 in some manner for the events and happenings herein referred to and caused injury and damage to 13 Plaintiff as herein alleged. 14 3. AMERICAN HONDA MOTOR CO., INC. and Defendants, Does 1 through 20, 15 inclusive, are collectively hereinafter referred to as “Defendants.” 16 4. Plaintiff is informed and believes, and thereon alleges, that at all times herein 17 mentioned, Defendants, and each of them, were the agents, servants, and/or employees of each of 18 their Co-Defendants. Plaintiff is informed and believes, and thereon alleges, that in doing ne things 19 hereinafter alleged Defendants, and each of them, were acting in the course and scope of their 20 employment as such agents, servants, and/or employees, and with the permission,| consent, 21 knowledge, and/or ratification of their Co-Defendants, principals, and/or employers. 22 5. On October 9, 2019, Plaintiff purchased, a new 2019 Honda Odyssey, VIN 23 S5FNRL6H93KB084338 (hereinafter referred to as the “Vehicle”), for personal, family, and/or 24 household purposes. The Vehicle was purchased new with only fifty (50) existing miles, for a total 25 consideration over the term of the installment contract of $61,522.52. The purchase agreement is in 26 the possession of Defendants. 27 6. The Vehicle was/is a “new motor vehicle” under the Song-Beverly Consumer Warranty 28 Act (the “Song-Beverly Act”). -2- COMPLAINT FOR DAMAGES 7. Along with the purchase of the Vehicle, Plaintiff received written warranties and other express and implied warranties including, but not limited to, warranties from Defendants that the Vehicle and its components would be free from all defects in material and workmanship; that the Vehicle would pass without objection in the trade under the Contract description; that’ the Vehicle would be fit for the ordinary purposes for which it was intended; that the Vehicle would conform to the promises and affirmations of fact made; that Defendants would perform any cepairs alignments, adjustments, and/or replacements of any parts necessary to ensure that the Vehicle was free from any defects in material and workmanship. 8. Defendants provide all Honda customers, including Plaintiff, with a Honda Vehicle 10 Limited Warranty with the purchase or lease of a Honda vehicle. The Honda Vehicle Limited 1] Warranty for the Vehicle, which includes a Basic warranty as well as a Powertrain warranty, includes 12 in relevant part!: “New Vehicle Limited Warranty 13 Basic Coverage: 14 The coverage period is for 3 years or 36,000 miles, whichever comes first. Powertrain: 15 The coverage period is for 5 years or 60,000 miles, whichever comes first. Warranty Applies: 16 The warranty coverages in this booklet are offered only to the owner or lessee of a 2019 Honda automobile. To be covered, the vehicle must be 17 distributed by American Honda through the Honda Automobile Division, 18 and sold or leased by a Honda automobile dealer in the United States, Puerto: Rico, the U.S. Virgin Islands, Guam, and the Commonwealth of the 19 Northern Mariana Islands. | No Charge: | 20 The repair or replacement will be done with no charge for parts or labor. Obtaining Repairs: 21 The people at your Honda automotive dealer are fully trained and 22 equipped to efficiently perform scheduled maintenance on your 2020 Honda. If you regularly take your vehicle to the Honda automobile dealer 23 for scheduled maintenance, the dealership personnel will know its history if you need to make a warranty claim. 24 Warranty Period: 25 This warranty begins on the date the vehicle is put into use in one of the following ways; a) the vehicle is delivered to the first purchaser by an | 26 authorized Honda automobile dealer; b) the vehicle is leased; c) the vehicle is used as a demonstrator or company vehicle. 27 28 'https://owners.honda.com/Documentum/Warranty/Handbooks/2019_Honda_Warranty_Basebook_AWL07531_ Petrol _Hybrid_PHEV__SIS.pdf (Last accessed September 3, 2021) i -3- COMPLAINT FOR DAMAGES Basic Coverage: Honda will repair or replace any part that is defective in material or workmanship under normal use. See Proper Operation and Maintenance of Your Honda on page 36. All repairs/replacements made under this warranty are free of charge. The replaced or repaired parts are covered only until this New Vehicle Limited Warranty expires. Powertrain Coverage: Honda will repair or replace any part that is defective in material -or workmanship under normal use. See Proper Operation and Maintenanceof Your Honda on page 36. All repairs/replacements made under this warranty DD are free of charge. The replaced or repaired parts are covered only until this Powertrain Limited Warranty expires. NS Engine Coverage includes: Oo Cylinder block and head and all internal parts, timing gears and gaskets, timing chain/belt and cover, flywheel, valve covers, oil pan, oil pump, Ob intake and exhaust manifolds, engine mounts, engine/powertrain control module, water pump, fuel pump, seals and gaskets. oO Transmission/Transaxle Coverage: 1] Case and all internal parts, torque converter, transfer case and all internal parts, transmission/powertrain control module, seals and gaskets.” 12 9. Plaintiff has duly performed all the conditions on Plaintiffs part under the Contract 13 and under the express and implied warranties given to Plaintiff, except insofar as the acts and/or 14 omissions of the Defendants, and each of them, as alleged herein, prevented and/or excused such 15 performance. 16 10. Plaintiff has delivered the Vehicle to the Defendants’ authorized service and repair 17 facilities, agents and/or dealers, on at least three (3) separate occasions resulting in the Vehicle being 18 out of service by reason of repair of nonconformities. Repair orders and/or invoices related to said 19 repair presentations are in the possession of Defendants. 20 11. By way of example, and not by way of limitation, Plaintiff has presented the Vehicle 21 to Defendants for defects related to: (a) infotainment system failure causing screen going black, 22 crackle sound coming from the speakers, radio crackling, and Bluetooth not working on three (3) 23 separate occasions; and (b) horn beeping automatically when starting the Vehicle. 24 12. Each time Plaintiff delivered the nonconforming Vehicle to Defendants’ authorized 25 service and repair facility, Plaintiff notified Defendants, and each of them, of the defects, 26 malfunctions, misadjustments, and/or nonconformities existent with the Vehicle and demanded that ~ 27 Defendants or its representatives repair, adjust, and/or replace any necessary parts to conform the 28 -4- COMPLAINT FOR DAMAGES @ @ |! t 3 Vehicle to the applicable warranties. 13. Each time Plaintiff delivered the nonconforming Vehicle to Defendants’ authorized service and repair facility, Defendants, and each of them, represented to Plaintiff that they could and would conform the Vehicle to the applicable warranties, that in fact they did conform the Vehicle to said warranties, and that all the defects, malfunctions, misadjustments, and/or nonconformities have been repaired; however, Defendants or their representatives failed to conform the Vehicle to the NN applicable warranties because said defects, malfunctions, misadjustments, and/or nonconformities continue to exist even after a reasonable number of attempts to repair was given. ioe) 14. The amount in controversy exceeds TWENTY-FIVE THOUSAND DOLLARS 10 ($25,000.00), exclusive of interest and costs, for which Plaintiff seeks judgment against Defendants, 11 together with equitable relief. In addition, Plaintiff seeks damages from Defendants, and each of 12 them, for incidental, consequential, exemplary, and actual damages including interest, 'costs, and ( 13 actual attorneys’ fees. : | 14 iil | 15 il 16 i | 17 i! 18 MI 19 MI 20 iil 21 ii 22 MI 23 ii 24 MI 25 i) 26 iii 27 iii 28 iii -5- COMPLAINT FOR DAMAGES FIRST CAUSE OF ACTION Breach of Implied Warranty of Merchantability under the Song-Beverly Act Against all Defendants 15. Plaintiff realleges each and every paragraph (1-14) and incorporates them by this reference as though fully set forth herein. 16. The distribution and sale of the Vehicle was accompanied by the Defendants’ implied warranty that the Vehicle was merchantable. 17. | Furthermore, Defendants, and each of them, impliedly warranted, inter alia, that the 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 1] assembled; and/or that the Vehicle conformed to the promises or affirmations of fact made to 12 Plaintiff. : 13 18. As evidenced by the defects, malfunctions, misadjustments, and/or nonconformities 14 allegesd 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 was 17 not adequately assembled; and/or because it did not or could not be conformed to the promises or t 18 affirmations of fact made to Plaintiff. 19 19. Upon discovery of the Vehicle’s nonconformities, Plaintiff 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 20. Plaintiff hereby gives written notice and justifiably revokes acceptance of the 24 nonconforming Vehicle under the Commercial Code sections 2607 and 2608. Plaintiff further 25 demands that Defendants cancel the sale, take back the nonconforming Vehicle, refund all the money 26 expended, pay the difference between the value of the Vehicle as accepted and the value the Vehicle 27 would have had if it had been as warranted, and/or pay damages under the Commercial Code sections 28 2711, 2714, and 2715. Defendants, and each of them, have, however, refused to comply. -6 COMPLAINT FOR DAMAGES 21. Plaintiff hereby gives written notice and makes demand upon Defendants for replacement or restitution, pursuant to the Song-Beverly Act. Defendants, and each of them, knew of their obligations under the Song-Beverly Act; however, despite Plaintiff's demand. Defendants and each of them, have intentionally failed and refused to make restitution or replacement pursuant to the Song-Beverly Act. 22. Asaresult of the acts and/or omissions of the Defendants, and each of them, Plaintiff has sustained damage in the amount actually paid or payable under the contract, plus prejudgment interest thereon at the legal rate. Plaintiff will seek leave to amend this Complaint to set forth the exact amount thereof when that amount is ascertained. ! 10 23. Asa further result of the actions of Defendants, and each of them, Plaintiff has sustained 11 incidental and consequential damages in an amount yet to be determined, plus interest thereon at the 12 legal rate. Plaintiff will seek leave to amend this Complaint to set forth the exact amount of incidental 13 damages when that amount is ascertained. 14 24. Asa further result of the actions of Defendants, and each of them, Plaintiff has sustained 15 damages equal to the difference between the value of the Vehicle as accepted and the value the 16 Vehicle would have had if it had been as warranted. 17 25. Asadirect result of the acts and/or omissions of Defendants, and each of them, and in 18 pursuing Plaintiff's claim, it was necessary for Plaintiff to retain legal counsel. Pursuant to the Song- 19 Beverly Act, Plaintiff, in addition to other remedies, is entitled to the recovery of attorneys’ fees { 20 based upon actual time expended and reasonably incurred, in connection with the commencement i\ i 21 and prosecution of this action. 22 Ml 23 M/ 24 Mf 25 Mf 26 Mf 27 Mf 28 Mf -7 COMPLAINT FOR DAMAGES SECOND CAUSE OF ACTION Breach of Express Warranty under the Song-Beverly Act | Against all Defendants \ 26. Plaintiff realleges each and every paragraph (1-25) and incorporates them by this reference as though fully set forth herein. 27. The Vehicle had defects, malfunctions, misadjustments, and/or nonconformities SD covered by the warranty that substantially impaired its value, use, or safety to Plaintiff., 28. Plaintiff delivered the Vehicle to Defendants or their authorized repair facilities for OO repair. Oo 29. Defendants, and each of them, failed to service or repair the Vehicle to match the oD 1] written warranty after a reasonable number of opportunities to do so. 12 30. 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 Defendants provided to Plaintiff, 15 thereby breaching Defendants’ obligations under the Song-Beverly Act. 16 31. Defendants, and each of them, failed to perform the necessary repairs and/or service in 17 good and workmanlike manner. The actions taken by Defendants, and each of them, were insufficient 18 to make the Vehicle conform to the express warranties and/or proper operational characteristic of 19 like vehicles, all in violation of Defendants’ obligations under the Song-Beverly Act. 20 32. Plaintiff hereby gives written notice and makes demand upon Defendants for 2) replacement or restitution, pursuant to the Song-Beverly Act. Defendants and each of them, ‘knowing 22 their obligations under the Song-Beverly Act, and despite Plaintiff’s demand, failed and refused to 23 make restitution or replacement according to the mandates of the Song-Beverly Act. The failure of 24 Defendants, and each of them, to refund the price paid and payable or to replace the Vehicle was 25 intentional and justifies an award of a Civil Penalty in an amount not to exceed two times Plaintiff’s 26 actual damages. 27 33. Asaresult of the acts and/or omissions of Defendants, and each of them, and pursuant 28 to the provisions of the Song-Beverly Act, Plaintiff is entitled to replacement of the Vehicle or -8- COMPLAINT FOR DAMAGES ' restitution of the amount actually paid or payable under the contract, at Plaintiff's election, plus prejudgment interest thereon at the legal rate. Plaintiff will seek leave to amend this Complaint to set forth the exact amount of restitution and interest, upon election, when that amount has been ascertained. 34. Additionally, as a result of the acts and/or omissions of Defendants, and each of them, and pursuant to the Song-Beverly Act, Plaintiff has sustained and is entitled to consequential and sD incidental damages in amounts yet to be determined, plus interest thereon at the legal rate. Plaintiff will seek leave to amend this Complaint to set forth the exact amount of consequential and/or CO incidental damages, when those amounts have been ascertained. So 10 35. Asadirect result of the acts and/or omissions of Defendants, and each of them, and in 11 pursuing Plaintiffs claim, it was necessary for Plaintiff to retain legal counsel. Pursuant t the Song- 12 Beverly Act, Plaintiff, in addition to other remedies, is entitled to the recovery of attorneys’ fees 13 based upon actual time expended and reasonably incurred, in connection with the comniencement 14 and prosecution of this action. 15 Ml 16 Ml 17 Mf 18 MI 19 Mf 20 M1 21 Ml 22 Ml 23 M 24 MI 25 M/ 26 Ml 27 HI 28 Ml -9- COMPLAINT FOR DAMAGES PRAYER FOR RELIEF | | WHEREFORE, Plaintiff prays for judgment against all Defendants, and each of them, as follows: For replacement or restitution, at Plaintiffs election, according to proof; > For incidental damages, according to proof; fF For consequential damages, according to proof; Oo DN For acivil penalty as provided in the Song-Beverly Act, in an amount not to exceed NSN 0 two times the amount of Plaintiff's actual damages; Oo For actual attorneys’ fees, reasonably incurred; m o 10 For costs of suit and expenses, according to proof; 11 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 For remedies provided in Chapters 6 and 7 of Division 2 of the Commercial Code; 14 For pre-judgment interest at the legal rate; 15 Such other relief the Court deems appropriate. 16 Date: September 3, 2021 THE BARRY LAW FIRM 17 if \ 18 19 20 DAVID N. BARRY-£ESQ. Attorney for Plaintiff, 21 ANDREA APODACA 22 23 24 25 26 27 28 -10- COMPLAINT FOR DAMAGES