Preview
CALIFORNIA CONSUMER ATTORNEYS, P.C.
1
Michael H. Rosenstein (SBN 169091)
2 mhr@calattorneys.com
Sepehr Daghighian (SBN 239349)
3 sd@calattorneys.com
10866 Wilshire Boulevard, Suite 1200
4
Los Angeles, California 90024
5 Telephone: (310) 872-2600
Facsimile: (310) 730-7377
6 Attorneys for Plaintiffs,
7 KRISTI C. BAISDEN and
LLOYD DARDEN JR.
8
SUPERIOR COURT OF CALIFORNIA
9
COUNTY OF RIVERSIDE
10
11 KRISTI C. BAISDEN, an individual, and Case No.: ____________________
LLOYD DARDEN JR., an individual, Unlimited Jurisdiction
12
13 Plaintiffs, COMPLAINT
14 vs. 1. VIOLATION OF SONG-BEVERLY
15 ACT - BREACH OF EXPRESS
SUBARU OF AMERICA, INC., a New Jersey WARRANTY
16 Corporation, and DOES 1 through 10, inclusive, 2. VIOLATION OF SONG-BEVERLY
ACT - BREACH OF IMPLIED
17 WARRANTY
18 Defendants. 3. VIOLATION OF THE SONG-
BEVERLY ACT SECTION 1793.2(b)
19
20
21
22
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25
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-1-
COMPLAINT
1 Plaintiffs, KRISTI C. BAISDEN, an individual, and LLOYD DARDEN JR., an individual,
2 allege as follows against Defendants SUBARU OF AMERICA, INC., a New Jersey Corporation
3 (“Subaru of America, Inc.”), and DOES 1 through 10 inclusive, on information and belief, formed
4 after a reasonable inquiry under the circumstances:
5 DEMAND FOR JURY TRIAL
6 1. Plaintiffs, Kristi C. Baisden and Lloyd Darden Jr., hereby demand trial by jury in this
7 action.
8 GENERAL ALLEGATIONS
9 2. Plaintiffs, Kristi C. Baisden and Lloyd Darden Jr., are individuals residing in the City
10 of Riverside, State of California.
11 3. Defendant Subaru of America, Inc. is and was a New Jersey Corporation operating
12 and doing business in the State of California.
13 4. These causes of action arise out of the warranty obligations of Subaru of America,
14 Inc. in connection with a vehicle purchased by Plaintiffs and for which Subaru of America, Inc.
15 issued a written warranty.
16 5. Plaintiffs do not know the true names and capacities, whether corporate, partnership,
17 associate, individual or otherwise of Defendant issued herein as Does 1 through 10, inclusive, under
18 the provisions of section 474 of the California Code of Civil Procedure. Defendant Does 1 through
19 10, inclusive, are in some manner responsible for the acts, occurrences and transactions set forth
20 herein, and are legally liable to Plaintiffs. Plaintiffs will seek leave to amend this Complaint to set
21 forth the true names and capacities of the fictitiously named Defendant, together with appropriate
22 charging allegations, when ascertained.
23 6. All acts of corporate employees as alleged were authorized or ratified by an officer,
24 director, or managing agent of the corporate employer.
25 ///
26 ///
27 ///
28 ///
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COMPLAINT
1 7. Each Defendant, whether actually or fictitiously named herein, was the principal,
2 agent (actual or ostensible), or employee of each other Defendant, and in acting as such principal or
3 within the course and scope of such employment or agency, took some part in the acts and omissions
4 hereinafter set forth by reason of which each Defendant is liable to Plaintiffs for the relief prayed for
5 herein.
6 8. On August 16, 2019, Plaintiffs leased a 2019 Subaru WRX XTI, having VIN No.
7 JF1VA2R67K9829724 (“the Subject Vehicle”). Express warranties accompanied the sale of the
8 Subject Vehicle to Plaintiffs by which Subaru of America, Inc. undertook to preserve or maintain
9 the utility or performance of Plaintiffs’ vehicle or to provide compensation if there was a failure in
10 such utility or performance.
11 9. The Subject Vehicle was delivered to Plaintiffs with serious defects and
12 nonconformities to warranty and developed other serious defects and nonconformities to warranty
13 including, but not limited to, the powertrain system defects, engine defects, power steering defects,
14 interior component defects, exterior and body component defects, braking system defects, and other
15 serious nonconformities to warranty.
16 10. Plaintiffs hereby revoke acceptance of the sales contract.
17 11. Pursuant to the Song-Beverly Consumer Warranty Act (herein after the “Act”) Civil
18 Code sections 1790 et seq. the Subject Vehicle constitutes “consumer goods” used primarily for
19 family or household purposes, and Plaintiffs have used the vehicle primarily for those purposes.
20 12. Plaintiffs are a “buyer” of consumer goods under the Act.
21 13. Defendant Subaru of America, Inc. is a “manufacturer” and/or “distributor” under the
22 Act.
23 14. To the extent that one or more class action lawsuits have been filed or are filed with
24 respect to the nonconformities affecting Plaintiffs’ vehicle, without conceding the necessity of
25 supplying such notice, Plaintiffs hereby provides notice to Defendant and/or Defendant’s agents of
26 Plaintiffs’ intent to opt-out and be excluded from the settlement class of said class action lawsuit(s).
27 15. Plaintiffs hereby demand trial by jury in this action.
28 ///
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COMPLAINT
1 FIRST CAUSE OF ACTION
2 Violation of the Song-Beverly Act – Breach of Express Warranty
3 16. Plaintiff incorporates herein by reference, each and every allegation contained in the
4 preceding and succeeding paragraphs as though herein fully restated and re-alleged.
5 17. Express warranties accompanied the sale of the vehicle to Plaintiffs by which Subaru
6 of America, Inc. undertook to preserve or maintain the utility or performance of Plaintiffs’ vehicle
7 or to provide compensation if there was a failure in such utility or performance.
8 18. The Subject Vehicle was delivered to Plaintiffs with serious defects and
9 nonconformities to warranty and developed other serious defects and nonconformities to warranty
10 including, but not limited to, powertrain system defects, engine defects, power steering defects,
11 interior component defects, exterior and body component defects, braking system defects, and other
12 serious nonconformities to warranty.
13 19. Pursuant to the Song-Beverly Consumer Warranty Act (herein after the “Act”) Civil
14 Code sections 1790 et seq. the vehicle constitutes “consumer goods” used primarily for family or
15 household purposes, and Plaintiffs have used the Subject Vehicle primarily for those purposes.
16 20. Plaintiffs are the “buyer” of consumer goods under the Act.
17 21. Defendant Subaru of America, Inc. is a “manufacturer” and/or “distributor” under the
18 Act.
19 22. The foregoing defects and nonconformities to warranty manifested themselves in the
20 Subject Vehicle within the applicable express warranty period. The nonconformities substantially
21 impair the use, value and/or safety of the vehicle.
22 23. Plaintiffs delivered the vehicle to an authorized Subaru of America, Inc. repair facility
23 for repair of the nonconformities.
24 24. Defendant was unable to conform Plaintiffs’ vehicle to the applicable express after a
25 reasonable number of repair attempts.
26 25. Notwithstanding Plaintiffs’ entitlement, Defendant Subaru of America, Inc. has
27 failed to either promptly replace the new motor vehicle or to promptly make restitution in accordance
28 with the Song-Beverly Act.
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COMPLAINT
1 26. By failure of Defendant to remedy the defects as alleged above, or to issue a refund
2 or replacement vehicle, Defendant is in breach of its obligations under the Song-Beverly Act.
3 27. Under the Act, Plaintiffs are entitled to reimbursement of the price paid for the
4 vehicle less that amount directly attributable to use by the Plaintiffs prior to the first presentation of
5 the nonconformities.
6 28. Plaintiffs are entitled to all incidental, consequential, and general damages resulting
7 from Defendant’s failure to comply with its obligations under the Song-Beverly Act.
8 29. Plaintiffs are entitled under the Song-Beverly Act to recover as part of the judgment
9 a sum equal to the aggregate amount of costs and expenses, including attorney’s fees, reasonably
10 incurred in connection with the commencement and prosecution of this action.
11 30. Because Defendant willfully violated the Song-Beverly Act, Plaintiffs are entitled in
12 addition to the amounts recovered, a civil penalty of up to two times the amount of actual damages
13 for Subaru of America, Inc.’s willful failure to comply with its responsibilities under the Act.
14 SECOND CAUSE OF ACTION
15 Violation of the Song-Beverly Act – Breach of Implied Warranty
16 31. Plaintiffs incorporate herein by reference each and every allegation contained in the
17 preceding and succeeding paragraphs as though herein fully restated and re-alleged.
18 32. Subaru of America, Inc. and its authorized dealership at which Plaintiffs purchased
19 the Subject Vehicle had reason to know the purpose of the Subject Vehicle at the time of sale of the
20 Subject Vehicle. The sale of the Subject Vehicle was accompanied by implied warranties provided
21 for under the law.
22 33. Among other warranties, the sale of the Subject Vehicle was accompanied by an
23 implied warranty that the Subject Vehicle was merchantable pursuant to Civil Code section 1792.
24 34. The Subject Vehicle was not fit for the ordinary purpose for which such goods are
25 used because it was equipped with one or more defective vehicle systems/components.
26 35. The Subject Vehicle did not measure up to the promises or facts stated on the
27 container or label because it was equipped with one or more defective vehicle systems/components.
28 ///
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COMPLAINT
1 36. The Subject Vehicle was not of the same quality as those generally acceptable in the
2 trade because it was sold with one or more defective vehicle systems/components which manifest as
3 powertrain system defects, engine defects, power steering defects, interior component defects,
4 exterior and body component defects, braking system defects, and other serious nonconformities to
5 warranty.
6 37. Upon information and belief, the defective vehicle systems and components were
7 present at the time of sale of the Subject Vehicle; thus, extending the duration of any implied
8 warranty under Mexia v. Rinker Boat Co., Inc. (2009) 174 Cal.App.4th 1297, 1304–1305 and other
9 applicable laws.
10 38. Plaintiffs are entitled to justifiably revoke acceptance of the Subject Vehicle under
11 Civil Code, section 1794, et seq;
12 39. Plaintiffs hereby revoke acceptance of the Subject Vehicle.
13 40. Plaintiffs are entitled to replacement or reimbursement pursuant to Civil Code,
14 section 1794, et seq.
15 41. Plaintiffs are entitled to rescission of the contract pursuant to Civil Code, section
16 1794, et seq. and Commercial Code, section 2711.
17 42. Plaintiffs are entitled to recover any incidental, consequential, and/or “cover”
18 damages under Commercial Code, sections 2711, 2712, and Civil Code, section 1794, et seq.
19 THIRD CAUSE OF ACTION
20 Violation of the Song-Beverly Act Section 1793.2(b)
21 43. Plaintiffs incorporate herein by reference each and every allegation contained in the
22 preceding and succeeding paragraphs as though herein fully restated and re-alleged.
23 44. Pursuant to Civil Code, section 1793.2, subdivision (a) a manufacturer that sells
24 consumer goods in California, for which it has made an express warranty, shall maintain service and
25 repair facilities or designate and authorize independent service and repair facilities to carry out the
26 terms of those warranties.
27 ///
28 ///
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COMPLAINT
1 45. Pursuant to Civil Code, section 1793.2, subdivision (b), when service and repair of
2 goods is necessary because they do not conform with the applicable express warranties, service and
3 repair shall be commenced within a reasonable time by the manufacturer or its representative.
4 46. Civil Code, section 1793.2, subdivision (b) further states that goods shall be serviced
5 or repaired so as to conform to the applicable warranties within 30 days and/or within a reasonable
6 time.
7 47. The sale of the Subject Vehicle was accompanied by express warranties, including a
8 warranty guaranteeing that the Subject Vehicle was safe to drive and not equipped with defective
9 parts, including the electrical system.
10 48. Plaintiffs delivered the Subject Vehicle to Subaru of America, Inc.’s authorized
11 service representatives on multiple occasions. The Subject Vehicle was delivered for repairs of
12 defects, which amount to a nonconformities to the express warranties that accompanied the sale of
13 the Subject Vehicle.
14 49. Defendant’s authorized facilities did not conform the Subject Vehicle to warranty
15 within 30-days and/or commence repairs within a reasonable time and Subaru of America, Inc. has
16 failed to tender the Subject Vehicle back to Plaintiffs in conformance with its warranties within the
17 timeframes set forth in Civil Code section 1793.2(b).
18 50. Plaintiffs are entitled to justifiably revoke acceptance of the Subject Vehicle under
19 Civil Code, section 1794, et seq;
20 51. Plaintiffs hereby revoke acceptance of the Subject Vehicle.
21 52. Plaintiffs are entitled to replacement or reimbursement pursuant to Civil Code,
22 section 1794, et seq.
23 53. Plaintiffs are entitled to rescission of the contract pursuant to Civil Code section 1794,
24 et seq. and Commercial Code, section 2711.
25 54. Plaintiffs are entitled to recover any “cover” damages under Commercial Code
26 sections 2711, 2712, and Civil Code, section 1794, et seq.
27 55. Plaintiffs are entitled to recover all incidental and consequential damages pursuant to
28 1794 et seq and Commercial Code sections, 2711, 2712, and 2713 et seq.
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COMPLAINT
1 56. Plaintiffs are entitled in addition to the amounts recovered, a civil penalty of up to
2 two times the amount of actual damages in that Subaru of America, Inc. has willfully failed to
3 comply with its responsibilities under the Act.
4 PRAYER FOR RELIEF
5 WHEREFORE, Plaintiffs prays for judgment against Defendants, as follows:
6 1. For general, special and actual damages according to proof at trial;
7 2. For rescission of the purchase contract and restitution of all monies expended;
8 3. For diminution in value;
9 4. For incidental and consequential damages according to proof at trial;
10 5. For civil penalty in the amount of two times Plaintiffs’ actual damages;
11 6. For prejudgment interest at the legal rate;
12 7. For reasonable attorney’s fees and costs and expenses of suit; and
13 8. For such other and further relief as the Court deems just and proper under the
14 circumstances.
15
Dated: March 29, 2022 CALIFORNIA CONSUMER ATTORNEYS, P.C.
16
17 ___________________________
Michael H. Rosenstein, Esq.
18 Sepehr Daghighian, Esq.
19 Attorneys for Plaintiffs,
KRISTI C. BAISDEN and
20 LLOYD DARDEN JR.
21
Plaintiffs, KRISTI C. BAISDEN AND LLOYD DARDEN JR., hereby demand trial by jury
22
in this action.
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COMPLAINT
Preview
CALIFORNIA CONSUMER ATTORNEYS, P.C. 1 Michael H. Rosenstein (SBN 169091) 2 mhr@calattorneys.com Sepehr Daghighian (SBN 239349) 3 sd@calattorneys.com 10866 Wilshire Boulevard, Suite 1200 4 Los Angeles, California 90024 5 Telephone: (310) 872-2600 Facsimile: (310) 730-7377 6 Attorneys for Plaintiffs, 7 KRISTI C. BAISDEN and LLOYD DARDEN JR. 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF RIVERSIDE 10 11 KRISTI C. BAISDEN, an individual, and Case No.: ____________________ LLOYD DARDEN JR., an individual, Unlimited Jurisdiction 12 13 Plaintiffs, COMPLAINT 14 vs. 1. VIOLATION OF SONG-BEVERLY 15 ACT - BREACH OF EXPRESS SUBARU OF AMERICA, INC., a New Jersey WARRANTY 16 Corporation, and DOES 1 through 10, inclusive, 2. VIOLATION OF SONG-BEVERLY ACT - BREACH OF IMPLIED 17 WARRANTY 18 Defendants. 3. VIOLATION OF THE SONG- BEVERLY ACT SECTION 1793.2(b) 19 20 21 22 23 24 25 26 27 28 -1- COMPLAINT 1 Plaintiffs, KRISTI C. BAISDEN, an individual, and LLOYD DARDEN JR., an individual, 2 allege as follows against Defendants SUBARU OF AMERICA, INC., a New Jersey Corporation 3 (“Subaru of America, Inc.”), and DOES 1 through 10 inclusive, on information and belief, formed 4 after a reasonable inquiry under the circumstances: 5 DEMAND FOR JURY TRIAL 6 1. Plaintiffs, Kristi C. Baisden and Lloyd Darden Jr., hereby demand trial by jury in this 7 action. 8 GENERAL ALLEGATIONS 9 2. Plaintiffs, Kristi C. Baisden and Lloyd Darden Jr., are individuals residing in the City 10 of Riverside, State of California. 11 3. Defendant Subaru of America, Inc. is and was a New Jersey Corporation operating 12 and doing business in the State of California. 13 4. These causes of action arise out of the warranty obligations of Subaru of America, 14 Inc. in connection with a vehicle purchased by Plaintiffs and for which Subaru of America, Inc. 15 issued a written warranty. 16 5. Plaintiffs do not know the true names and capacities, whether corporate, partnership, 17 associate, individual or otherwise of Defendant issued herein as Does 1 through 10, inclusive, under 18 the provisions of section 474 of the California Code of Civil Procedure. Defendant Does 1 through 19 10, inclusive, are in some manner responsible for the acts, occurrences and transactions set forth 20 herein, and are legally liable to Plaintiffs. Plaintiffs will seek leave to amend this Complaint to set 21 forth the true names and capacities of the fictitiously named Defendant, together with appropriate 22 charging allegations, when ascertained. 23 6. All acts of corporate employees as alleged were authorized or ratified by an officer, 24 director, or managing agent of the corporate employer. 25 /// 26 /// 27 /// 28 /// -2- COMPLAINT 1 7. Each Defendant, whether actually or fictitiously named herein, was the principal, 2 agent (actual or ostensible), or employee of each other Defendant, and in acting as such principal or 3 within the course and scope of such employment or agency, took some part in the acts and omissions 4 hereinafter set forth by reason of which each Defendant is liable to Plaintiffs for the relief prayed for 5 herein. 6 8. On August 16, 2019, Plaintiffs leased a 2019 Subaru WRX XTI, having VIN No. 7 JF1VA2R67K9829724 (“the Subject Vehicle”). Express warranties accompanied the sale of the 8 Subject Vehicle to Plaintiffs by which Subaru of America, Inc. undertook to preserve or maintain 9 the utility or performance of Plaintiffs’ vehicle or to provide compensation if there was a failure in 10 such utility or performance. 11 9. The Subject Vehicle was delivered to Plaintiffs with serious defects and 12 nonconformities to warranty and developed other serious defects and nonconformities to warranty 13 including, but not limited to, the powertrain system defects, engine defects, power steering defects, 14 interior component defects, exterior and body component defects, braking system defects, and other 15 serious nonconformities to warranty. 16 10. Plaintiffs hereby revoke acceptance of the sales contract. 17 11. Pursuant to the Song-Beverly Consumer Warranty Act (herein after the “Act”) Civil 18 Code sections 1790 et seq. the Subject Vehicle constitutes “consumer goods” used primarily for 19 family or household purposes, and Plaintiffs have used the vehicle primarily for those purposes. 20 12. Plaintiffs are a “buyer” of consumer goods under the Act. 21 13. Defendant Subaru of America, Inc. is a “manufacturer” and/or “distributor” under the 22 Act. 23 14. To the extent that one or more class action lawsuits have been filed or are filed with 24 respect to the nonconformities affecting Plaintiffs’ vehicle, without conceding the necessity of 25 supplying such notice, Plaintiffs hereby provides notice to Defendant and/or Defendant’s agents of 26 Plaintiffs’ intent to opt-out and be excluded from the settlement class of said class action lawsuit(s). 27 15. Plaintiffs hereby demand trial by jury in this action. 28 /// -3- COMPLAINT 1 FIRST CAUSE OF ACTION 2 Violation of the Song-Beverly Act – Breach of Express Warranty 3 16. Plaintiff incorporates herein by reference, each and every allegation contained in the 4 preceding and succeeding paragraphs as though herein fully restated and re-alleged. 5 17. Express warranties accompanied the sale of the vehicle to Plaintiffs by which Subaru 6 of America, Inc. undertook to preserve or maintain the utility or performance of Plaintiffs’ vehicle 7 or to provide compensation if there was a failure in such utility or performance. 8 18. The Subject Vehicle was delivered to Plaintiffs with serious defects and 9 nonconformities to warranty and developed other serious defects and nonconformities to warranty 10 including, but not limited to, powertrain system defects, engine defects, power steering defects, 11 interior component defects, exterior and body component defects, braking system defects, and other 12 serious nonconformities to warranty. 13 19. Pursuant to the Song-Beverly Consumer Warranty Act (herein after the “Act”) Civil 14 Code sections 1790 et seq. the vehicle constitutes “consumer goods” used primarily for family or 15 household purposes, and Plaintiffs have used the Subject Vehicle primarily for those purposes. 16 20. Plaintiffs are the “buyer” of consumer goods under the Act. 17 21. Defendant Subaru of America, Inc. is a “manufacturer” and/or “distributor” under the 18 Act. 19 22. The foregoing defects and nonconformities to warranty manifested themselves in the 20 Subject Vehicle within the applicable express warranty period. The nonconformities substantially 21 impair the use, value and/or safety of the vehicle. 22 23. Plaintiffs delivered the vehicle to an authorized Subaru of America, Inc. repair facility 23 for repair of the nonconformities. 24 24. Defendant was unable to conform Plaintiffs’ vehicle to the applicable express after a 25 reasonable number of repair attempts. 26 25. Notwithstanding Plaintiffs’ entitlement, Defendant Subaru of America, Inc. has 27 failed to either promptly replace the new motor vehicle or to promptly make restitution in accordance 28 with the Song-Beverly Act. -4- COMPLAINT 1 26. By failure of Defendant to remedy the defects as alleged above, or to issue a refund 2 or replacement vehicle, Defendant is in breach of its obligations under the Song-Beverly Act. 3 27. Under the Act, Plaintiffs are entitled to reimbursement of the price paid for the 4 vehicle less that amount directly attributable to use by the Plaintiffs prior to the first presentation of 5 the nonconformities. 6 28. Plaintiffs are entitled to all incidental, consequential, and general damages resulting 7 from Defendant’s failure to comply with its obligations under the Song-Beverly Act. 8 29. Plaintiffs are entitled under the Song-Beverly Act to recover as part of the judgment 9 a sum equal to the aggregate amount of costs and expenses, including attorney’s fees, reasonably 10 incurred in connection with the commencement and prosecution of this action. 11 30. Because Defendant willfully violated the Song-Beverly Act, Plaintiffs are entitled in 12 addition to the amounts recovered, a civil penalty of up to two times the amount of actual damages 13 for Subaru of America, Inc.’s willful failure to comply with its responsibilities under the Act. 14 SECOND CAUSE OF ACTION 15 Violation of the Song-Beverly Act – Breach of Implied Warranty 16 31. Plaintiffs incorporate herein by reference each and every allegation contained in the 17 preceding and succeeding paragraphs as though herein fully restated and re-alleged. 18 32. Subaru of America, Inc. and its authorized dealership at which Plaintiffs purchased 19 the Subject Vehicle had reason to know the purpose of the Subject Vehicle at the time of sale of the 20 Subject Vehicle. The sale of the Subject Vehicle was accompanied by implied warranties provided 21 for under the law. 22 33. Among other warranties, the sale of the Subject Vehicle was accompanied by an 23 implied warranty that the Subject Vehicle was merchantable pursuant to Civil Code section 1792. 24 34. The Subject Vehicle was not fit for the ordinary purpose for which such goods are 25 used because it was equipped with one or more defective vehicle systems/components. 26 35. The Subject Vehicle did not measure up to the promises or facts stated on the 27 container or label because it was equipped with one or more defective vehicle systems/components. 28 /// -5- COMPLAINT 1 36. The Subject Vehicle was not of the same quality as those generally acceptable in the 2 trade because it was sold with one or more defective vehicle systems/components which manifest as 3 powertrain system defects, engine defects, power steering defects, interior component defects, 4 exterior and body component defects, braking system defects, and other serious nonconformities to 5 warranty. 6 37. Upon information and belief, the defective vehicle systems and components were 7 present at the time of sale of the Subject Vehicle; thus, extending the duration of any implied 8 warranty under Mexia v. Rinker Boat Co., Inc. (2009) 174 Cal.App.4th 1297, 1304–1305 and other 9 applicable laws. 10 38. Plaintiffs are entitled to justifiably revoke acceptance of the Subject Vehicle under 11 Civil Code, section 1794, et seq; 12 39. Plaintiffs hereby revoke acceptance of the Subject Vehicle. 13 40. Plaintiffs are entitled to replacement or reimbursement pursuant to Civil Code, 14 section 1794, et seq. 15 41. Plaintiffs are entitled to rescission of the contract pursuant to Civil Code, section 16 1794, et seq. and Commercial Code, section 2711. 17 42. Plaintiffs are entitled to recover any incidental, consequential, and/or “cover” 18 damages under Commercial Code, sections 2711, 2712, and Civil Code, section 1794, et seq. 19 THIRD CAUSE OF ACTION 20 Violation of the Song-Beverly Act Section 1793.2(b) 21 43. Plaintiffs incorporate herein by reference each and every allegation contained in the 22 preceding and succeeding paragraphs as though herein fully restated and re-alleged. 23 44. Pursuant to Civil Code, section 1793.2, subdivision (a) a manufacturer that sells 24 consumer goods in California, for which it has made an express warranty, shall maintain service and 25 repair facilities or designate and authorize independent service and repair facilities to carry out the 26 terms of those warranties. 27 /// 28 /// -6- COMPLAINT 1 45. Pursuant to Civil Code, section 1793.2, subdivision (b), when service and repair of 2 goods is necessary because they do not conform with the applicable express warranties, service and 3 repair shall be commenced within a reasonable time by the manufacturer or its representative. 4 46. Civil Code, section 1793.2, subdivision (b) further states that goods shall be serviced 5 or repaired so as to conform to the applicable warranties within 30 days and/or within a reasonable 6 time. 7 47. The sale of the Subject Vehicle was accompanied by express warranties, including a 8 warranty guaranteeing that the Subject Vehicle was safe to drive and not equipped with defective 9 parts, including the electrical system. 10 48. Plaintiffs delivered the Subject Vehicle to Subaru of America, Inc.’s authorized 11 service representatives on multiple occasions. The Subject Vehicle was delivered for repairs of 12 defects, which amount to a nonconformities to the express warranties that accompanied the sale of 13 the Subject Vehicle. 14 49. Defendant’s authorized facilities did not conform the Subject Vehicle to warranty 15 within 30-days and/or commence repairs within a reasonable time and Subaru of America, Inc. has 16 failed to tender the Subject Vehicle back to Plaintiffs in conformance with its warranties within the 17 timeframes set forth in Civil Code section 1793.2(b). 18 50. Plaintiffs are entitled to justifiably revoke acceptance of the Subject Vehicle under 19 Civil Code, section 1794, et seq; 20 51. Plaintiffs hereby revoke acceptance of the Subject Vehicle. 21 52. Plaintiffs are entitled to replacement or reimbursement pursuant to Civil Code, 22 section 1794, et seq. 23 53. Plaintiffs are entitled to rescission of the contract pursuant to Civil Code section 1794, 24 et seq. and Commercial Code, section 2711. 25 54. Plaintiffs are entitled to recover any “cover” damages under Commercial Code 26 sections 2711, 2712, and Civil Code, section 1794, et seq. 27 55. Plaintiffs are entitled to recover all incidental and consequential damages pursuant to 28 1794 et seq and Commercial Code sections, 2711, 2712, and 2713 et seq. -7- COMPLAINT 1 56. Plaintiffs are entitled in addition to the amounts recovered, a civil penalty of up to 2 two times the amount of actual damages in that Subaru of America, Inc. has willfully failed to 3 comply with its responsibilities under the Act. 4 PRAYER FOR RELIEF 5 WHEREFORE, Plaintiffs prays for judgment against Defendants, as follows: 6 1. For general, special and actual damages according to proof at trial; 7 2. For rescission of the purchase contract and restitution of all monies expended; 8 3. For diminution in value; 9 4. For incidental and consequential damages according to proof at trial; 10 5. For civil penalty in the amount of two times Plaintiffs’ actual damages; 11 6. For prejudgment interest at the legal rate; 12 7. For reasonable attorney’s fees and costs and expenses of suit; and 13 8. For such other and further relief as the Court deems just and proper under the 14 circumstances. 15 Dated: March 29, 2022 CALIFORNIA CONSUMER ATTORNEYS, P.C. 16 17 ___________________________ Michael H. Rosenstein, Esq. 18 Sepehr Daghighian, Esq. 19 Attorneys for Plaintiffs, KRISTI C. BAISDEN and 20 LLOYD DARDEN JR. 21 Plaintiffs, KRISTI C. BAISDEN AND LLOYD DARDEN JR., hereby demand trial by jury 22 in this action. 23 24 25 26 27 28 -8- COMPLAINT