Fitzpatrick v Del Mar Motor Cars Complaint

 

Filed December 4, 2012 – San Diego County Superior Court
(Note: the Court has not yet determined whether or not the allegations in this complaint are true)

 
LAW OFFICE OF MICHAEL R. VACHON, ESQ.
Michael R. Vachon, Esq. (SBN 206447)
17150 Via del Campo, Suite 204
San Diego, California 92127
Tel.: (858) 674-4100
Fax: (858) 674-4222
Attorney for Plaintiffs

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN DIEGO – HALL OF JUSTICE DIVISION

TIMOTHY FITZPATRICK, an individual,

              Plaintiff,

v.

QUALITY AUTO WHEREHOUSE, INC., a California corporation; and
DOES 1 through 75,

 
              Defendants.

Case No.: 37-2012-00086815-CU-NP-CTL

COMPLAINT FOR:

1.   VIOLATION OF CONSUMERS LEGAL
      REMEDIES ACT (INJUNCTIVE RELIEF ONLY);
2.   INTENTIONAL MISREPRESENTATION;
3.   NEGLIGENT MISREPRESENTATION;
4.   BREACH OF IMPLIED WARRANTY UNDER
      SONG-BEVERLY CONSUMER WARRANTY ACT;
      AND
5.   UNFAIR COMPETITION (BUS. & PROF. CODE
      SECTION 17200)



SUMMARY

     1.      This lawsuit arises out of Plaintiff’s purchase of an accident-damaged used car. Plaintiff purchased a used 2000 Lexus RX 300 from Defendant Quality Auto Wherehouse, Inc. (a San Diego, California used car dealership d.b.a. “Del Mar Motor Cars”) in reliance upon Del Mar Motor Cars’s promises that the vehicle had been thoroughly inspected and was in “pristine” condition. However, notwithstanding Del Mar Motor Cars’s claims, the Lexus RX had actually been in a severe prior collision, in which it sustained frame damaged. Del Mar Motor Cars knew about the accident damage, but concealed it from and failed to disclose it to Plaintiff. Del Mar Motor Cars’s misrepresentations amount to common law fraud, violation of the Consumers Legal Remedies Act (Civil Code §1750 et seq.) (the “CLRA”), are breaches of the implied warranty of merchantability, and amount to unfair competition under Business & Professions Code Section 17200 et seq. (the “UCL”). Under these statutes, Plaintiff is entitled to rescind the purchase contract, recover damages, and be awarded his attorney’s fees, costs, and out-of-pocket litigation expenses.

PARTIES

     2.     Plaintiff Timothy Fitzpatrick is an individual residing in San Diego, California.
     3.     Defendant Quality Auto Wherehouse, Inc. is a California corporation that does business as the used-car dealership “Del Mar Motor Cars” at 3444 Tripp Ct., Suite A, San Diego, California.
     4.     Plaintiff does not know the true names and capacities, whether corporate, partnership, associate, individual, or otherwise, of defendants sued herein as Does 1 through 75, inclusive, and thus names them under the provisions of Section 474 of the California Code of Civil Procedure. Defendants Does 1 through 75 are in some manner responsible for the acts set forth herein, and are legally liable to Plaintiff. Plaintiff will set forth the true names of the fictitiously-named defendants together with appropriate charging allegations when ascertained.
     5.     All acts of corporate employees were authorized or ratified by an officer, director, or managing agent of the corporate employer.

FACTS

     6.     Plaintiff alleges as follows, on information and belief, formed after an inquiry reasonable under the circumstances:
     7.     In February, 2011, Del Mar Motor Cars advertised (on its Web site and in other publications) for sale that certain Lexus RX 300 with vehicle identification number JT6GF10U2Y0058975 (the “Lexus RX 300”). Del Mar Motor Cars’s advertisements stated that the Lexus RX 300 was in “pristine” condition. They also stated that Del Mar Motor Cars sells “only the highest quality” used cars.
     8.     On or about February 27, 2011, Plaintiff visited Del Mar Motor Cars and while there was shown the Lexus RX 300. The Del Mar Motor Cars representative who dealt with Plaintiff represented that he was the “owner” of the dealership. He told Plaintiff that the Lexus RX 300 was in pristine condition, had been thoroughly inspected, and was in excellent mechanical condition.
     9.     Plaintiff told Del Mar Motor Cars that if he decided to purchase the Lexus RX 300 he would also want to purchase a service contract (an “extended warranty”) that would provide comprehensive coverage for the Lexus RX 300. Del Mar Motor Cars told Plaintiff that if he purchased the Lexus RX 300 Del Mar Motor Cars would also sell him an extended warranty that would provide comprehensive coverage.
     10.     In reliance upon the above-stated representations by Del Mar Motor Cars, Plaintiff purchased the Lexus RX 300 along with an extended warranty.
     11.     Plaintiff’s purchase of the Lexus RX 300 was accompanied by Del Mar Motor Cars’s implied warranty of merchantability.
     12.     Plaintiff subsequently learned that the Lexus RX 300 was previously in a serious collision that caused severe damage, including damage to the vehicle’s body and frame.
     13.     Del Mar Motor Cars knew about this pre-existing damage, but deliberately concealed it from and did not disclose it to Plaintiff.
     14.     The prior accident damage of the Lexus RX 300 was a material fact that a reasonable consumer would consider in deciding whether or not to purchase the Lexus RX 300. The accident damage materially decreases the utility, performance, safety, and fair market value of the Lexus RX 300. Further, because of the exclusions in the extended warranty sold to Plaintiff the extended warranty does not provide comprehensive coverage for the Lexus RX 300.
     15.     Del Mar Motor Cars’s above-stated illegal conduct is fraudulent, malicious, and oppressive under Civil Code Section 3294. Del Mar Motor Cars acted with a willful and conscious disregard of Plaintiff’s rights and safety. Del Mar Motor Cars’s actions were also fraudulent under Civil Code Section 3294, in that it intentionally misrepresented and concealed the true condition of the Lexus RX.

FIRST CAUSE OF ACTION
Consumers Legal Remedies Act – Injunctive Relief Only

     16.     Plaintiff hereby incorporates by reference the allegations in Paragraphs 1 through 15.
     17.     The Lexus RX 300 is a “good” under the CLRA that was bought for use primarily for personal, family or household purposes.
     18.     Plaintiff is a “consumer” under the CLRA.
     19.     The advertisement and the sale of the Lexus RX 300 to Plaintiff are “transactions” under the CLRA.
     20.     The CLRA prohibits numerous unlawful business acts, including: (i) representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not have or that a person has sponsorship, approval, status, affiliation, or connection which he or she does not have; (ii) representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are another; (iii) misrepresenting the source, sponsorship, approval, or certification of goods; (iv) advertising goods or services with intent not to sell them as advertised; (v) representing that a transaction confers or involves rights, remedies, or obligations which it does not have or involve, or which are prohibited by law; and (vi) representing a motor vehicle if the vehicle has previously been in an accident where it sustained frame damage. The CLRA also prohibits the omission of statements, where there exists a duty to make a statement or disclosure.
     21.     Del Mar Motor Cars had a duty to disclose the known accident damage because (1) such disclosure was necessary in order to make its other statements not misleading; (2) it was a known material fact; (3) Del Mar Motor Cars knew that it had exclusive knowledge that was not accessible to Plaintiff; and (4) it was reasonable for Plaintiff to expect disclosure of such facts.
     22.     Del Mar Motor Cars violated the CLRA by misrepresenting the mechanical condition of the Lexus RX, concealing and failing to disclose that it had previously been involved in an accident resulting in frame damage, and misrepresenting that Plaintiff’s extended warranty would provide comprehensive coverage for the Lexus RX 300.
     23.     Plaintiff is concurrently serving Del Mar Motor Cars with a CLRA notification and demand letter via certified mail, return receipt requested. The notice letter sets forth the relevant facts, notifies Del Mar Motor Cars of its CLRA violations, and requests that Del Mar Motor Cars promptly remedy those violations.
     24.     Under the CLRA, a plaintiff may without prior notification file a complaint alleging violations of the CLRA that seeks injunctive relief only. Then, if the defendant does not remedy the CLRA violations within 30 days of notification, the plaintiff may amend her or his CLRA causes of action without leave of court to add claims for
damages. Plaintiff will amend this complaint to add damages claims if Del Mar Motor Cars does not remedy its violations within the statutory period.
     25.     Under the CLRA, Plaintiff is entitled to a permanent injunction prohibiting practices that violate the CLRA.
     26.     Del Mar Motor Cars has an illegal pattern and practice of: (1) selling accident-damaged vehicles to the public while misrepresenting their mechanical condition; (2) concealing and failing to disclose known material accident damage; and (3) misrepresenting the coverage provided by extended warranties that it sells.
     27.     Plaintiff is entitled to a permanent injunction that compels Del Mar Motor Cars to notify all consumers who have been victims of the above-described illegal conduct, and enjoining Del Mar Motor Cars from such further acts of illegal conduct.
     28.     Plaintiff is also entitled to recover his attorneys’ fees, costs, and expenses.

SECOND CAUSE OF ACTION
Intentional Misrepresentation

     29.     Plaintiff incorporates by reference the allegations in Paragraphs 1 through 28.
     30.     At the time of purchase, and afterwards, Del Mar Motor Cars made the misrepresentations as set forth above. These misrepresentations include, but are not limited to, Del Mar Motor Cars’s statements that: (i) the Lexus RX 300 had been inspected and was in “pristine” condition; and (ii) that the extended warranty sold to Plaintiff would provide comprehensive coverage for the Lexus RX 300.
     31.     Del Mar Motor Cars omitted from the statements it made material facts, the disclosure of which was necessary, (1) in order to make its other statements not misleading; (2) because they were known materials facts; (3) because Del Mar Motor Cars knew that it had exclusive knowledge that was not accessible to Plaintiff; and (4) because it was reasonable for Plaintiff to expect disclosure of such facts. These omissions include, but are not limited to the following: (1) that the Lexus RX 300 had previously been in a material accident; (2) that the Lexus RX 300 was not in excellent condition; (3) that the Lexus RX 300’s frame was damaged; and (4) that the extended warranty would not provide comprehensive coverage for the Lexus RX 300.
     32.     At all times Del Mar Motor Cars either had actual or constructive notice of the true facts but nonetheless intentionally or recklessly concealed these facts from Plaintiff.
     33.     Del Mar Motor Cars made these representations and omitted material facts with the intent to defraud Plaintiff, to induce Plaintiff to purchase the Lexus RX 300, and to trick Plaintiff into paying an inflated sales price. At the time Plaintiff purchased the Lexus RX 300 he did not know, or have reason to know, that Del Mar Motor Cars was making false and misleading representations and had omitted material facts. Plaintiff acted in justifiable reliance upon the truth of the representations which misled him as to the nature and extent of the facts concealed. Plaintiff was justified in his reliance, as Del Mar Motor Cars held itself out as professionals in the automotive sales industry, and Plaintiff had no reason to doubt such representations.
     34.     As a direct and proximate result of Del Mar Motor Cars’s fraudulent representations and omissions of material facts, Plaintiff suffered damages, including actual, general, consequential and incidental damages according to proof at trial.
     35.     Plaintiff is also entitled to punitive damages.
     36.     Del Mar Motor Cars committed fraud in the inducement of the purchase contract for the Lexus RX, and Plaintiff is therefore entitled to rescission and restitution in an amount according to proof at trial.

THIRD CAUSE OF ACTION
Negligent Misrepresentation

     37.     Plaintiff incorporates by reference the allegations in paragraphs 1 through 36.
     38.     As an alternative to Plaintiff’s cause of action for Intentional Misrepresentation, Plaintiff alleges that Del Mar Motor Cars’s misrepresentations were made negligently, if not intentionally.
     39.     The representations made by Del Mar Motor Cars were not true.
     40.     Regardless of its actual belief, Del Mar Motor Cars made the representations without any reasonable grounds for believing them to be true.
     41.     Del Mar Motor Cars failed to exercise due care in ascertaining the accuracy of the representations made to Plaintiff.
     42.     Del Mar Motor Cars made the representations for the purpose of inducing Plaintiff to rely upon them, and to act or refrain from acting in reliance thereon.
     43.     Plaintiff was unaware of the falsity of the representations and acted in reliance upon the truth of those representations, and was justified in relying upon those representations.
     44.     As a direct and proximate result of Del Mar Motor Cars’s negligent misrepresentations of material fact, Plaintiff suffered damages, including actual, consequential, and incidental damages according to proof of trial.
     45.     Plaintiff is also entitled to punitive damages.
     46.     Plaintiff hereby alleges fraud in the inducement to enter into the sales contract, and therefore is entitled to rescission and restitution in an amount according to proof at trial.

FOURTH CAUSE OF ACTION
Breach of Implied Warranty – Song Beverly Consumer Warranty Act

Breach of Implied Warranty – Song-Beverly Consumer Warranty Act
     47.     Plaintiff incorporates by reference the allegations in paragraphs 1 through 46.
     48.     Plaintiff’s purchase of the Lexus RX 300 was accompanied by Del Mar Motor Cars’s implied warranty of merchantability.
     49.     The implied warranty of merchantability means and includes that the goods will comply with each of the following requirements: (1) they would pass without objection in the trade under the contract description; (2) they are fit for the ordinary purposes for which such goods are used; (3) they are adequately contained, packaged, and labeled; and (4) they conform to the promises or affirmations of fact made on the container or label.
     50.     The fact that the Lexus RX was previously involved in a severe accident that caused massive structural damage constitutes a breach of the implied warranty of merchantability because the Lexus RX (1) would not pass without objection in the trade under the contract description, (2) was not fit for the ordinary purposes for which such goods are used, (3) was not adequately contained, packaged, and labeled, and (4) did not conform to the promises or affirmations of fact made on the container or label.
     51.     Plaintiff has rightfully rejected and/or justifiably revoked acceptance of the Lexus RX, and is entitled to rescind the purchase contract and to restitution of all money paid towards the purchase contract.
     52.     Plaintiff has been proximately damaged by Del Mar Motor Cars’s failure to comply with its obligations under the implied warranty.
     53.     Plaintiff is entitled to the remedies provided in California Civil Code section 1794, including his attorney’s fees, costs, and expenses.

FIFTH CAUSE OF ACTION
Unfair Competition

     54.     Plaintiff hereby incorporates by reference the allegations in Paragraphs 1 through 53.
     55.     Del Mar Motor Cars’s acts, omissions, misrepresentations, practices, and non-disclosures constitute unlawful, unfair, and fraudulent business acts and practices within the meaning of California Business & Professions Code Sections 17200 et seq.
     56.     Del Mar Motor Cars has engaged in “unlawful” business acts and practices by: (1) selling accident-damaged vehicles to the public while misrepresenting their mechanical condition; (2) concealing and failing to disclose known material accident damage; and (3) misrepresenting the coverage provided by extended warranties that it sells. These acts and practices were intended to and did violate California Civil Code Section 1709 et seq., the CLRA, Vehicle Code Section 11713.18., and the Song-Beverly Consumer Warranty Act.
     57.     Del Mar Motor Cars has also engaged in “fraudulent” business acts or practices in that the representations and omissions of material fact described above have a tendency and likelihood to deceive lessees of these vehicles and the general public.
     58.     Del Mar Motor Cars has also engaged in “unfair” business acts or practices in that the justification for selling and leasing vehicles based on the misrepresentations and omissions of material fact delineated above is outweighed by the gravity of the resulting harm, particularly considering the available alternatives, and offends public policy, is immoral, unscrupulous, unethical, and offensive, or causes substantial injury to consumers.
     59.     The above described unlawful, fraudulent, or unfair business acts and practices conducted by Del Mar Motor Cars continue to this day and present a threat to Plaintiff and the general public in that Del Mar Motor Cars has failed to publicly acknowledge the wrongfulness of its actions and provide full equitable injunctive and monetary relief as required by the statute.
     60.     Pursuant to California Business & Professions Code Section 17203, Plaintiff seeks an order of this Court requiring Del Mar Motor Cars to immediately cease such acts of unfair competition and enjoining Del Mar Motor Cars from continuing to conduct business via the unlawful, fraudulent, and/or unfair business acts and practices set forth in this Complaint and from failing to fully disclose the true nature of their misrepresentations, and ordering Del Mar Motor Cars to engage in a corrective notice and advertising campaign. Plaintiff additionally requests an order from the Court requiring that Del Mar Motor Cars provide complete equitable monetary relief so as to prevent Del Mar Motor Cars from benefitting from the practices that constitute unfair competition or the use or employment of any monies resulting from the lease of these vehicles, including requiring the payment of restitution of any monies as may be necessary to restore to any member of the general public any money or property which may have been acquired by means of such acts of unfair competition.

PRAYER FOR RELIEF

     Plaintiff prays for judgment as follows as appropriate for the particular causes of action:
1.     For the declaratory, equitable, and/or injunctive relief as requested above;
2.     For rescission and restitution of $22,165.68;
3.     For general damages of $7,500;
4.     For punitive damages;
5.      For pre judgment interest at the legal rate;
6.      For reasonable attorneys’ fees, costs of suit, and out of pocket litigation expenses; and
7.      For such other and further relief as the Court deems just and proper under the circumstances.

                                                                      LAW OFFICE OF MICHAEL R. VACHON, ESQ.
                                                                      Attorney for Plaintiff Fitzpatrick

Date: December 4, 2012                                      Michael R. Vachon, Esq.

 

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