Castaneda v Karz Plus Complaint

 

Sent to Karz Plus Along With a Demand Letter in November, 2012
(Note: this complaint was never filed in court, and no ruling was ever issued determining 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 Plaintiff

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

JESSICA CASTANEDA, an individual,

Plaintiff

v.

SUM VALUE INCORPORATED, a California corporation;
RELIANT FINANCIAL CORPORATION, a California corporation; and
DOES 1 through 75,

 
              Defendants.

Case No.:

COMPLAINT FOR:

1.   BREACH OF IMPLIED WARRANTY UNDER
      SONG-BEVERLY CONSUMER WARRANTY ACT;
2.   VIOLATION OF CONSUMERS LEGAL
      REMEDIES ACT (INJUNCTIVE RELIEF ONLY);
      



SUMMARY

     1.      This lawsuit arises out of Plaintiff’s purchase of a used 2001 Toyota Highlander from Defendant Sum Value, Incorporated (a used car dealer d.b.a. “Karz Plus R/V”). Karz Plus misrepresented that the Toyota Highlander was in excellent mechanical condition, when in reality the passenger door will not even open and the driver’s door will not lock. To make matters worse, Karz Plus failed to fix these problems when Plaintiff took the Toyota Highlander in for repair, and then after 30 days refused to even attempt further repairs, claiming that the 30-day warranty had expired. This claim that the warranty had expired is fraudulent, since Karz Plus knows that under California law consumer warranties are tolled and extended by as long as it takes to fix defects that manifested during the warranty period.
     2.     Karz Plus’s conduct amounts to breach of the implied warranty of merchantability and violation of the Consumers Legal Remedies Act. Plaintiff has revoked her acceptance of the vehicle, and she is entitled to rescind the purchase, recover compensatory and punitive damages, and to an injunction preventing Karz Plus from misrepresenting to future consumers that their warranties expired prior to Karz Plus fixing pre-existing defects.

PARTIES

        3.     Plaintiff Jessica Castaneda is an individual residing in San Diego, California.
     4.     Defendant Sum Value, Incorporated is a California corporation doing business as the car dealership “Karz Plus R/V” at 1605 National City Boulevard, National City, California. Defendant Sum Value, Incorporated is hereafter referred to as the “Karz Plus.”
     5.     Defendant Reliant Financial Corporation is a California corporation that does business under the name “Gold Acceptance.” Reliant Financial Corporation is the lender to whom Karz Plus assigned Plaintiff’s purchase contract for the Toyota Highlander. By virtue of that assignment, Reliant Financial Corporation is the holder of the purchase contract, and is jointly liable for all of the Karz Plus’s illegal conduct as stated herein. By virtue of the fact that Reliant Financial Corporation is the holder of the Toyota Highlander’s purchase contract, Plaintiff can maintain all causes of action, defenses, and/or equities that she can assert against Karz Plus against Reliant Financial Corporation.
     6.     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.
     7.     All acts of corporate employees were authorized or ratified by an officer, director, or managing agent of the corporate employer.

FACTS

     8.     Plaintiff alleges as follows, on information and belief, formed after an inquiry reasonable under the circumstances:
     9.     On or about February 5, 2012, Plaintiff visited Karz Plus and viewed that certain 2001 Toyota Highlander with vehicle identification number JTEGF21A610003322 (the “Toyota Highlander”). The Karz Plus employee who showed the Toyota Highlander to Plaintiff identified herself as “Yulie,” and told Plaintiff that she was the “Supervisor” at Karz Plus. Plaintiff asked if the Toyota Highlander was in good mechanical condition, and Karz Plus assured Plaintiff that it was in excellent mechanical condition. Karz Plus also represented that the Toyota Highlander came with an express warranty.
     10.     Relying upon Karz Plus’s representations, Plaintiff agreed to purchase the Toyota Highlander.
     11.     Karz Plus’s sale of the Toyota Highlander was accompanied by Karz Plus’s 30-day express warranty, and also by the implied warranties of merchantability and fitness.
     12.     After signing the sales documentation and paying the agreed-upon down payment, Plaintiff took delivery of the Toyota Highlander.
     13.     After purchasing the Toyota Highlander, Plaintiff discovered that it had defects that prevented the passenger door from opening, and driver’s door from locking (the “Defect”). The Defect is a chronic problem, and Karz Plus knew about the Defect’s existence at the time that it misrepresented to Plaintiff that the Toyota Highlander was in excellent mechanical condition.
     14.     On or about February 11, 2012, Plaintiff delivered the Toyota Highlander to Karz Plus for repair of the Defect. However, Karz Plus returned the Toyota Highlander to Plaintiff without properly repairing the Defect.
     15.     On or about February 18, 2012, Plaintiff delivered the Toyota Highlander to Karz Plus for repair of the Defect. However, Karz Plus returned the Toyota Highlander to Plaintiff without properly repairing the Defect.
     16.     On or about February 25, 2012, Plaintiff delivered the Toyota Highlander to Karz Plus for repair of the Defect. However, Karz Plus returned the Toyota Highlander to Plaintiff without properly repairing the Defect.
     17.     On or about September 21, 2012, Plaintiff delivered the Toyota Highlander to Karz Plus for repair of the Defect. However, Karz Plus refused to repair the Toyota Highlander. Yulie told Plaintiff that the 30-day express warranty had expired and that Karz Plus no longer had a duty to repair the Toyota Highlander’s as a result.
     18.     Under California law, product warranties are tolled and do not expire until the warrantor has fixed any defects for which the buyer sought repair during the warranty period. Both Yulie and Karz Plus knew this. Accordingly, Karz Plus knew that the Toyota Highlander’s express and implied warranties did not, and have not, expired because Karz Plus has not yet fixed the defects that manifested within the warranty period. Accordingly, Karz Plus’s representations to Plaintiff that the warranty had expired were fraudulent, and intended to fool Plaintiff into believing that Karz Plus did not have a duty to repair the Toyota Highlander.
     19.     Karz Plus’s above-stated conduct was malicious, fraudulent, and oppressive.

FIRST CAUSE OF ACTION
Breach of Implied Warranty – Song-Beverly Consumer Warranty Act
(Against All Defendants)

     20.     Plaintiff incorporates by reference the allegations in paragraphs 1 through 19.
     21.     Plaintiff’s purchase of the Toyota Highlander was accompanied by Karz Plus’s implied warranty of merchantability.
     22.     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.
     23.     The Toyota Highlander’s Defect constitutes a breach of the implied warranty of merchantability because the Toyota Highlander (1) would not pass without objection in the trade under the contract description, (2) is not fit for the ordinary purposes for which such goods are used, (3) was not adequately contained, packaged, and labeled, and (4) does not conform to the promises or affirmations of fact made on the container or label.
     24.     Plaintiff has rightfully rejected and/or justifiably revoked acceptance of the Toyota Highlander, and is entitled to rescind the purchase contract and to restitution of all money paid towards the purchase contract.
     25.     Plaintiff has been proximately damaged by Karz Plus’s failure to comply with its obligations under the implied warranty.
     26.     Plaintiff is entitled to the remedies provided in California Civil Code section 1794, including his attorney’s fees, costs, and expenses.

SECOND CAUSE OF ACTION
Violation of Consumers Legal Remedies Act – Injunctive Relief Only
(Against Defendants Karz Plus and Does 1 through 75)

     27.     Plaintiff hereby incorporates by reference the allegations in Paragraphs 1 through 26.
     28.     The Toyota Highlander is a “good” under the CLRA, that was bought for use primarily for personal, family or household purposes.
     29.     Plaintiff is a “consumer” under the CLRA.
     30.     The advertisement and the sale of the Toyota Highlander to Plaintiff are “transactions” under the CLRA.
     31.     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) 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 (iv) representing that the consumer will receive a rebate, discount, or other economic benefit, if the earning of the benefit is contingent on an event to occur subsequent to the consummation of the transaction. The CLRA also prohibits the omission of statements, where there exists a duty to make a statement or disclosure.
     32.     Karz Plus violated the CLRA by: (1) misrepresenting the mechanical condition of the Toyota Highlander; (2) concealing and failing to disclose that the Toyota Highlander suffered from the Defect; (3) misrepresenting to Plaintiff that it had no duty to repair the Defect because the Toyota Highlander’s warranty had expired.
     33.     Plaintiff is concurrently serving Karz Plus with a CLRA notification and demand letter via certified mail, return receipt requested. The notice letter sets forth the relevant facts, notifies Karz Plus of its CLRA violations, and requests that Karz Plus promptly remedy those violations.
     34.     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 Karz Plus does not remedy its violations within the statutory period.
     35.     Under the CLRA, Plaintiff is entitled to a permanent injunction prohibiting practices that violate the CLRA.
     36.     Karz Plus has an illegal pattern and practice of: (1) misrepresenting the mechanical condition of vehicles that it sells to the public; and (2) misrepresenting that vehicle warranties have expired, and that it is not obligated to fix defects that manifested themselves during the warranty period.
     37.     Plaintiff is entitled to a permanent injunction that compels Karz Plus to notify all consumers who have been victims of the above-described illegal conduct, and enjoining Karz Plus from such further acts of illegal conduct.
     38.     Plaintiff is also entitled to recover his attorneys’ fees, costs, and expenses.

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 $18,769.44;
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 Jessica Castaneda
Date: November 1, 2012                                  Michael R. Vachon, Esq.

 

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