Martinez v McCune Motors Demand Letter

Sent to McCune Motors on December 20, 2012
(Note: McCune Motors denied the allegations in this letter, and there was never a court finding of whether the allegations were true.)

NOTICE OF YOUR VIOLATIONS OF CONSUMERS LEGAL REMEDIES ACT

                                                                    December 20, 2012

Via Certified Mail, Return Receipt Requested

McCune Motors
2340 National City Blvd.
National City, CA 91950

     Re:     2006 Chrysler 300 Purchased by Irma Martinez

Dear McCune Motors:

     Ms. Irma Martinez has retained my law firm to prosecute her legal claims against you relating to the 2006 Chrysler 300 that she purchased in August, 2011. I am writing to set forth the facts, to cite the applicable law, and to request that you voluntarily comply with your responsibilities and obligations under California’s consumer protection laws.

Facts

     On August 26, 2011, Ms. Martinez visited McCune Motors and viewed the 2006 Chrysler 300 with vehicle identification number 2C3KA53GX6H435399 (the “Chrysler 300”). The McCune Motors employee who showed the Chrysler 300 to Ms. Martinez identified himself as “Jose Morales.” Ms. Martinez expressed an interest in purchasing the Chrysler 300, but only if she could also purchase a service contract that would provide bumper-to-bumper coverage for the vehicle for several years. Mr. Morales told Ms. Martinez that this would be no problem.

     Jose Morales then took Ms. Martinez to one of McCune Motors’s F & I employees, who identified himself as “Resendiz,” in order to draw up the documentation for Ms. Martinez’s purchase of the Chrysler 300. Resendiz showed Ms. Martinez a “Century Service” service contract that McCune Motors proposed to sell her along with the Chrysler 300. Ms. Martinez asked about the coverage, and she was told that it was “bumper-to-bumper” for 80,000 miles or 72 months running from the date of her purchase of the Chrysler 300. Although Ms. Martinez is not fluent in English, Resendiz showed Ms. Martinez a proposed contract (that was written in English only), and pointed out that the coverage was for 80,000 miles or 72 months from the “in service” date. Resendiz also showed her that he had filled in August 26, 2011 as the “in service” date listed on the contract. Resendiz also pointed to a line on the contract listing the Chrysler 300’s current mileage, as of August 26, 2011, as the starting mileage for the service contract. Relying on these representations, Ms. Martinez purchased the Chrysler 300 and the service contract.

     Within approximately one year of the Chrysler 300’s purchase, and well within the promised 80,000 miles or 72 months of coverage, the Chrysler 300 malfunctioned and required repairs that should have been covered under Ms. Martinez’s service contract – however, when she took the Chrysler 300 back to McCune Motors, McCune Motors told her that she had no coverage for the malfunctions because her service contract had expired. Specifically, McCune Motors told Ms. Martinez that the 80,000 miles and 72 months of coverage under the service contract that she had purchased began to run from the date of the original owner’s purchase of the Chrysler 300.

     Accordingly, McCune Motors’s representations to Ms. Martinez about the length and type of coverage that accompanied the Chrysler 300’s sale were false. Ms. Martinez would not have purchased the Chrysler 300 if she had known that it only came with 6 months of comprehensive coverage under the service contract. Further, McCune Motors took advantage of the fact Ms. Martinez does not speak English in order to trick her into believing that the service contract she purchased was good for six years or 80,000 miles, when in reality its coverage would only last for six months.

     A copy of the service contract that McCune Motors gave to Ms. Martinez on August 26, 2011, and told her that she was purchasing, is attached hereto for your reference.

Applicable Law

     California’s Consumers Legal Remedies Act (Civil Code Section 1750 et seq.) (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 businesses from omitting, concealing, and/or failing to make representations that they otherwise have a legal duty to make.

     McCune Motors violated the CLRA by: (1) misrepresenting that it would sell Ms. Martinez a service contract that would provide comprehensive coverage for the Chrysler 300 for several years; (2) misrepresenting the terms of the service contract sold to Ms. Martinez; (3) concealing, omitting, and failing to disclose that the service contract purchased by Ms. Martinez would provide coverage for approximately only six months, and (4) misrepresenting that McCune Motors was not legally required to fix the Chrysler 300 after it malfunctioned.

     McCune Motors’s misrepresentations also constitute breaches of the express and implied warranties that accompanied the sale of the Chrysler 300 to Ms. Martinez. Accordingly, Ms. Martinez hereby rejects acceptance of the Chrysler 300 and demands rescission of the contract.

     With regard to the CLRA violations, Ms. Martinez is not the only victim of the McCune Motors’s illegal conduct. The dealership has an illegal pattern and practice of: (1) misrepresenting that it will sell service contracts providing long-term comprehensive coverage, when it has no intention of doing so; (2) misrepresenting the terms of service contracts sold to California consumers; and (3) misrepresenting that it is not obligated to fix malfunctioning automobiles sold by McCune Motors along with service contracts.

Demand

     On Ms. Martinez’s behalf, I request that you voluntarily remedy the violations detailed above, both for Ms. Martinez and all other similarly situated consumers in California within 30 days. With regard to Ms. Martinez, you must rescind the purchase contract for the Chrysler 300, make restitution of all money received from Ms. Martinez, and pay the additional damages incurred by her as a result of the Chrysler 300’s purchase (including all taxes, finance charges, and other transaction charges she incurred purchasing the Chrysler 300, as well as all repair expenses she has incurred). You are also legally responsible to pay the legal fees and costs that Ms. Martinez incurred in enforcing her legal rights.

     In order to prevent further similar illegal conduct, on behalf of Ms. Martinez, I also demand that McCune Motors consent to the entry of a specific injunction preventing any further predatory acts against the public. The proposed injunction would prohibit McCune Motors from: (1) misrepresenting that it will sell service contracts providing long-term comprehensive coverage, when it has no intention of doing so; (2) misrepresenting the terms of service contracts sold to California consumers; and (3) misrepresenting that it is not obligated to fix malfunctioning automobiles sold by McCune Motors along with service contracts.

     Please be advised that in order to completely resolve Ms. Martinez’s CLRA claims you must, within 30 days from the receipt of this letter, also satisfy the requirements of California Civil Code §1782(c) by:

1.     identifying or making a reasonable attempt to identify all consumers similarly situated;

2.     notifying all persons so identified that, upon their request, you will offer an appropriate correction, replacement, or other remedy for your wrongful conduct;

3.     undertaking (or promising to undertake within a reasonable time) the actions described above for all affected persons who so request;

4.     ceasing the unlawful methods, acts, or practices set forth above through the above specified actions; and

5.     paying all fees and costs required by California law.

     Finally, because Ms. Martinez has turned this matter over to my law firm please do not under any circumstances attempt to contact her directly. Instead, forward all further correspondence regarding this matter to me at the address listed above.

     Thank you for your anticipated prompt attention to this matter.

                                                                 Sincerely,

                                                                 Michael R. Vachon, Esq.

 

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