Motion for Writ in TISHCHENKO, et al. vs FCA US, LLC| Trellis.Law

On April 09, 2024 a Complaint,Petition was filed involving a dispute between Aleksey Tishchenko, Britney Lynn Tishchenko, and Fca Us, Llc, for (Breach of Contract/Warranty) in the District Court of Sacramento County.

Preview
STRATEGIC LEGAL PRACTICES
A PROFESSIONAL CORPORATION ELECTRONICALLY FILED
Tionna Carvalho (SBN 299010) rior Court o lifornia
county of Sacramento
Sanam Vaziri (SBN 177384)
(emailservices@slpattorney.com) 04/09/2024
1888 Century Park East, 19th Floor By A. Mocanu Deputy
Los Angeles, CA 90067
Telephone: (310) 929-4900
Facsimile: (310) 943-3838

Attommeys for Plaintiffs
ALEKSEY TISHCHENKO AND BRITNEY LYNN TISHCHENKO

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SACRAMENTO
10

11
ALEKSEY TISHCHENKO AND BRITNEY Case No.:
12 24cyoor001
LYNN TISHCHENKO,
13 Hon.
Plaintiffs, Dept.
14
vs.
15 COMPLAINT FOR VIOLATION OF
16
FCA US, LLC.; and DOES | through 10, STATUTORY OBLIGATIONS
inclusive,
17
Defendants. JURY TRIAL DEMANDED
18
n
19

COMPLAINT; JURY TRIAL DEMANDED
Plaintiffs allege as follows:

PARTIES

1 As used in this Complaint, the word "Plaintiffs" shall refer to Plaintiffs

ALEKSEY TISHCHENKO AND BRITNEY LYNN TISHCHENKO.

2. Plaintiff is a resident of Sacramento County, California.

3 As used in this Complaint, the word "Defendants" shall refer to all Defendants

named in this Complaint.

4 Defendant FCA US, LLC. ("Defendant FCA") is a corporation organized and in

existence under the laws of the State of Delaware and registered with the California

10 Department of Corporations to conduct business in California. At all times relevant herein,

11 Defendant was engaged in the business of designing, manufacturing, constructing,

12 assembling, marketing, distributing, and selling automobiles and other motor vehicles and

13 motor vehicle components in Sacramento County, California.

14 5 Plaintiffs are ignorant of the true names and capacities of the Defendants sued

15 under the fictitious names DOES 1 to 10. They are sued pursuant to Code of Civil Procedure

16 section 474. When Plaintiffs become aware of the true names and capacities of the Defendants

17 sued as DOES 1 to 10, Plaintiffs will amend this Complaint to state their true names and

18 capacities.
n
19 FACTUAL BACKGROUND

20 6 On or about September 7, 2023, Plaintiffs entered into a warranty contract with

21 Defendant FCA regarding a 2022 Ram 1500, vehicle identification number

22 1C6SRFFMONN 132267 (hereafter "Vehicle"), which was manufactured and or distributed by

23 Defendant FCA.

24 7 The warranty contract contained various warranties, including but not limited to

25 the bumper-bumper warranty, powertrain warranty, emission warranty, etc. A true and correct

26 copy of the warranty contract is attached hereto as Exhibit A. The terms of the express

27 warranty are described in Exhibit A and are incorporated herein. In addition, to these

28 warranties, Defendant FCA also provided Plaintiffs with a California Emission Warranty,

1
COMPLAINT; JURY TRIAL DEMANDED
which Plaintiffs request Defendant FCA produce as part of its discovery obligations in this

case.!
8 Pursuant to the Song-Beverly Consumer Warranty Act (the "Act") Civil Code

sections 1790 et seq. the Subject Vehicle constitutes "consumer goods" used primarily for

family or household purposes, and Plaintiffs have used the vehicle primarily for those

purposes. Plaintiffs are "buyers" of consumer goods under the Act. Defendant FCA is a

"manufacturer" and/or "distributor" under the Act.

9 Plaintiffs justifiably revoke acceptance of the Subject Vehicle under Civil Code,

section 1794, et seq. by filing this Complaint and/or did so prior to filing the instant Complaint.

10 10. These causes of action arise out of the warranty obligations of FCA in

11 connection with a motor vehicle for which FCA issued a written warranty.

12 11. Defects and nonconformities to warranty manifested themselves within the

13 applicable express warranty period, including but not limited to, engine defects, transmission

14 defects, EGR defects, electrical defects; among other defects and non-conformities.

15 12. Said defects/nonconformities substantially impair the use, value, or safety of

16 the Vehicle.

17 13. The value of the Vehicle is worthless and/or de minimus.

18 14. Plaintiffs purchased the Subject Vehicle as manufactured with FCA's defective
n
19 Exhaust Gas Recirculation ("EGR") cooler.

20 15. Plaintiffs are informed, believe, and thereon allege that FCA knew since prior

21 to Plaintiffs purchasing the Subject Vehicle, that the 2022 Ram 1500 vehicles equipped with

22 the 3.0 liter engine have one or more defects in their EGR coolers that can result in thermal

23 fatigue, leading the coolers to crack over time and leak coolant, which can cause combustion

24 within the intake manifold and lead to a vehicle fire and sudden loss of power (the "EGR

26
' Upon information and belief, FCA deliberately refuses to include the terms of the
27 California emissions warranties in its main express warranty booklet so that California
consumers are kept in the dark when FCA fails to comply with its warranty obligations under
28 California's 7 years/70,000 miles emissions warranty, or other California emission warranties,
including but not limited to, Low Emission Vehicles warranties (which have an even longer
warranty term).
2
COMPLAINT; JURY TRIAL DEMANDED
Defect"). The EGR Defect can also cause burning of coolant which can damage the emission

control catalysts.”

16. Thus, the EGR Defect is a safety concern because it can suddenly affect the

driver's ability to control the vehicle or cause a non-collision vehicle fire. Even more

troubling, the EGR Defect can cause the vehicle to fail without warning, while the Vehicle is

moving at highway speeds.

17. Plaintiffs are informed, believe, and thereon allege that prior to Plaintiffs

acquiring the Vehicle, FCA was well aware and knew that the Vehicle was defective but

failed to disclose this fact to Plaintiffat the time of sale and thereafter.

10 18. Plaintiffs are informed, believe, and thereon allege that FCA acquired its

11 knowledge of the EGR Defect prior to Plaintiffs acquiring the Vehicle, through sources not

12 available to consumers such as Plaintiffs, including but not limited to pre-production and post-

13 production testing data; early consumer complaints about the EGR Defect made directly to

14 FCA and its network of dealers; aggregate warranty data compiled from FCA's network of

15 dealers; testing conducted by FCA in response to these complaints; as well as warranty repair

16 and part replacements data received by FCA from FCA's network of dealers, amongst other

17 sources of internal information.

18 19. Plaintiffs are informed, believe, and thereon allege that while FCA knew about
n
19 the EGR Defect, and its safety risks since prior to Plaintiff purchasing the Subject Vehicle,

20 FCA nevertheless concealed and failed to disclose the defective nature of the Vehicle and its

21 EGR Defect to its sales representatives and Plaintiffs at the time of sale and thereafter. FCA

22 omitted mention of the EGR Defect to its consumers.

23 20. Plaintiffs are reasonable consumers who interacted with sales representatives,

24 considered FCA's advertisement, and/or other marketing materials concerning the FCA

27
? FCA indicated in its Safety Recall Report provided to NHTSA that the EGR cooler is
28 defective in 100% of vehicles as the defect lies in the cooler's propensity to crack. See, Part
573 Safety Recall Report for Recall 19V-757 (Oct. 31, 2019) at
https://static.nhtsa.gov/odi/rel/2019/RCLRPT- 19V757-3 602.PDF

COMPLAINT; JURY TRIAL DEMANDED
Vehicles prior to purchasing the Subject Vehicle. Had FCA revealed the EGR Defect,

Plaintiffs would have been aware of it and would not have purchased the Subject Vehicle.

TOLLING OF THE STATUTES OF LIMITATION

21. To the extent there are any statutes of limitation applicable to any of Plaintiffs’

claims-the running of the limitation periods to any such claims have been tolled by, inter alia,

the following doctrines or rules: equitable tolling, the discovery rule, the fraudulent concealment

tules, equitable estoppel, the repair rule, and/or class action tolling (e.g., the American Pipe

rule) arising from the pendency of Alfonso and Arlene Moran et al. v. FCA US LLC, Case No.

3:17-02594-GPC (the Moran Class Action), in the United States District Court for the

10 Southern District of California; the Moran Class Action was previously known as Ryan and

11 Sarah Wildin et al. v. FCA US LLC, Case No. 3:17-02594-GPC-MDD. The Class Action was

12 filed on December 30, 2017, and the final approval is dated February 15, 2023.

13
22. Plaintiffs discovered Defendant's wrongful conduct alleged herein shortly before
14
the filing of the complaint, as the Vehicle continued to exhibit symptoms of defects following
15
FCA's unsuccessful attempts to repair them. However, FCA failed to provide restitution pursuant
16
to the Song-Beverly Consumer Warranty Act.
17
A Class Action Tolling
18
n
23. Under the tolling rule articulated in Am. Pipe & Const. Co. v. Utah, 414 U.S.
19
538, 94 S. Ct. 756, 38 L. Ed. 2d 713 (1974) (“American Pipe”), the filing of a class action
20
lawsuit in federal court tolls the statute of limitations for the claims of unnamed class members
21
until the class certification issue is resolved. In applying American Pipe tolling to California
22
cases, the California Supreme Court summarized the tolling rule derived from American Pipe
23
and stated that the statute of limitations is tolled from the time of commencement of the suit to
24
the time of denial of certification for all purported members of the class. Jolly v. Eli Lilly &
25
Co., 44 Cal.3d 1103, 1119 (1988). Tolling lasts from the day a class claim is asserted until the
26
day the suit is conclusively not a class action. Falk v. Children's Hosp. Los Angeles, 237 Cal.
27
App. 4th 1454, 1464 (2015).
28

4
COMPLAINT; JURY TRIAL DEMANDED
24. The tolling of Plaintiffs’ individual statute of limitations encourages the

protection of efficiency and economy in litigation as promoted by the class action devise, so that

putative class members would not find it necessary to seek to intervene or to join individually

because of fear the class might never be certified or putative class members may subsequently

seek to request exclusion.

B Discovery Rule Tolling

25. Plaintiffs had no way of knowing about Defendant’s deception with respect to

the defect until the defect manifested itself and Defendant was unable to repair it after a

reasonable number of repair attempts.
10

11 26. Within the time period of any applicable statutes of limitation, Plaintiffs could

12 not have discovered through the exercise of reasonable diligence that Defendant were

13 concealing the defect and conduct complained of herein and concealing the companies’ true

14 position with respect to the defect.

15
27. Defendant was under a continuous duty to disclose to Plaintiffs the true
16
character, quality, and nature of the Vehicles suffering from the defect, and the inevitable
17
repairs, costs, time, and monetary damage resulting from the defects.
18
n
28. Plaintiffs did not discover, and did not know of, facts that would have caused a
19
reasonable person to suspect that Defendants had concealed information about the defect in
20
Defendants’ Vehicles prior to and at the time of sale and thereafter, which was discovered by
21
Plaintiffs shortly prior to the filing of this Complaint.
22

23 C. The Repair Doctrine

24
29. The statute of limitations is tolled by various unsuccessful attempts to repair the
25
vehicle.*
26

27
3 See Aced v. Hobbs-Sesack Plumbing Co., 55 Cal.2d 573, 585 (1961) (“The statute of limitations is
28 tolled where one who has breached a warranty claims that the defect can be repaired and attempts to make
repairs.”) and A&B Painting & Drywall, Inc. v. Sup. Ct., 25 Cal.App.4th 349, 355 (2002) (“Tolling during a
period of repairs rests upon the same basis as does an esfoppel to assert the statute of limitations, i.e., reliance by
COMPLAINT; JURY TRIAL DEMANDED
30. Additionally, the limitations period for warranty claims is tolled against a

defendant whenever that defendant claims that the defect is susceptible to repair and attempts

to repair the defect.*

31. Here, Defendant (and its dealership) undertook to perform various repair

measures. During the time in which Defendant represented to Plaintiffs that the Subject

Vehicle was fixable and attempted to fix it, the warranty period may have thus been tolled.

D. Fraudulent Concealment Tolling (Estoppel)

32. Separately, the statute of limitations is equitably tolled due to Defendant’s

10 fraudulent conduct alleged herein.>

11
33. Defendant (and its agents, representatives, officers, directors, employees,
12
affiliates, and/or dealerships) concealed the defects, minimized the scope, cause, and dangers
13
of the defects with inadequate TSBs and/or Recalls, and refused to investigate, address, and
14
remedy the defects as it pertains to all affected vehicles as set forth herein.
15
34. Furthermore, Defendant’s fraudulent concealment was ongoing. Defendant
16
blamed the symptoms of the defects on other issues and not the actual defect itself and
17
purported to be able to repair.
18
n
19 35. Based on the foregoing, Defendant is estopped from relying on any statutes of

20 limitation in defense of this action.

22 the plaintiff upon the words or actions of the defendant that repairs will be made.”).

23 4 “Tolling during a period of repairs generally rests upon the same legal basis as does an estoppel to
assert the statute of limitations, i.e., reliance by the plaintiffon the words or actions of the defendant that repairs
24 will be made.” Cardinal Health 301, Inc. v. Tyco Electronics Corp., 169 Cal.App.4th 116, 133-134 (2008).
25 5 Silence, when there is a duty to speak, may be the basis for equitable estoppel. See Dettamanti v.
Lompoc Union High School Dist. of Santa Barbra County, 143 Cal. App. 2d 715, 720 (1956) (“The basis for an
26 estoppel may be found in the failure of the party sought to be estopped to speak when he is under a duty to speak
as well as in his speaking falsely and in a manner which tends to deceive.”). Estoppel to plead the statute of
27 limitations is a well-accepted doctrine under California law. See 3 Witkin Cal. Proc. 4th § 693 at 885 (“‘[T]he
fraudulent concealment by the defendant of the facts upon which the existence of which the cause of action
28 depends tolls the statute,’ and that the statute does not begin to run until discovery . . o” (quoting Kimball v.
Pacific Gas & Elec. Co., 220 Cal. 203, 215 (1934)).
6
COMPLAINT; JURY TRIAL DEMANDED
36. By filing this Complaint, Plaintiffs hereby revoke acceptance of the Subject

Vehicle yet again.

FCA Had Exclusive Knowledge of the EGR Defect

37. FCA had superior and exclusive knowledge of the EGR Defect and knew or

should have known that the defect was not known to or reasonably discoverable by Plaintiffs

and before they purchased or leased the Subject Vehicle.

38. Defendant knew or should have known, based on FCA's routine monitoring of

complaints, that the 2022 Ram 1500 vehicles have a dangerous defect that adversely affects

their drivability. Additionally, FCA knew or should have known about the EGR Defect

10 through sources not available to consumers, including FCA's own aggregate pre-market data

11 and other aggregate post-market data from FCA authorized dealers.

12 39. Plaintiffs would not have purchased the Subject Vehicle, or would have paid

13 less for it, had Plaintiffs known of the EGR Defect, given the unsafe nature of the EGR

14 Defect. Furthermore, Plaintiffs unknowingly exposed themselves to the risk of accident,

15 injury, and/or liability to others as a result of the nature or the EGR Defect which can lead to

16 loss of power can suddenly affect the driver's ability to control the vehicle or cause a non-

17 collision vehicle fire. Even more troubling, the EGR Defect can cause the vehicle to fail

18 without warning, while the Vehicle is moving at highway speeds. Plaintiffs are reasonable
n
19 consumers who expected the Subject Vehicle to be safe and free of defects, and that FCA

20 would not sell or lease vehicles with known safety-related defects, such as the EGR Defect,

21 and would disclose any such defects to its consumers when it learns of them.

22 40. While it has been fully aware of the EGR Defect, FCA actively concealed the

23 existence and nature of the alleged defect from Plaintiffs at the time of purchase, repair, and

24 thereafter.

25 Al. FCA was inundated with complaints regarding the EGR Defect but rather than

26 repair the problem under warranty, FCA dealers either inform consumers that their vehicles

27 are functioning properly or conduct repairs that merely mask the defect.

COMPLAINT; JURY TRIAL DEMANDED
42. Making matters worse, in October 2019, FCA issued Recall 19V-757 that told

consumers that "the remedy for this condition is not currently available"but that the company

was "making every effort to finalize the remedy as quickly as possible." Customers were told

that they would be notified "when the remedy is available. Once you receive your follow-up

notice, simply contact your dealer right away to schedule a service appointment."

However, as FCA knew at the time, but failed to disclose, the part it would identify as an

"improved" "fix" was a part it was already installing in trucks, but was not an improvement or

a fix.

43. Moreover, the recall advised consumers in the interim to "monitor their coolant

10 levels" and contact their dealers if the levels were "consistently low." This created the

11 impression that consumer monitoring would be adequate to mitigate the danger, and that if a

12 customer made a dealership aware of low coolant levels, then contacting the dealership would

13 enable the customer to obtain some remedy. However, if consumers add coolant to their truck,

14 over time, the existing water/glycol mixture can leak out if there is an EGR cooler crack,

15 creating a situation in which the remaining coolant running through the system is not diluted,

16 and is much more flammable. FCA failed to disclose that its instruction to monitor coolant

17 levels might exacerbate the danger to consumers.

n
18 44. FCA later updated the Recall to provide for a part replacement (part number

19 68483334AA, and later, part number CSNDVB11AB).

20 45. FCA has still not fixed the EGR cooler that causes the symptoms associated

21 with the EGR Defect.

22 46. Defendant had an affirmative duty to promptly offer to repurchase or replace

23 the Subject Vehicle at the time it failed to conform the Subject Vehicle to the terms of the

24 express warranty after a reasonable number of repair attempts.®

25
6 4 manufacturer's duty to repurchase a vehicle does not depend on a consumer's request, but instead
26 aris soon as the manufacturer fails to comply with the warranty within a reasonable time. (Krotin v. Porsche
Cars North America, Inc. (1995) 38 Cal.App.4th 294, 301-302, 45 Cal.Rptr.2d 10.) Chrysler performed the
27 bridge operation on Santana's vehicle in August 2014 with 30,262 miles on the odometer—within the three-year,
36,000 mile warranty. The internal e-mails demonstrating Chrysler's awareness of the safety risks inherent in the
28 bridge operation were sent in September 2013, and thus Chrysler was well aware of the problem when it
performed the bridge operation on Santana's vehicle. Thus, Chrysler's duty to repurchase or provide restitution
arose prior to the expiration of the three-year, 36,000 file warranty. Moreover, although we do not have the
COMPLAINT; JURY TRIAL DEMANDED
47. Defendant has failed to either promptly replace the Subject Vehicle or to

promptly make restitution.

48. Under the Act, Plaintiffs are entitled to reimbursement of the price paid for the

vehicle less that amount directly attributable to use by the Plaintiffs prior to the first

presentation to an authorized repair facility for a nonconformity.

49. Plaintiffs are entitled to replacement or reimbursement pursuant to Civil Code,

section 1794, et seq. Plaintiffs are to rescission of the contract pursuant to Civil Code, section

1794, et seq.

50. Plaintiffs are entitled to recover any "cover" damages under Civil Code, section

10 1794, et seq.

11 S51. Plaintiffs are entitled to recover all incidental and consequential damages

12 pursuant to 1794 et seq.

13 §2. Plaintiffs suffered damages in a sum to be proven at trial in an amount that is

14 not less than $35,001.00.

15 53. Plaintiffs are entitled to all incidental, consequential, and general damages

16 resulting from Defendants’ wrongful conduct alleged herein.

17 FIRST CAUSE OF ACTION

18 BY PLAINTIFFS AGAINST DEFENDANT FCA
n
19 VIOLATION OF SUBDIVISION (D) OF CIVIL CODE SECTION 1793.2

20 54. Plaintiffs incorporate by reference the allegations contained in the paragraphs

21 set forth above.

22 55. Defendant FCA and its representatives in this state have been unable to service

23 or repair the Vehicle to conform to the applicable express warranties after a reasonable

24 number of opportunities. Despite this fact, Defendant FCA failed to promptly replace the

26
actual five-year, 100,000 mile power train warranty in our record, Santana's expert testified that the no-
27 start/stalling issues Santana experienced were within the scope of the power train warranty, which was still
active when Santana requested repurchase in approximately January 2016, at 44,467 miles. Thus the premise of
28 Chrysler's argument—that Santana's request for repurchase was outside the relevant warranty—is not only
irrelevant, but wrong." Santana v. FCA US, LLC, 56 Cal. App. 5th 334, 270 Cal. Rptr. 3d 335 (2020).
9
COMPLAINT; JURY TRIAL DEMANDED
Vehicle or make restitution to Plaintiffs as required by Civil Code section 1793.2, subdivision

(d) and Civil Code section 1793.1, subdivision (a)(2).

56. Plaintiffs have been damaged by Defendant FCA's failure to comply with its

obligations pursuant to Civil Code section 1793.2, subdivision (d) and Civil Code section

1793.1, subdivision (a)(2), and therefore bring this cause of action pursuant to Civil Code

section 1794.

57. Defendant FCA's failure to comply with its obligations under Civil Code

section 1793.2, subdivision (d) was willful, in that Defendant FCA and its representative were

aware that they were unable to service or repair the Vehicle to conform to the applicable

10 express warranties after a reasonable number of repair attempts, yet Defendant FCA failed and

11 refused to promptly replace the Vehicle or make restitution. Accordingly, Plaintiffs is entitled

12 to a civil penalty of two times Plaintiffs' actual damages pursuant to Civil Code section 1794,

13 subdivision (c).

14 58. Defendant FCA does not maintain a qualified third-party dispute resolution

15 process which substantially complies with Civil Code section 1793.22. Accordingly,

16 Plaintiffs are entitled to a civil penalty of two times Plaintiffs' actual damages pursuant to

17 Civil Code section 1794, subdivision (e).

18 59. Plaintiffs seek civil penalties pursuant to section 1794, subdivisions (c), and (e)
n
19 in the alternative and do not seek to cumulate civil penalties, as provided in Civil Code section

20 1794, subdivision (e).

21 SECOND CAUSE OF ACTION

22 BY PLAINTIFFS AGAINST DEFENDANT FCA

23 VIOLATION OF SUBDIVISION (B) OF CIVIL CODE SECTION 1793.2

24 60. Plaintiffs incorporate by reference the allegations contained in the paragraphs

25 set forth above.

26 61. Although Plaintiffs presented the Vehicle to Defendant FCA's representative in

27 this state, Defendant FCA and its representative failed to commence the service or repairs

28 within a reasonable time and failed to service or repair the Vehicle so as to conform to the

10
COMPLAINT; JURY TRIAL DEMANDED
applicable warranties within 30 days, in violation of Civil Code section 1793.2, subdivision

(b). Plaintiffs did not extend the time for completion of repairs beyond the 30-day

requirement.

62. Plaintiffs have been damaged by Defendant FCA's failure to comply with its

obligations pursuant to Civil Code section 1793.2(b), and therefore bring this Cause of Action

pursuant to Civil Code section 1794.

63. Plaintiffs have rightfully rejected and/or justifiably revoked acceptance of the

Vehicle, and have exercised a right to cancel the purchase. By serving this Complaint,

Plaintiffs do so again. Accordingly, Plaintiffs seek the remedies provided in California Civil

10 Code section 1794(b)(1), including the entire contract price. In the alternative, Plaintiffs seek

11 the remedies set forth in California Civil Code section 1794(b)(2), including the diminution in

12 value of the Vehicle resulting from its defects. Plaintiffs believe that, at the present time, the

13 Vehicle's value is de minimis.

14 64. Defendant FCA's failure to comply with its obligations under Civil Code

15 section 1793.2(b) was willful, in that Defendant FCA and its representative were aware that

16 they were obligated to service or repair the Vehicle to conform to the applicable express

17 warranties within 30 days, yet they failed to do so. Accordingly, Plaintiffs are entitled to a

18 civil penalty of two times Plaintiffs' actual damages pursuant to Civil Code section 1794(c).
n
19 THIRD CAUSE OF ACTION

20 BY PLAINTIFFS AGAINST DEFENDANT FCA

21 VIOLATION OF SUBDIVISION (A)(3) OF CIVIL CODE SECTION 1793.2

22 65. Plaintiffs incorporate by reference the allegations contained in paragraphs set

23 forth above.

24 66. In violation of Civil Code section 1793.2, subdivision (a)(3), Defendant FCA

25 failed to make available to its authorized service and repair facilities sufficient service

26 literature and replacement parts to effect repairs during the express warranty period. Plaintiffs

27 have been damaged by Defendant FCA's failure to comply with its obligations pursuant to

ll
COMPLAINT; JURY TRIAL DEMANDED
Civil Code section 1793.2(a)(3), and therefore bring this Cause of Action pursuant to Civil

Code section 1794.

67. Defendant FCA's failure to comply with its obligations under Civil Code

section 1793.2, subdivision (a)(3) was willful, in that Defendant FCA knew of its obligation to

provide literature and replacement parts sufficient to allow its repair facilities to effect repairs

during the warranty period, yet Defendant FCA failed to take any action to correct its failure

to comply with the law. Accordingly, Plaintiffs are entitled to a civil penalty of two times

Plaintiffs' actual damages, pursuant to Civil Code section 1794(c).

FOURTH CAUSE OF ACTION

10 BY PLAINTIFFS AGAINST DEFENDANT FCA

11 BREACH OF THE IMPLIED WARRANTY OF MERCHANTABILITY

12 (CIV. CODE, § 1791.1; § 1794; § 1795.5)
13 68. Plaintiffs incorporate by reference the allegations contained in the paragraphs

14 set forth above.

15 69. Pursuant to Civil Code section 1792, the sale of the Vehicle was accompanied

16 by Defendant FCA's implied warranty of merchantability. Pursuant to Civil Code section

17 1791.1, the duration of the implied warranty is coextensive in duration with the duration of the

18 express written warranty provided by Defendant FCA, except that the duration is not to
n
19 exceed one-year.

20 70. Pursuant to Civil Code section 1791.1 (a), the implied warranty of

21 merchantability means and includes that the Vehicle will comply with each of the following

22 requirements: (1) The Vehicle will pass without objection in the trade under the contract

23 description; (2) The Vehicle is fit for the ordinary purposes for which such goods are used; (3)

24 The Vehicle is adequately contained, packaged, and labelled; (4) The Vehicle will conform to

25 the promises or affirmations of fact made on the container or label.

26 71. The subject vehicle was sold with one or more latent defect(s) set forth above.

27 The existence of the said latent defect(s) constitutes a breach of the implied warranty because

28 the Vehicle (1) does not pass without objection in the trade under the contract description, (2)

12
COMPLAINT; JURY TRIAL DEMANDED
is not fit for the ordinary purposes for which such goods are used, (3) is not adequately

contained, packaged, and labelled, and (4) does not conform to the promises or affirmations of

fact made on the container or label.

72. Plaintiffs have been damaged by Defendant FCA's failure to comply with its

obligations under the implied warranty, and therefore bring this Cause of Action pursuant to

Civil Code section 1794.

FIFTH CAUSE OF ACTION

BY PLAINTIFFS AGAINST DEFENDANT FCA

(Fraudulent Inducement - Concealment)

10 23. Plaintiffs incorporate by reference the allegations contained in the paragraphs

11 set forth above.

12 74. FCA committed fraud by allowing the Subject Vehicle to be sold to Plaintiffs

13 without disclosing that the Subject Vehicle and its EGR cooler were defective which may

14 result in thermal fatigue, leading the coolers to crack over time and leak coolant, which can

15 cause combustion within the intake manifold and lead to a vehicle fire and sudden loss of

16 power. It can suddenly affect the driver's ability to control the vehicle or cause a non-collision

17 vehicle fire. Even more troubling, the EGR Defect can cause the vehicle to fail without

18 warning, while the Vehicle is moving at highway speeds.
n
19 75. Indeed, Plaintiffs allege that prior to the sale of the Subject Vehicle to Plaintiff,

20 FCA knew that the Vehicle and its EGR cooler suffered from an inherent defect, was

21 defective, would fail prematurely, and was not suitable for its intended use.

22 76. FCA was under a duty to Plaintiffs to disclose the defective nature of the

23 Vehicle and its EGR cooler, its safety consequences and/or the associated repair costs

24 because:

25 a. Plaintiffs are informed, believe, and thereon allege that FCA

26 acquired its knowledge of the EGR Defect and its potential

27 consequences prior to Plaintiffs acquiring the Vehicle, through

28 sources not available to consumers such as Plaintiffs, including but

13
COMPLAINT; JURY TRIAL DEMANDED
not limited to pre-production testing data, early consumer complaints

about the EGR Defect made directly to FCA and its network of

dealers, aggregate warranty data compiled from FCA's network of

dealers, testing conducted by FCA in response to these complaints,

as well as warranty repair and part replacements data received by

FCA from FCA's network of dealers, amongst other sources of

internal information;

FCA was in a superior position from various internal sources to

know (or should have known) the true state of facts about the

10 material defects contained in vehicles equipped with the EGR cooler;

11 and

12 Plaintiffs could not reasonably have been expected to learn or

13 discover of the Vehicle's EGR Defect and its potential consequences
14
until well after Plaintiffs purchased the Vehicle.
15
77. In failing to disclose the defects in the Vehicle's EGR cooler, FCA has
16
knowingly and intentionally concealed material facts and breached its duty not to do so.
17
78. The facts concealed or not disclosed by FCA to Plaintiffs are material in that a
18
n
19 reasonable person would have considered them to be important in deciding whether or not to

20 purchase the Vehicle. Had Plaintiffs known that the Vehicle and its EGR cooler were

21 defective at the time of sale, they would not have purchased the Vehicle.
22
79. Plaintiffs are reasonable consumers who interacted with FCA's sales
23
representatives and reviewed materials disseminated by FCA concerning FCA Vehicles prior
24
to purchasing the Subject Vehicle. Had Defendant disclosed the EGR Defect, a safety hazard,
25

26 to its sales representatives and/or the consumer public, Plaintiffs would have been aware of it

27 and would not have purchased the Subject Vehicle.

14
COMPLAINT; JURY TRIAL DEMANDED
80. Plaintiffs were harmed by purchasing a vehicle that Plaintiffs would not have

leased and/or purchased had Plaintiffs known the true facts about the EGR Defect.

81. Furthermore, Plaintiffs unknowingly exposed themselves to the risk of liability,

accident and injury as a result of Defendant's fraudulent concealment of the EGR Defect.

PRAYER

PLAINTIFFS PRAY for judgment against Defendants as follows:

For general, special, and actual damages according to proof;

For restitution;

For any consequential and incidental damages;
10
For diminution in value;
11
For a civil penalty in the amount of two times Plaintiffs' actual damages
12
pursuant to Civil Code section 1794, subdivision (c) or (e);
13
For punitive damages;
14
g For prejudgment interest at the legal rate;
15
For costs of the suit and Plaintiffs' reasonable attorneys' fees pursuant to
16
Civil Code section 1794, subdivision (d); and
17
For such other relief as the Court may deem proper.
18
n
DEMAND FOR JURY TRIAL
19
Plaintiffs hereby demand a jury trial on all causes of action asserted herein.
20
Dated: April 1, 2024 STRATEGIC LEGAL PRACTICES, APC

23
m IO _—

TIONNA CARVALHO
2>

Attommeys for Plaintiffs
24
ALEKSEY TISHCHENKO AND
25 BRITNEY LYNN TISHCHENKO

15
COMPLAINT; JURY TRIAL DEMANDED
Exhibit A
S
E

2
g
3 5
2S
= =
&z
3

2 2
2 gg

5 g a
= 5 = 5
a a a
5 5 2
2 = = zg
3 a

S
2
z
2 2
=
2 6 a
=&
2

3
58
=
5 8
2
g B5
— 3s
Zz
&
88 2 &#
a a 3
s
£ £ a3 2
a 6

2
a

s
=

£
g

£
—
g

an
Ss
2

6
on
aa
QRAARRAAHROO ca dq Qa Qa tt
"a4 a4 a3 a 4 4

28
£6
Bo
SZ

oO =e
o Bz
o
Zo ox
Ze SZ
2
Se
~

o
®

®
®

o
°

3
oO
8®Q

o ®
Yn
°
9 2
}
oO

For full print and download access, please subscribe at https://www.trellis.law/.

Complaint,Petition: TISHCHENKO, et al. vs FCA US, LLC

Preview

Case Info

Parties

Complaint,Petition: TISHCHENKO, et al. vs FCA US, LLC

Preview

Related Topics

Case Info

Parties