Breach of Express Warranty and Implied Warranty of Merchantability (Song Beverly Act)
Mossy included a limited express warranty (90 days or 3000 miles) for 100% of the parts and labor costs on engine and transmission repair. The panel finds this would include the vibration problem. Mossy made two attempts to repair the vehicle with no success whatsoever and then informed Mossy it could not be repaired and was, at any rate, "normal" for this vehicle. In the event a warranted defect substantially reduces the value, use or safety of a vehicle, the seller must replace or repurchase the vehicle, or otherwise make restitution to the purchaser. This was a vehicle purchased at retail, for Perz' personal use.
Perz made several requests of Mossy to repair the defect, and Mossy agreed to attempt the repair twice. Mossy was given adequate opportunity to repair or replace or make restitution. It was unable to do the first and refused to do the others.
Perz has proven the elements necessary to prevail on this cause of action.
The implied warranty of merchantability requires that the vehicle be fit for its ordinary use, in this case personal transportation to and from work. The only description of the condition of the vehicle is that it was unsafe to drive. Mossy's attempt to "reduce" the vibrations at stops by putting it into neutral corroborates the intensity of the vibrations and the unsafe measures which had to be taken to reduce the vibrations and allow for accurate vision through mirrors and the windshield. No opportunity to repair is required, though several opportunities were given.
Perz has proven the elements necessary to prevail on this cause of action. Under the Song-Beverly Act. The panel is authorized to award double damages on the Song-Beverly causes of action, if Mossy's failure to act was willful, which it was. (Civil Code section 1794(c)). Perz is entitled to an award of fees and costs on the Song-Beverly causes of action (Civil Code section 1794(d)).
Perz is entitled to reasonable attorney's fees and costs.
JAMS ARBITRATION NO. 1240021161
Mossy Toyota bought this car for $3,200. from previous owner trade in. Shameful...
"Mossy's own internal records indicate they were aware of the vibration issue following the trade in of the previous owner. They said they would fix it when they were selling me the car and tried twice afterwards at their expense of several hundred dollars to no avail. Then they were done with me, telling me that's the way it is.
They did not offer a like vehicle, or allow me to return it, actually snickering at me at that request on one occasion. I made multiple attempts for a resolve in person, several repeated phone calls... I even hand delivered a written statement and request in addition to contacting the Better Business Bureau. Allot good that did.
In the end they wanted nothing to do with me. What kind of business operates that way? Is it that hard to take care of your customers? To do the right thing? I guess a business can just turn their back when contracts include an arbitration clause, because it shows.
For over Forty (40) days I pleaded with them. Mossy don't care...
AND THEN SO. I hired a highly respectable forensic automobile expert (Rocco Avellini) and he advised me of what I'm dealing with. He concluded it was a previously submerged vehicle that included arching in the electrical system and was unsafe to drive that anyone in the car industry should find obvious. In addition, it had been previously rear ended in a collision. The car has not been driven since, just sitting collecting dust.
I immediately afterwards hired an attorney after I was basically given the proverbial middle finger from Mossy Toyota of Pacific Beach.
If that is not Fraud my friends, then I do not know what is. The advertised value at the time of purchase becomes essentially zero, scrap metal. Ripoff.
I had been a loyal customer many years prior to this purchase and was treated like gold the whole time. That gold turned to manure in a heartbeat... Do not do business with folks that need an arbitration clause to shield them from wrongdoing. You will have no chance in court and the arbitration process is unfair and is in the "repeat players" favor. It is a rigged game.
[Arbitration was held with JAMS on 07/24/14 after 7 Years, 5 Months and 9 Days.]