Elaine Miller vs. Toyota

8/14/2019 Elaine Miller vs. Toyota

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http://injury.findlaw.com/toyota


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810228.2 2CLASS ACTION COMPLAINT

PEARSON,SIMON,WARSHAW&PENNY,LLP

15165VENTURABOULEVARD,SUITE400

SHERMAN

OAKS,CALIFORNIA91403

ET SEQ.)7. UNLAWFUL, FRAUDULENT

UNFAIR BUSINESS PRACTIC(CAL. BUS. & PROF. CODE 17200,ET SEQ.)

DEMAND FOR JURY TRIAL

Individual and representative plaintiff ELAINE MILLER on behalf of herself a

all other similarly situated complains as follows:

INTRODUCTION

1. This class action is brought on behalf of Plaintiff ELAINE MIL(hereinafter Plaintiff) and a class of all persons in the state of California who ow

leased or otherwise possessed a 2010 Model Year Prius automobile (PRIUS) or

Model Year Lexus HS250h automobile (HS250h) (collectively referred t

"VEHICLES") manufactured, sold and warranted by Defendants TOYOTA MO

SALES, U.S.A., INC. and TOYOTA MOTOR NORTH AMERICA, INC. (herein

collectively referred to as TOYOTA) and DOES 1 through 500. Contrar

TOYOTA'S representations regarding its safety and reliability, the VEHICLES suffer

a material defect in its "Regenerative Braking System" that causes the braking syste

routinely and systematically disengage ("DEFECT"). As a direct and proximate res

the DEFECT all VEHICLES are incapable of stopping or slowing down properly, unf

their ordinary purpose and pose a significant threat of injury to their owners and other

2. Plaintiff is informed believes and alleges that since the current generPRIUS was introduced in the United States in May of 2009, TOYOTA had actua

constructive knowledge that the DEFECT existed and could be remedied by a re

available change to the VEHICLES braking system software, which TOYOTA

attempted to implement on PRIUS vehicles produced since January of 2010. Neverth

TOYOTA has repeatedly, systematically, and unjustifiably denied the existence o

DEFECT and refused introduce the remedial braking software on the VEHICLES.


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3. On February 4, 2010, the National Highway Traffic and SAdministration ("NHTSA") announced that it was opening a formal investigation int

braking system failure in the PRIUS after receiving 124 consumer complaints arising

the DEFECT, including four alleging that the DEFECT resulted in an automobile acc

Nevertheless, TOYOTA has continued to fail to introduce a recall or institute appropremedial measure for the DEFECT, in the face of the mounting evidence concernin

existence, scope and danger associated with the DEFECT.

4. Plaintiff is informed and believes and thereon alleges that the HScontains the same or a substantially similar braking system as the PRIUS.

5. Plaintiff has instituted this class action lawsuit in order to obtaiappropriate remedies on behalf of herself and similarly situated owners of the VEHIC

THE PARTIES

The Plaintiff:

6. Plaintiff ELAINE MILLER, at all material times herein, was a resideLos Angeles County, California. In August 2009, Ms. MILLER purchased a 2010 m

TOYOTA PRIUS. This vehicle was purchased primarily for personal, family or hous

non-commercial purposes. This vehicle was manufactured, sold, distributed, adver

marketed and warranted by TOYOTA. Since she purchased her PRIUS, Ms. MILLE

repeatedly suffered the braking DEFECT when operating her vehicle.

The Defendants:

7. TOYOTA MOTOR SALES, U.S.A., INC. is a corporation organizeexistence of the laws of the State of California, with its principal place of business in

Angeles County, California. At all times relevant herein, TOYOTA MOTOR SALES

engaged in the business of designing, manufacturing, constructing, assembling and se

automobiles and automobile components.

8. TOYOTA NORTH AMERICA, INC. is a corporation organized in exisof the laws of the State of California, with its principal place of business in Los An

County, California. At all times relevant herein, TOYOTA NORTH AMERICA,


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was engaged in the business of designing, manufacturing, constructing, assembling

selling automobiles and automobile components.

9. Plaintiff does not know the true names and/or capacities, whether indivcorporate, associate or otherwise, of Defendants DOES 1 through 500, inclusive

therefore sue them by such fictitious names, and Plaintiff will seek leave to amendComplaint to show their true names and/or capacities when the same have

ascertained. Plaintiff is further informed and believes, and based thereon alleges, that

of the fictitiously named Defendants is, in some manner, responsible for the event

happenings herein referred to, either contractually or tortuously, and caused damag

Plaintiff and class members as herein alleged.

10. At all times herein mentioned, Defendants, and each of them, were memof, and engaged in, a joint venture, partnership and common enterprise, and acting w

the course and scope of, and in pursuance of, said joint venture, partnership and com

enterprise.

11. At all times herein mentioned, the acts and omissions of various Defendand each of them, concurred and contributed to the various acts and omissions of eac

all of the other Defendants in proximately causing the injuries and damages as h

alleged.

12. At all times herein mentioned, Defendants, and each of them, ratifiedand every act or omission complained of herein. At all times herein menti

Defendants, and each of them, aided and abetted the acts and omissions of each and

the other Defendants in proximately causing the damages as herein alleged.

JURISDICTION AND VENUE

13. This Court has jurisdiction over this action pursuant to California CoCivil Procedure 410.10.

14. The venue is proper in this Court pursuant to Code of Civil Procedure and 395.5 in that Defendants contracts, whether real or implied, were made a

performed in Los Angeles County, California.


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FACTUAL ALLEGATIONS

Nature of the Braking System Defect

15. Since the 2010 Model Year PRIUS was introduced in May of 2009 ibeen the third most popular vehicle sold by TOYOTA in the United States. To

TOYOTA has sold approximately 103,000 PRIUS vehicles in the United Statsubstantial portion of which were sold in the state of California.

16. The VEHICLES are hybrid gas-electric automobiles which ucombination of a traditional gasoline powered engine and a battery powered electric m

in order increase fuel efficiency. The VEHICLES are designed to run on battery pow

as long as possible and only use the traditional engine to provide the vehicle

additional power when necessary. The constant interchange between the mecha

engine, battery, and electronic motor of the VEHICLES are governed by the el

controls that make up Toyota Hybrid System (THS) for the PRIUS and the Lexus H

Drive System (LHDS) for the HS250h, which dictate how the vehicles drive dependin

speed and load.

17. In order to increase energy efficiency the VEHICLES utilize a RegenerBraking System" which utilizes a combination of hydraulic brake pads (foun

traditional gas powered vehicles) and electronically controlled regenerative systems d

periods of braking and deceleration. Unlike traditional hydraulic braking, which resu

a loss of energy required to slow the momentum of the vehicle, the regenerative bra

systems attempt to slow the momentum of the vehicle by causing the electric motor t

backwards. During these periods when the electric motor runs backwards it not

reduces speed, but also serves as a generator for the VEHICLES battery. When addi

braking power is necessary, the THS/LHDS activates its traditional hydraulic brake pa

order to supply the additional force required to stop the vehicle. The VEHIC

traditional gasoline powered motors turn off during periods of braking or decelerati

order to conserve fuel.

18. The interchange between the hydraulic and regenerative braking system


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the VEHICLES is controlled by the THS and LHDS. Plaintiff is informed, believe

thereon alleges that the DEFECT with the braking system of all VEHICLES is the res

a failure to the electronic controls of the regenerative braking system that cause

braking system to disengage and fail when brakes are applied.

19. As the result of the DEFECT the VEHICLES consistently, repeatedlysystematically fail to stop in a timely and reliable manner when confronted with ro

and minor bumps that are present in everyday driving conditions. The DEFEC

extremely dangerous as it is likely to result, and has already resulted in autom

accidents and injuries to persons as a result of the failure to the braking systems o

vehicles. The further operation of the VEHICLES by Plaintiff and the Class will res

additional injuries to VEHICLE owners, pedestrians, other drivers and their property.

Consumer Complaints and the NHTSA Investigation

20. The DEFECT has plagued all PRIUS vehicles sold in the state of Califand prevented Plaintiff and the Class from engaging in the use and enjoyment of

vehicle.

21. Almost immediately after the PRIUS went on sale to the public, consubegan to make complaints with TOYOTA and the NHTSA regarding the existence o

DEFECT and the propensity of the brakes on the PRIUS to disengage and fail whe

vehicle encountered bumps, potholes or other uneven rode conditions.

22. A sampling of the 124 complaints received by the NHTSA as of Februa2010 regarding the DEFECT reads as follows:

"I THOUGHT THAT IT WAS JUST ME BUT WHEN I HEARD OTHERSCOMPLAINING ABOUT THE BRAKES ON THE NEW 2010 PRIUS ICONFIRMED WHAT I HAVE BEEN EXPERIENCING. WHENEVER IBEGIN TO BRAKE AND EITHER (A) HIT A BUMP OR (B) BEGIN A

TURN, THE CAR JUMPS OR LURCHES AS IF LOSING TRACTIONFOR AN OVERLY EXCESSIVE AMOUNT OF TIME LEADING TO ASHORT BUT SIGNIFICANT LOSS OF CONTROL." (ODI #: 10304762)

"I HAVE BEEN DRIVING MY 2010 PRIUS FOR 4 MONTHS ANDEVERYDAY I DRIVE OVER THIS ROAD NEAR MY WORK THAT'SNOT A TOTAL FLAT SURFACE WITH A BUMP, MY PRIUS JUSTJERKS AND SLIDES FORWARD AND ACCELERATES FOR A SPLITSECOND. THIS HAPPENS EVERY SINGLE DAY I DRIVE TO WORK


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OVER THIS BUMPY ROAD. IT WORRIES ME IF A PEDESTRIAN ISWALKING IN FRONT OF ME I AM NOT SURE IF I CAN PULL TO ACOMPLETE STOP IN TIME." (ODI #: 10304681)

"VEHICLE SURGES FORWARD WHEN BRAKING OVER ROADSURFACE THAT IS NOT SMOOTH. SYMPTOM MAKES SAFELYJUDGING STOPPING DISTANCE VERY DIFFICULT, AND IN OUROPINION, INCREASES LIKELIHOOD OF AN ACCIDENT. TOYOTA

DEALER CLAIMED THEY COULD NOT REPLICATE ISSUE ANDTHAT VEHICLE'S COMPUTER DID NOT REPORT/RECORD ANYPROBLEMS. WE CAN REPLICATE ISSUE OVER SAME BUMPEVERYDAY." (ODI # 10304587)

"WHEN DRIVING AT MODERATE SPEEDS ON CITY/SURFACESTREETS IN MY 2010 PRIUS, A BRAKING PROBLEM OCCURS. IF IHIT A BUMP IN THE ROAD WHILE BRAKING, THE VEHICLELURCHES FORWARD AS IF THE BRAKES HAVE DISENGAGED,EVEN THOUGH I AM STILL PRESSING THE BRAKE. I PUSH THEBRAKES DOWN HARDER AND NOTHING HAPPENS. A FEWSECONDS LATER, THE BRAKES COME BACK INTO PLAY AND THECAR SLOWS DOWN AGAIN. THIS HAS HAPPENED SEVERALTIMES, AND I HAVE NARROWLY AVOIDED ACCIDENTS CAUSEDBY THIS SEVERAL TIMES." (ODI # 10304475)

"WHEN BRAKING AND HITTING A BUMP AT THE SAME TIMETHERE IS A LOSS OF BRAKING POWER. THE VEHICLE LUNGESFORWARD AS IF THE BRAKES HAVE STOPPED WORKINGMOMENTARILY. THIS CAUSED ME TO HAVE TO USEADDITIONAL CRASH AVOIDANCE MANEUVERS, IN ANOTHERCIRCUMSTANCE COULD HAVE CAUSED AN ACCIDENT. IT FEELSAS IF A PORTION OF THE BRAKING SYSTEM SHUTS OFF AFTERHITTING THE BUMP." (ODI #: 10304376)

"THIS IS THE 3RD TIME I HAVE HAD A TOTAL LOCKOUT OFBRAKING ON MY 2010 TOYOTA PRIUS. THIS SEEMS TO HAPPENMOST TIMES IF THE ROAD IS SLIGHTLY ROUGH AND DOWNHILL.DEALER DENIES ANY KNOWN PROBLEMS BUT THIS LAST TIME IWENT COMPLETELY THROUGH A STOP SIGN. HAD THERE BEENOTHER TRAFFIC I WOULD HAVE HAD AN ACCIDENT. (ODI #:1034347)

23. Unfortunately, other vehicle owners have not been so lucky and at leasindividuals have reported to the NHTSA that the DEFECT caused them to suffe

accident. Two of these accidents resulted in bodily injuries. A sampling of these rep

accidents caused by the DEFECT reads in relevant part as follows:

"THE CONTACT OWNS A 2010 TOYOTA PRIUS. WHILE DRIVING 15MPH AND ATTEMPTING TO ENGAGE THE BRAKE PEDAL ITEXTENDED TO THE FLOOR; HOWEVER, WITHIN A FEW SECONDSTHE BRAKE WOULD RESPOND. SHE EXPERIENCED THE BRAKEFAILURE THREE TIMES; DURING THE SECOND FAILURE THEBRAKES DIDN'T RESPOND AND SHE COLLIDED INTO A VEHICLE


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AND INJURED HER NECK. SHE HAS NOT TAKEN THE VEHICLE TOTHE DEALER SINCE THE FAILURE OCCURRED ONLY WHEN SHEHIT A BUMP IN THE ROAD. SHE WILL TAKE THE VEHICLE TO THEDEALER TO BE DIAGNOSED. THE VIN WAS NOT AVAILABLE. THEFAILURE MILEAGE WAS 3,000 AND THE CURRENT MILEAGE WAS10,000." (ODI #: 10299897)

"I WAS UNABLE TO SLOW DOWN GOING INTO AN INTERSECTION

AT A REASONABLE RATE OF SPEED. WHILE I WAS NOTACCELERATING, WHEN I APPLIED THE BRAKES THE CAR DIDNOT SLOW DOWN AS I WOULD HAVE EXPECTED. THIS SAMEBEHAVIOR HAS OCCURRED IN THE PAST SEVERAL MONTHSSINCE I'VE OWNED THE PRIUS 2010 MODEL. IT SEEMS TO SKIPFORWARD OR ACCELERATE WHILE BRAKING ON A DOWNHILLOR UNEVEN SURFACE. BY THE TIME I WAS ABLE TO STOP I THEAIRBAGS HAD GONE OFF AND I HAD HURT MY NECK AND BACK.IT IS A NEW VEHICLE THAT NOW HAS ALMOST $14,000 DAMAGEAND WON'T BE FIXED FOR A MONTH. IF ANYTHING, I'M ANOVERLY CAUTIOUS DRIVER AND WONDERING WHAT I COULDHAVE DONE TO AVOID THE ACCIDENT." (ODI #: 10293583)

"I BOUGHT A BRAND NEW 2010 TOYOTA PRIUS AND LEFT THEDEALER ON OCTOBER 23, 2009. I HAD TO STOP SHORT AT ONE OFTHE STOPLIGHTS ON THE WAY HOME AND NOTICED ADISTURBING LAG BEFORE THE BRAKES ENGAGED. HOURSLATER I WAS DRIVING DOWN A MAJOR HIGHWAY WHENTRAFFIC STOPPED SUDDENLY AND THE BRAKES WOULD NOTENGAGE. I REAR-ENDED THE CAR IN FRONT OF ME ANDMODESTLY DAMAGED THE CAR I HIT AND SEVERELY DAMAGEDMY NEW PRIUS. FORTUNATELY NO ONE WAS HURT. MY SIXYEAR OLD SON WAS IN THE BACK SEAT." (ODI #: 10289744)

24. The numerous consumer complaints regarding the DEFECT led the NHto open a formal investigation into the matter on February 4, 2010. A NHTSA

release regarding the inquiry states in pertinent part as follows:

"The National Highway Traffic Safety Administration (NHTSA) announcedthat it is opening a formal investigation of the Toyota Prius Hybrid modelyear 2010 to look into allegation of momentary loss of braking capabilitywhile traveling over an uneven road surface, pothole or bump.

The Office of Defects Investigation has received 124 reports fromconsumers, including four reports alleging that crashes occurred.Investigators have spoken with consumer and conducted pre-investigatory

field work."

25. Consumers have filed similar complaints with the NHTSA arising fromdefective braking system of the HS250h. One of these complaints reads in pertinen

as follows:

"I PURCHASED A LEXUS HS250 IN OCTOBER 2009. SINCE THEN, I


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HAVE EXPERIENCED AT LEAST 6 OCCASIONS FROM THE END OFOCTOBER 2009 TO EARLY FEBRUARY 2010 IN WHICH I BRAKEDWITH THE INTENTION OF COMING TO A STOP. THE VEHICLEBEGAN TO SLOW DOWN IN THE BRAKING PROCESS, THEN THEBRAKES STALLED FOR A FEW SECONDS BEFORE RESUMING THEBRAKING ACTION. IT IS UNEXPECTED AND DANGEROUSBECAUSE YOU DON'T KNOW IF YOUR BRAKES ARECOMPLETELY STALLING OR NOT. FOR A COUPLE OF SECONDS,

EVERYTHING JUST GIVES WAY BEFORE THE BRAKES SEEM TOBEGIN WORKING AGAIN. IN THAT SITUATION, YOU DON'T KNOWWHETHER TO PRESS DOWN A SECOND TIME ON THE BRAKE ORTO PUMP THE BRAKE PEDAL OR NOT DO ANYTHING. WHEN THISEVENT HAPPENS, YOU FEEL AS IF YOU HAVE ABSOLUTELY NOCONTROL OVER THE OPERATION OF THE VEHICLE, SIMILAR TODRIVING ON A SHEET OF ICE, EXCEPT NONE OF THOSE SAFETYRULES SEEM TO APPLY HERE. THIS HAS HAPPENED ABOUTEVERY FEW WEEKS. I HAVE NOTICED THAT IT SOMETIMESHAPPENS WHEN I AM DRIVING OVER AN UNEVEN SURFACE,BUMP, OR A POTHOLE IN IN THE STREET WHILE BREAKING.WHILE I HAVE NOT BEEN INVOLVED IN A CRASH, IT HASWORRIED ME THAT THIS COULD LEAD TO ONE."

Toyota's Active Concealment and Refusal to Remedy the Defect

26. Plaintiff is informed believe and thereon alleges that despite their knowof the existence of the failure, TOYOTA continued to tout the safety and reliability o

VEHICLES until it was confronted by the announcement of the NHTSA investigation

27. After the announcement of the NHTSA investigation, TOYOTA revthat it had in fact been aware of the design defect with the braking system of the PR

arising from a software failure with the VEHICLES for months prior to the announce

of the NHTSA investigation. TOYOTA further announced that it had instituted a sof

correction for the DEFECT on PRIUS vehicles produced since January of 2010. De

this announcement, Plaintiff is informed and believes and thereon alleges that TOY

has failed to issue a Technical Service Bulletin advising its dealerships and customer

a potential fix for the DEFECT exists.

28. Plaintiff is informed and believes that TOYOTA dealerships are unawathe DEFECT or the software fix. Further, Plaintiff is informed and believes and th

alleges that the purported fix does not correct the DEFECT.

29. TOYOTA'S recent admissions contradict its previous assertions regathe safety and reliability of the VEHICLES and constitute fraudulent concealment of


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that pose a threat to the safety of their customers and members of the public.

30. Despite its awareness of the existence of the defect TOYOTAsystematically and repeatedly refused to institute a recall of the VEHICLES and refus

repair the DEFECT on VEHICLES produced prior to January of 2010.

31. Plaintiff is informed and believes and thereon alleges that the brasystems of the HS250h suffer the same DEFECT as the PRIUS.

32. As a result of the DEFECT and TOYOTA'S conduct alleged herein Plaand the Class have suffered, and continue to suffer injuries, to which they are en

immediate legal recourse.

CLASS ACTION ALLEGATIONS

33. Plaintiff brings this action individually and as a Class Action on behalClass and/or sub-classes which includes:

a. All persons residing in the state of California who are theowners or lessees of a 2010 Model Year Prius automobile. Excluded from

the Class are defendants, their parent companies, subsidiaries and affiliates,

any co-conspirators, all governmental entities, and any judges or justices

assigned to hear any aspect of this action.

b. All persons residing in the state of California who are theowners or lessees of a 2010 Model Year Lexus HS250h automobile.

Excluded from the Class are defendants, their parent companies,

subsidiaries and affiliates, any co-conspirators, all governmental entities,

and any judges or justices assigned to hear any aspect of this action.

34. The two aforementioned sub-classes shall collectively be referred to has "the Class."

35. This action is brought and may properly be maintained as a class apursuant to California Code of Civil Procedure 382 and California Rules of Court,

3.760, et seq. This action satisfies the numerosity, typicality, adequacy, predominanc

superiority requirements of those provisions.


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36. The Class is so numerous that the individual joinder of all of its membimpracticable. While the exact number and identities of Class Members are unknow

Plaintiff at this time and can only be ascertained through appropriate discovery.

37. Common questions of fact and law exist as to all members of the which predominate over any questions affecting only individual members of the CThese common legal and factual questions, which do not vary from Class Member to

Member, and which may be determined without reference to the individual circumsta

of any Class Member include, but are not limited to, the following:

a. Whether the VEHICLES suffer from the DEFECT alleged hereinb. Whether Defendants failed to notify Plaintiff and the Class o

DEFECT;

c. Whether Defendants have engaged in conduct which constitute bof implied warranty;

d. Whether Defendants engaged in conduct which constitute breaexpress warranty;

e. Whether Defendants are strictly liable for the defects as descherein;

f. Whether Defendants engaged in negligence, as described herein;g. Whether Defendants engaged in negligent misrepresentation

described herein;

h. Whether Defendants maintained a business practice of denying reand claims for damages of the Plaintiff and the Class resulting

the DEFECT;

i. Whether Defendants conduct constitutes an unfair, unlawful afraudulent business practice (Cal. Bus. & Prof. Code 1720

seq.);

j. Whether Defendants conduct constitutes a violation of the ConsLegal Remedies Act (Cal. Civ. Code 1750, et seq.);


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k. Whether Plaintiff and the Class are entitled to compensatory damand if so, the nature of such damages; and

l. Whether Class Members are entitled to injunctive relief.38. Plaintiff's claims are typical of the claims of the members of the Class

the representative Plaintiff's interests coincide with and not antagonistic to those oother Class Members she seeks to represent. Plaintiff and all members of the Class

sustained damages and are facing irreparable harm arising out of Defendants com

course of conduct as complained of herein. The damages of each member of the

were caused directly by Defendants wrongful conduct as alleged herein.

39. Plaintiff will fairly and adequately protect the interests of the members oClass. Plaintiff has retained attorneys experienced in the prosecution of class ac

including complex employment, consumer, and product defect class actions, and Pla

intends to prosecute this action vigorously.

40. A class action is superior to other available methods for the fair and effiadjudication of this controversy, since individual litigation of the claims of all

Members is impracticable. Even if every Class Member could afford individual litig

the court system could not. It would be unduly burdensome to the courts in w

individual litigation of numerous cases would proceed. Individualized litigation w

also present the potential for varying, inconsistent, or contradictory judgments and w

magnify the delay and expense to all parties and to the court system resulting

multiple trials of the same complex factual issues. By contrast, the conduct of this a

as a class action, with respect to some or all of the issues presented herein, presents f

management difficulties, conserves the resources of the parties and of the court sy

and protects the rights of each Class Member.

41. The prosecution of separate actions by individual Class Members may ca risk of adjudications with respect to them that would, as a practical matter, be dispo

of the interests of the other Class Members not parties to such adjudications or that w

substantially impair or impede the ability of such non-party Class Members to protect


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interests.

42. Individual actions by Class Members would establish incompatible stanof conduct for Defendants.

43. Defendants have acted or refused to act in respects generally applicabthe Class, thereby making appropriate final and injunctive relief with regard tomembers of the Class as a whole, as requested herein.

FIRST CAUSE OF ACTION

BREACH OF THE IMPLIED WARRANTY OF MERCHANTABILITY

PLAINTIFF AND THE CLASS AGAINST ALL DEFENDANTS

44. Plaintiff incorporates herein by reference all preceding paragraphs oComplaint as though fully set forth in this cause of action.

45. At the time Plaintiff and the Class purchased their VEHICLESDefendants impliedly warranted that the VEHICLES were of merchantable quality

were safe and fit for their intended uses.

46. Defendants and each of them breached the implied warranty descabove, in that the VEHICLES were not of merchantable quality and were not safe a

for their intended uses.

47. Plaintiff is informed and believes and thereon alleges that that the vehmanufactured by TOYOTA have an inherent defect which is substantially certain to r

in a malfunction during the useful life of the vehicle.

48. When the VEHICLES were purchased by Plaintiff and the Class, contained a manufacturer defect, defect in assembly, design defect, and other de

rendering the VEHICLES unsafe for use, and making it impossible for Plaintiff an

Class to use the VEHICLES for their ordinary purpose.

49. As a direct and proximate result of said breach by Defendants, and eathem, Plaintiff and the Class have suffered severe damage, which rendered

VEHICLES unfit for their ordinary purpose.


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SECOND CAUSE OF ACTION

BREACH OF EXPRESS WARRANTY



51. Defendants, and each of them, expressly warranted that the VEHICLES merchantable, safely designed, assembled and fit for the purpose for which they

designed, produced, sold and intended to be used.

52. Defendants have knowingly concealed, suppressed, omitted, failedisclose and/or misrepresented the nature and/or extent of the DEFECT, with the i

that others rely thereon.

53. Defendants, and each of them, breached the aforementioned exwarranties in that the VEHICLES were not merchantable, safely designed, pro

assembled, nor fit for the purpose for which they were intended to be used.

54. Plaintiff is informed and believes and thereon alleges that thaVEHICLES manufactured by TOYOTA have an inherent defect which is substan

certain to result in a malfunction during the useful life of the vehicle.

55. Defendants, and each of them, breached the aforementioned exwarranties in that the braking system is defective and incapable of functioning properl

56. As a direct and proximate result of said breach by Defendants, and eathem, the VEHICLES have proven to be virtually useless due to the severity and exis

of the DEFECT.

57. Plaintiff is informed and believes and thereon alleges that Defendants fto comply with the terms of the written warranty provided to Plaintiff and the Class

willful and knowing.

58. As a direct and proximate result of said breach by Defendants, and eathem, Plaintiff and the Class have suffered incidental and consequential damages

amount to be proven at the time of trial.


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THIRD CAUSE OF ACTION

STRICT PRODUCTS LIABILITY



60. At all times mentioned in this complaint, the VEHICLES and component parts were defective as to their design, manufacture, and warnings, causin

VEHICLES and their component parts to be in a defective condition that made

dangerous and unsafe for their intended use. Specifically, the VEHICLES braking sy

was defective and incapable of properly slowing down the VEHICLES in normal dr

conditions.

61. The VEHICLES are defective in their design in that at the timeVEHICLES left the possession of Defendants, the risk of danger inherent in their d

outweighed the benefits achieved from the use of the defective product.

62. As a direct and proximate result of the dangerous and defective conditithe VEHICLES as described above, Plaintiff and the Class were seriously damaged

they were using the VEHICLES in the manner for which they were intended.

63. As a consequence of the aforementioned defects Plaintiff and the Classsuffered damages in the amount to be proven at the time of trial.

FOURTH CAUSE OF ACTION

NEGLIGENCE



65. Defendants are the owners, manufacturers, designers, marketers asellers of the VEHICLES.

66. Defendants have a duty to Plaintiff and the Class to act as a reasonbusiness would in the manufacturing, sale, design of a product that will enter the strea


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commerce. Defendants further have a duty to Plaintiff and the Class to inform the

known DEFECTS affecting their safety.

67. Defendants breached their duty of care by negligently manufacturinVEHICLES with a defective braking system and allowing the VEHICLES to ente

stream of commerce. Defendants further breached their duty of care by failing to aand inform Plaintiff and the Class of the existence and scope of the DEFECT and initi

necessary repairs for the DEFECT. The DEFECT makes it impossible use the VEHIC

in the manner for which they were intended.

68. Defendants failed to use ordinary care and skill in the manufacturing oVEHICLES. Defendants failed to take reasonable precautions to insure tha

VEHICLES would not suffer a failure when used for their intended purpose.

69. Defendants manufactured, sold and distributed the VEHICLES to Plaand the Class without conducting the proper inspections and disclosures with regard t

defective braking system.

70. As a direct and proximate result of the negligent conduct relating tengineering, designing, and manufacturing of the VEHICLES, the VEHICLES

proven to be virtually useless due to their inability to brake properly.

71. As a consequence of the negligence of the Defendants as stated hePlaintiff and the Class have suffered property damage and loss of use of property

amount to be proven at the time of trial.

FIFTH CAUSE OF ACTION

NEGLIGENT MISREPRESENTATION



73. Defendant represented to Plaintiff and the Class that a material fact wasnamely that the VEHICLES were safe and reliable when used for their ordinary purpo

74. However, these representations were not true as the braking system o


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VEHICLES were inherently flawed and incapable of safely stopping or slowing dow

VEHICLES.

75. Plaintiff is informed and believes and thereon alleges that Defendants no reasonable grounds that believing that the representations were true when they

made.76. Defendants intended that Plaintiff and the Class rely on their representa

Plaintiff and the Class reasonably relied on the Defendants representations.

77. Plaintiff and the Class were harmed based upon the Defendmisrepresentations.

78. Plaintiff and the Class reliance on the representations of the Defendanta substantial factor in causing their harm.

SIXTH CAUSE OF ACTION

VIOLATION OF THE CONSUMER LEGAL REMEDIES ACT

(CAL. CIV. CODE 1750ET SEQ.)



80. Defendants have engaged in and continue to engage in business practicviolation of California Civil Code 1750 et seq. (the Consumer Legal Remedies Ac

falsely representing that the braking system on the VEHICLES functioned properly. T

business practices are mislead and/or likely to mislead consumers and should be enjoin

81. Defendants have engaged in deceptive acts or practices intended to resthe sale of the VEHICLES in violation of California Civil Code 1770. Defendants

and/or should have known that their misrepresentations actually mislead or were like

mislead and/or deceive consumers regarding the characteristics or benefits o

VEHICLES including the braking system and their ability to operate properly

utilized for their intended purpose.

82. Plaintiff's counsel put TOYOTA on notice that it was in violation o


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Consumers Legal Remedies Act, at the time of filing this lawsuit via a notice l

Plaintiff will amend this Complaint thirty (30) days after the aforementioned notice

was sent to TOYOTA to include a request for damages. See Cal. Civ. Code 1782(d)

83. The Defendants have violated the Consumers Legal Remedies Act, inclubut not limited to the following: (1) Using deceptive representations in connectiongoods or services in violation of California Civil Code 1770(a)(4); and/o

representing the goods have characteristics, uses or benefits which they do not ha

violation of California Civil Code 1770(a)(5). As a direct and proximate resu

Defendants conduct, as set forth herein, Defendants have received ill-gotten gains a

profits including but not limited to money. Therefore, said Defendants were an

unjustly enriched.

84. Pursuant to California Civil Code 1780(a)(2)-(5) and 1780(d) Plaand members of the Class seek injunctive relief, restitution, ancillary relief and attor

fees and costs to the full extent allowed by law.

85. Pursuant to California Civil Code 1780(a)(2), Plaintiff and members oClass seek to enjoin Defendants from engaging in the unlawful, fraudulent and u

business practices as alleged herein. There is no other adequate remedy at law and

injunction is not ordered, Plaintiff and the Class will suffer irreparable harm by follo

the falsely disseminated information by Defendants.

SEVENTH CAUSE OF ACTION

UNLAWFUL, FRAUDULENT & UNFAIR BUSINESS PRACTICES

(CAL. BUS. & PROF. 17200ET SEQ.)



87. Defendants have engaged and continue to engage in unlawful, fraudunfair practices, which are substantially likely to mislead the public by fa

disseminating information to consumers that the VEHICLES are safe and reliable


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meaning of the Unfair Competition Law in that such acts

practices are substantially injurious to consumers and offensi

established public policy, in that Defendants have failed to

adequate notice or offer a fix of the DEFECT at their sole expens

89. Plaintiff actually and reasonably relied on the aforementioned misleaand deceptive representations regarding the safety and reliability of the VEHIC

Plaintiff would not have purchased her VEHICLE had she been aware of the existen

the DEFECT.

90. These above-described unlawful, unfair and fraudulent business pracand false and misleading advertising and unfair competition by Defendants contin

present a threat to Plaintiff and the Class. Plaintiff is informed and believes and th

alleges that Defendants have systematically perpetrated deceptive and unfair prac

upon members of the public and have intentionally deceived Plaintiff and the Class.

91. In addition, the use of print media to promote the sale of TOYautomobiles through false and deceptive representations constitutes unfair competitio

unfair, deceptive, untrue or misleading advertising within the meaning of the U

Competition Laws.

92. The refusal to recall and remediate the DEFECT constitutes a continuinongoing unlawful activity prohibited by Business & Professions Code 17200 et

and justifies the issuance of an injunction requiring Defendants to recall the VEHIC

and act in accordance with the law. All remedies are cumulative pursuant to Busine

Professions Code 17205.

93. Pursuant to Business & Professions Code 17203, Plaintiff and the Crequest restitution and/or restitutionary disgorgement all sums obtained in violatio

Business & Professions Code 17200, et seq. as authorized by Cortez v. Purolato

Filtration Products Co., (2000) 23 Cal.App.4th 163.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff on behalf of herself and all other similarly situated, pr


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for relief and judgment against Defendants, and each of them, as follows:

1. That the court enter an order certifying the plaintiff class and any appropsub-class thereof, and appointing plaintiff and her counsel to represent the class;

2. That the court enter an order for incidental and consequential damages amount to be proven at the time of trial;

3. That the court enter an order for special damages in an amount to be prat the time of trial;

4. That the court enter an order for general damages in a sum accordiproof at the time of trial;

5. That the court enter an order providing restitution to Plaintiff and the of all monies wrongfully obtained by the Defendants;

6. For preliminary and injunctive relief;7. For reasonable attorneys fees, including but not limited to California

of Civil Procedure 1021.5 and California Civil Code 1750, et seq. and

applicable laws;

8. For Plaintiff's costs incurred; and/ / /

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9. For such other, further and different relief which the court deems jusproper.

DATED: February 5, 2010 PEARSON, SIMON,WARSHAW & PENNY, LLPCLIFFORD H. PEARSONBRUCE L. SIMON

DANIEL L. WARSHAWBOBBY POUYA

THE LAW OFFICE OF ROBERT L. STARROBERT L. STARR, ESQ.

By: /s/DANIEL L. WARSHAW

Attorneys for Plaintiff ELAINE MILLER, an

individual on behalf of herself and all otherssimilarly situated


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DEMAND FOR JURY TRIAL

Plaintiff, ELAINE MILLER, on behalf of herself and all others similarly situate

hereby requests a jury trial on the claims so triable.

DATED: February 5, 2010 PEARSON, SIMON,WARSHAW & PENNY, LLP

CLIFFORD H. PEARSONBRUCE L. SIMONDANIEL L. WARSHAWBOBBY POUYA

THE LAW OFFICE OF ROBERT L. STARROBERT L. STARR, ESQ.

By: /s/

DANIEL L. WARSHAWAttorneys for Plaintiff ELAINE MILLER, anindividual on behalf of herself and all otherssimilarly situated

Elaine Miller vs. Toyota

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