PLAINTIFFS ORIGINAL COMPLAINT

David A. Green

8533 Glendora Ave.

Hesperia, CA 92344

(760) 713-1867

Email

Plaintiff in pro per

Court name

Jurisdiction

david a. green,Plaintiff,vs.westrux international,Defendant Case No.: Numberplaintiff’s original complaint

NOW COMES David A. Green, Plaintiff, complaining of Defendant, Westrux International, and for cause would show the Honorable Court as follows:

  1. PARTIES
  2. Plaintiff David A. Green is a male adult of sound mind and a resident of 8533 Glendora Ave., Hesperia, CA 92344.
  3. Westrux International is a trucking company registered in the State of California. Its address is 14534 Rancho Vista Drive, Fontana, CA 92335.
  • JURISDICTION AND VENUE
  • STATEMENT OF FACTS
  • In October 2020, plaintiff took his 2012 4300 International Box truck (hereinafter referred to as the “truck”) to Defendant for diagnostic because the truck was failing to maintain top speed and would drop down below 35 miles per hour on the highway. Defendant performed a diagnostic and gave Plaintiff an estimate of work needed and the charge for completing the work.
  • While repairing Plaintiff’s vehicle, Defendant broke a section of the exhaust that caused that piece to also be replaced. Defendant charged Plaintiff for the additional parts even though Defendant should have been responsible for any damages that they inflicted on the truck.
  • On October 29, 2020, Plaintiff was told that the truck was ready and he could go and get it. Plaintiff gave specific instructions that the truck needed to be tested before he paid for the work. When Plaintiff arrived later that evening, he was instructed that Defendant had taken the truck for a test drive and that it performed correctly.
  • Plaintiff paid $7885.98 and left with the truck. On the surface streets the truck appeared to drive fine, however when Plaintiff got on the freeway, he noticed that the truck would not pick up speed as he attempted to climb the Cajon Pass. Plaintiff called Defendant’s representatives immediately to inform them that the truck did not have any power on the freeway. Plaintiff was instructed to drive the truck a few more days and if the problem persisted to bring it back.
  • After driving the truck for a few weeks, Plaintiff realized that the truck did not have the power to climb the hill on the freeway. This had never been an issue before, but now it was beginning to get worse. Due to Covid-19 concerns and health concerns, Plaintiff was not able to return the truck immediately to Defendant.
  • In April of 2021 one of Plaintiff’s associates, Donald White, delivered the truck to Defendant. Plaintiff was not aware that the truck was at their shop and nor did Defendant contact to let him know that his truck was there. A work order was started for additional repairs on the truck.
  • On May 5, 2021, Defendant sent an estimate to Donald White for repairs of $7505.10. Defendant stated that it needed to change the exhaust manifold.
  • The truck was on loan to Donald White. He contacted Defendant and explained that the truck should have been under warranty and that he could not pay and did not want to pay $7500 to repair something that was under warranty and work that they should have completed several months ago.
  • Donald informed them that he would come and get the truck. Defendant sent Donald White another invoice in the amount of $6122.30, stating that they would have to put the truck back together.
  • Defendant did not make any attempt to contact Plaintiff, the owner on record, that they had his truck in their shop. Defendant attempted to extort additional money from Donald White to get the truck released back to him. Defendant failed to honor the warranty that was already in place from the previous work.
  • Defendant contacted Donald White and explained that they broke some type of bolt in the engine and that they were going to send a new invoice for the repairs to the vehicle. They sent an invoice in the amount of $17,442.10 for the new work that needed to be performed on the truck. The truck has remained in Defendant’s possession and the work has not been completed, and they have not made any attempt to contact me to discuss what damages that have done on my truck.
  • Defendant claims that when they were attempting to fix truck, that they broke a bolt in the truck and that they had to order it from somewhere. Defendant has not made any attempt to communicate to Plaintiff or Donald White as to the status of the truck that was delivered to their company for repairs or return.
  • LEGAL ARGUMENT
  • Plaintiff incorporates the facts in Paragraphs 3-14 as though set out in full herein.
  • Defendant was negligent in performing repairs on Plaintiff’s truck. The elements of negligence were outlined by the court in McGarry v. Sax, 70 Cal. Rptr. 3d 519 (2008) in which the court held that: “The elements of negligence are (1) defendant’s obligation to conform to a certain standard of conduct for the protection of others against unreasonable risks, (2) failure to conform to that standard, (3) a reasonably close connection between the defendant’s conduct and resulting injuries, and (4) actual loss.”
  • Defendant had an obligation and a duty to repair Plaintiff’s truck in a manner that would ensure its full functionality once it accepted to repair the truck. Defendant failed to repair Plaintiff’s truck in a manner that would ensure its full functionality. The truck was delivered to Defendant because it was experiencing loss of power. A diagnostic was run, and one of Defendant’s representatives said the problem was the exhaust system. Plaintiff paid $7885.98 to have this repaired. The truck was said to be fixed. After leaving with the truck, Plaintiff notified Defendant that the truck was having an issue climbing up the hill. This issue did not correct itself and the truck did not perform to the expectations required. Plaintiff contacted Defendant to let them know that I was still having an issue with the truck. Was instructed to drive the truck some and see if the truck corrected itself through the computer system. Instead of properly repairing the truck, Defendant further damaged one of the bolts in the truck and proceeded to charge Plaintiff to repair the damage they had caused. As a result, Plaintiff incurred loss in the amount of payment for work not done to the expected standard.
  • The implied warranty of merchantability requires that the goods “(1) pass without objection in the trade under the contract description; (2) are fit for the ordinary purpose for which those goods are used; (3) are adequately contained, packaged and labelled; and (4) conform to the promises or affirmation of fact made on the container or label.” Birdsong v. Apple Inc., 590 F.3d 955, 958 n.2 (9th Cir. 2009). A “core test of merchantability is fitness for the ordinary purpose for which the goods are used.” Brand v. Hyundai Motor Am., 226 Cal. App. 4th 1538, 1546 (2014). “Such fitness is shown if the product is in safe condition and substantially free from defects.” Id. (quoting Mexia v. Rinker Boat Co. Inc., 174 Cal. App. 4th 1297, 1303 (2009). A breach of the implied warranty of merchantability requires a plaintiff to show that the product does “not possess even the most basic degree of fitness for ordinary use.” Mocek v. Alfa Leisure Inc., 114 Cal. App. 4th 402, 406 (2003).
  • After Defendant conducted repairs on Plaintiff’s truck, Plaintiff could not use it for the ordinary purpose which it was intended as it would not pick up speed on the freeway, therefore, it could not climb the freeway. Being a commercial truck, Plaintiff expects that it will be able to pick up speed anywhere, including on climbing lanes. Defendant breached the implied warranty of merchantability by failing to repair the truck in a manner that would ensure that it performs as expected.
  • Defendant is liable to pay damages to Plaintiff for negligence and breach of implied warranty of merchantability.
  • PRAYER FOR RELIEF

REASONS WHEREFORE, Plaintiff respectfully requests this Honorable Court to grant him the following reliefs:

  1. Grant judgment in favor of Plaintiff;
  2. Award Plaintiff damages for fair market value of the truck in the sum of $48,000.00;
  3. Award Plaintiff damages for repair estimate paid in the sum of $18,000.00;
  4. Award Plaintiff damages for loss of use of the truck in the sum of $24,000.00;
  5. Award Plaintiff damages for damage to the truck in the sum of $18,000.00
  6. Award Plaintiff damages for overcharging and failure to honor the warranty in the sum of $1,500.00;
  7. Award Plaintiff punitive damages, pre and post judgment interests, costs of this suit, and attorney fees as allowed by law;
  8. Award Plaintiff such equitable relief as may be appropriate under the circumstances; and
  9. Award Plaintiff such further relief as this Honorable Court deems necessary and proper.

Dated this ___ day of November, 2021.

Respectfully Submitted,

___________________________________

David A. Green,

Plaintiff in pro per

VERIFICATION

I, David A. Green, being duly sworn depose and say that I am a Defendant in the above-entitled action, that I have read the foregoing Complaint and know the contents thereof. That the same is true of my own knowledge except as to those matters and things stated upon information and belief, and as to those things, I believe them to be true.

_________________________________

(Sign in the presence of a Notary Public)

Sworn to and subscribed before me this ___ day of ___________________, 2021.

______________________________

Notary Public

________________________________________

(Printed name of Notary Public)

My Commission Expires: ____________________

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