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Swank V. Porsche Cars North America, Inc

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Swank V. Porsche Cars North America, Inc Case 2:17-at-00930 Document 1 Filed 09/08/17 Page 1 of 37 1 Richard D. McCune David C. Wright 2 MCCUNE WRIGHT AREVALO LLP 3281 Guasti Road, Suite 100 3 Ontario, California 91761 Telephone: (909) 557-1250 4 Facsimile: (909) 557-1275 Email: [email protected] 5 [email protected] 6 Joseph G. Sauder Matthew D. Schelkopf* 7 Joseph B. Kenney MCCUNE WRIGHT AREVALO LLP 8 555 Lancaster Avenue Berwyn, Pennsylvania 19312 9 Telephone: (909) 557-1250 Email: [email protected] 10 [email protected] [email protected] 11 Attorneys for Plaintiff and the Putative Class 12 *Pro Hac Vice Applications to be submitted 13 [Additional counsel on signature page] 14 15 UNITED STATES DISTRICT COURT 16 FOR THE EASTERN DISTRICT OF CALIFORNIA 17 TRAVIS SWANK, on behalf of themselves ) Case No.: and all others similarly situated, ) 18 ) Plaintiff, ) CLASS ACTION COMPLAINT 19 v. ) ) 1. Violation of the California Consumer Legal 20 PORSCHE CARS NORTH AMERICA, ) Remedies Act (Civ. Code § 1750, et seq.); INC., ) 2. Violation of California Unfair Competition 21 ) Laws (Bus. & Prof. Code § 17200); Defendant. ) 3. Violation of California False Advertising 22 ) Law (Bus. & Prof. Code § 17500, et seq.); ) 4. Breach of Implied Warranty; 23 ) 5. Breach of Written Warranty under the Magnuson-Moss Warranty Act (15 U.S.C. ) § 2301, et seq.); 24 ) 6. Common Law Fraud; and ) 7. Unjust Enrichment 25 ) ) DEMAND FOR JURY TRIAL 26 ) ) 27 28 -1- Class Action Complaint Case No.: Case 2:17-at-00930 Document 1 Filed 09/08/17 Page 2 of 37 1 Plaintiff Travis Swank brings this action against Porsche Cars North America, Inc. 2 (“Defendant”), by and through his attorneys, individually and on behalf of all others similarly situated, 3 and alleges as follows: 4 I. INTRODUCTION 5 1. This is a class action lawsuit brought by Plaintiff on behalf of himself and a class of 6 current and former Porsche vehicle owners and lessees with defective camshaft adjuster bolts utilized in 7 numerous Porsche vehicles sold in the United States, including but not limited to: Cayenne S (MY 8 2011), Cayenne Turbo (MY 2011), Panamera (MYs 2011 and 2012), Panamera 4 (MYs 2011 and 9 2012), Panamera 4S (MYs 2010, 2011, and 2012), Panamera S (MYs 2010, 2011, and 2012), and 10 Panamera Turbo (MYs 2010, 2011, and 2012) (collectively, the “Class Vehicles”).1 11 2. This action arises from Defendant’s failure, despite its longstanding knowledge of a 12 material defect, to disclose to Plaintiff and other consumers that the Class Vehicles’ camshaft adjuster 13 bolts are defective and can potentially result in catastrophic engine failure (the “Camshaft Defect”), and 14 to provide fair and equitable redress to these consumers. 15 3. The Camshaft Defect can cause engine failure while the Class Vehicles are in operation 16 at any time and under any driving condition or speed. This exposes the driver and occupants of the 17 Class Vehicles, as well as others who share the road with them, to an increased risk of accident, injury, 18 or death. As discussed further herein, numerous owners and lessees of the Class Vehicles have 19 experienced engine damage and catastrophic failure while operating a Class Vehicle, thus placing 20 themselves and those around them in immediate danger. 21 4. Not only did Defendant actively conceal the fact that particular components within the 22 Class Vehicles’ engines are defective, it failed to reveal that the existence of the defect would diminish 23 the intrinsic and resale value of the Class Vehicles and lead to the safety concerns described herein. 24 5. Defendant has long been aware of the Camshaft Defect and many owners and lessees of 25 the Class Vehicles have communicated with Defendant or its agents to request that it remedy and/or 26 27 28 1 Plaintiff reserves the right to amend or add to the vehicle models included in the definition of Class Vehicles after conducting discovery. -2- Class Action Complaint Case No.: Case 2:17-at-00930 Document 1 Filed 09/08/17 Page 3 of 37 1 address the Camshaft Defect. Yet, notwithstanding its longstanding knowledge of this defect and such 2 requests, Defendant has routinely refused to repair the Class Vehicles without charge. 3 6. As a result of Defendant’s unfair, deceptive, and/or fraudulent business practices, 4 owners and/or lessees of the Class Vehicles, including Plaintiff, have suffered an ascertainable loss of 5 money and/or property and/or loss in value. 6 7. Had Plaintiff and other Class members known about the Camshaft Defect at the time of 7 purchase or lease, they would not have bought or leased the Class Vehicles, or would have paid 8 substantially less for them. 9 8. As a result of the Camshaft Defect and the monetary costs associated with attempting to 10 repair such defect, Plaintiff and the Class members have suffered injury in fact, incurred damages, and 11 have otherwise been harmed by Defendant’s conduct. 12 9. Accordingly, Plaintiff brings this action to redress Defendant’s violations of California’s 13 consumer fraud statutes and the Magnuson-Moss Warranty Act, and to also seek recovery for 14 Defendant’s breach of implied warranty, and common law fraud. 15 II. JURISDICTION AND VENUE 16 10. This Court has diversity jurisdiction over this action under 28 U.S.C. § 1332(a) and (d) 17 of the Class Action Fairness Act of 2005 because: (i) there are 100 or more Class members, (ii) there is 18 an aggregate amount in controversy exceeding $5,000,000, exclusive of interest and costs, and (iii) 19 there is minimal diversity because at least one Plaintiff and one Defendant are citizens of different 20 States. This Court has supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367. 21 11. This Court has personal jurisdiction over Plaintiff because Plaintiff submits to the 22 Court’s jurisdiction. This Court has personal jurisdiction over Defendant because it has been present by 23 conducting and continuing to conduct substantial business in this federal judicial District, and because 24 it has committed many of the acts and omissions complained of herein in the District. As such, 25 Defendant is subject to personal jurisdiction in this District. 26 12. Venue as to Defendant is proper in this judicial district under 28 U.S.C § 1391 27 because Defendant has one or more authorized Porsche dealers within this district, has advertised in 28 this district, and has received substantial revenue and profits from its sales and/or leasing of Class -3- Class Action Complaint Case No.: Case 2:17-at-00930 Document 1 Filed 09/08/17 Page 4 of 37 1 Vehicles in this district, including to Plaintiff Swank and other members of the Class; therefore, a 2 substantial part of the events and/or omissions giving rise to the claims occurred, in part, within this 3 district. 4 III. PARTIES 5 A. Plaintiff 6 13. Plaintiff Travis Swank is a resident and citizen of California, and currently resides in 7 Wheatland, California. 8 14. In or around May 2014, Plaintiff purchased a pre-owned 2011 Porsche Cayenne with 9 approximately 32,600 miles on the odometer (VIN: WP1AB2A29BLA45433). 10 15. On or about March 29, 2017, with approximately 86,000 miles on the odometer, 11 Plaintiff was driving when his engine failed. Plaintiff brought his vehicle to Niello Porsche, an 12 authorized dealer and service center located in Rocklin, California. Niello Porsche confirmed that 13 camshaft bolt had failed and that he would require a new engine that would cost approximately $25,000 14 to $30,000. 15 16. In lieu of replacing the entire engine, Plaintiff elected to fix the damaged components 16 himself. Plaintiff purchased the necessary parts from Niello Porsche for $1,841.66 and when all 17 purchases for the repair were accounted for, the cost was over $2,000. The repair took Plaintiff more 18 than 60 hours to complete time which he was not reimbursed for. 19 17. Plaintiff Swank has suffered an ascertainable loss as a result of Defendant’s omissions 20 and/or misrepresentations associated with the engine defect, including, but not limited to, out of pocket 21 losses associated with the Camshaft Defect, diminished value of his vehicle, and other consequential 22 damages. 23 18. Neither Defendant, nor any of their agents, dealers, or other representatives informed 24 Plaintiff Swank of the existence of the Camshaft Defect prior to, or any time after, his purchase. 25 B. Defendant 26 19. Defendant Porsche Cars North America, Inc., is a corporation which is incorporated 27 under the laws of Delaware, with its principal place of business located at One Porsche Drive, Atlanta, 28 Georgia. -4- Class Action Complaint Case No.: Case 2:17-at-00930 Document 1 Filed 09/08/17 Page 5 of 37 1 20. Defendant is a wholly-owned subsidiary of Dr. Ing. h.c. F. Porsche AG, which is 2 headquartered in Stuttgart, Germany. 3 IV. TOLLING OF STATUTES OF LIMITATIONS 4 21. Any applicable statute(s) of limitations have been tolled by Defendant’s knowing and 5 active concealment and denial of the facts alleged herein. Plaintiff and the members of the Class could 6 not have reasonably discovered the true, latent nature of the Camshaft Defect until shortly before this 7 class action litigation was commenced. 8 22. Defendant was and remains under a continuing duty to disclose to Plaintiff and the 9 members of the Class the true character, quality and nature of the Class Vehicles, that the Camshaft 10 Defect is based on the use of defective materials, that it will require costly repairs, that it poses a safety 11 concern, and that it diminishes the resale value of the Class Vehicles.
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