Elaine Miller vs. Toyota

1 ET SEQ.
)
7. UNLAWFUL, FRAUDULENT &
2 UNFAIR BUSINESS PRACTICES
3 (CAL. BUS. & PROF. CODE
§§ 17200, ET SEQ.)
4
DEMAND FOR JURY TRIAL
5
6
7 Individual and representative plaintiff ELAINE MILLER on behalf of herself and
8 all other similarly situated complains as follows:
9 INTRODUCTION
10 1. This class action is brought on behalf of Plaintiff ELAINE MILLER
PEARSON, SIMON, WARSHAW & PENNY, LLP
11 (hereinafter “Plaintiff”) and a class of all persons in the state of California who owned,
15165 VENTURA BOULEVARD, SUITE 400
SHERMAN OAKS, CALIFORNIA 91403
12 leased or otherwise possessed a 2010 Model Year Prius automobile (“PRIUS”) or 2010
13 Model Year Lexus HS250h automobile (“HS250h”) (collectively referred to as
14 "VEHICLES") manufactured, sold and warranted by Defendants TOYOTA MOTOR
15 SALES, U.S.A., INC. and TOYOTA MOTOR NORTH AMERICA, INC. (hereinafter
16 collectively referred to as “TOYOTA”) and DOES 1 through 500. Contrary to
17 TOYOTA'S representations regarding its safety and reliability, the VEHICLES suffer from
18 a material defect in its "Regenerative Braking System" that causes the braking system to
19 routinely and systematically disengage ("DEFECT"). As a direct and proximate result of
20 the DEFECT all VEHICLES are incapable of stopping or slowing down properly, unfit for
21 their ordinary purpose and pose a significant threat of injury to their owners and others.
22 2. Plaintiff is informed believes and alleges that since the current generation
23 PRIUS was introduced in the United States in May of 2009, TOYOTA had actual and
24 constructive knowledge that the DEFECT existed and could be remedied by a readily
25 available change to the VEHICLES’ braking system software, which TOYOTA has
26 attempted to implement on PRIUS vehicles produced since January of 2010. Nevertheless
27 TOYOTA has repeatedly, systematically, and unjustifiably denied the existence of the
28 DEFECT and refused introduce the remedial braking software on the VEHICLES.
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CLASS ACTION COMPLAINT
1 3. On February 4, 2010, the National Highway Traffic and Safety
2 Administration ("NHTSA") announced that it was opening a formal investigation into the
3 braking system failure in the PRIUS after receiving 124 consumer complaints arising from
4 the DEFECT, including four alleging that the DEFECT resulted in an automobile accident.
5 Nevertheless, TOYOTA has continued to fail to introduce a recall or institute appropriate
6 remedial measure for the DEFECT, in the face of the mounting evidence concerning the
7 existence, scope and danger associated with the DEFECT.
8 4. Plaintiff is informed and believes and thereon alleges that the HS250h
9 contains the same or a substantially similar braking system as the PRIUS.
10 5. Plaintiff has instituted this class action lawsuit in order to obtain all
11 appropriate remedies on behalf of herself and similarly situated owners of the VEHICLES.
12 THE PARTIES
13 The Plaintiff:
14 6. Plaintiff ELAINE MILLER, at all material times herein, was a resident of
15 Los Angeles County, California. In August 2009, Ms. MILLER purchased a 2010 model
16 TOYOTA PRIUS. This vehicle was purchased primarily for personal, family or household
17 non-commercial purposes. This vehicle was manufactured, sold, distributed, advertised,
18 marketed and warranted by TOYOTA. Since she purchased her PRIUS, Ms. MILLER has
19 repeatedly suffered the braking DEFECT when operating her vehicle.
20 The Defendants:
21 7. TOYOTA MOTOR SALES, U.S.A., INC. is a corporation organized in
22 existence of the laws of the State of California, with its principal place of business in Los
23 Angeles County, California. At all times relevant herein, TOYOTA MOTOR SALES was
24 engaged in the business of designing, manufacturing, constructing, assembling and selling
25 automobiles and automobile components.
26 8. TOYOTA NORTH AMERICA, INC. is a corporation organized in existence
27 of the laws of the State of California, with its principal place of business in Los Angeles
28 County, California. At all times relevant herein, TOYOTA NORTH AMERICA, INC.
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1 was engaged in the business of designing, manufacturing, constructing, assembling and
2 selling automobiles and automobile components.
3 9. Plaintiff does not know the true names and/or capacities, whether individual,
4 corporate, associate or otherwise, of Defendants DOES 1 through 500, inclusive, and
5 therefore sue them by such fictitious names, and Plaintiff will seek leave to amend this
6 Complaint to show their true names and/or capacities when the same have been
7 ascertained. Plaintiff is further informed and believes, and based thereon alleges, that each
8 of the fictitiously named Defendants is, in some manner, responsible for the events and
9 happenings herein referred to, either contractually or tortuously, and caused damages to
10 Plaintiff and class members as herein alleged.
11 10. At all times herein mentioned, Defendants, and each of them, were members
12 of, and engaged in, a joint venture, partnership and common enterprise, and acting within
13 the course and scope of, and in pursuance of, said joint venture, partnership and common
14 enterprise.
15 11. At all times herein mentioned, the acts and omissions of various Defendants,
16 and each of them, concurred and contributed to the various acts and omissions of each and
17 all of the other Defendants in proximately causing the injuries and damages as herein
18 alleged.
19 12. At all times herein mentioned, Defendants, and each of them, ratified each
20 and every act or omission complained of herein. At all times herein mentioned,
21 Defendants, and each of them, aided and abetted the acts and omissions of each and all of
22 the other Defendants in proximately causing the damages as herein alleged.
23 JURISDICTION AND VENUE
24 13. This Court has jurisdiction over this action pursuant to California Code of
25 Civil Procedure § 410.10.
26 14. The venue is proper in this Court pursuant to Code of Civil Procedure §§ 395
27 and 395.5 in that Defendants’ contracts, whether real or implied, were made and/or
28 performed in Los Angeles County, California.
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1 FACTUAL ALLEGATIONS
2 Nature of the Braking System Defect
3 15. Since the 2010 Model Year PRIUS was introduced in May of 2009 it has
4 been the third most popular vehicle sold by TOYOTA in the United States. To date,
5 TOYOTA has sold approximately 103,000 PRIUS vehicles in the United States, a
6 substantial portion of which were sold in the state of California.
7 16. The VEHICLES are hybrid gas-electric automobiles which use a
8 combination of a traditional gasoline powered engine and a battery powered electric motor
9 in order increase fuel efficiency. The VEHICLES are designed to run on battery power for
10 as long as possible and only use the traditional engine to provide the vehicle with
11 additional power when necessary. The constant interchange between the mechanical
12 engine, battery, and electronic motor of the VEHICLES are governed by the electric
13 controls that make up Toyota Hybrid System (THS) for the PRIUS and the Lexus Hybrid
14 Drive System (LHDS) for the HS250h, which dictate how the vehicles drive depending on
15 speed and load.
16 17. In order to increase energy efficiency the VEHICLES utilize a “Regenerative
17 Braking System" which utilizes a combination of hydraulic brake pads (found on
18 traditional gas powered vehicles) and electronically controlled regenerative systems during
19 periods of braking and deceleration. Unlike traditional hydraulic braking, which results in
20 a loss of energy required to slow the momentum of the vehicle, the regenerative braking
21 systems attempt to slow the momentum of the vehicle by causing the electric motor to run
22 backwards. During these periods when the electric motor runs backwards it not only
23 reduces speed, but also serves as a generator for the VEHICLES’ battery. When additional
24 braking power is necessary, the THS/LHDS activates its traditional hydraulic brake pads in
25 order to supply the additional force required to stop the vehicle. The VEHICLES’
26 traditional gasoline powered motors turn off during periods of braking or deceleration in
27 order to conserve fuel.
28 18. The interchange between the hydraulic and regenerative braking systems on
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1 the VEHICLES is controlled by the THS and LHDS. Plaintiff is informed, believes and
2 thereon alleges that the DEFECT with the braking system of all VEHICLES is the result of
3 a failure to the electronic controls of the regenerative braking system that causes the
4 braking system to disengage and fail when brakes are applied.
5 19. As the result of the DEFECT the VEHICLES consistently, repeatedly and
6 systematically fail to stop in a timely and reliable manner when confronted with routine
7 and minor bumps that are present in everyday driving conditions. The DEFECT is
8 extremely dangerous as it is likely to result, and has already resulted in automobile
9 accidents and injuries to persons as a result of the failure to the braking systems on the
10 vehicles. The further operation of the VEHICLES by Plaintiff and the Class will result in
11 additional injuries to VEHICLE owners, pedestrians, other drivers and their property.
12 Consumer Complaints and the NHTSA Investigation

13 20. The DEFECT has plagued all PRIUS vehicles sold in the state of California
14 and prevented Plaintiff and the Class from engaging in the use and enjoyment of their
15 vehicle.
16 21. Almost immediately after the PRIUS went on sale to the public, consumers
17 began to make complaints with TOYOTA and the NHTSA regarding the existence of the
18 DEFECT and the propensity of the brakes on the PRIUS to disengage and fail when the
19 vehicle encountered bumps, potholes or other uneven rode conditions.
20 22. A sampling of the 124 complaints received by the NHTSA as of February 4,
21 2010 regarding the DEFECT reads as follows:
22 "I THOUGHT THAT IT WAS JUST ME BUT WHEN I HEARD OTHERS
COMPLAINING ABOUT THE BRAKES ON THE NEW 2010 PRIUS I
23 CONFIRMED WHAT I HAVE BEEN EXPERIENCING. WHENEVER I
BEGIN TO BRAKE AND EITHER (A) HIT A BUMP OR (B) BEGIN A
24 TURN, THE CAR JUMPS OR LURCHES AS IF LOSING TRACTION
FOR AN OVERLY EXCESSIVE AMOUNT OF TIME LEADING TO A
25 SHORT BUT SIGNIFICANT LOSS OF CONTROL." (ODI #: 10304762)
26 "I HAVE BEEN DRIVING MY 2010 PRIUS FOR 4 MONTHS AND
EVERYDAY I DRIVE OVER THIS ROAD NEAR MY WORK THAT'S
27 NOT A TOTAL FLAT SURFACE WITH A BUMP, MY PRIUS JUST
JERKS AND SLIDES FORWARD AND ACCELERATES FOR A SPLIT
28 SECOND. THIS HAPPENS EVERY SINGLE DAY I DRIVE TO WORK
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1 OVER THIS BUMPY ROAD. IT WORRIES ME IF A PEDESTRIAN IS
WALKING IN FRONT OF ME I AM NOT SURE IF I CAN PULL TO A
2 COMPLETE STOP IN TIME." (ODI #: 10304681)
3 "VEHICLE SURGES FORWARD WHEN BRAKING OVER ROAD
SURFACE THAT IS NOT SMOOTH. SYMPTOM MAKES SAFELY
4 JUDGING STOPPING DISTANCE VERY DIFFICULT, AND IN OUR
OPINION, INCREASES LIKELIHOOD OF AN ACCIDENT. TOYOTA
5 DEALER CLAIMED THEY COULD NOT REPLICATE ISSUE AND
THAT VEHICLE'S COMPUTER DID NOT REPORT/RECORD ANY
6 PROBLEMS. WE CAN REPLICATE ISSUE OVER SAME BUMP
EVERYDAY." (ODI # 10304587)
7
"WHEN DRIVING AT MODERATE SPEEDS ON CITY/SURFACE
8 STREETS IN MY 2010 PRIUS, A BRAKING PROBLEM OCCURS. IF I
HIT A BUMP IN THE ROAD WHILE BRAKING, THE VEHICLE
9 LURCHES FORWARD AS IF THE BRAKES HAVE DISENGAGED,
EVEN THOUGH I AM STILL PRESSING THE BRAKE. I PUSH THE
10 BRAKES DOWN HARDER AND NOTHING HAPPENS. A FEW
SECONDS LATER, THE BRAKES COME BACK INTO PLAY AND THE
11 CAR SLOWS DOWN AGAIN. THIS HAS HAPPENED SEVERAL
TIMES, AND I HAVE NARROWLY AVOIDED ACCIDENTS CAUSED

12 BY THIS SEVERAL TIMES." (ODI # 10304475)
13 "WHEN BRAKING AND HITTING A BUMP AT THE SAME TIME
THERE IS A LOSS OF BRAKING POWER. THE VEHICLE LUNGES
14 FORWARD AS IF THE BRAKES HAVE STOPPED WORKING
MOMENTARILY. THIS CAUSED ME TO HAVE TO USE
15 ADDITIONAL CRASH AVOIDANCE MANEUVERS, IN ANOTHER
CIRCUMSTANCE COULD HAVE CAUSED AN ACCIDENT. IT FEELS
16 AS IF A PORTION OF THE BRAKING SYSTEM SHUTS OFF AFTER
HITTING THE BUMP." (ODI #: 10304376)
17
"THIS IS THE 3RD TIME I HAVE HAD A TOTAL LOCKOUT OF
18 BRAKING ON MY 2010 TOYOTA PRIUS. THIS SEEMS TO HAPPEN
MOST TIMES IF THE ROAD IS SLIGHTLY ROUGH AND DOWNHILL.
19 DEALER DENIES ANY KNOWN PROBLEMS BUT THIS LAST TIME I
WENT COMPLETELY THROUGH A STOP SIGN. HAD THERE BEEN
20 OTHER TRAFFIC I WOULD HAVE HAD AN ACCIDENT.” (ODI #:
1034347)
21
23. Unfortunately, other vehicle owners have not been so lucky and at least four
22
individuals have reported to the NHTSA that the DEFECT caused them to suffer an
23
accident. Two of these accidents resulted in bodily injuries. A sampling of these reported
24
accidents caused by the DEFECT reads in relevant part as follows:
25
"THE CONTACT OWNS A 2010 TOYOTA PRIUS. WHILE DRIVING 15
26 MPH AND ATTEMPTING TO ENGAGE THE BRAKE PEDAL IT
EXTENDED TO THE FLOOR; HOWEVER, WITHIN A FEW SECONDS
27 THE BRAKE WOULD RESPOND. SHE EXPERIENCED THE BRAKE
FAILURE THREE TIMES; DURING THE SECOND FAILURE THE
28 BRAKES DIDN'T RESPOND AND SHE COLLIDED INTO A VEHICLE
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1 AND INJURED HER NECK. SHE HAS NOT TAKEN THE VEHICLE TO
THE DEALER SINCE THE FAILURE OCCURRED ONLY WHEN SHE
2 HIT A BUMP IN THE ROAD. SHE WILL TAKE THE VEHICLE TO THE
DEALER TO BE DIAGNOSED. THE VIN WAS NOT AVAILABLE. THE
3 FAILURE MILEAGE WAS 3,000 AND THE CURRENT MILEAGE WAS
10,000." (ODI #: 10299897)
4
"I WAS UNABLE TO SLOW DOWN GOING INTO AN INTERSECTION
5 AT A REASONABLE RATE OF SPEED. WHILE I WAS NOT
ACCELERATING, WHEN I APPLIED THE BRAKES THE CAR DID
6 NOT SLOW DOWN AS I WOULD HAVE EXPECTED. THIS SAME
BEHAVIOR HAS OCCURRED IN THE PAST SEVERAL MONTHS
7 SINCE I'VE OWNED THE PRIUS 2010 MODEL. IT SEEMS TO SKIP
FORWARD OR ACCELERATE WHILE BRAKING ON A DOWNHILL
8 OR UNEVEN SURFACE. BY THE TIME I WAS ABLE TO STOP I THE
AIRBAGS HAD GONE OFF AND I HAD HURT MY NECK AND BACK.
9 IT IS A NEW VEHICLE THAT NOW HAS ALMOST $14,000 DAMAGE
AND WON'T BE FIXED FOR A MONTH. IF ANYTHING, I'M AN
10 OVERLY CAUTIOUS DRIVER AND WONDERING WHAT I COULD
HAVE DONE TO AVOID THE ACCIDENT." (ODI #: 10293583)

11
"I BOUGHT A BRAND NEW 2010 TOYOTA PRIUS AND LEFT THE
12 DEALER ON OCTOBER 23, 2009. I HAD TO STOP SHORT AT ONE OF
THE STOPLIGHTS ON THE WAY HOME AND NOTICED A
13 DISTURBING LAG BEFORE THE BRAKES ENGAGED. HOURS
LATER I WAS DRIVING DOWN A MAJOR HIGHWAY WHEN
14 TRAFFIC STOPPED SUDDENLY AND THE BRAKES WOULD NOT
ENGAGE. I REAR-ENDED THE CAR IN FRONT OF ME AND
15 MODESTLY DAMAGED THE CAR I HIT AND SEVERELY DAMAGED
MY NEW PRIUS. FORTUNATELY NO ONE WAS HURT. MY SIX
16 YEAR OLD SON WAS IN THE BACK SEAT." (ODI #: 10289744)
17 24. The numerous consumer complaints regarding the DEFECT led the NHTSA
18 to open a formal investigation into the matter on February 4, 2010. A NHTSA press
19 release regarding the inquiry states in pertinent part as follows:
20 "The National Highway Traffic Safety Administration (NHTSA) announced
that it is opening a formal investigation of the Toyota Prius Hybrid model
21 year 2010 to look into allegation of momentary loss of braking capability
while traveling over an uneven road surface, pothole or bump.
22
The Office of Defects Investigation has received 124 reports from
23 consumers, including four reports alleging that crashes occurred.
Investigators have spoken with consumer and conducted pre-investigatory
24 field work."
25 25. Consumers have filed similar complaints with the NHTSA arising from the
26 defective braking system of the HS250h. One of these complaints reads in pertinent part
27 as follows:
28 "I PURCHASED A LEXUS HS250 IN OCTOBER 2009. SINCE THEN, I
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1 HAVE EXPERIENCED AT LEAST 6 OCCASIONS FROM THE END OF
OCTOBER 2009 TO EARLY FEBRUARY 2010 IN WHICH I BRAKED
2 WITH THE INTENTION OF COMING TO A STOP. THE VEHICLE
BEGAN TO SLOW DOWN IN THE BRAKING PROCESS, THEN THE
3 BRAKES STALLED FOR A FEW SECONDS BEFORE RESUMING THE
BRAKING ACTION. IT IS UNEXPECTED AND DANGEROUS
4 BECAUSE YOU DON'T KNOW IF YOUR BRAKES ARE
COMPLETELY STALLING OR NOT. FOR A COUPLE OF SECONDS,
5 EVERYTHING JUST GIVES WAY BEFORE THE BRAKES SEEM TO
BEGIN WORKING AGAIN. IN THAT SITUATION, YOU DON'T KNOW
6 WHETHER TO PRESS DOWN A SECOND TIME ON THE BRAKE OR
TO PUMP THE BRAKE PEDAL OR NOT DO ANYTHING. WHEN THIS
7 EVENT HAPPENS, YOU FEEL AS IF YOU HAVE ABSOLUTELY NO
CONTROL OVER THE OPERATION OF THE VEHICLE, SIMILAR TO
8 DRIVING ON A SHEET OF ICE, EXCEPT NONE OF THOSE SAFETY
RULES SEEM TO APPLY HERE. THIS HAS HAPPENED ABOUT
9 EVERY FEW WEEKS. I HAVE NOTICED THAT IT SOMETIMES
HAPPENS WHEN I AM DRIVING OVER AN UNEVEN SURFACE,
10 BUMP, OR A POTHOLE IN IN THE STREET WHILE BREAKING.
WHILE I HAVE NOT BEEN INVOLVED IN A CRASH, IT HAS

11 WORRIED ME THAT THIS COULD LEAD TO ONE."
12 Toyota's Active Concealment and Refusal to Remedy the Defect

13 26. Plaintiff is informed believe and thereon alleges that despite their knowledge
14 of the existence of the failure, TOYOTA continued to tout the safety and reliability of the
15 VEHICLES until it was confronted by the announcement of the NHTSA investigation.
16 27. After the announcement of the NHTSA investigation, TOYOTA revealed
17 that it had in fact been aware of the design defect with the braking system of the PRIUS
18 arising from a software failure with the VEHICLES for months prior to the announcement
19 of the NHTSA investigation. TOYOTA further announced that it had instituted a software
20 correction for the DEFECT on PRIUS vehicles produced since January of 2010. Despite
21 this announcement, Plaintiff is informed and believes and thereon alleges that TOYOTA
22 has failed to issue a Technical Service Bulletin advising its dealerships and customers that
23 a potential fix for the DEFECT exists.
24 28. Plaintiff is informed and believes that TOYOTA dealerships are unaware of
25 the DEFECT or the software fix. Further, Plaintiff is informed and believes and thereon
26 alleges that the purported fix does not correct the DEFECT.
27 29. TOYOTA'S recent admissions contradict its previous assertions regarding
28 the safety and reliability of the VEHICLES and constitute fraudulent concealment of facts
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1 that pose a threat to the safety of their customers and members of the public.
2 30. Despite its awareness of the existence of the defect TOYOTA has
3 systematically and repeatedly refused to institute a recall of the VEHICLES and refused to
4 repair the DEFECT on VEHICLES produced prior to January of 2010.
5 31. Plaintiff is informed and believes and thereon alleges that the braking
6 systems of the HS250h suffer the same DEFECT as the PRIUS.
7 32. As a result of the DEFECT and TOYOTA'S conduct alleged herein Plaintiff
8 and the Class have suffered, and continue to suffer injuries, to which they are entitled
9 immediate legal recourse.
10 CLASS ACTION ALLEGATIONS
11 33. Plaintiff brings this action individually and as a Class Action on behalf of a
12 Class and/or sub-classes which includes:

13 a. All persons residing in the state of California who are the
14 owners or lessees of a 2010 Model Year Prius automobile. Excluded from
15 the Class are defendants, their parent companies, subsidiaries and affiliates,
16 any co-conspirators, all governmental entities, and any judges or justices
17 assigned to hear any aspect of this action.
18 b. All persons residing in the state of California who are the
19 owners or lessees of a 2010 Model Year Lexus HS250h automobile.
20 Excluded from the Class are defendants, their parent companies,
21 subsidiaries and affiliates, any co-conspirators, all governmental entities,
22 and any judges or justices assigned to hear any aspect of this action.
23 34. The two aforementioned sub-classes shall collectively be referred to herein
24 as "the Class."
25 35. This action is brought and may properly be maintained as a class action
26 pursuant to California Code of Civil Procedure § 382 and California Rules of Court, Rule
27 3.760, et seq. This action satisfies the numerosity, typicality, adequacy, predominance and
28 superiority requirements of those provisions.
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1 36. The Class is so numerous that the individual joinder of all of its members is
2 impracticable. While the exact number and identities of Class Members are unknown to
3 Plaintiff at this time and can only be ascertained through appropriate discovery.
4 37. Common questions of fact and law exist as to all members of the Class
5 which predominate over any questions affecting only individual members of the Class.
6 These common legal and factual questions, which do not vary from Class Member to Class
7 Member, and which may be determined without reference to the individual circumstances
8 of any Class Member include, but are not limited to, the following:
9 a. Whether the VEHICLES suffer from the DEFECT alleged herein;
10 b. Whether Defendants failed to notify Plaintiff and the Class of the
11 DEFECT;
12 c. Whether Defendants have engaged in conduct which constitute breach

13 of implied warranty;
14 d. Whether Defendants engaged in conduct which constitute breach of
15 express warranty;
16 e. Whether Defendants are strictly liable for the defects as described
17 herein;
18 f. Whether Defendants engaged in negligence, as described herein;
19 g. Whether Defendants engaged in negligent misrepresentation, as
20 described herein;
21 h. Whether Defendants maintained a business practice of denying repairs
22 and claims for damages of the Plaintiff and the Class resulting from
23 the DEFECT;
24 i. Whether Defendants’ conduct constitutes an unfair, unlawful and/or
25 fraudulent business practice (Cal. Bus. & Prof. Code §§ 17200 et
26 seq.);
27 j. Whether Defendants’ conduct constitutes a violation of the Consumer
28 Legal Remedies Act (Cal. Civ. Code §§ 1750, et seq.);
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1 k. Whether Plaintiff and the Class are entitled to compensatory damages,
2 and if so, the nature of such damages; and
3 l. Whether Class Members are entitled to injunctive relief.
4 38. Plaintiff's claims are typical of the claims of the members of the Class, and
5 the representative Plaintiff's interests coincide with and not antagonistic to those of the
6 other Class Members she seeks to represent. Plaintiff and all members of the Class have
7 sustained damages and are facing irreparable harm arising out of Defendants’ common
8 course of conduct as complained of herein. The damages of each member of the Class
9 were caused directly by Defendants’ wrongful conduct as alleged herein.
10 39. Plaintiff will fairly and adequately protect the interests of the members of the
11 Class. Plaintiff has retained attorneys experienced in the prosecution of class actions,
12 including complex employment, consumer, and product defect class actions, and Plaintiff
13 intends to prosecute this action vigorously.
14 40. A class action is superior to other available methods for the fair and efficient
15 adjudication of this controversy, since individual litigation of the claims of all Class
16 Members is impracticable. Even if every Class Member could afford individual litigation,
17 the court system could not. It would be unduly burdensome to the courts in which
18 individual litigation of numerous cases would proceed. Individualized litigation would
19 also present the potential for varying, inconsistent, or contradictory judgments and would
20 magnify the delay and expense to all parties and to the court system resulting from
21 multiple trials of the same complex factual issues. By contrast, the conduct of this action
22 as a class action, with respect to some or all of the issues presented herein, presents fewer
23 management difficulties, conserves the resources of the parties and of the court system,
24 and protects the rights of each Class Member.
25 41. The prosecution of separate actions by individual Class Members may create
26 a risk of adjudications with respect to them that would, as a practical matter, be dispositive
27 of the interests of the other Class Members not parties to such adjudications or that would
28 substantially impair or impede the ability of such non-party Class Members to protect their
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1 interests.
2 42. Individual actions by Class Members would establish incompatible standards
3 of conduct for Defendants.
4 43. Defendants have acted or refused to act in respects generally applicable to
5 the Class, thereby making appropriate final and injunctive relief with regard to the
6 members of the Class as a whole, as requested herein.
7 FIRST CAUSE OF ACTION
8 BREACH OF THE IMPLIED WARRANTY OF MERCHANTABILITY
9 PLAINTIFF AND THE CLASS AGAINST ALL DEFENDANTS
10 44. Plaintiff incorporates herein by reference all preceding paragraphs of this
11 Complaint as though fully set forth in this cause of action.

12 45. At the time Plaintiff and the Class purchased their VEHICLES, the
13 Defendants impliedly warranted that the VEHICLES were of merchantable quality and
14 were safe and fit for their intended uses.
15 46. Defendants and each of them breached the implied warranty described
16 above, in that the VEHICLES were not of merchantable quality and were not safe and fit
17 for their intended uses.
18 47. Plaintiff is informed and believes and thereon alleges that that the vehicles
19 manufactured by TOYOTA have an inherent defect which is substantially certain to result
20 in a malfunction during the useful life of the vehicle.
21 48. When the VEHICLES were purchased by Plaintiff and the Class, they
22 contained a manufacturer defect, defect in assembly, design defect, and other defects,
23 rendering the VEHICLES unsafe for use, and making it impossible for Plaintiff and the
24 Class to use the VEHICLES for their ordinary purpose.
25 49. As a direct and proximate result of said breach by Defendants, and each of
26 them, Plaintiff and the Class’ have suffered severe damage, which rendered the
27 VEHICLES unfit for their ordinary purpose.
28
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1 SECOND CAUSE OF ACTION
2 BREACH OF EXPRESS WARRANTY
6 51. Defendants, and each of them, expressly warranted that the VEHICLES were
7 merchantable, safely designed, assembled and fit for the purpose for which they were
8 designed, produced, sold and intended to be used.
9 52. Defendants have knowingly concealed, suppressed, omitted, failed to
10 disclose and/or misrepresented the nature and/or extent of the DEFECT, with the intent
11 that others rely thereon.

12 53. Defendants, and each of them, breached the aforementioned express

13 warranties in that the VEHICLES were not merchantable, safely designed, properly
14 assembled, nor fit for the purpose for which they were intended to be used.
15 54. Plaintiff is informed and believes and thereon alleges that that the
16 VEHICLES manufactured by TOYOTA have an inherent defect which is substantially
17 certain to result in a malfunction during the useful life of the vehicle.
18 55. Defendants, and each of them, breached the aforementioned express
19 warranties in that the braking system is defective and incapable of functioning properly.
21 them, the VEHICLES have proven to be virtually useless due to the severity and existence
22 of the DEFECT.
23 57. Plaintiff is informed and believes and thereon alleges that Defendants failure
24 to comply with the terms of the written warranty provided to Plaintiff and the Class was
25 willful and knowing.
27 them, Plaintiff and the Class have suffered incidental and consequential damages in an
28 amount to be proven at the time of trial.
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1 THIRD CAUSE OF ACTION
2 STRICT PRODUCTS LIABILITY
6 60. At all times mentioned in this complaint, the VEHICLES and their
7 component parts were defective as to their design, manufacture, and warnings, causing the
8 VEHICLES and their component parts to be in a defective condition that made them
9 dangerous and unsafe for their intended use. Specifically, the VEHICLES’ braking system
10 was defective and incapable of properly slowing down the VEHICLES in normal driving
11 conditions.
12 61. The VEHICLES are defective in their design in that at the time the
13 VEHICLES left the possession of Defendants, the risk of danger inherent in their design
14 outweighed the benefits achieved from the use of the defective product.
15 62. As a direct and proximate result of the dangerous and defective condition of
16 the VEHICLES as described above, Plaintiff and the Class were seriously damaged when
17 they were using the VEHICLES in the manner for which they were intended.
18 63. As a consequence of the aforementioned defects Plaintiff and the Class have
19 suffered damages in the amount to be proven at the time of trial.
20 FOURTH CAUSE OF ACTION
21 NEGLIGENCE
25 65. Defendants are the owners, manufacturers, designers, marketers and/or
26 sellers of the VEHICLES.
27 66. Defendants have a duty to Plaintiff and the Class to act as a reasonable
28 business would in the manufacturing, sale, design of a product that will enter the stream of
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1 commerce. Defendants further have a duty to Plaintiff and the Class to inform them of
2 known DEFECTS affecting their safety.
3 67. Defendants breached their duty of care by negligently manufacturing the
4 VEHICLES with a defective braking system and allowing the VEHICLES to enter the
5 stream of commerce. Defendants further breached their duty of care by failing to advise
6 and inform Plaintiff and the Class of the existence and scope of the DEFECT and initiating
7 necessary repairs for the DEFECT. The DEFECT makes it impossible use the VEHICLES
8 in the manner for which they were intended.
9 68. Defendants failed to use ordinary care and skill in the manufacturing of the
10 VEHICLES. Defendants failed to take reasonable precautions to insure that the
11 VEHICLES would not suffer a failure when used for their intended purpose.
12 69. Defendants manufactured, sold and distributed the VEHICLES to Plaintiff

13 and the Class without conducting the proper inspections and disclosures with regard to the
14 defective braking system.
15 70. As a direct and proximate result of the negligent conduct relating to the
16 engineering, designing, and manufacturing of the VEHICLES, the VEHICLES have
17 proven to be virtually useless due to their inability to brake properly.
18 71. As a consequence of the negligence of the Defendants as stated herein,
19 Plaintiff and the Class have suffered property damage and loss of use of property in an
20 amount to be proven at the time of trial.
21 FIFTH CAUSE OF ACTION
22 NEGLIGENT MISREPRESENTATION
26 73. Defendant represented to Plaintiff and the Class that a material fact was true,
27 namely that the VEHICLES were safe and reliable when used for their ordinary purpose.
28 74. However, these representations were not true as the braking system on the
810228.2
16
1 VEHICLES were inherently flawed and incapable of safely stopping or slowing down the
2 VEHICLES.
3 75. Plaintiff is informed and believes and thereon alleges that Defendants have
4 no reasonable grounds that believing that the representations were true when they were
5 made.
6 76. Defendants intended that Plaintiff and the Class rely on their representations.
7 Plaintiff and the Class reasonably relied on the Defendants’ representations.
8 77. Plaintiff and the Class were harmed based upon the Defendants’
9 misrepresentations.
10 78. Plaintiff and the Class’ reliance on the representations of the Defendants was
11 a substantial factor in causing their harm.

12 SIXTH CAUSE OF ACTION

13 VIOLATION OF THE CONSUMER LEGAL REMEDIES ACT
14 (CAL. CIV. CODE §§ 1750 ET SEQ.)
18 80. Defendants have engaged in and continue to engage in business practices in
19 violation of California Civil Code §§ 1750 et seq. (the Consumer Legal Remedies Act) by
20 falsely representing that the braking system on the VEHICLES functioned properly. These
21 business practices are mislead and/or likely to mislead consumers and should be enjoined.
22 81. Defendants have engaged in deceptive acts or practices intended to result in
23 the sale of the VEHICLES in violation of California Civil Code § 1770. Defendants knew
24 and/or should have known that their misrepresentations actually mislead or were likely to
25 mislead and/or deceive consumers regarding the characteristics or benefits of the
26 VEHICLES including the braking system and their ability to operate properly when
27 utilized for their intended purpose.
28 82. Plaintiff's counsel put TOYOTA on notice that it was in violation of the
810228.2
17
1 Consumers Legal Remedies Act, at the time of filing this lawsuit via a notice letter.
2 Plaintiff will amend this Complaint thirty (30) days after the aforementioned notice letter
3 was sent to TOYOTA to include a request for damages. See Cal. Civ. Code § 1782(d).
4 83. The Defendants have violated the Consumers Legal Remedies Act, including
5 but not limited to the following: (1) Using deceptive representations in connection with
6 goods or services in violation of California Civil Code § 1770(a)(4); and/or (2)
7 representing the goods have characteristics, uses or benefits which they do not have in
8 violation of California Civil Code § 1770(a)(5). As a direct and proximate result of
9 Defendants’ conduct, as set forth herein, Defendants have received ill-gotten gains and/or
10 profits including but not limited to money. Therefore, said Defendants were and are
11 unjustly enriched.
12 84. Pursuant to California Civil Code §§ 1780(a)(2)-(5) and 1780(d) Plaintiff

13 and members of the Class seek injunctive relief, restitution, ancillary relief and attorneys’
14 fees and costs to the full extent allowed by law.
15 85. Pursuant to California Civil Code § 1780(a)(2), Plaintiff and members of the
16 Class seek to enjoin Defendants from engaging in the unlawful, fraudulent and unfair
17 business practices as alleged herein. There is no other adequate remedy at law and if an
18 injunction is not ordered, Plaintiff and the Class will suffer irreparable harm by following
19 the falsely disseminated information by Defendants.
20 SEVENTH CAUSE OF ACTION
21 UNLAWFUL, FRAUDULENT & UNFAIR BUSINESS PRACTICES
22 (CAL. BUS. & PROF. §§ 17200 ET SEQ.)
26 87. Defendants have engaged and continue to engage in unlawful, fraudulent
27 unfair practices, which are substantially likely to mislead the public by falsely
28 disseminating information to consumers that the VEHICLES are safe and reliable when
810228.2
18
1 utilized for their intended use.
2 88. Defendants have engaged in unlawful, fraudulent unfair conduct which
3 violates the Unfair Competition laws (Bus. & Prof. Code §§ 17200, et seq.) by:
4 a. Failed to notify consumers of the braking defect;
5 b. Failed to issue a Technical Service Bulletin;
6 c. Disseminated representations with incorrect information regarding the
7 safety and reliability of the VEHICLES;
8 d. Knowingly manufactured, distributed, marketed, advertised and sold
9 VEHICLES containing the defective braking system;
10 e. Uniformly represented that the subject braking system on the
11 VEHICLES were defect free, when in fact Defendants were aware or

12 should have been aware that the braking system had an inherent defect
13 which materially impacted their reliability and safety;
14 f. Misled and continue to mislead consumers as to the characteristics,
15 attributes and qualities of the VEHICLES. This conduct constitutes
16 unlawful, unfair and/or fraudulent business practices in the meaning
17 of Unfair Competition Laws;
18 g. The business acts and practices of Defendants are unlawful within the
19 meaning of the Unfair Competition Law in that such acts and
20 practices violate the Consumer Legal Remedies Act;
21 h. The business acts and practices of Defendants are fraudulent within
22 the meaning of the Unfair Competition Law in that such acts and
23 practices are likely to deceive consumers as to their legal rights and
24 obligations with respect to the VEHICLES Defendants warranted and
25 sold as suitable for consumer use, while knowing that the VEHICLES
26 suffer a common deficiency and inherent defect which causes them
27 not to comply with the standards under which they are sold; and
28 i. The business acts and practices of Defendants are unfair within the
810228.2
19
1 meaning of the Unfair Competition Law in that such acts and
2 practices are substantially injurious to consumers and offensive to
3 established public policy, in that Defendants have failed to give
4 adequate notice or offer a fix of the DEFECT at their sole expense.
5 89. Plaintiff actually and reasonably relied on the aforementioned misleading
6 and deceptive representations regarding the safety and reliability of the VEHICLES.
7 Plaintiff would not have purchased her VEHICLE had she been aware of the existence of
8 the DEFECT.
9 90. These above-described unlawful, unfair and fraudulent business practices
10 and false and misleading advertising and unfair competition by Defendants continue to
11 present a threat to Plaintiff and the Class. Plaintiff is informed and believes and thereon
12 alleges that Defendants have systematically perpetrated deceptive and unfair practices
13 upon members of the public and have intentionally deceived Plaintiff and the Class.
14 91. In addition, the use of print media to promote the sale of TOYOTA
15 automobiles through false and deceptive representations constitutes unfair competition and
16 unfair, deceptive, untrue or misleading advertising within the meaning of the Unfair
17 Competition Laws.
18 92. The refusal to recall and remediate the DEFECT constitutes a continuing and
19 ongoing unlawful activity prohibited by Business & Professions Code §§ 17200 et seq.,
20 and justifies the issuance of an injunction requiring Defendants to recall the VEHICLES
21 and act in accordance with the law. All remedies are cumulative pursuant to Business &
22 Professions Code § 17205.
23 93. Pursuant to Business & Professions Code § 17203, Plaintiff and the Class
24 request restitution and/or restitutionary disgorgement all sums obtained in violation of
25 Business & Professions Code §§ 17200, et seq. as authorized by Cortez v. Purolator Air
26 Filtration Products Co., (2000) 23 Cal.App.4th 163.
27 PRAYER FOR RELIEF
28 WHEREFORE, Plaintiff on behalf of herself and all other similarly situated, pray
810228.2
20
1 for relief and judgment against Defendants, and each of them, as follows:
2 1. That the court enter an order certifying the plaintiff class and any appropriate
3 sub-class thereof, and appointing plaintiff and her counsel to represent the class;
4 2. That the court enter an order for incidental and consequential damages in an
5 amount to be proven at the time of trial;
6 3. That the court enter an order for special damages in an amount to be proven
7 at the time of trial;
8 4. That the court enter an order for general damages in a sum according to
9 proof at the time of trial;
10 5. That the court enter an order providing restitution to Plaintiff and the Class
11 of all monies wrongfully obtained by the Defendants;

12 6. For preliminary and injunctive relief;

13 7. For reasonable attorneys’ fees, including but not limited to California Code
14 of Civil Procedure § 1021.5 and California Civil Code §§ 1750, et seq. and other
15 applicable laws;
16 8. For Plaintiff's costs incurred; and
17 / / /
18 / / /
19 / / /
20 / / /
21 / / /
22 / / /
23 / / /
24 / / /
25 / / /
26 //
27 / / /
28 / / /
810228.2
21
1 9. For such other, further and different relief which the court deems just and
2 proper.
3 DATED: February 5, 2010 PEARSON, SIMON,
WARSHAW & PENNY, LLP
4 CLIFFORD H. PEARSON
BRUCE L. SIMON
5 DANIEL L. WARSHAW
BOBBY POUYA
6
THE LAW OFFICE OF ROBERT L. STARR
7 ROBERT L. STARR, ESQ.
8
9
By: /s/
10 DANIEL L. WARSHAW
11 Attorneys for Plaintiff ELAINE MILLER, an

individual on behalf of herself and all others

12 similarly situated
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810228.2
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1 DEMAND FOR JURY TRIAL
2 Plaintiff, ELAINE MILLER, on behalf of herself and all others similarly situated,
3 hereby requests a jury trial on the claims so triable.
4 DATED: February 5, 2010 PEARSON, SIMON,
WARSHAW & PENNY, LLP
5 CLIFFORD H. PEARSON
BRUCE L. SIMON
6 DANIEL L. WARSHAW
BOBBY POUYA
7
THE LAW OFFICE OF ROBERT L. STARR
8 ROBERT L. STARR, ESQ.
9
10
By: /s/
11
DANIEL L. WARSHAW
12 Attorneys for Plaintiff ELAINE MILLER, an

individual on behalf of herself and all others
13 similarly situated
14
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810228.2
23

Elaine Miller vs. Toyota

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Elaine Miller vs. Toyota

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1 ET SEQ.

12 Consumer Complaints and the NHTSA Investigation

TIMES, AND I HAVE NARROWLY AVOIDED ACCIDENTS CAUSED

HAVE DONE TO AVOID THE ACCIDENT." (ODI #: 10293583)

WHILE I HAVE NOT BEEN INVOLVED IN A CRASH, IT HAS

12 Toyota's Active Concealment and Refusal to Remedy the Defect

12 Class and/or sub-classes which includes:

12 c. Whether Defendants have engaged in conduct which constitute breach

11 Complaint as though fully set forth in this cause of action.

11 that others rely thereon.

12 53. Defendants, and each of them, breached the aforementioned express

12 69. Defendants manufactured, sold and distributed the VEHICLES to Plaintiff

11 a substantial factor in causing their harm.

12 SIXTH CAUSE OF ACTION

12 84. Pursuant to California Civil Code §§ 1780(a)(2)-(5) and 1780(d) Plaintiff

11 VEHICLES were defect free, when in fact Defendants were aware or

11 of all monies wrongfully obtained by the Defendants;

12 6. For preliminary and injunctive relief;

11 Attorneys for Plaintiff ELAINE MILLER, an

individual on behalf of herself and all others

12 Attorneys for Plaintiff ELAINE MILLER, an

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