Since the Dilly, Dally, Delay & Stall Law Firms are adding their billable hours, the Toyota U.S.A. and Route 44 Toyota posts have been separated here:

Route 44 Toyota Sold Me A Lemon

Sunday, July 2, 2017

Tesla Can't Dodge Sudden Acceleration Suit

Tesla Can't Dodge Sudden Acceleration


Law360, New York (June 8, 2017, 6:22 PM EDT) -- A California federal judge Wednesday
refused to toss a proposed class action alleging some Tesla vehicles are prone to sudden
and unintended acceleration, saying the drivers sufficiently alleged a manufacturing defect
and breach of warranty claims. 

U.S. District Judge James V. Selna partly denied Tesla Inc.’s motion to dismiss half of the
claims brought against it under California, Ohio, Georgia, and North Carolina law in a
proposed class action first launched last December by South Korean musician and actor Ji
Chang Son claiming he and his son were injured when his Tesla Model X SUV crashed
through his garage and into his living room due to what he alleged was a sudden and
unintended acceleration while he was parking the vehicle.

In his order Wednesday, Judge Selna said the plaintiffs — who include four named plaintiffs
in addition to Son — had enough in their allegations that Tesla sold cars with a manufacturing
defect that breached the company’s basic vehicle limited warranty.

The plaintiffs had alleged that “the parts affected by the defect, including the accelerator
control system and automated emergency braking, were distributed by Tesla in the Model S
and Model X and are covered by the warranties Tesla provided to all purchasers and lessors
of its vehicles” and that Tesla breached its warranties by “providing vehicles that were not
fully operational, safe, or reliable; and not curing defects and nonconformities once they were

“This language demonstrates that plaintiffs have pleaded that there is an express warranty in
writing, the accelerator system and the braking system contain defects, and the class
vehicles did not conform,” Judge Selna said.

While the judge said the drivers didn’t adequately plead that Tesla’s marketing statements —
i.e. Tesla’s specific representations on the safety of the Model S and Model X vehicles —
created additional warranties, he gave them a chance to tweak their claim to the extent that
they want to rely on their marketing statements theory.

Tesla, however, did manage to score dismissal of some of the specific state-law claims.

Judge Selna agreed to toss a claim under the Ohio Deceptive Trade Practices Act brought
by one of the other named plaintiffs, Madhusudhana Shastrula, for lack of standing, as well
as a claim under the Ohio Consumer Sales Practices Act that the judge allowed to be

He also tossed a claim brought under Georgia’s Fair Business Practices Act, saying
Shastrula was only added on as a plaintiff to the first amended complaint a couple of days
after his Model X suddenly and unintentionally accelerated Feb. 27, so that didn’t meet the
notice requirement.

But Judge Selna allowed the plaintiffs to amend their unjust enrichment claim in Georgia and
their claim under Georgia’s Uniform Deceptive Trade Practices Act to more adequately
allege that they would experience future harm from Tesla's alleged conduct without some
sort of injunctive relief.

Tesla had moved in April to 
dismiss about half 
of the proposed class action accusing it of
building and selling cars that are prone to sudden and unintended acceleration, saying the
plaintiffs’ warranty claims were baseless because they dealt with a design defect that wasn’t
covered by warranty.

The drivers had 
fired back at that dismissal bid, arguing that Tesla was improperly
deflecting blame onto the drivers themselves by saying the alleged incidents stemmed from
human error.

The plaintiffs said in their first amended complaint that all Model S sedans and Model X
SUVs were defectively designed or that Tesla didn’t develop a computer program that would
eliminate the danger of full-throttle acceleration, even if caused by human error.

Counsel for the plaintiffs and representatives for Tesla were not immediately available for
comment Thursday.

The drivers are represented by Richard D. McCune and David C. Wright of 
McCune Wright
Arevalo LLP and Benedict O. Kwon and Stephen L. Ram of Stradling Yocca Carlson &
Rauth PC.

Tesla is represented by Penelope A. Preovolos, Daniel James Wilson and Kimberly R.
Gosling of Morrison & Foerster LLP and by Sean Gates of Caris Lex PC.

The case is Ji Chang Son, et al., v. 
Tesla Motors Inc., case number 8:16-cv-02282, in the
U.S. District Court for the Central District of California.

--Additional reporting by John Kennedy and Steven Trader. Editing by Orlando Lorenzo.

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