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PEARSON, SIMON, WARSHAW & PENNY, LLP

15165 VENTURA BOULEVARD, SUITE 400 SHERMAN OAKS, CALIFORNIA 91403

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ET SEQ.)

7. UNLAWFUL, FRAUDULENT & UNFAIR BUSINESS PRACTICES (CAL. BUS. & PROF. CODE §§ 17200, ET SEQ.)

DEMAND FOR JURY TRIAL

Individual and representative plaintiff ELAINE MILLER on behalf of herself and

all other similarly situated complains as follows:

INTRODUCTION

1. This class action is brought on behalf of Plaintiff ELAINE MILLER

(hereinafter “Plaintiff”) and a class of all persons in the state of California who owned,

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

Model Year Lexus HS250h automobile (“HS250h”) (collectively referred to as

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

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

collectively referred to as “TOYOTA”) and DOES 1 through 500. Contrary to

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

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

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

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

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

2. Plaintiff is informed believes and alleges that since the current generation

PRIUS was introduced in the United States in May of 2009, TOYOTA had actual and

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

available change to the VEHICLES’ braking system software, which TOYOTA has

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

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

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

810228.2

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CLASS ACTION COMPLAINT

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3.

On February 4, 2010, the National Highway Traffic and Safety

PEARSON, SIMON, WARSHAW & PENNY, LLP

15165 VENTURA BOULEVARD, SUITE 400 SHERMAN OAKS, CALIFORNIA 91403

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Administration ("NHTSA") announced that it was opening a formal investigation into the

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

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the DEFECT, including four alleging that the DEFECT resulted in an automobile accident.

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Nevertheless, TOYOTA has continued to fail to introduce a recall or institute appropriate

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remedial measure for the DEFECT, in the face of the mounting evidence concerning the

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existence, scope and danger associated with the DEFECT.

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4.

Plaintiff is informed and believes and thereon alleges that the HS250h

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contains the same or a substantially similar braking system as the PRIUS.

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5.

Plaintiff has instituted this class action lawsuit in order to obtain all

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appropriate remedies on behalf of herself and similarly situated owners of the VEHICLES.

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THE PARTIES

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The Plaintiff:

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6.

Plaintiff ELAINE MILLER, at all material times herein, was a resident of

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Los Angeles County, California. In August 2009, Ms. MILLER purchased a 2010 model

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

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

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

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repeatedly suffered the braking DEFECT when operating her vehicle.

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The Defendants:

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7.

TOYOTA MOTOR SALES, U.S.A., INC. is a corporation organized in

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existence of the laws of the State of California, with its principal place of business in Los

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

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

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automobiles and automobile components.

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8.

TOYOTA NORTH AMERICA, INC. is a corporation organized in existence

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of the laws of the State of California, with its principal place of business in Los Angeles

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

810228.2

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CLASS ACTION COMPLAINT

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

PEARSON, SIMON, WARSHAW & PENNY, LLP

15165 VENTURA BOULEVARD, SUITE 400 SHERMAN OAKS, CALIFORNIA 91403

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selling automobiles and automobile components.

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9.

Plaintiff does not know the true names and/or capacities, whether individual,

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corporate, associate or otherwise, of Defendants DOES 1 through 500, inclusive, and

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therefore sue them by such fictitious names, and Plaintiff will seek leave to amend this

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Complaint to show their true names and/or capacities when the same have been

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

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

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

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Plaintiff and class members as herein alleged.

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10.

At all times herein mentioned, Defendants, and each of them, were members

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of, and engaged in, a joint venture, partnership and common enterprise, and acting within

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

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enterprise.

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11.

At all times herein mentioned, the acts and omissions of various Defendants,

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and each of them, concurred and contributed to the various acts and omissions of each and

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

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alleged.

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12.

At all times herein mentioned, Defendants, and each of them, ratified each

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and every act or omission complained of herein. At all times herein mentioned,

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

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

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JURISDICTION AND VENUE

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13.

This Court has jurisdiction over this action pursuant to California Code of

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Civil Procedure § 410.10.

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14.

The venue is proper in this Court pursuant to Code of Civil Procedure §§ 395

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and 395.5 in that Defendants’ contracts, whether real or implied, were made and/or

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performed in Los Angeles County, California.

810228.2

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CLASS ACTION COMPLAINT

PEARSON, SIMON, WARSHAW & PENNY, LLP

15165 VENTURA BOULEVARD, SUITE 400 SHERMAN OAKS, CALIFORNIA 91403

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FACTUAL ALLEGATIONS

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Nature of the Braking System Defect

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15.

Since the 2010 Model Year PRIUS was introduced in May of 2009 it has

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been the third most popular vehicle sold by TOYOTA in the United States. To date,

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TOYOTA has sold approximately 103,000 PRIUS vehicles in the United States, a

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substantial portion of which were sold in the state of California.

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16.

The VEHICLES are hybrid gas-electric automobiles which use a

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combination of a traditional gasoline powered engine and a battery powered electric motor

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

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

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additional power when necessary. The constant interchange between the mechanical

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

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

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

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speed and load.

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In order to increase energy efficiency the VEHICLES utilize a “Regenerative

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Braking System" which utilizes a combination of hydraulic brake pads (found on

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traditional gas powered vehicles) and electronically controlled regenerative systems during

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periods of braking and deceleration. Unlike traditional hydraulic braking, which results in

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

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

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

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

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

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order to supply the additional force required to stop the vehicle. The VEHICLES’

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traditional gasoline powered motors turn off during periods of braking or deceleration in

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order to conserve fuel.

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The interchange between the hydraulic and regenerative braking systems on

810228.2

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CLASS ACTION COMPLAINT

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

PEARSON, SIMON, WARSHAW & PENNY, LLP

15165 VENTURA BOULEVARD, SUITE 400 SHERMAN OAKS, CALIFORNIA 91403

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

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

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braking system to disengage and fail when brakes are applied.

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19.

As the result of the DEFECT the VEHICLES consistently, repeatedly and

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systematically fail to stop in a timely and reliable manner when confronted with routine

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

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

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

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

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

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Consumer Complaints and the NHTSA Investigation

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20.

The DEFECT has plagued all PRIUS vehicles sold in the state of California

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and prevented Plaintiff and the Class from engaging in the use and enjoyment of their

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vehicle.

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21.

Almost immediately after the PRIUS went on sale to the public, consumers

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began to make complaints with TOYOTA and the NHTSA regarding the existence of the

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

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vehicle encountered bumps, potholes or other uneven rode conditions.

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A sampling of the 124 complaints received by the NHTSA as of February 4,

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2010 regarding the DEFECT reads as follows:

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"I THOUGHT THAT IT WAS JUST ME BUT WHEN I HEARD OTHERS COMPLAINING ABOUT THE BRAKES ON THE NEW 2010 PRIUS I

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CONFIRMED WHAT I HAVE BEEN EXPERIENCING. WHENEVER I BEGIN TO BRAKE AND EITHER (A) HIT A BUMP OR (B) BEGIN A

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TURN, THE CAR JUMPS OR LURCHES AS IF LOSING TRACTION FOR AN OVERLY EXCESSIVE AMOUNT OF TIME LEADING TO A

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SHORT BUT SIGNIFICANT LOSS OF CONTROL." (ODI #: 10304762)

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"I HAVE BEEN DRIVING MY 2010 PRIUS FOR 4 MONTHS AND EVERYDAY I DRIVE OVER THIS ROAD NEAR MY WORK THAT'S

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NOT A TOTAL FLAT SURFACE WITH A BUMP, MY PRIUS JUST JERKS AND SLIDES FORWARD AND ACCELERATES FOR A SPLIT

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SECOND. THIS HAPPENS EVERY SINGLE DAY I DRIVE TO WORK

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CLASS ACTION COMPLAINT

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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

PEARSON, SIMON, WARSHAW & PENNY, LLP

15165 VENTURA BOULEVARD, SUITE 400 SHERMAN OAKS, CALIFORNIA 91403

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COMPLETE STOP IN TIME." (ODI #: 10304681)

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"VEHICLE SURGES FORWARD WHEN BRAKING OVER ROAD SURFACE THAT IS NOT SMOOTH. SYMPTOM MAKES SAFELY

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JUDGING STOPPING DISTANCE VERY DIFFICULT, AND IN OUR OPINION, INCREASES LIKELIHOOD OF AN ACCIDENT. TOYOTA

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DEALER CLAIMED THEY COULD NOT REPLICATE ISSUE AND THAT VEHICLE'S COMPUTER DID NOT REPORT/RECORD ANY

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PROBLEMS. WE CAN REPLICATE ISSUE OVER SAME BUMP EVERYDAY." (ODI # 10304587)

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"WHEN DRIVING AT MODERATE SPEEDS ON CITY/SURFACE

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STREETS IN MY 2010 PRIUS, A BRAKING PROBLEM OCCURS. IF I HIT A BUMP IN THE ROAD WHILE BRAKING, THE VEHICLE

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LURCHES FORWARD AS IF THE BRAKES HAVE DISENGAGED, EVEN THOUGH I AM STILL PRESSING THE BRAKE. I PUSH THE

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BRAKES DOWN HARDER AND NOTHING HAPPENS. A FEW SECONDS LATER, THE BRAKES COME BACK INTO PLAY AND THE

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CAR SLOWS DOWN AGAIN. THIS HAS HAPPENED SEVERAL TIMES, AND I HAVE NARROWLY AVOIDED ACCIDENTS CAUSED

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BY THIS SEVERAL TIMES." (ODI # 10304475)

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"WHEN BRAKING AND HITTING A BUMP AT THE SAME TIME THERE IS A LOSS OF BRAKING POWER. THE VEHICLE LUNGES

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FORWARD AS IF THE BRAKES HAVE STOPPED WORKING MOMENTARILY. THIS CAUSED ME TO HAVE TO USE

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ADDITIONAL CRASH AVOIDANCE MANEUVERS, IN ANOTHER CIRCUMSTANCE COULD HAVE CAUSED AN ACCIDENT. IT FEELS

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AS IF A PORTION OF THE BRAKING SYSTEM SHUTS OFF AFTER HITTING THE BUMP." (ODI #: 10304376)

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"THIS IS THE 3RD TIME I HAVE HAD A TOTAL LOCKOUT OF

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BRAKING ON MY 2010 TOYOTA PRIUS. THIS SEEMS TO HAPPEN MOST TIMES IF THE ROAD IS SLIGHTLY ROUGH AND DOWNHILL.

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DEALER DENIES ANY KNOWN PROBLEMS BUT THIS LAST TIME I WENT COMPLETELY THROUGH A STOP SIGN. HAD THERE BEEN

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OTHER TRAFFIC I WOULD HAVE HAD AN ACCIDENT.” (ODI #:

1034347)

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Unfortunately, other vehicle owners have not been so lucky and at least four

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individuals have reported to the NHTSA that the DEFECT caused them to suffer an

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

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

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"THE CONTACT OWNS A 2010 TOYOTA PRIUS. WHILE DRIVING 15

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MPH AND ATTEMPTING TO ENGAGE THE BRAKE PEDAL IT EXTENDED TO THE FLOOR; HOWEVER, WITHIN A FEW SECONDS

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THE BRAKE WOULD RESPOND. SHE EXPERIENCED THE BRAKE FAILURE THREE TIMES; DURING THE SECOND FAILURE THE

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BRAKES DIDN'T RESPOND AND SHE COLLIDED INTO A VEHICLE

810228.2

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CLASS ACTION COMPLAINT

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AND INJURED HER NECK. SHE HAS NOT TAKEN THE VEHICLE TO THE DEALER SINCE THE FAILURE OCCURRED ONLY WHEN SHE

PEARSON, SIMON, WARSHAW & PENNY, LLP

15165 VENTURA BOULEVARD, SUITE 400 SHERMAN OAKS, CALIFORNIA 91403

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HIT A BUMP IN THE ROAD. SHE WILL TAKE THE VEHICLE TO THE DEALER TO BE DIAGNOSED. THE VIN WAS NOT AVAILABLE. THE

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FAILURE MILEAGE WAS 3,000 AND THE CURRENT MILEAGE WAS 10,000." (ODI #: 10299897)

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"I WAS UNABLE TO SLOW DOWN GOING INTO AN INTERSECTION

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AT A REASONABLE RATE OF SPEED. WHILE I WAS NOT ACCELERATING, WHEN I APPLIED THE BRAKES THE CAR DID

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NOT SLOW DOWN AS I WOULD HAVE EXPECTED. THIS SAME BEHAVIOR HAS OCCURRED IN THE PAST SEVERAL MONTHS

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SINCE I'VE OWNED THE PRIUS 2010 MODEL. IT SEEMS TO SKIP FORWARD OR ACCELERATE WHILE BRAKING ON A DOWNHILL

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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.

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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

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OVERLY CAUTIOUS DRIVER AND WONDERING WHAT I COULD HAVE DONE TO AVOID THE ACCIDENT." (ODI #: 10293583)

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"I BOUGHT A BRAND NEW 2010 TOYOTA PRIUS AND LEFT THE

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DEALER ON OCTOBER 23, 2009. I HAD TO STOP SHORT AT ONE OF THE STOPLIGHTS ON THE WAY HOME AND NOTICED A

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DISTURBING LAG BEFORE THE BRAKES ENGAGED. HOURS LATER I WAS DRIVING DOWN A MAJOR HIGHWAY WHEN

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TRAFFIC STOPPED SUDDENLY AND THE BRAKES WOULD NOT ENGAGE. I REAR-ENDED THE CAR IN FRONT OF ME AND

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MODESTLY DAMAGED THE CAR I HIT AND SEVERELY DAMAGED MY NEW PRIUS. FORTUNATELY NO ONE WAS HURT. MY SIX

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YEAR OLD SON WAS IN THE BACK SEAT." (ODI #: 10289744)

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24.

The numerous consumer complaints regarding the DEFECT led the NHTSA

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to open a formal investigation into the matter on February 4, 2010. A NHTSA press

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release regarding the inquiry states in pertinent part as follows:

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"The National Highway Traffic Safety Administration (NHTSA) announced that it is opening a formal investigation of the Toyota Prius Hybrid model

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year 2010 to look into allegation of momentary loss of braking capability while traveling over an uneven road surface, pothole or bump.

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The Office of Defects Investigation has received 124 reports from

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consumers, including four reports alleging that crashes occurred. Investigators have spoken with consumer and conducted pre-investigatory

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field work."

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Consumers have filed similar complaints with the NHTSA arising from the

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defective braking system of the HS250h. One of these complaints reads in pertinent part

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as follows:

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

810228.2

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CLASS ACTION COMPLAINT

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HAVE EXPERIENCED AT LEAST 6 OCCASIONS FROM THE END OF OCTOBER 2009 TO EARLY FEBRUARY 2010 IN WHICH I BRAKED

PEARSON, SIMON, WARSHAW & PENNY, LLP

15165 VENTURA BOULEVARD, SUITE 400 SHERMAN OAKS, CALIFORNIA 91403

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WITH THE INTENTION OF COMING TO A STOP. THE VEHICLE BEGAN TO SLOW DOWN IN THE BRAKING PROCESS, THEN THE

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BRAKES STALLED FOR A FEW SECONDS BEFORE RESUMING THE BRAKING ACTION. IT IS UNEXPECTED AND DANGEROUS

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BECAUSE YOU DON'T KNOW IF YOUR BRAKES ARE COMPLETELY STALLING OR NOT. FOR A COUPLE OF SECONDS,

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EVERYTHING JUST GIVES WAY BEFORE THE BRAKES SEEM TO BEGIN WORKING AGAIN. IN THAT SITUATION, YOU DON'T KNOW

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WHETHER TO PRESS DOWN A SECOND TIME ON THE BRAKE OR TO PUMP THE BRAKE PEDAL OR NOT DO ANYTHING. WHEN THIS

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EVENT HAPPENS, YOU FEEL AS IF YOU HAVE ABSOLUTELY NO CONTROL OVER THE OPERATION OF THE VEHICLE, SIMILAR TO

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DRIVING ON A SHEET OF ICE, EXCEPT NONE OF THOSE SAFETY RULES SEEM TO APPLY HERE. THIS HAS HAPPENED ABOUT

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EVERY FEW WEEKS. I HAVE NOTICED THAT IT SOMETIMES HAPPENS WHEN I AM DRIVING OVER AN UNEVEN SURFACE,

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BUMP, OR A POTHOLE IN IN THE STREET WHILE BREAKING. WHILE I HAVE NOT BEEN INVOLVED IN A CRASH, IT HAS

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WORRIED ME THAT THIS COULD LEAD TO ONE."

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Toyota's Active Concealment and Refusal to Remedy the Defect

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26.

Plaintiff is informed believe and thereon alleges that despite their knowledge

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of the existence of the failure, TOYOTA continued to tout the safety and reliability of the

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

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27.

After the announcement of the NHTSA investigation, TOYOTA revealed

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that it had in fact been aware of the design defect with the braking system of the PRIUS

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

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

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

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

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

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a potential fix for the DEFECT exists.

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28.

Plaintiff is informed and believes that TOYOTA dealerships are unaware of

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the DEFECT or the software fix. Further, Plaintiff is informed and believes and thereon

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alleges that the purported fix does not correct the DEFECT.

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29.

TOYOTA'S recent admissions contradict its previous assertions regarding

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the safety and reliability of the VEHICLES and constitute fraudulent concealment of facts

810228.2

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CLASS ACTION COMPLAINT

PEARSON, SIMON, WARSHAW & PENNY, LLP

15165 VENTURA BOULEVARD, SUITE 400 SHERMAN OAKS, CALIFORNIA 91403

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

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30.

Despite its awareness of the existence of the defect TOYOTA has

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systematically and repeatedly refused to institute a recall of the VEHICLES and refused to

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

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31.

Plaintiff is informed and believes and thereon alleges that the braking

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systems of the HS250h suffer the same DEFECT as the PRIUS.

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32.

As a result of the DEFECT and TOYOTA'S conduct alleged herein Plaintiff

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and the Class have suffered, and continue to suffer injuries, to which they are entitled

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immediate legal recourse.

 

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CLASS ACTION ALLEGATIONS

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33.

Plaintiff brings this action individually and as a Class Action on behalf of a

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Class and/or sub-classes which includes:

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a.

All persons residing in the state of California who are the

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owners or lessees of a 2010 Model Year Prius automobile. Excluded from

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

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

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assigned to hear any aspect of this action.

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b.

All persons residing in the state of California who are the

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owners or lessees of a 2010 Model Year Lexus HS250h automobile.

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Excluded from the Class are defendants, their parent companies,

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

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

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34.

The two aforementioned sub-classes shall collectively be referred to herein

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as "the Class."

 

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35.

This action is brought and may properly be maintained as a class action

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pursuant to California Code of Civil Procedure § 382 and California Rules of Court, Rule

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

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superiority requirements of those provisions.

810228.2

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CLASS ACTION COMPLAINT

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36.

The Class is so numerous that the individual joinder of all of its members is

PEARSON, SIMON, WARSHAW & PENNY, LLP

15165 VENTURA BOULEVARD, SUITE 400 SHERMAN OAKS, CALIFORNIA 91403

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impracticable. While the exact number and identities of Class Members are unknown to

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

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37.

Common questions of fact and law exist as to all members of the Class

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which predominate over any questions affecting only individual members of the Class.

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These common legal and factual questions, which do not vary from Class Member to Class

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

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

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a. Whether the VEHICLES suffer from the DEFECT alleged herein;

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b. Whether Defendants failed to notify Plaintiff and the Class of the

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DEFECT;

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c. Whether Defendants have engaged in conduct which constitute breach

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of implied warranty;

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d. Whether Defendants engaged in conduct which constitute breach of

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express warranty;

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e. Whether Defendants are strictly liable for the defects as described

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herein;

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

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g. Whether Defendants engaged in negligent misrepresentation, as

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described herein;

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h. Whether Defendants maintained a business practice of denying repairs

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and claims for damages of the Plaintiff and the Class resulting from

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the DEFECT;

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i. Whether Defendants’ conduct constitutes an unfair, unlawful and/or

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fraudulent business practice (Cal. Bus. & Prof. Code §§ 17200 et

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seq.);

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j. Whether Defendants’ conduct constitutes a violation of the Consumer

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Legal Remedies Act (Cal. Civ. Code §§ 1750, et seq.);

810228.2

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CLASS ACTION COMPLAINT

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k.

Whether Plaintiff and the Class are entitled to compensatory damages,

PEARSON, SIMON, WARSHAW & PENNY, LLP

15165 VENTURA BOULEVARD, SUITE 400 SHERMAN OAKS, CALIFORNIA 91403

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and if so, the nature of such damages; and

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l.

Whether Class Members are entitled to injunctive relief.

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38.

Plaintiff's claims are typical of the claims of the members of the Class, and

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the representative Plaintiff's interests coincide with and not antagonistic to those of the

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other Class Members she seeks to represent. Plaintiff and all members of the Class have

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sustained damages and are facing irreparable harm arising out of Defendants’ common

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

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were caused directly by Defendants’ wrongful conduct as alleged herein.

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39.

Plaintiff will fairly and adequately protect the interests of the members of the

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Class. Plaintiff has retained attorneys experienced in the prosecution of class actions,

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

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intends to prosecute this action vigorously.

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40.

A class action is superior to other available methods for the fair and efficient

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adjudication of this controversy, since individual litigation of the claims of all Class

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

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

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individual litigation of numerous cases would proceed. Individualized litigation would

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

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

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

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

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

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and protects the rights of each Class Member.

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41.

The prosecution of separate actions by individual Class Members may create

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a risk of adjudications with respect to them that would, as a practical matter, be dispositive

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

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

810228.2

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CLASS ACTION COMPLAINT

PEARSON, SIMON, WARSHAW & PENNY, LLP

15165 VENTURA BOULEVARD, SUITE 400 SHERMAN OAKS, CALIFORNIA 91403

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interests.

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42.

Individual actions by Class Members would establish incompatible standards

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of conduct for Defendants.

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43.

Defendants have acted or refused to act in respects generally applicable to

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the Class, thereby making appropriate final and injunctive relief with regard to the

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members of the Class as a whole, as requested herein.

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FIRST CAUSE OF ACTION

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BREACH OF THE IMPLIED WARRANTY OF MERCHANTABILITY

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PLAINTIFF AND THE CLASS AGAINST ALL DEFENDANTS

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44.

Plaintiff incorporates herein by reference all preceding paragraphs of this

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

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45.

At the time Plaintiff and the Class purchased their VEHICLES, the

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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

810228.2

13

CLASS ACTION COMPLAINT

PEARSON, SIMON, WARSHAW & PENNY, LLP

15165 VENTURA BOULEVARD, SUITE 400 SHERMAN OAKS, CALIFORNIA 91403

1

SECOND CAUSE OF ACTION

2

BREACH OF EXPRESS WARRANTY

3

PLAINTIFF AND THE CLASS AGAINST ALL DEFENDANTS

4

50.

Plaintiff incorporates herein by reference all preceding paragraphs of this

5

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

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.

20

56.

As a direct and proximate result of said breach by Defendants, and each of

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.

26

58.

As a direct and proximate result of said breach by Defendants, and each of

27

them, Plaintiff and the Class have suffered incidental and consequential damages in an

28

amount to be proven at the time of trial.

810228.2

14

CLASS ACTION COMPLAINT

PEARSON, SIMON, WARSHAW & PENNY, LLP

15165 VENTURA BOULEVARD, SUITE 400 SHERMAN OAKS, CALIFORNIA 91403

1

THIRD CAUSE OF ACTION

2

STRICT PRODUCTS LIABILITY

3

PLAINTIFF AND THE CLASS AGAINST ALL DEFENDANTS

4

59.

Plaintiff incorporates herein by reference all preceding paragraphs of this

5

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

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

22

PLAINTIFF AND THE CLASS AGAINST ALL DEFENDANTS

23

64.

Plaintiff incorporates herein by reference all preceding paragraphs of this

24

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

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

810228.2

15

CLASS ACTION COMPLAINT

1

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

PEARSON, SIMON, WARSHAW & PENNY, LLP

15165 VENTURA BOULEVARD, SUITE 400 SHERMAN OAKS, CALIFORNIA 91403

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

23

PLAINTIFF AND THE CLASS AGAINST ALL DEFENDANTS

24

72.

Plaintiff incorporates herein by reference all preceding paragraphs of this

25

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

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

CLASS ACTION COMPLAINT

1

VEHICLES were inherently flawed and incapable of safely stopping or slowing down the

PEARSON, SIMON, WARSHAW & PENNY, LLP

15165 VENTURA BOULEVARD, SUITE 400 SHERMAN OAKS, CALIFORNIA 91403

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.)

15

PLAINTIFF AND THE CLASS AGAINST ALL DEFENDANTS

16

79.

Plaintiff incorporates herein by reference all preceding paragraphs of this

17

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

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

CLASS ACTION COMPLAINT

1

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

PEARSON, SIMON, WARSHAW & PENNY, LLP

15165 VENTURA BOULEVARD, SUITE 400 SHERMAN OAKS, CALIFORNIA 91403

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.)

23

PLAINTIFF AND THE CLASS AGAINST ALL DEFENDANTS

24

86.

Plaintiff incorporates herein by reference all preceding paragraphs of this

25

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

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

CLASS ACTION COMPLAINT

PEARSON, SIMON, WARSHAW & PENNY, LLP

15165 VENTURA BOULEVARD, SUITE 400 SHERMAN OAKS, CALIFORNIA 91403

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

CLASS ACTION COMPLAINT

1

meaning of the Unfair Competition Law in that such acts and

PEARSON, SIMON, WARSHAW & PENNY, LLP

15165 VENTURA BOULEVARD, SUITE 400 SHERMAN OAKS, CALIFORNIA 91403

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.4 th 163.

27

PRAYER FOR RELIEF

28

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

810228.2

20

CLASS ACTION COMPLAINT

PEARSON, SIMON, WARSHAW & PENNY, LLP

15165 VENTURA BOULEVARD, SUITE 400 SHERMAN OAKS, CALIFORNIA 91403

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

CLASS ACTION COMPLAINT

1

9.

For such other, further and different relief which the court deems just and

PEARSON, SIMON, WARSHAW & PENNY, LLP

15165 VENTURA BOULEVARD, SUITE 400 SHERMAN OAKS, CALIFORNIA 91403

2

proper.

3

DATED: February 5, 2010

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

810228.2

PEARSON, SIMON, WARSHAW & PENNY, LLP CLIFFORD H. PEARSON BRUCE L. SIMON DANIEL L. WARSHAW BOBBY POUYA

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

By: /s/

DANIEL L. WARSHAW Attorneys for Plaintiff ELAINE MILLER, an individual on behalf of herself and all others similarly situated

22

CLASS ACTION COMPLAINT

PEARSON, SIMON, WARSHAW & PENNY, LLP

15165 VENTURA BOULEVARD, SUITE 400 SHERMAN OAKS, CALIFORNIA 91403

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DEMAND FOR JURY TRIAL

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

hereby requests a jury trial on the claims so triable.

DATED: February 5, 2010

PEARSON, SIMON, WARSHAW & PENNY, LLP CLIFFORD H. PEARSON BRUCE L. SIMON DANIEL L. WARSHAW BOBBY POUYA

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

By: /s/

DANIEL L. WARSHAW Attorneys for Plaintiff ELAINE MILLER, an individual on behalf of herself and all others similarly situated

810228.2

23

CLASS ACTION COMPLAINT