Update added by user Sep 29, 2014
Interim Song Beverly Ruling: Dated September 15, 2014
Breach of Express Warranty and Implied Warranty of Merchantability (Song Beverly Act)
Mossy Toyota included a limited express warranty (90 days or 3000 miles) for 100% of the parts and labor costs on engine and transmission repair.The panel finds this would include the vibration problem.
Mossy made two attempts to repair the vehicle with no success whatsoever and then informed Mossy it could not be repaired and was, at any rate, "normal" for this vehicle. In the event a warranted defect substantially reduces the value, use or safety of a vehicle, the seller must replace or repurchase the vehicle, or otherwise make restitution to the purchaser. This was a vehicle purchased at retail, for Perz' personal use.
Perz made several requests of Mossy Toyota to repair the defect, and Mossy agreed to attempt the repair twice.
Mossy was given adequate opportunity to repair or replace or make restitution. It was unable to do the first and refused to do the others.
Perz has proven the elements necessary to prevail on this cause of action.
The implied warranty of merchantability requires that the vehicle be fit for its ordinary use, in this case personal transportation to and from work. The only description of the condition of the vehicle is that it was unsafe to drive.
Mossy's attempt to "reduce" the vibrations at stops by putting it into neutral corroborates the intensity of the vibrations and the unsafe measures which had to be taken to reduce the vibrations and allow for accurate vision through mirrors and the windshield. No opportunity to repair is required, though several opportunities were given. Perz has proven the elements necessary to prevail on this cause of action. Under the Song-Beverly Act.
The panel is authorized to award double damages on the Song-Beverly causes of action, if Mossy's failure to act was willful, which it was. (Civil Code section 1794(c)). Perz is entitled to an award of fees and costs on the Song-Beverly causes of action (Civil Code section 1794(d)). Perz is entitled to reasonable attorney's fees and costs.
JAMS ARBITRATION NO.1240021161 ##
Update added by user Apr 05, 2013
Mossy Toyota Pacific Beach, Pawns off Defective Vehicle then holds me in Suspended Arbitration Purgatory Over 6 Years... 6 Years and Counting.
My attorney found out that the one arbitrator who was going to hear my case had a history of representing car dealers. Another had a history of ruling for the company and against the consumer on forty different cases.
So he contested that arbitrator and another one was named to hear my case. There was more back-and-forth over the arbitrators. Then Mossy refused to pay to initiate the arbitration proceedings as required by the contract. Under the AAA (American Arbitration Association) rules, the company was supposed to pay $750 to start the arbitration process moving. But Mossy refused to pay.
Instead, they insisted that I pay up-front. But that is contrary to AAA rules. The contract they presented to me said that they would pay up to $1500 for case management and arbitrator fees, but they still insisted that I pay instead.
My attorney has tried over and over again to get the case heard. Meanwhile, I have had to wait. And wait. I’ve been waiting ever since 2007, now in the seventh year, just to get my case heard in arbitration.
Last year, the AAA dropped Mossy and wrote a letter to Mossy refusing to hear any case from Mossy, demanding that the AAA name be removed from Mossy’s contracts.
The AAA wrote they took that action because “Mossy Toyota has not complied with our request to adhere to our policy regarding consumer claims…”
Recently, the court ordered that my case be heard by the Judicial Arbitration and Mediation Services (JAMS). I have a hearing date set for next June, before a JAMS arbitrator.
But again in March 2013, Mossy filed a motion seeking to have the case dismissed and taken off the docket for JAMS and since then JAMS has now refused the case.
So now I’m still having to battle, just to get a hearing in arbitration. I know that the proponents of arbitration claim that it’s faster than courts. But — I don’t think they take into account cases like mine.
If I had been able to have my case heard in court, I think that Mossy Toyota would not have sold me that defective car in the first place. But why not, since they know I can never get them in front of a jury?
Original review posted by user Feb 12, 2010
When my 14-year old Toyota truck expired in February 2007, I went to Mossy Toyota Pacific Beach, an established San Diego dealership that I had an existing relationship with. Their mechanics had done a good job servicing my old truck for over five years and I thought the dealership had a solid reputation. They were having a "certified red tag sale," and I thought if I purchased a vehicle at that time, it would further guarantee the auto's reliability.
I told the salesman that I needed a car for work and was prepared to buy that day. After looking at the two best-priced cars on the lot, I chose to test drive an $8000 2002 Ford Escort with reasonable mileage that looked good both inside and out. It had that new-car smell and what looked like brand new upholstery. I was given a free Auto Check report showing the car had a clean vehicle history, so imagine my surprise when I took it out on the road and quickly felt the car's terrible vibration. It was serious enough to make the steering wheel and dashboard vibrate and the rear view mirrors shake.
My salesman was completely unruffled by this, saying it was no big deal, the car's idle just needed a minor adjustment and that Mossy would fix it for me. He seemed familiar with the problem and even knew how to handle it. Three times during the test drive, he showed me how I could press gently on the accelerator with the car in park to stop the shaking and rattling.
So I believed the salesman's explanation and his promise to repair my "certified" vehicle, but I did tell him I wanted the car fixed before driving it off the lot. He said they could not give me an appointment that day and that I would need to bring it back another day. Over the next few weeks, Mossy tried to repair the car several times but could not and said that's the way it is. Then they ridiculed my request to return the car.
An auto investigator only needed a single thorough check to learn what the underlying problem was: The Escort had been completely submerged in water. They had sold me an unusable rusted-out flood car. In addition to that, It had previously been in a rear end collision.
If that's not bad enough, Mossy's sales contract included a clause that prevents me from suing them in court. This business practice, binding mandatory arbitration, is an anti-consumer scheme that protects companies from financial liability for all sorts of bad outcomes. This is still in arbitration as of February 2010, three years later there is no end in sight.
Mossy's explanation for all the rust damage is that the previous owner lived on an island off the East Coast and that's why it is rusted out, as if that justifies the damaged vehicle. That does not however explain silt deposits and mud debris...
I honestly don't know how a business like Mossy Toyota of Pacific Beach could be so ruthless in their business practices. Hiding behind an arbitration clause that they know, once the deal is done, do not have to give you the time of day as they are laughing in your face.
I live paycheck to paycheck working for the same company now for 22 years. This rust bucket I purchased was barely affordable in the first place and to be treated this way is unconscionable. What is so wrong about doing the right thing and taking the car back. I even offered them to keep my deposit if they would just take it back.
I face the possibility of not only losing my purchase of the vehicle that I will have to have crushed at the junkyard that has been sitting undriveable for three years but the entire arbitration costs that could be as much as $50,000. - all for an eight thousand dollar car, outrageous.
This is not a fifty thousand dollar vehicle or a car that I brought back months later with new problems...It had the problem day one and they said it would be fixed. It is an eight thousand dollar car for crying out loud.
I'm not a scammer, I've worked hard all my life and I'm a honest law abiding citizen. All I want is my money back, not a million dollars!
I have worked with many consumer advocacy groups because of this and have even gone to Washington D.C. to tell my story last year.
We are going to be putting a You Tube video together to raise awareness for the Arbitration Fairness Act that is working its way through Congress thanks to Rosemary Shahan from CARS and John Mattes, Investigative Guy.
Follow me on Twitter @jonperz
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