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Eric H. Gibbs (StateBar No. l 78658) ehg@girardgibbs.com Dylan Hughes (State Bar No. 209r13) dsh@girardgibbs.com

GeoffreyA. Munroe(StateBar No. 22g5g0\ gam@girardgibbs.com GIRARD GIBBS LLP 601CaliforniaStreet,14thFloor SanFrancisco, California 94104 Telephone: (415)98l-4800 Facsimile: (415)98t-4846 Attorneysfor IndividualandRepresentative Plaintiff JonasSugarman

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UNITED STATESDISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSEDIVISION

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JON all

SUGARMAN, on behalf of himself and similarly situated,

Plaintiff,

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Pq''

DUCATI NORTHAMERICA, Defendant.

CaseNo.

5 246

CLASSACTION COMPLAINT FOR VIOLATION OF CONSUMER PROTECTION LAWS DEMAND FOR JURY TRIAL CLASSACTION

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CLASSACTION COMPLAINT


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Plaintiff JonasSugarman,on behalf of himself and all others similarly situated,alleges the following againstDefendantDucati North America, Inc. (,.Ducati,,): SUMMARY OF THE CASE

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1.

Plaintiff and the classmembershe proposesto representare owners or lesseesof 2004-

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2010 Ducati motorcycles equippedwith plastic fuel tanks. The plastic used in Plaintiff and class

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members' fuel tanks is incompatible with the motorcycles' fuel, which causesthe tanks to rapidly

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degradeand deform and leadsto a number of unsafe conditions. Among other things, as the plastic

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degradesand deforms, the fuel tanks interfere with the full range of steering,leak fuel onto the engine,

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and destabilizethe motorcycle's weight distribution-often to the point that the motorcycle cannot be

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safely operatedafter only a few thousandmiles of use. 2.

Ducati is covering the defect in its plastic fuel tanks under its warranties,but in

conducting thesewarranty repairs Ducati has chosennot to correct the defect in the tank's material.

1 3 Ducati insteadinstalls a replacementtank made of the sameincompatible material, which likewise I4

begins degradingand deforming upon contact with the motorcycles' fuel. As a result, Plaintiff and

1 5 Ducati owners are repeatedlyexposedto unsafeconditions as their fuel tanks repeatedlydegradeand l6 T7

deform. 3.

Basedon chemical principles well known in the industry, materials testing, warranty

1 8 data, customercomplaint data, and replacementpart salesdata, Ducati knew or should have known that l9

its plastic fuel tanks were incompatible with the motorcycles' fuel. Ducati nonethelesscontinuedto sell

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Ducati motorcycles with defective plastic fuel tanks for severalyears,even while making plans behind-

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the-scenesto use compatible aluminum fuel tanks on future model years. Ducati did not tell its

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customersat the time of salethat the tanks were incompatible and would createa number of unsafe

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conditions as they degradedand deformed. Nor did Ducati inform its customersthat the problem would

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reoccur even after warranty repairs since Ducati was, as a matter of policy and practice, installing

25 replacementfuel tanks made of the sameincompatible material. 26 27

4.

plaintiff now brings this action under the consumerprotection statutesof the Stateof

in California-where Ducati is headquarteredand from where the conduct and non-disclosuresat issue

2 8 this casewere orchestrated-for failing to disclosematerial safety-relatedfacts about its motorcycles

CLASSACTION COMPLAINT


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and for employing the unfair practice of conducting fuel tank repairs using the samedefective parts.

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Plaintiff seeksequitablerelief requiring Ducati to disclosethat its plastic fuel tanks are incompatible

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with the motorcycles' fuel to all existing and prospectivecustomers,and to replacethose incompatible

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fuel tanks with fuel tanks that will not degradeor deform upon contact with fuel. In addition, Plaintiff

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has provided notice to Ducati that it is in breachof its warranty obligations to the classand has violated

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the California ConsumersLegal RemediesAct, and will amendthis complaint to seekcorresponding

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damagesunlessDucati promptly correctsthoseviolations. PARTIES

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5.

Plaintiff JonasSusarmanis a citizen of Florida and the owner of a2009 Ducati 1198

1 0 motorcycle. 11 t2

6.

Defendant Ducati is a California corporation with its principal place of business

in Cupertino, California. Ducati is the American subsidiary of the Italian motorcycle manufacturer

1 3 Ducati Motor Holding S.p.A. Ducati is responsiblefor marketing,distribution,sales,customerservice, I4

and warranty service of Ducati motorcycles sold within the United States. JURISDICTION AND VENUE

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This Court has subject matterjurisdiction pursuantto the Class Action FairnessAct, 28

t 7 U.S.C. $ 1332(d),asthe proposedclassconsistsof more than 100 classmemberswhoseaggregated 1 8 claims exceed$5,000,000,exclusiveof interestsand costs' l9

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in Venue is properin this district under 28 U.S.C. $ 1391(b),as DefendantDucati resides

occurredi 20 this district and a substantialpart of the eventsand omissionsgiving rise to Plaintiff s claims

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this district.

INTRADISTRICT ASSIGNMENT

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is properto the SanJosedivisionof thisDistrictunderLocalRule3-2(c)'as Assignment occurredin SantaClara 24 a substantialpartof the eventsandomissionsgiving riseto Plaintiff s claims

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25 County. COMMON FACTUAL ALLEGATIONS

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The Fuel Tank Defect

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10.

motorcycles Startingin the2004modelyear,Ducatibeganmarketingandselling

CiN,SSACTION COMPLAINT


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equippedwith plasticfuel tanks. Thesefuel tanksareamongthe mostvisible andprominent

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of the motorcycle,positioneddirectlyin front of the rider andcenteredon the motorcycle's components

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frameto ensureevenweightdistribution.

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showsthe position The illustration above is taken from Plaintiffs' Owner's Manual, and

1 5 and relative size of the fuel tank in Ducati motorcycles' fuel tank usedthe same Each2004-2010Ducati motorcycle equippedwith a non-metal is defective, as it is incompatible with T 7 plastic fuel tank material. The problem is that the plastic material at United Statesgas stations' 1 8 the fuel usedin the motorcycles;i.e., highway vehicle fuel sold in Ducati's 2004'2010 When in contact with the motorcycles' fuel, the material used 13. t9 of the fuel tanks, variously describedby 20 plastic fuel tanks degrades,which in tums leadsto deformation

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spreading' Ducati owners as dimpling, wrinkling, flattening' and significant safety hazards, The deformation of Ducati's plastic fuel tanks creates 14.

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including:

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the suddenshifts in weight distribution that can throw

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interferencewith steeringof the motorcycle; and

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fuel leaks onto the engine that pose afrehazwd'

driver off balance;

plastic fuel tank degradesand deforms'it losesits Shifts in Weieht: As the motorcycle's fuel is brackets. The result is that the weight of the 28 uniform shapeand also separatesfrom its mounting

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CLASSACTION COMPLAINT


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not uniformly distributed acrossthe motorcycle frame and also can shift suddenly as the tank moves on

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the frame. This lack of stability is dangerous,as it makesthe motorcycle more diffrcult to control and

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can throw the driver off balance.

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16.

Interferencewith Steerins: As the illustration above shows,the fuel tank is close to the

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motorcycle's handlebars. As the fuel tanks' plastic material degrades,the overall shapeof the tank

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deforms and shifts into areaswhere the steeringmechanismis supposedto have free reign. The fuel

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tank can thus collide with the steeringmechanismwhile the driver attemptsto steer,impeding the

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driver's ability to control the motorcycle and tum the front wheel through its full range.

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17.

Fuel Leaks: Deformation of the fuel tank also leadsto separationfrom the fuel pump,

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which resultsin leaking fuel. The fuel tank is positionedabovethe motorcycle'sengine,meaningthat

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leaking fuel posesa seriouscombustionhazard.

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Ducati ownershave beenso concernedaboutthe safetyhazardsposedby their plastic

1 3 fuel tanks that over 240have taken the time to lodge complaints with the National Highway Traffic t4 15

Safetv Administration. o

Fuel tank on motorcycle has expandedand buckled. It is no longer being held in place by the "pucks" at the front of the tank. ... The tank shifts back and forth when riding the bike. My biggest concern is that the tank could shift and throw off my balanceunder hard cornering, leading to a loss of control. Ducati north america(dna) has been replacing thesetanks for other owners, but the replacementtanks suffer from the sameissue.Becauseof the lack of a true long term solution, I have not gone through the processof requestinga repliacementyet. It would take a lot of effort, and be a short term solution at best.

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Expanding and leaking plastic motorcycle fuel tank. Presentsfire dangerand ill fitment and attachmentto the frame.

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The fuel tank has apparentlystretchedout in width to such an extent that the front mount no longer securesthe tank. As a consequencethe tank is loose and held in place only by the rear securingbolt, which is totally inadequateand wasn't designedio hold the tank on its own. I feel this is a very dangerous situation and a potential deathtrap.

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My motorcycle has a plastic gastank which has been expanding.The outside it on dimensionsof the tank have increasedand it now the handlebarshit is worrying is more turning and it pressesagainstthe ignition switch but what

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CLASSACTIONCOMPLAINT


the fact that when hit a moderatebump on the road, the tank becomes unlatchedand requires me to relatch it to prevent the tank from becoming loose. ... I am very concernedas to the safetyof this motorcyclenow.

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My motorcycle has a plastic gastank which has begun to expand.The outside dimensionsof the tank have increasedand it now does not sit correctly in the frame, the handlebarshit it on turning. ... I am very concernedas to the safety of this motorcycle now. The tank's swelling has made it so the handlebarsdo not turn correctlv.

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My motorcycle has a plastic gastank that has startedto expand.The outside dimensionsof the tank have increasedto point that the original rubber guards no longer touch the frame. The handlebarshit the tank when attempting a full turn to the right - this did not happenbefore. ... I am extremelyconcerned about the safety of my motorcycle as I do not know when my gastank could split open.

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The composite fuel tank on my 2006 ducati multistrada620 has warped and becomedistorted. ... The tank hasbecomeso warpedthat fuel actuallyleaks from around the fuel pump when the motorcycles is filled over half way. This has becomea health and safety hazard,as the bike has becomeunsafeto ride due to the dangerof fire/explosion resulting from the warped tank. ... I have tried to contact ducati multiple times about this issue,and everytime I am told to contact a dealer - a dealer who isn't able to help becauseducati won't issues a recall for a widely known problem with fuel tanks'

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2006 ducati mts 620 beganto steadily leak fuel from bottom of fuel tank at the fuel pump flange. This allowed fuel to drip onto hot exhaust,which could have causedafllre.

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Ducati's Failure To Discloseor Correct The Defect 19.

Ducati has long known or should have known that the plastic material used in its fuel

have revealed tanks is incompatible with the motorcycles' fuel. Standardpre-releasefield testing would

form of wrinkling, the problem, as the fuel tanks begin showing signs of the incompatibility, in the degradeand deform dimpling, and other deformationswithin a short period of time after use, and often z) or few thousandmiles of to the point that the motorcycle cannot be safely operatedwithin a few months 24 with fuel was also The fact that the plastic material Ducati was using degradedwhen in contact 25 use. have been awarethat it was not well-documentedin the motor vehicle industry and Ducati should

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for use in a fuel tank. 27 suitable

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CLASSACTION COMPLAINT


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20.

In addition, Ducati had exclusive accessto information about the plastic fuel tanks

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through its materials testing data,warranty data,customercomplaint data, and replacementpart sales

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data, among other sourcesof aggregateinformation about the problem. In contrast,the defective nature

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of the plastic fuel tanks were not known or reasonablydiscoverableby Plaintiff and classmembersprior

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to purchaseand without experiencingthe defect first hand and exposing themselvesto an umeasonable

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safetyrisk.

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21.

Consumerswere complaining about deformation of the plastic fuel tanks and lodging

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safetycomplaintswith NHTSA by 2006. Behind the scenes,Ducati also developedan aluminum fuel

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tank that was compatible with the motorcycles' fuel and would not degradeand deform in its presence.

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22.

Despite Ducati's knowledge that its plastic fuel tanks degradedand deformed in the

1 1 presenceof the motorcycles' fuel, posing a number of safety hazardsto motorcycle owners, Ducati did

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not disclosethose material facts to Plaintiff and classmembersbefore they purchasedtheir motorcycles. 23.

Nor has Ducati disclosedthe material incompatibility and resultantsafety implications at

any other time, including when customersspecifically complained. Ducati has insteadconcealedthe

1 5 incompatibility by denying that there is a known or widespreadproblem and by repairing class T 6 members' deformed fuel tanks using the sameplastic fuel tanks. t7

24.

The defect in the fuel tanks' material is coveredby at least two of Ducati's warranties:

1 8 (1) its standardwananty, under which "Ducati guaranteesall its bikes for a period of 24 months from 1 9 registration,with unlimited mileage"; and (2) its federally-mandatedemissionscontrol systemwarranty, 20 under which Ducati warrants that each of its motorcycles "is free from defectsin material and regulationsof the workmanship which will causesuch motorcycle to fail to conform with applicable for a period of 22 United StatesEnvironmental protection Agency or the California Air ResourcesBoard delivery, 23 use of 30,000kilometers(18,641miles) or 5 (five) yearsfrom the dateof initial retail

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24 whicheverfirst occurs." warranty, but its Ducati has been covering the cost of repairing its fuel tanks under Ducati's repair practices 26 repairs are not designedto correct the fuel tanks' defective material. Instead, with the motorcycles' fuel and to 27 are designedto concealthe fuel tanks' fundamentalincompatibility deform in the presenceof fuel. 28 saveDucati the cost of installing a fuel tank that doesnot degradeor

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CLASSACTION COMPLAINT


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26.

When classmembersbring their motorcycles in for repairs, Ducati merely replacesthe

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classmember's fuel tank with anotherfuel tank made of the samedefective plastic material, which

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likewise begins degradingand deforming upon contact with the motorcycles' fuel.

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27.

As a result of Ducati's repairpractices,Plaintiff and classmembersare repeatedly

exposedto unsafeconditions as their fuel tanks repeatedlydegradeand deform.

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PLAINTIFF'S EXPERIENCE 28.

Plaintiff JonasSugarmanpurchaseda2009 Ducati 11985motorcyclein April 2009 for

approximately$24,500. 29.

About five months after purchasinghis motorcycle, Mr. Sugarmanfirst noticed that his

1 0 fuel tank was deforming. Over the next month or two, Mr. Sugarmannoticed that the fuel tank 1 1 continuedto deform and that fuel was leaking from the fuel tank. t2

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In November 2009,Mr. Sugarmanpaid to tow his Ducati motorcycleto the Ducati Mi

1 3 dealership,where his fuel tank was replacedunder warranty with anotherfuel tank made of the same T 4 plastic material. At that time, Mr. Sugarmanhad driven his motorcyclea total of 2,193miles. 15

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Within a few months after his fuel tank was replaced,Mr. Sugarmannoticed that the

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replacementfuel tank was also deforming. Mr. Sugarmanintends to take his motorcycle into the Ducati

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hi Miami dealershipfor further repair, but is concernedthat the sameproblems he has experiencedwith

1 8 previoustwo fuel tankswill continueto recur. l9 20

hasownedhis motorcyclefor only l8 months,drivenit only 3,923miles, Mr. Sugarman conditions. andalreadyhassufferedthe deformationof two fuel tanksaswell asthe resultingunsafe 32.

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33.

pursuantto Rule 23 of the FederalRules of Civil Procedure,Plaintiff brings this action

on behalf of himself and a Classinitially definedas: within the United All personswho purchaseda Ducati motorcycle with a plastic fuel tank States.

Holding S.p.A and any othe Excludedfrom the proposedClassare Ducati; Ducati Motor has a controlling interest; any of 27 parent, affiliate, or subsidiary of Ducati; any entity in which Ducati of Ducati; anyoneemployedby 28 Ducati's offrcers,directors,or employees;any successoror assign

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CTESSACTION COMPLAINT


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counsel for Plaintiff; and any Judgeto whom this caseis assignedas well as his or her immediate

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family.

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35.

Numerosityof the Class- Fed.R. Civ. P. 23(aXl). Approximately 50,000Ducati

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motorcycles with plastic fuel tanks have been sold within the United States,meaningthat Class

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membersare far too numerousto practicallyjoin in a singleaction.

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36.

Existenceand Predominanceof Common Ouestions-Fed. R. Civ. P. 23(aX2).23(bX3).

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Common questionsof law and fact exist as to all Classmembersand predominateover questions

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affecting only individual Class members. Thesecommon questionsinclude the following: a. Whether the plastic fuel tanks used in Class motorcycles degradeand deform in the

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presenceof the motorcycles'fuel;

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b. When Ducati knew or should have known that the plastic fuel tanks in Class

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motorcycleswere incompatiblewith the motorcycles'fuel;

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c. Whether plastic fuel tanks in Class motorcyclespose an ulueasonablesafety hazatd,

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suchthat their incompatibility with the motorcycles' fuel is a material fact that Ducat

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is and was obligedto discloseto Classmembersunder California law; d. WhetherDucati's policy and practiceof repairingClassmembers'fuel tanksby

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replacing them with fuel tanks that use the sameincompatible plastic material

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constitutesan unfair businesspractice under California's Unfair Competition Law;

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e. Whether Ducati should be required to notiff Class membersthat their motorcycle's

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fuel tanks are incompatible with the motorcycles' fuel and ceaseits practice of

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providing replacementfuel tanks that use the sameincompatible material.

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of the Tvpicatitv - Fed.R. Civ. p. 23(aX3). Plaintiff s claims are typical of the claims motorcycle equippedwith a Class membersbecause,among other things, Plaintiff purchaseda Ducati 37.

and 24 fuel tank that usesthe sameplastic material as was used in all class motorcycles' which 25 is pursuing claims againstDucati under California consumerprotection law,

becausePlaintiff

can properly be

26 applied to the claims of all Classmembers' 27

388 .

. Plaintiff is an adequate

class membershe seeksto represent' 28 representativebecausehis interestsare aligned with those of the

CLESSACTION COMPLAINT


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Plaintiff has retained counsel competentand experiencedin complex class action litigation, and intends

2 to prosecutethis action vigorously on Classmembers'behalf. a J

39.

Superiority- Fed. R. Civ. P. 23ftX3). The action may be certified underRule 23(b)(3)

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becausecommon questionspredominateas describedabove and becausea class action is the best

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available method for the fair and efficient adjudication of this controversy. This litigation involves

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technical issuesthat will require expert testimony and targeteddiscovery of a sophisticateddefendant,

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and could not practically be taken on by individual litigants. In addition, individual litigation of Class

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members' claims would be impracticable and unduly burdensometo the court systemand has the

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potential to lead to inconsistentresults. A classaction presentsfewer managementproblems and

1 0 providesthe benefitsof singleadjudication,economiesof scale,and comprehensivesupervisionby a 1l t2

single court. 40.

In the alternativeto classcertificationunderRule 23(b)(3),the proposedClassmay be

1 3 certifiedunder Rule 23(b)(1) or Rule 23(b)(2)because: a. the prosecutionof separateactions by the individual membersof the Classwould

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createa risk of inconsistentor varying adjudication with respectto individual Class

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memberswhich would establishincompatible standardsof conduct for Ducati; b. the prosecutionof separateactions by individual Class memberswould createa risk

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of adjudicationswith respectto them which would, as a practical matter, be

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or dispositive of the interestsof other Classmembersnot parties to the adjudications,

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substantiallyimpair or impede their ability to protect their interests;and

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41.

thereby Ducati has actedor refusedto act on grounds generally applicable to the Class,

of the Class as a whole' making appropriatefinal and injunctive relief with respectto the members

42.

herein such The Stateof California has sufficient contactsto the conduct alleged

that

nationwideclass'

proposed 2 5 california law may be uniformty appliedto the claims of the

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43.

offtces are located in Ducati does substantialbusinessin California, its principal

California, and a significant portion of the proposedClass 44.

residesin California'

members' claims against The conduct that forms the basis for each and every Class

cT-ASSACTION COMPLAINT


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Ducati emanatedfrom Ducati's headquartersin Cupertino, California. 45.

Ducati personnelresponsiblefor customerand dealershipcommunicationsare located at

Ducati's California headquartersand the core decision not to disclosethe fuel tank incompatibility to Class membersat the time of sale or otherwise was made and implemented from there.

46.

Ducatipersonnel responsible for settingDucati'srepairpolicyandpracticewith respect

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to the plastic fuel tanks are located at Ducati's California headquarters,as are the personnelresponsible

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for communicating that policy and practice to Ducati dealershipsand for distributing replacementplas

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fuel tanks to Ducati dealerships.

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47.

claims. Its governmentalinterestsinclude not only an interest in compensatingresident consumers under its consumerprotection laws, but also what the Statehas characterizedas a "compelling" interest in using its laws to regulate a residentcorporation and preservea businessclimate free of fraud and deceptivepractices.Diamond Multimediasys. v. Sup. Ct., 19 Cal. 4th 1036, 1064(1999).

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The Stateof California has the greatestinterest in applying its law to Classmemberso

Were other states'laws appliedto Classmembers'claims, Califomia's interestin

discouragingresident corporationsfrom engagingin the sort of unfair and deceptivepracticesalleged in this complaint would be significantly impaired, California could not effectively regulate a company like Ducati, who doesbusinessthroughout the United States,if it can only ensurethat consumetsftom one of the fifty statesaffected by conduct that runs afoul of its laws are protectedand compensated. FIRST CAUSE OF ACTION

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(Violation of the Consumers Legal RemediesAct, Cal. Civ. Code $ 1750' et. seq') 49.

Plaintiff incorporatesthe above allegationsby reference.

50.

Code Ducati hasviolatedthe ConsumersLegal RemediesAct (CLRA), California Civil

competitionand unfair and sections1770(a)(5),(7), (14),and (16), by engagingin unfair methodsof the saleof Ducati motorcyclesto deceptiveacts and practicesin connectionwith transactions-namely, goods plaintiff and Classmembers-that are intendedto result and have resulted in the sale and leaseof

27 to consumers. 28

Clnss AcrIoN coMPLAINT


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51.

In connectionwith the saleof Ducati motorcyclesto Plaintiff and Classmembers,Ducati

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omitted material information about those motorcycles which it was legally obligated to disclose. Ducati

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did not inform and has never informed Plaintiff or Classmembersthat the plastic material used in their

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motorcycle's fuel tank is defective in that it degradesand deforms in the presenceof the motorcycles'

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tuel.

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52.

The incompatibilityof Ducati'splasticfuel tankswith motorcyclefuel posesan

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unreasonable safetyrisk to consumers andothermembersof thepublic with whomthey sharethe road.

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Ducatihadexclusiveknowledgeof the incompatibilityandhasactivelyconcealedit from consumers.

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53.

As a result of Ducati's violationsof the CLRA, Plaintiff and Classmembershave

1 0 suffered damages. Plaintiff and Classmemberswould not have purchasedtheir motorcycles had the ll

tank defect and associatedsafety risks been disclosedto them. In addition, Plaintiff and other Class

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membershave incurred towing costs and other costs as a result of the defective fuel tanks and are left

1 3 with motorcycles that pose repeatedsafety risks and are therefore less valuable. t4

54.

Plaintiff seeksan order requiring Ducati to disclosethe existenceof the fuel tank defect

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and associatedsafety risks to all existing and prospectivecustomers,and to provide all Classmembers

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with fuel tanks that do not degradeand deform in the presenceof the motorcycles' fuel. In addition,

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Plaintiff has servedDucati with a demandpursuantto Civil Code section1782, and will amendthis

1 8 action to seekdamagesif Ducati doesnot timely remedyits CLRA violations. l9

SECOND CAUSE OF ACTION

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(For unlawful, unfair, and fraudulent businesspractices under California Businessand ProfessionsCode $ 17200et seq.)

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55.

Plaintiff incorporatesthe aboveallegationsby reference'

56.

Ducati has violated and continuesto violate California's Unfair Competition Law, Cal.

Bus. & Prof. Code $ 17200,et seq.,which prohibitsunlawful, unfair, or fraudulentbusinessactsor practices. 57.

Ducati's acts and practices,as alleged in this complaint, constituteunlawful practicesin

that they violate the ConsumersLegal RemediesAct. 5g.

Ducati's acts and practices,as alleged in this complaint, constitute fraudulent practicesin

not expectthat the that they are likely to deceive a reasonableconsumer. A reasonableconsumerwould

CLASS ACTION COMPLAINT


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fuel tank of a Ducati motorcycle would degradeand deform upon contact with the motorcycle's fuel,

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creating a number of unsafe conditions.

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59'

Ducati's actsand practices,as allegedin this complaint,constituteunfair practicesin that

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(i) they are unethical, unscrupulous,and substantiallyinjurious to consumers;(ii) any legitimate utility

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of Ducati's conduct is outweighed by the harm to consumers;(iii) the injury is not one that consumers

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reasonablycould have avoided; and/or (iv) the conduct runs afoul of the public safety policy embodied

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in the Highway Safety Act and the policies underlying the CLRA, which seeksto protect consumers

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againstunfair and sharpbusinesspracticesand to promote a basic level of honesty and reliability in the

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marketplace. In particular, it is fundamentally unfair to consumersto sell motorcycles with fuel tanks

1 0 that degradeand deform upon contactwith the motorcycles' fuel, causing severalunsafeconditions. It ll

is also fundamentally unfair to repair a defect in the fuel material by installing a replacementfuel tank

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that usesthe samedefective plastic material, exposing consumersand membersof the public to the

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unsafeconditions in the future.

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60.

As a result of Ducati's unfair, unlawful, and fraudulent businesspractices,Plaintiff has

1 5 suffered injury in fact and lost money or property. Plaintiff purchaseda motorcycle he otherwise would t6

not havepurchased,has incurredtowing costsas a result of Ducati's practices,and is left with a

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motorcycle that posesrepeatedsafety risks and is therefore less valuable.

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61.

Plaintiff and Class membersare entitled to equitable relief, including restitution of all

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revenueaccruing to Ducati becauseof its unlawful, unfair, and fraudulent practices,attorney fees and

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costs,declaratoryrelief, and a permanentinjunction enjoining Ducati from its unlawful, unfair,

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fraudulent and deceitful activity. TOLLING

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62.

Any applicable statuteof limitations that might otherwise bar any Class member's claims

24 is tolled by Ducati's knowing and active concealmentof the fact that it was selling motorcycleswith 25 fuel tanks that it knew to be incompatible with the motorcycles' fuel. Ducati kept Plaintiff and the 26 membersof the Class ignorant of vital information essentialto the pursuit of their claims. Class 27 memberscould not reasonablyhave discoveredthat their fuel tanks were degradingand deforming 28

CLASSACTION COMPLAINT


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becauseof an incompatibility in the tank's plastic material,especiallygiven Ducati's practice of denyi

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any known and widespreadproblem and of installing replacementtanks made of the samematerial. PRAYER FOR RELIEF

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WHEREFORE, Plaintiff, on his own behalf and on behalf of the Class,prays for judgment as

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follows:

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a.

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For an order certifying the proposedClass and appointing Plaintiff and his counselto representthe Class;

b.

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For an order requiring Ducati to disclosethe existenceof the fuel tank defect and associatedsafety risks to all existing and prospectivecustomers,and to provide all Class

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memberswith fuel tanks that do not degradeand deform in the presenceof the

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motorcycles'fuel, or suchother injunctive relief as the Court may deemproper;

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c.

Court may deemproper;

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d.

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For an award of restitution to Plaintiff and Class members,or other equitablerelief as the

For an award of reasonableattorney fees and costsof suit, including expert witness fees; and

e.

For such other and further relief as this Court may deemjust and proper. DEMAND FOR JURY TRIAL

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Plaintiff hereby demandsa jury trial on all claims so triable.

t9 20 Dated:November18.2010

Respectfully Submitted

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ey:F Dylan Hughes

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Eric H. Gibbs Geoffrey A. Munroe GIRARD GIBBS LLP 601 California Street,l4th Floor SanFrancisco,CA 94108 Telephone:(415) 981-4800 Facsimile:(415)981-4846

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CLASSACTION COMPLAINT


Ducati Plastic Tank Lawsuit