Fain et al v. American Honda Motor Company Inc. et al

Central District of California, cacd-2:2019-cv-02945

AMENDED COMPLAINT against Defendants American Honda Motor Company Inc., Honda Motor Co., Ltd. amending Complaint (Attorney Civil Case Opening), 1, filed by Plaintiffs Larry Fain, Franzetta Cheathon

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8 Page ID #:64 1 Eric H. Gibbs (SBN 178658) 2 ehg@classlawgroup.com David Stein (SBN 257465) 3 ds@classlawgroup.com 4 Steven Lopez (SBN 300540) sal@classlawgroup.com 5 GIBBS LAW GROUP LLP 6 505 14th Street, Suite 1110 7 Oakland, California 94612 Telephone: (510) 350-9700 8 Facsimile: (510) 350-9701 9 Attorneys for Plaintiffs 10 11 12 UNITED STATES DISTRICT COURT 13 CENTRAL DISTRICT OF CALIFORNIA 14 15 LARRY FAIN and FRANZETTA Case No. 2:19-cv-02945-MWF-PJW 16 CHEATHON, on behalf of themselves and all others similarly AMENDED CLASS ACTION 17 COMPLAINT situated, 18 19 Plaintiffs, v. 20 21 AMERICAN HONDA MOTOR 22 COMPANY, INC. and HONDA MOTOR CO., LTD., 23 24 Defendants. 25 26 27 28 AMENDED CLASS ACTION COMPLAINT CASE NO. 2:19-CV-02945-MWF-PJW 8 Page ID #:65 1 Plaintiffs Larry Fain and Franzetta Cheathon, on behalf of themselves and all 2 others similarly situated, allege the following against Defendants American Honda 3 Motor Company, Inc., and Honda Motor Co., Ltd, (collectively, "Honda"): 4 SUMMARY OF THE CASE 5 1. In the era of increasingly computerized and automized vehicles, a 6 number of automotive manufacturers now equip their vehicles with computerized 7 driver-assisting safety systems. These systems perform a variety of functions, 8 including adaptive cruise control (which operates automatically to maintain a set 9 distance from a vehicle ahead), lane departure warnings and steering inputs, and 10 autonomous braking. The autonomous braking works to avoid front-end collisions 11 by detecting vehicle speed and the speed of other vehicles and objects on the roads— 12 and can automatically deploy the brakes to avoid a front-end collision. 13 2. Honda provides these types of systems through a proprietary driver 14 support suite it calls "Honda Sensing." Honda Sensing relies on a radar sensor (near 15 the lower front bumper), an interior camera (near the rearview mirror), along with 16 computers and other technology. The autonomous braking system within Honda 17 Sensing is called Collision Mitigation Braking System (or CMBS). Computerized 18 driver-assisting safety systems generally, and autonomous braking systems like 19 CMBS in particular, must undergo careful testing and inspection to ensure they 20 work properly. Otherwise, the systems put lives at risk. 21 3. Honda, as one of the first manufacturers to institute an autonomous 22 braking system, has had a number of problems with false alarms—which is where 23 the system brakes abruptly even though there is nothing around that risked a 24 collision. Back in 2015, for instance, Honda issued a safety recall for various 2014- 25 2015 model year vehicles that were having false alarms. Honda issued the recall 26 because these false alarms "could increase the risk of a crash." Other manufacturers 27 have likewise issued safety recalls when their vehicles' automated braking systems 28 deployed because of false alarms. 1 AMENDED CLASS ACTION COMPLAINT CASE NO. 2:19-CV-02945-MWF-PJW 8 Page ID #:66 1 4. Despite its longstanding familiarity with the failures of the Honda 2 Sensing system and the importance of functional driver-assisting safety systems, 3 Honda continues selling and leasing vehicles equipped with Honda Sensing. Drivers 4 have thus reported in droves that their vehicles' Honda Sensing warning lights 5 display without explanation, brakes deploy seemingly randomly and parts of the 6 system like adaptive cruise control malfunction. As a result, drivers are brought to 7 abrupt halts in traffics, trailing vehicles have to slam on the brakes or swerve 8 dangerously out of their lanes, to avoid a crash. According to public records, at least 9 one freeway collision has already occurred, and more are likely absent a quickly- 10 implemented solution. 11 5. Honda remains silent, however, and when asked by drivers and 12 technicians trying to deal with the problem offers no solution, telling drivers and 13 technicians that no repairs are available. 14 6. Honda's conduct has needlessly endangered drivers, unjustly enriched 15 Honda at consumers' expense, and violated consumer protection and warranty laws. 16 On behalf of the classes they propose to represent, Plaintiffs seek awards of damages 17 as well as injunctive and other equitable relief. 18 PARTIES 19 7. Plaintiff Larry Fain is a citizen and resident of Venice, Florida. 20 8. Plaintiff Franzetta Cheathon is a citizen and resident of Rancho 21 Cordova, California. 22 9. Defendant American Honda Motor Company, Inc., is a California 23 corporation with its headquarters and principal place of business in Torrance, 24 California. 25 10. Defendant Honda Motor Co., Ltd., is a Japanese corporation and the 26 parent company of American Honda Motor Company, Inc. The two defendants are 27 referred to collectively in this complaint as "Honda." 28 2 AMENDED CLASS ACTION COMPLAINT CASE NO. 2:19-CV-02945-MWF-PJW 8 Page ID #:67 1 JURISDICTION AND VENUE 2 11. This Court has jurisdiction over this action under the Class Action 3 Fairness Act, 28 U.S.C. § 1332(d). There are at least 100 members in the proposed 4 class, the aggregated claims of the individual class members exceed the sum or value 5 of $5,000,000, exclusive of interest and costs, and this is a class action in which 6 Honda and more than two-thirds of the proposed plaintiff classes are citizens of 7 different states. 8 12. This Court may exercise jurisdiction over Honda because it has located 9 its American headquarters in California; it is registered to conduct business in 10 California; it has sufficient minimum contacts in California; and it intentionally 11 avails itself of the markets within California through the promotion, sale, marketing, 12 and distribution of its vehicles, thus rendering the exercise of jurisdiction by this 13 Court proper and necessary. 14 13. Venue is proper in this District under 28 U.S.C. § 1391 because 15 American Honda Motor Company, Inc., is headquartered in this district, Defendant 16 Honda Motor Co., Ltd., is a foreign entity, and a substantial part of the events or 17 omissions giving rise to Plaintiffs' claims occurred in this District. 18 SUBSTANTIVE ALLEGATIONS 19 Class Vehicles' Honda Sensing systems 20 14. Honda manufactures, markets, and distributes mass-produced 21 automobiles in the United States under the Honda brand name. The Honda 22 automobile models that are the subject of this case are the 2017-2018 Honda CR-V 23 (collectively, the "Class Vehicles"). 24 15. All Class Vehicles come equipped with Honda Sensing, which Honda 25 calls "a driver support system which employs the use of two distinctly different kinds 26 of sensors, a radar sensor located at the lower part of the front bumper and a front 27 sensor camera mounted to the interior side of the windshield, behind the rear view 28 3 AMENDED CLASS ACTION COMPLAINT CASE NO. 2:19-CV-02945-MWF-PJW 8 Page ID #:68 1 mirror."1 The "Honda Sensing" suite and CMBS are major aspects of Honda's 2 marketing of Class Vehicles and help increase the market price of the vehicles. 3 16. Honda Sensing comes with the following functions: 4  Adaptive Cruise Control (ACC) with Low Speed Follow (LSF)*: Helps 5 maintain a constant vehicle speed and a set following interval behind a 6 vehicle detected ahead of yours and, if the detected vehicle comes to a 7 stop, can decelerate and stop your vehicle. *if equipped 8  Lane Keeping Assist System (LKAS): Provides steering input to help keep 9 the vehicle in the middle of a detected lane and provides tactile and visual 10 alerts if the vehicle is detected drifting out of its lane. 11 12  Road Departure Mitigation (RDM) System: Alerts and helps to assist you 13 when the system detects a possibility of your vehicle unintentionally crossing over detected lane markings and/or leaving the roadway 14 altogether. 15 16  Collision Mitigation Braking System (CMBS): Can assist you when there 17 is a possibility of your vehicle colliding with a vehicle or a pedestrian detected in front of yours.2 18 19 17. CMBS is supposed to provide alerts to drivers when a potential collision 20 is detected and, when a collision is deemed unavoidable, the CMBS is supposed to 21 automatically reduce vehicle speed by applying the brakes. The CMBS is capable of 22 providing light brake application or strong brake application. According to Honda, 23 the CMBS activates when: 24 25 26 27 1 http://owners.honda.com/utility/download?path=/static/pdfs/2018/CR- 28 V/2018_CR-V_Collision_Mitigation_Breaking_System.pdf 2 Id. 4 AMENDED CLASS ACTION COMPLAINT CASE NO. 2:19-CV-02945-MWF-PJW 8 Page ID #:69 1  The speed difference between your vehicle and a vehicle or pedestrian detected in front of you is about 3 mph (5 km/h) and over with a chance of a 2 collision. 3  Your vehicle speed is about 62 mph (100 km/h) or less and the system 4 determines there is a chance of a collision with another vehicle or a pedestrian 5 in front of you. 6  You vehicle speed is above 62 mph (100 km/h), and the system determines there is a chance of a collision with a vehicle detected in front of you traveling 7 in your same direction.3 8 18. Honda first recognized the potential market demand for computerized 9 driver-assisting safety systems decades ago. Honda introduced its CMBS in the 10 Japanese market in June 2003, positing that the CMBS could help prevent rear-end 11 collisions. The figure below shows the basic system configuration of the early 12 CMBS—with radar to detect and measure the speed of objects in front of the 13 vehicle; additional sensors to assist in measuring speed; a warning indicator on the 14 dashboard; and an electronic control unit (or "ECU") that controls the autonomous 15 braking system: 16 17 18 19 20 21 22 23 24 25 26 27 28 3 http://techinfo.honda.com/rjanisis/pubs/OM/AH/ATLA1818OM/enu/ATLA1 818OM.PDF at 533. 5 AMENDED CLASS ACTION COMPLAINT CASE NO. 2:19-CV-02945-MWF-PJW 8 Page ID #:70 1 2 19. The Honda Sensing system in Class Vehicles employs a millimeter wave 3 radar unit (on the front of the vehicle near the bumper) as well as a camera (located 4 near the rearview mirror). For CMBS purposes, the radar and camera scan 5 approximately 100 meters ahead of Class Vehicles searching for potential obstacles 6 that could cause a collision. If an obstacle is detected, the CMBS will alert the driver 7 and potentially apply light or strong brakes automatically. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 AMENDED CLASS ACTION COMPLAINT CASE NO. 2:19-CV-02945-MWF-PJW 8 Page ID #:71 1 20. Honda and the rest of the automotive industry have known for years 2 that driver-assisting safety systems, including automatic braking systems, must be 3 calibrated appropriately and vetted with testing and inspection before sale, to ensure 4 that they are functioning properly and to ensure there are no false alarms (where the 5 autonomous braking system activates even though there is no impending risk of a 6 collision). 7 21. The National Transportation Safety Board, for example, released a 8 special investigation report in 2015 analyzing the use of autonomous braking 9 systems. As the report stated, autonomous braking systems are to activate "only in 10 critical situations."4 The report also found that such collision avoidance systems 11 "depend[] heavily on the accuracy and timeliness of detection, which relies on the 12 quality of the installed sensor, camera, or vision algorithm detecting targets." 13 22. Among the potential problems identified in the report was the possibility 14 of false alarms, with "false alarm" defined as "the detection of a conflict when none 15 is present." The report noted that among the limitations of a radar-based system is 16 the reality that there will be "[i]ncreased interference from other sources resulting in 17 more frequent misidentifications (e.g., identifying a bridge as a conflict vehicle)." 18 23. As Honda has long known, Class Vehicles' suite of driver-assisting 19 safety systems, including the autonomous braking system, are dangerously defective. 20 Drivers report that they frequently see an error message on their dashboard stating 21 there is a problem with the CMBS. With this error, the CMBS (and other features 22 including adaptive cruise control) may be deactivated. Worse, the CMBS frequently 23 causes Class Vehicles to brake without warning, even when driving at high speeds 24 and with no plausible risk of collision ahead. This can be extremely dangerous— 25 among other things, it creates a risk that vehicles trailing behind will either rear-end 26 27 28 4 https://www.ntsb.gov/safety/safety-studies/Documents/SIR1501.pdf. 7 AMENDED CLASS ACTION COMPLAINT CASE NO. 2:19-CV-02945-MWF-PJW 8 Page ID #:72 1 the Class Vehicle, have to slam on the brakes themselves, or swerve out of their lane 2 to avoid a collision. 3 24. As one news report put it, there are "rising concerns that the system will 4 brake for no reason at all"; thus, Honda's "Collision mitigation braking assist … 5 applies brake pressure when an unavoidable collision is determined or when an 6 'unavoidable' situation is created out of thin air by the robot mind of your car."5 7 25. Below are examples of the numerous complaints lodged with the 8 NHTSA by Honda owners and lessees. The complaints excerpted below are just a 9 few of those available on the NHTSA's website. Because most drivers are not 10 familiar with the NHTSA or the process for registering complaints with the agency, 11 the complaints below only represent a small portion of the drivers actually 12 experiencing problems with the Honda Sensing system. According to the 13 complaining drivers, the defect often manifests when the Class Vehicles are still 14 brand new: 15 2017 Honda CR-V: Driving my 2017 CRV EX home from work. 16 Stopped at red light, foot on brake pedal. When the traffic signal turned 17 green, I took my foot off the brake pedal, and a message came up on the dashboard screen "brake system failure". The engine was still running. I 18 turned onto a side street and tried to depress the brake pedal, but it was 19 frozen and the vehicle would not stop. 20 I pulled into a parking lot and put the vehicle in 'park', and called the 21 dealership where I leased the vehicle. The sales rep suggested I turn off 22 the engine and restart it. I did that and all systems seemed to function properly. 23 24 I later took my CRV back to the dealer, and they did a diagnostic check 25 but found no definitive problem. The technician could only say the computer indicated something had occurred but could say what, or 26 why, or whether it might occur again. The service advisor said they 27 28 5 http://www.hondaproblems.com/honda-sensing/ (emphasis added). 8 AMENDED CLASS ACTION COMPLAINT CASE NO. 2:19-CV-02945-MWF-PJW 8 Page ID #:73 1 could not find a problem, and everything seemed ok, and "have a nice day!" 2 3 Now I am anxious when I drive wondering if, or when, the brake system might fail again. Is it just my CRV, or has this issue been 4 reported by anyone else? This issue, should it occur again while driving 5 in traffic, could result in a serious crash situation. 6 (NHTSA ID 10959870, Report Date: March 9, 2017) 7 2017 Honda CR-V: Collision mitigation system is malfunctioning when 8 driving over metal plates: during construction, metal plates were put on the road where I work. They do not stick out, area flush with the street, 9 and are about 4 feet wide. Every time I get close to drive straight over 10 them (at probably 20-25 MPH), my car slams onto the brakes and 11 comes to a complete stop. If anybody were behind me, they would rear- end me. A colleague of mine bought the same car and has exactly the 12 same problem. I had my car checked out at a Honda dealer and they 13 told me everything is working properly. The system cannot be turned off permanently, so I have to turn it off manually every time I start the car. 14 This is very dangerous, as somebody will get hurt soon if somebody is 15 behind me and there is no reason I would come to such an abrupt stop. 16 (NHTSA ID 10985566, Report Date: May 14, 2017) 17 2017 Honda CR-V: Faulty Honda Sensing was driving at approx 18 35MPH when CRV slammed on it's on brakes by itself for the 2nd time thank god no one was behind us, high beams come on when close to on 19 coming traffic blinding on coming traffic, blind spot indicator comes on 20 when no one around, blind spot indicator doesn't come on, when cars in 21 blind spot, didn't see car in my blind spot and cut car off because blind spot indicator wasn't working. Burning wire smell inside cab. Most of 22 these problems have been happening since approx Jan 2017 less than 1 23 month of owning car. I can't list just 1 day its happened because it's happened multiple times over and over. CRV has been in shop 5-6 times 24 for these problems with no luck of fixing them. 25 (NHTSA ID 11003507, Report Date: July 6, 2017) 26 2017 Honda CR-V: Was driving 45MPH on a straight, flat road, no 27 other cars around. Brakes slammed on and then released. There was 28 nothing in front of me or behind me. I believe something is wrong with 9 AMENDED CLASS ACTION COMPLAINT CASE NO. 2:19-CV-02945-MWF-PJW 8 Page ID #:74 1 the collision mitigation braking system. My back and neck are very sore. There were no warnings from the system. 2 (NHTSA ID 11013983, Report Date: August 8, 2017) 3 2017 Honda CR-V: Brakes came on hard with cruise control set at 73 4 MPH while driving on interstate in left lane. Nothing was ahead of me 5 in my lane. I was overtaking a vehicle that was in the right lane. The 6 highway was very straight. I believe that there is a problem with the collision avoidance system. 7 (NHTSA ID 11030370, Report Date: September 28, 2017) 8 2017 Honda CR-V: The collision mitigation braking system is a safety 9 feature that alerts the driver of a potential frontal collision with a vehicle 10 or pedestrian. When a collision is deemed unavoidable, the system 11 automatically reduces the vehicle's speed and brings the vehicle to a complete stop. The system provides visual and audible alerts. The 12 system has activated automatically while in forward motion on city 13 streets without reason causing the vehicle to brake hard and to come to a complete stop in moving traffic nearly causing rear-end collisions. 14 (NHTSA ID 11046452, Report Date: November 16, 2017) 15 16 2017 Honda CR-V: On two separate occasions the "brake" signal displayed and the vehicle came to a sudden screeching and complete 17 stop. There were no vehicles or any other obstruction in front of me and 18 thank goodness no one behind me. I was in motion at a speed of about 20 mph. The sudden and without reason stop jolted me forward without 19 warning and it was very painful. I took the vehicle to the dealer I 20 purchased it from and was told to disable the feature because they were 21 unable to duplicate the fault. The default for this feature is enabled upon starting vehicle. So I must disable the collision mitigation system every 22 time I start the car. 23 (NHTSA ID 11047576, Report Date: November 20, 2017) 24 2017 Honda CR-V: Traveling on interstate at the speed limit the car 25 suddenly braked. All safety systems were activated at this time. 26 Fortunately there was no traffic in front, behind or beside. I got the car under control, turned all systems off and proceeded. Messages on dash 27 indicated four systems were inoperatable. When I got home I called 28 Honda to report. They suggested I take the car to my dealer. I did so the 10 AMENDED CLASS ACTION COMPLAINT CASE NO. 2:19-CV-02945-MWF-PJW 8 Page ID #:75 1 following day. (this happened on a weekend) they indicated there was a "bulletin" out on this problem. They downloaded new software to 2 correct the problem. 3 Now my concern. Bulletins are only acted upon when an owner 4 complains. The issue I outlined above warrants surely qualifies for more 5 than a bulletin. At the same time.at the dealer I learned of another 6 problem...a recall for a gas line issue. Someone needs to inform the owners of this vehicle when a recall is made. I was not informed. I 7 accidentally found out about it.at the dealer, 8 Consumer gives permission to discuss this matter with the Honda Corp 9 *VA *JS 10 (NHTSA ID 11055685, Report Date: December 16, 2017) 11 2017 Honda CR-V: Problem: the apply brakes light appeared on the 12 dashboard display and the brakes automatically applied, dragging the 13 car from 65mph to 25 in about 80 feet. The SUV behind me narrowly avoided hitting me. There were no cars in my lane ahead of me for est. 14 7 car lengths. Narrative: clear day on the capital beltway, 495, inner 15 loop immediately after the chain bridge road exit in Virginia. I had 16 accelerated from 30MPH to merge from the Highway 7/Leesburg Pike on-ramp onto the 495 inner loop into heavy traffic. This first lane from 17 the right is a filter lane where on-boarding cars and exiting cars must 18 filter onto the freeway or an exit in about .2 miles. After entering the heavily trafficked filter lane I cleared and entered the second freeway 19 lane, making 65MPH to match traffic. Nobody was turning into my 20 lane. My lane (second from right) was clear an estimated 7 car lengths 21 in front of my car, but lanes around me were heavily travelled due to several exits in a short distance. (Tysons Corner/Highway 7, Chain 22 Bridge Rd (VA 123), Dulles Toll Road (VA 267). After passing the 23 Chain Bridge exit, before engaging the cruise control, I was jerked forward into the shoulder restraint as the brakes automatically engaged: 24 the brake indicator showing on the dash. I looked in my rearview mirror 25 and noted a SUV heavily braking to avoid impact. I hit the accelerator hard to increase the distance between it and me, making the brakes 26 disengage. Speculation: this model frequently locks onto cars leaving 27 my lane ahead of my course of travel and heavily deaccelerates as they 28 slow to exit speed. Many cars were jockeying to exit in the lane to my right. My suspicion is the active braking system was traking some car in 11 AMENDED CLASS ACTION COMPLAINT CASE NO. 2:19-CV-02945-MWF-PJW 8 Page ID #:76 1 the right filter lane and applied brakes to match their exit speed, which could have been around 20MPH. 2 (NHTSA ID 11067373, Report Filed: February 7, 2018) 3 2017 Honda CR-V: Sensor failure displays on the dashboard saying 4 that some driver assist systems cannot operate: radar obstructed. 5 Honda of Frederick tells me it's a weather related issue and 6 manufacturing issue that they cannot do anymore to fix the problem. 7 Have happeed 4 times; recorded 3 times: driving in rain on highway, 8 driving in snow in town, driving next day after snow but nothing on the road on highway. All straight ways. Have invoices from dealer. 9 (NHTSA ID 11088794, Report Filed: April 18, 2018) 10 11 2018 Honda CR-V: I was driving about 70MPH on the highway west bound in the morning, no direct sunlight, it was an overcast day. I had 12 the adaptive cruise control on. For no reason at all my car slammed on 13 the brakes, did a moderate nose dive and locked my seat belt. No warning what so ever. There was not another car for at least a 1/4 to 14 1/2 mile in front of me. Unfortunately there were cars behind me. I 15 quickly disengaged the adaptive cruise control and floored the gas, 16 avoiding an accident from the rear. I had this identical problem with a 2016 Honda Civic Touring, and every time I reported it, the dealership 17 would blame sunlight, even if there was none when it happened. 18 Something needs to be done about this. (NHTSA ID 11111548, Report Filed: July 16, 2018) 19 20 2018 Honda CR-V: Collision mitigation braking system activated 21 inappropriately while traveling at 45 mph, on a clear day, straight road with no oncoming traffic. "brake" displayed on dash with no warning 22 alerts at the time the full brake came on. Driver and passenger 23 thrown forward, locking seatbelts. (NHTSA ID 11119364, Report Filed: August 11, 2018) 24 25 2018 Honda CR-V: On Monday, 8-20-18, the collision avoidance 26 system caused the car to slam on it's brakes. There were no other vehicles or pedestrians anywhere near the vehicle. In the past, the brake 27 light on the dash has lit up before with no vehicles around, but this is the 28 first time it has slammed on the brakes. I took it to the dealer who said 12 AMENDED CLASS ACTION COMPLAINT CASE NO. 2:19-CV-02945-MWF-PJW 8 Page ID #:77 1 everything checked out fine, then printed out a bunch of papers for me explaining how the system works, which is basically saying it didn't 2 happen. We are very fortunate that there were no cars behind us. This is 3 a serious issue which needs to be dealt with before someone gets hurt. (NHTSA ID 11121577, Report Filed: August 22, 2018) 4 5 2018 Honda CR-V: On two different occasions while driving on the 6 freeway, with no vehicles in the vicinity, my car abruptly applied the brake system. I didn't think to make note of the speed or date when it 7 happened the first time, but I did make note of the second occurrence. 8 During both occurrences, econ mode was turned off. Speed was 58 mph as I had merged over to the right to an exit lane. I did check online for 9 any recalls for my vin and/or the make and model of my vehicle. No 10 recalls were on record. I also checked different forums and found a 11 couple complaints within the last month. I just purchased this vehicle from the Honda dealership 3 months ago. 12 (NHTSA ID 11132704, Report Filed: October 1, 2018) 13 14 See www.safercar.gov (emphasis added in all). 15 Honda's knowledge of the defect 16 26. Honda discovered long ago that the Honda Sensing system in Class 17 Vehicles is defective. 18 27. Honda along with the rest of the automotive industry has known for 19 years that autonomous braking systems are at risk of object detection problems that 20 lead to false alarms and abrupt braking where no potential collision is imminent. 21 Honda conducted a safety recall in 2015 when several of its models were 22 experiencing these types of false alarms and dangerously braking for no apparent 23 reason. It has thus long been incumbent on Honda and other manufacturers using 24 autonomous braking systems to undertake appropriate prerelease testing and 25 inspections to ensure the vehicles are not prone to false alarms. 26 28. For many decades, Honda has conducted durability and reliability 27 testing of its new vehicles before introducing them to the market. This means that 28 Honda automobiles, including Class Vehicles, are exposed to lengthy and 13 AMENDED CLASS ACTION COMPLAINT CASE NO. 2:19-CV-02945-MWF-PJW 8 Page ID #:78 1 comprehensive physical testing that reveals how the vehicles and their component 2 parts and systems (including the CMBS) will perform over the span of many miles of 3 driving. Recognizing that automatic braking features require "the ultimate degree of 4 precision," Honda conducted self-described "endless testing" of these systems, 5 which took "[m]any days."6 According to Honda, its repeated "[b]rutal tests" made 6 test drivers carsick after experiencing sudden braking "over and over."7 7 29. For example, in prior models equipped with CMBS, Honda employed 8 two types of track tests specifically to evaluate the CMBS in "real world" situations. 9 The testing involved a test driver driving toward targets and then evaluating whether 10 the system reacted as intended. Honda used a combination of functionality and 11 efficacy tests to estimate the effectiveness of the system in real‐life situations.8 12 Honda also conducted tests on public roads to determine the accuracy of the 13 system's functions, particularly in different weather conditions.9 Honda tested these 14 systems "in as many situations and conditions as they could imagine."10 15 30. Given its employment of prerelease testing—which includes driving the 16 vehicles for many miles—Honda surely discovered the CMBS defect before it sold 17 the first Class Vehicle. As the driver complaints to the NHTSA above show, the 18 Class Vehicles often experience false alarms and dangerous, unnecessary braking 19 shortly after drivers purchase or lease them. Given the immediacy with which the 20 21 22 6 23 https://global.honda/content/dam/site/global/about/cq_img/sustainability/safety /Hearts/Hearts-2.pdf 24 7 Id. 25 8 https://preview.thenewsmarket.com/Previews/NCAP/DocumentAssets/188045. pdf. 26 9 27 https://global.honda/content/dam/site/global/about/cq_img/sustainability/safety 28 /Hearts/Hearts-2.pdf 10 Id. 14 AMENDED CLASS ACTION COMPLAINT CASE NO. 2:19-CV-02945-MWF-PJW 8 Page ID #:79 1 defect often manifests, it would be nearly impossible for Honda to put Class 2 Vehicles to market without discovering the defect beforehand through its pre-release 3 testing efforts (the results of which are exclusively within Honda's control). 4 31. Also, once sales of a vehicle model begin, Honda carefully monitors a 5 variety of sources of information with the goal of detecting—as early as possible— 6 any sign of a defect in its vehicles. These sources of information include warranty 7 claims data, replacement part data, field reports (where technicians assist in repairs 8 or evaluate vehicles to assess the cause of problems and potential solutions), and 9 customer complaints. Honda, moreover, does not simply tally the total number of 10 each category, but instead uses business intelligence to make projections regarding 11 how many future failures there are likely to be and analyzes how those projections 12 compare with totals from previous vehicle models. 13 32. There are several reasons for Honda's vigilance in this regard. For one, 14 Honda is required by federal law to look out for potential safety defects. Honda and 15 other manufacturers also have great incentives to discover defects early on before 16 they materially affect the manufacturers' outlay of expense (for dealership 17 technicians' time and for the purchase of replacement parts) in connection with 18 warranty repairs. Honda's and other manufacturers' competitive standing also turns 19 on customer satisfaction, which means Honda is receptive to feedback from the 20 people and entities who buy and lease new Honda vehicles—including not only 21 their complaints directly to Honda, but also their responses to new vehicle owner 22 surveys and their statements online (on the NHTSA website and elsewhere). Honda 23 thus monitors the NHTSA website and other sources of information regularly for 24 any signs of vehicle problems or defects. Honda begins reviewing this data as soon 25 as its models are introduced and monitors it continuously as part of ongoing quality 26 control efforts. As Honda puts it, its approach is based on the idea that "It is 27 unacceptable that even one customer in a thousand – even one customer in ten 28 thousand – should receive a defective product." 15 AMENDED CLASS ACTION COMPLAINT CASE NO. 2:19-CV-02945-MWF-PJW 8 Page ID #:80 1 33. Honda thus established a "Quality Center" whose stated goals include 2 "quickly detecting … quality issues when they occur."11 Honda's vigilance in 3 searching for all early signs of defects in its vehicles is enhanced by the use of 4 sophisticated systems for detecting emerging vehicle problems as well as the 5 devotion of resources and personnel to detecting those problems as early as possible. 6 In modern day vehicle production, failures are typically measured per thousand 7 vehicles or sometimes even per hundred thousand vehicles. As a result, defect 8 trends are frequently identified after just a handful of reported failures. 9 34. In those instances where the various data streams available to Honda 10 show the possibility of a safety hazard in a Honda vehicle, Honda is particularly apt 11 to take note immediately. For example, after receiving just a single report in 12 November 2013 "of CMBS activation without any obstacles ahead of the vehicle," 13 Honda initiated an investigation and conducted "94 separate driving tests." 14 Ultimately, this resulted in the 2015 safety recall discussed above. 15 35. Given all of these factors and sources of information, even if Honda had 16 not discovered the defect before selling the first Class Vehicle, as soon as it began 17 selling and leasing them Honda surely discovered the defect. By February 2017, for 18 example, Honda had already conducted an investigation. It wrote to its dealers that 19 in some 2017 CR-Vs with "low mileage" the "ACC (Adaptive Cruise Control), 20 Collision Mitigation Braking System, and Road Departure Mitigation indicators" 21 were lighting up on the dashboard. Additionally, the "driver information interface 22 shows Adaptive Cruise Control Problem, Collision Mitigation System Problem, and 23 Road Departure Mitigation System Problem messages." Honda blamed the 24 factory's radar aiming process and instructed dealers to re-aim the radar. 25 26 27 11 28 https://global.honda/content/dam/site/global/about/cq_img/sustainability/repor t/pdf/2018/Honda-SR-2018-en-065-078.pdf 16 AMENDED CLASS ACTION COMPLAINT CASE NO. 2:19-CV-02945-MWF-PJW 8 Page ID #:81 1 36. In November 2017, however, Honda sent another message to its dealers 2 where it reported that 2017-2018 CR-V drivers continued to complain about 3 "various warning lights such as the brake system, lane departure, ACC & forward 4 collision warning illuminat[ing] on the dash." Prior to attempting a repair, dealers 5 should contact Honda and permit it to inspect the vehicle. Honda also walked back 6 its radar explanation, telling dealers it only wanted to inspect vehicles where a prior 7 "[a]ttempt to re-aim the radar is not successful." It issued similar messages in 8 January, March, and April 2018. 9 37. In October 2018, Honda revised its instructions to dealers on re-aiming 10 Class Vehicles' radars and admitted that many common and ordinary 11 "environmental and roadway conditions can affect normal operation" of the Honda 12 Sensing system. These conditions include: 13  Rain, fog, and snow; 14  Low sunlight; 15  Strong light; 16  Shadows from trees or buildings; 17  Driving at night; 18  Sudden changes between light and dark (such as the entrance or exit of 19 a tunnel); 20  Driving on curvy roads; and 21  Driving on a hill. 22 Although Honda told its dealers to "Always remember" that the above conditions 23 can interfere with Honda Sensing, Honda has not published this message for the 24 benefit of drivers or potential purchasers of Class Vehicles and has not instructed its 25 dealerships to warn drivers or prospective buyers about the problem. 26 38. Despite Honda's actions, drivers continue to report the same problems 27 in recent months: 28 17 AMENDED CLASS ACTION COMPLAINT CASE NO. 2:19-CV-02945-MWF-PJW 8 Page ID #:82 1 2017 Honda CR-V: Radio locks up and then indicator lights on dash flash - brake failure, VSA failure, TPMS failure, LDW failure, ACC 2 failure, LKAS failure, CMBS failure. Had it at Honda service two 3 times and they reinstalled software and did a hard reboot. Issue reared its head again Dec 14, took to Honda service with lights flashing 4 for a computer read. Service scheduled for Dec 19 to look into issues 5 and perform recall repair. Check engine light has been on since I took it 6 in Dec 14. Car seems to run fine even with indicator lights flashing. Issue happened first time while on interstate going 70 MPH. Secong 7 time on backroad going 45 MPH. 8 (NHTSA ID 11162103, Report Filed: December 17, 2018) 9 2017 Honda CR-V: My car came to a complete stop once while I was 10 driving in the middle of an intersection and once just on a straight 11 road. This happened twice, and I went flying forward and all my stuff on the seat went flying. There was not a car in front of me. They said it 12 must have been reading something to do this, and its to protect a 13 possible pedestrian. This is an accident waiting to happen. I called Honda of Joliet to put it in my record. Another issue is the vehicle 14 stability lights, the adaptive cruise control, collision mitigation, road 15 departure mitigation, and a brake lights all flash stating there is a 16 problem. These lights just come on while driving. This has happened three times. Once it was snowing. The second and third time the 17 weather was clear. The first time I cleared some of the driving aides and 18 the lights went off. I took it to Honda of Joliet on 1/25 and they aligned the radar. The lights came back on 1/28 /19 and they said they 19 realigned it again. They had the car for 2 days. The original reason was 20 the sensors are dirty, and in bad weather this can happen. They said a 21 clump of snow could have caused this too. So this car is only good in good weather? The service person said they have had a lot of cars in 22 for this same reason. Another problem was I came out to find my 23 windows down, my sunroof open and my back door open. Car was stationary. Didn't take it in for this and forgot to tell them when I 24 dropped it off on 1/28/19. 25 (NHTSA ID 11173145, Report Filed: January 20, 2019) 26 2018 Honda CR-V: CMBS faulty. It thinks there is n object on an empty 27 road and hard brakes it's very hazardous to drive you never know when 28 it's gonna happen dealer can't find the isssue 18 AMENDED CLASS ACTION COMPLAINT CASE NO. 2:19-CV-02945-MWF-PJW 8 Page ID #:83 1 (NHTSA ID 11187348, Report Filed March 17, 2019) 2 2018 Honda CR-V: Honda's sensing system randomly displays invalid 3 warning messages. This is the radar/camera system that monitors cars speed, braking, distances, cruise control, etc. This is a random issue that 4 occurs when driving at highway speeds (45 to 65MPH). Warning lights 5 come on stating problems with brakes, speed controls, etc. The main 6 safety concern is that system tells you that you have a problem with your brakes, and you have no way of know if this is true or not. You are 7 forced to pull over in traffic and understand if there is a problem or not. 8 I understand that if it is snowing, heavy rain, heavy dust, or the sensors are blocked in any way, a warning light will come on. The safety 9 concern is that the warnings come on randomly on a sunny or cloudy 10 dry day where there should be nothing that sets the sensors off. To 11 correct the problem, you must stop the car, place it in park and then the alarms clear. This system is not reliable and can not be trusted, plus 12 has not been able to be repaired by the dealer, and per Honda 13 information, could randomly stop the car when there is not real problem (i.e. set the brakes as I am driving down the road at highway 14 speeds for no reason). False warning lights distract the driver and could 15 lead to a collision while driving or on the side of the road trying to 16 determine if there is truly a problem with the vehicle. Should system stop the car for no reason, it could cause a collision. This continues to 17 occur with this vehicle. 18 (NHTSA ID 11189948, Report Filed March 19, 2019) 19 2017 Honda CR-V: Vehicle was stopped at a light. When light turned 20 green, began to enter the intersection when vehicle suddenly flashed 21 brake warning and brought car to complete stop. There was nothing in front of the vehicle. Luckily the vehicle behind did not hit the back 22 of my car. Third time since I purchased the vehicle that this has 23 happened, bar braking with nothing in front of it. (NHTSA ID 11192060, Report Filed: March 27, 2019) 24 25 2018 Honda CR-V: When driving down the hwy, multiple times now, 26 all of the dash warning lights come on concerning the sensing systems and brake system. I have taken to the dealership 4 times now with no 27 real answers. It's your toll tag placement - nope. It's an old code that we 28 19 AMENDED CLASS ACTION COMPLAINT CASE NO. 2:19-CV-02945-MWF-PJW 8 Page ID #:84 1 reset - nope. It isn't happening now - then i leave and it happens the next day. Where do I report a 35k lemon??? 2 (NHTSA ID 11193932, Report Filed April 4, 2019) 3 See www.safercar.gov (emphasis added in all). 4 The dangers posed to occupants of Class Vehicles 5 39. Over the past decade, automotive manufacturers and the NHTSA have 6 recognized that autonomous braking systems prone to false alarms pose 7 unreasonable safety hazards and should be remedied through a safety recall. 8 40. For example, Honda conducted a NHTSA-overseen safety recall in 9 2015 of several of its models. Honda's stated reason for the recall was: "Under 10 certain specific driving conditions, the collision mitigation braking system (CMBS) 11 could lock on an incorrect target. If this occurs, the CMBS may apply the brakes in 12 an attempt to stop the vehicle. If the vehicle suddenly slows or comes to a stop, it 13 could increase the risk of a crash."12 In the recall letter to affected owners, Honda 14 reiterated, that the "defect" "relates to motor vehicle safety" and that "If the CMBS 15 applies unexpected emergency braking force during normal operation, it could 16 increase the risk of a crash."13 In short, the recalled vehicles were falsely identifying 17 collision risks ahead of the vehicle that did not actually pose imminent risks for an 18 accident. 19 41. Toyota recalled several of its models due to a similar problem with its 20 own autonomous braking system (which Toyota calls a "Pre-Collision System" or 21 "PCS").14 Per a Toyota press release at the time, in the recalled "vehicles, under 22 certain situations, the PCS (Pre-Collision System) could interpret a steel joint or 23 24 25 12 https://static.nhtsa.gov/odi/rcl/2015/RCRIT-15V301-5183.pdf 13 https://static.nhtsa.gov/odi/rcl/2015/RCONL-15V301-4918.pdf 26 14 https://www.autoblog.com/2015/11/04/toyota-recalls-pre-collision-system-on- 27 avalon-and-es-models/ 28 20 AMENDED CLASS ACTION COMPLAINT CASE NO. 2:19-CV-02945-MWF-PJW 8 Page ID #:85 1 plate in the roadway as an object that triggers PCS activation. If this occurs, the PCS 2 warning buzzer sounds and the system may apply the service brake automatically." 3 Toyota, like Honda, acknowledged in the recall papers that "Unexpected braking 4 could increase the risk of a crash." 5 42. Ford too has issued a safety recall due to a false alarms plaguing the 6 autonomous braking system in its trucks.15 Ford initiated the recall after discovering 7 that "its automatic braking system incorrectly senses that there's another vehicle in 8 its lane," and would then "hit the brakes."16 Ford said at the time that it was aware 9 of at least one potential collision that resulted. 10 Honda's concealment of the defect and its refusal to warn owners and lessees 11 43. Despite its knowledge that the defect in Class Vehicles endangers 12 drivers, passengers, and others on the road, Honda continues to conceal the problem 13 from drivers and potential customers alike. Honda has not warned consumers at the 14 point of sale or lease (nor instructed its dealerships to do so) and has made no effort 15 to alert drivers to the risk. As a result, most drivers are unaware that they are driving 16 unsafe vehicles and consumers are deprived of the right to make informed 17 purchasing decisions taking into account the available information about the defect. 18 44. As Honda knows, the defect is not reasonably discoverable by 19 consumers unless they experience it firsthand and thus are exposed to the attendant 20 safety risks. 21 45. While vehicles with similar defects have been the subject of voluntary 22 safety recalls—which by law requires notification to owners of lessees of the 23 danger—Honda continues to profit from the sale and lease of defective vehicles to 24 unwitting consumers and continues to decline assistance for Class Vehicles that 25 remain within warranty. 26 27 28 15 https://money.cnn.com/2015/09/30/autos/ford-recall-f-150/index.html 16 Id. 21 AMENDED CLASS ACTION COMPLAINT CASE NO. 2:19-CV-02945-MWF-PJW 8 Page ID #:86 1 46. Given the severity and the safety risks posed by the defect, Honda either 2 should not have sold or leased Plaintiffs and class members their vehicles or it 3 should have prominently disclosed—both in a written disclosure to be 4 acknowledged in writing by Plaintiffs and class members and through an oral 5 disclosure to be given by Honda's authorized dealerships—that the vehicles' 6 autonomous braking systems are defective and may malfunction including by 7 abruptly braking when there is otherwise no risk of a collision. 8 PLAINTIFFS' EXPERIENCES 9 Larry Fain 10 47. Larry Fain purchased a new 2017 Honda CR-V in or around May 11 2017, from Community Honda, an authorized Honda dealership located in Cedar 12 Falls, Iowa. Mr. Fain's vehicle was equipped with Honda Sensing. Mr. Fain 13 researched the vehicle online, including on Honda's website and also spoke with 14 dealership personnel about the vehicle before making his purchase. 15 48. While driving his vehicle, Mr. Fain's CR-V has suddenly applied the 16 brakes without warning or justification. No vehicles or objects were in front of the 17 vehicle nor was there any other reason that the car needed to brake abruptly. 18 49. Mr. Fain contacted Honda who claimed not to have heard of the issue 19 before. 20 50. Mr. Fain has since learned that other drivers have reported the same 21 problem, but have been told by Honda or its dealers that no repair is available. 22 Although he continues to drive his vehicle because he is not in a position to 23 purchase a new vehicle at this time, he remains concerned that problems with the 24 Honda Sensing system will re-occur. 25 51. Had Honda adequately disclosed the defect, Mr. Fain would not have 26 purchased his vehicle. His vehicle remains within the scope of Honda's new vehicle 27 limited warranty. 28 22 AMENDED CLASS ACTION COMPLAINT CASE NO. 2:19-CV-02945-MWF-PJW 8 Page ID #:87 1 Franzetta Cheathon 2 52. Franzetta Cheathon purchased a new 2017 Honda CR-V in or around 3 August 2017, from Maita Honda, an authorized Honda dealership located in Citrus 4 Heights, California. Ms. Cheathon's vehicle was equipped with Honda Sensing. 5 Ms. Cheathon researched the vehicle online, including on Honda's website, and also 6 spoke with dealership personnel about the vehicle before making his purchase. 7 53. While driving her vehicle, Ms. Cheathon's CR-V has suddenly applied 8 the brakes without warning or justification. No vehicles or objects were in front of 9 the vehicle nor was there any other reason that the car needed to brake abruptly. 10 54. Ms. Cheathon has since learned that other drivers have reported the 11 same problem, but have been told by Honda or its dealers that no repair is available. 12 Although she continues to drive her vehicle because she is not in a position to 13 purchase a new vehicle at this time, she remains concerned that problems with the 14 Honda Sensing system will re-occur. 15 55. Had Honda adequately disclosed the defect, Ms. Cheathon would not 16 have purchased her vehicle, or would have paid substantially less for it. Her vehicle 17 remains within the scope of Honda's new vehicle limited warranty. 18 CLASS ACTION ALLEGATIONS 19 56. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, Plaintiffs 20 bring this action on behalf of themselves and the following proposed classes, within 21 which the term "Class Vehicle" is defined to include the 2017-18 model year Honda 22 CR-V: 23 California Class: 24 All persons who purchased or leased a Class Vehicle in California. 25 Iowa Class: 26 All persons who purchased or leased a Class Vehicle in Iowa. 27 57. Excluded from the proposed classes are Honda; any affiliate, parent, 28 or subsidiary of Honda; any entity in which Honda has a controlling interest; any 23 AMENDED CLASS ACTION COMPLAINT CASE NO. 2:19-CV-02945-MWF-PJW 8 Page ID #:88 1 officer, director, or employee of Honda; any successor or assign of Honda; anyone 2 employed by counsel in this action; any judge to whom this case is assigned, his or 3 her spouse; members of the judge's staff; and anyone who purchased a Class Vehicle 4 for the purpose of resale. 5 58. The above proposed class definitions suffice because they use objective 6 characteristics; class membership turns on objective criteria including whether 7 someone bought or leased a Class in a particular state. Documents identifying who 8 purchased and leased Class Vehicles, and where, are in Defendants' possession, 9 custody, and control. 10 59. Numerosity. Honda sold many thousands of Class Vehicles, including 11 a substantial number in California and Iowa. Members of the proposed classes likely 12 number in the thousands and are thus too numerous to practically join in a single 13 action. Class members may be notified of the pendency of this action by mail, 14 supplemented by published notice (if deemed necessary or appropriate by the 15 Court). 16 60. Commonality and Predominance. Common questions of law and fact 17 exist as to all proposed members of the classes and predominate over questions 18 affecting only individual class members. These common questions include: 19 a. Whether Honda knew or should have known of the defect, and if so, 20 when it discovered this; 21 b. Whether knowledge of the defect would be important to a reasonable 22 person, because, among other things, it poses an unreasonable safety 23 hazard and impacts the central functionality of Class Vehicles; 24 c. Whether Honda failed to disclose and concealed the existence of the 25 defect from potential customers; 26 d. Whether the Court may enter an injunction requiring Honda to notify 27 owners and lessees about the defect; 28 24 AMENDED CLASS ACTION COMPLAINT CASE NO. 2:19-CV-02945-MWF-PJW 8 Page ID #:89 1 e. Whether Honda's conduct, as alleged herein, violates the consumer 2 protection laws of California and Iowa; 3 f. Whether Honda has breached its implied warranty obligations; and 4 g. Whether Honda's conduct, as alleged herein, entitles Plaintiffs and the 5 proposed classes they represent to restitution. 6 61. Typicality. Plaintiffs' claims are typical of the claims of the proposed 7 classes. Plaintiffs and the members of the proposed classes all purchased or leased 8 Class Vehicles with the same defect, giving rise to substantially the same claims. As 9 illustrated by class member complaints, some of which have been excerpted above, 10 each vehicle model included in the proposed class definitions has suffered from the 11 same defect that Plaintiffs are complaining about. 12 62. Adequacy. Plaintiffs are adequate representatives of the proposed 13 classes because their interests do not conflict with the interests of the members of the 14 classes they seek to represent. Plaintiffs have retained counsel who are competent 15 and experienced in complex class action litigation, and who will prosecute this 16 action vigorously on class members' behalf. 17 63. Superiority. A class action is superior to other available means for the 18 fair and efficient adjudication of this dispute. The injury suffered by each class 19 member, while meaningful on an individual basis, is not of such magnitude as to 20 make the prosecution of individual actions against Honda economically feasible. 21 Even if class members themselves could afford such individualized litigation, the 22 court system could not. In addition to the burden and expense of managing many 23 actions arising from the defect, individualized litigation presents a potential for 24 inconsistent or contradictory judgments. Individualized litigation increases the delay 25 and expense to all parties and the court system presented by the legal and factual 26 issues of the case. By contrast, a class action presents far fewer management 27 difficulties and provides the benefits of single adjudication, economy of scale, and 28 comprehensive supervision by a single court. 25 AMENDED CLASS ACTION COMPLAINT CASE NO. 2:19-CV-02945-MWF-PJW 8 Page ID #:90 1 64. In the alternative, the proposed classes may be certified because: 2 a. the prosecution of separate actions by the individual members of 3 the proposed classes would create a risk of inconsistent 4 adjudications, which could establish incompatible standards of 5 conduct for Honda; 6 b. the prosecution of individual actions could result in adjudications, 7 which as a practical matter, would be dispositive of the interests of 8 non-party class members or which would substantially impair 9 their ability to protect their interests; and 10 c. Honda has acted or refused to act on grounds generally applicable 11 to the proposed classes, thereby making appropriate final and 12 injunctive relief with respect to the members of the proposed 13 classes as a whole. 14 TOLLING OF STATUTES OF LIMITATIONS 15 65. Discovery Rule. Plaintiffs' and class members' claims accrued upon 16 discovery that their Class Vehicles were sold and leased with a known defect. While 17 Honda knew about, and concealed, the defect, Plaintiffs and class members could 18 not and did not discover this fact through reasonable diligent investigation until after 19 they experienced it and learned that the problem was not isolated to their vehicle. 20 66. Active Concealment Tolling. Any statutes of limitations are tolled by 21 Honda's knowing and active concealment of the fact that Class Vehicles suffer from 22 an inherent defect. Honda kept Plaintiffs and all class members ignorant of vital 23 information essential to the pursuit of their claim, without any fault or lack of 24 diligence on the part of Plaintiffs. The details of Honda's efforts to conceal its above- 25 described unlawful conduct are in its possession, custody, and control, to the 26 exclusion of Plaintiffs and class members, and await discovery. Plaintiffs could not 27 reasonably have discovered the defect on their own. 28 67. Estoppel. Honda was and is under a continuous duty to disclose to 26 AMENDED CLASS ACTION COMPLAINT CASE NO. 2:19-CV-02945-MWF-PJW 8 Page ID #:91 1 Plaintiffs and all class members the true character, quality, and nature of the Class 2 Vehicles. At all relevant times, and continuing to this day, Honda knowingly, 3 affirmatively, and actively concealed the true character, quality, and nature of the 4 Class Vehicles. The details of Honda's efforts to conceal its above-described 5 unlawful conduct are in its possession, custody, and control, to the exclusion of 6 Plaintiffs and class members, and await discovery. Plaintiffs reasonably relied upon 7 Honda's active concealment. Based on the foregoing, Honda is estopped from 8 relying upon any statutes of limitation in defense of this action. 9 68. Equitable Tolling. Honda took active steps to conceal the fact that it 10 wrongfully, improperly, illegally, and repeatedly manufactured, marketed, 11 distributed, sold, and leased Class Vehicles with a known defect. The details of 12 Honda's efforts to conceal its above-described unlawful conduct are in its 13 possession, custody, and control, to the exclusion of Plaintiffs and class members, 14 and await discovery. When Plaintiffs learned about this material information, they 15 exercised due diligence by thoroughly investigating the situation, retaining counsel, 16 and pursuing their claims. Honda fraudulently concealed its above-described 17 wrongful acts. Should such tolling be necessary, therefore, all applicable statutes of 18 limitation are tolled under the doctrine of equitable tolling. 19 FIRST CAUSE OF ACTION 20 Unlawful, Unfair, and Fraudulent Business Practices, 21 Cal. Bus. & Prof. Code § 17200, et seq. 22 (Plaintiff Cheathon on behalf of the proposed California Class) 23 69. Plaintiff Cheathon re-alleges the paragraphs above as if fully set forth 24 herein. 25 70. Honda has violated and continues to violate California's Unfair 26 Competition Law, Cal. Bus. & Prof. Code § 17200, et seq., which prohibits unlawful, 27 unfair, and fraudulent business acts or practices. 28 27 AMENDED CLASS ACTION COMPLAINT CASE NO. 2:19-CV-02945-MWF-PJW 8 Page ID #:92 1 71. Honda's acts and practices, as alleged in this complaint, constitute 2 unlawful, unfair, and fraudulent business practices, in violation of the Unfair 3 Competition Law. In particular, Honda sold vehicles to class members despite 4 knowing of a safety defect in the vehicles, failing to disclose its knowledge of the 5 defect and its attendant risks at the point of sale or otherwise. 6 72. Honda's business acts and practices are unlawful in that they violate 7 the Consumers Legal Remedies Act, Cal. Civil Code § 1750, et seq., and the Song- 8 Beverly Consumer Warranty Act for Breach of Implied Warranty, Cal. Civ. Code § 9 1790, et seq., for the reasons set forth below 10 73. Honda's acts and practices also constitute fraudulent practices in that 11 they are likely to deceive a reasonable consumer. As described above, Honda 12 knowingly conceals and fails to disclose at the point of sale and otherwise that Class 13 Vehicles have a defect, endangering the personal safety of drivers and passengers 14 and detracting from the central functionality of the vehicles. As Honda knew, had it 15 disclosed this fact, Plaintiff, class members, and reasonable consumers would not 16 have purchased Class Vehicles or would have paid significantly less for them, and 17 Honda thus concealed the defect with the intent to profit from its nondisclosure. 18 Furthermore, Honda claims to be unable or unwilling to adequately repair the 19 vehicles so as to eliminate the defect. 20 74. Honda's conduct also constitutes unfair business practices for at least 21 the following reasons: 22 a. The gravity of harm to Plaintiff and the proposed California Class from 23 Honda's acts and practices far outweighs any legitimate utility of that 24 conduct; 25 b. Honda's conduct is immoral, unethical, oppressive, unscrupulous, or 26 substantially injurious to Plaintiff and the members of the proposed 27 California Class; and 28 28 AMENDED CLASS ACTION COMPLAINT CASE NO. 2:19-CV-02945-MWF-PJW 8 Page ID #:93 1 c. Honda's conduct undermines or violates the stated policies underlying 2 the Consumers Legal Remedies Act and the Song-Beverly Consumer 3 Warranty Act—to protect consumers against unfair and sharp business 4 practices and to promote a basic level of honesty and reliability in the 5 marketplace. 6 75. As a direct and proximate result of Honda's business practices, 7 Plaintiff and proposed class members suffered injury in fact and lost money or 8 property, because they purchased and paid for vehicles that they otherwise would 9 not have, or in the alternative, would have paid less for. 10 76. Plaintiff and the proposed California Class are entitled to equitable 11 relief, including an order directing Honda to disclose the existence of the defect to 12 drivers and consumers and to provide restitution and disgorgement of all profits paid 13 to Honda as a result of its unfair, deceptive, and fraudulent practices, reasonable 14 attorneys' fees and costs, and a permanent injunction enjoining such practices. 15 SECOND CAUSE OF ACTION 16 Violation of the Consumers Legal Remedies Act, 17 Cal. Civ. Code § 1750, et seq. 18 (Plaintiff Cheathon on behalf of the proposed California Class) 19 77. Plaintiff Cheathon re-alleges the paragraphs above as if fully set forth 20 herein. 21 78. Honda is a "person" within the meaning of Civil Code §§ 1761(c) and 22 1770, and has provided "goods" within the meaning of Civil Code §§ 1761(b) and 23 1770. 24 79. Plaintiff and members of the proposed California Class are 25 "consumers" within the meaning of Civil Code §§ 1761(d) and 1770, and have 26 engaged in a "transaction" within the meaning of Civil Code §§ 1761(e) and 1770. 27 80. Honda's acts and practices, which were intended to result and which 28 did result in the sale of defective Class Vehicles, violate § 1770 of the Consumers 29 AMENDED CLASS ACTION COMPLAINT CASE NO. 2:19-CV-02945-MWF-PJW 8 Page ID #:94 1 Legal Remedies Act for at least the following reasons: 2 a. Honda represents that its vehicles had characteristics, uses, or benefits 3 which they do not have; 4 b. Honda advertises its goods with intent not to sell them as advertised; 5 c. Honda represents that its vehicles are of a particular standard, quality, 6 or grade when they are not; 7 d. Honda represents that a transaction conferred or involved rights, 8 remedies, or obligations which they do not; and 9 e. Honda represents that its goods have been supplied in accordance with a 10 previous representation when they have not. 11 81. As described above, Honda sold and leased vehicles to class members 12 with a known defect that endangers drivers and materially detracts from the central 13 functionality of the vehicles. Honda failed to disclose its knowledge of the defect and 14 its attendant risks at the point of sale or otherwise, realizing that warning about the 15 defect would dissuade class members from purchasing and leading the vehicles. 16 Furthermore, Honda claims to be unable or unwilling to adequately repair the 17 vehicles so as to eliminate the defect. 18 82. Had Honda not concealed and instead adequately disclosed the defect, 19 Plaintiff, members of the proposed class, and reasonable consumers would not have 20 purchased or would have paid less for their vehicles. 21 83. Pursuant to the provisions of Cal. Civ. Code § 1782(a), Plaintiff sent a 22 notice letter to Honda to provide it with the opportunity to correct its business 23 practices more than thirty days before filing this complaint. 24 84. Pursuant to California Civil Code § 1780, Plaintiff seeks actual 25 damages, punitive damages, restitution, reasonable attorney's fees and costs, 26 appropriate injunctive relief including an order enjoining Honda from the unlawful 27 practices described above, and a declaration that Honda's conduct violates the 28 Consumers Legal Remedies Act. 30 AMENDED CLASS ACTION COMPLAINT CASE NO. 2:19-CV-02945-MWF-PJW 8 Page ID #:95 1 THIRD CAUSE OF ACTION 2 Violation of Song-Beverly Consumer Warranty Act 3 for Breach of Implied Warranty, Cal. Civ. Code § 1790, et seq. 4 (Plaintiff Cheathon on behalf of the proposed California Class) 5 85. Plaintiff Cheathon re-alleges the paragraphs above as if fully set forth 6 herein. 7 86. Class Vehicles are "consumer goods" and Plaintiff and the proposed 8 California Class are "buyers" within the meaning of Cal. Civ. Code § 1791. Honda 9 is also a "manufacturer," "distributor," or "retail seller" under Cal. Civ. Code 10 § 1791. 11 87. The implied warranty of merchantability included with the sale of 12 each Class Vehicle means that Honda warranted that each Class Vehicle (a) would 13 pass without objection in trade under the contract description; (b) was fit for the 14 ordinary purposes for which the Class Vehicle would be used; and (c) conformed to 15 the promises or affirmations of fact made on the container or label. 16 88. The Class Vehicles would not pass without objection in the 17 automotive trade because they contain the above-described defect, which also makes 18 them unfit for the ordinary purpose for which a Class Vehicle would be used. 19 89. The Class Vehicles are not adequately labeled because their labeling 20 fails to disclose the defect and does not advise the members of the proposed 21 California Class of the existence of the danger prior to experiencing failure firsthand. 22 90. Honda's actions have deprived Plaintiff and the members of the 23 proposed California Class of the benefit of their bargains and have caused Class 24 Vehicles to be worth less than what Plaintiff and other members of the proposed 25 California Class paid. 26 91. As a direct and proximate result of Honda's breach of implied 27 warranty, members of the proposed California Class received goods whose 28 31 AMENDED CLASS ACTION COMPLAINT CASE NO. 2:19-CV-02945-MWF-PJW 8 Page ID #:96 1 condition substantially impairs their value. Plaintiff and members of the proposed 2 California Class have been damaged by the diminished value of their Class Vehicles. 3 92. Under Cal. Civ. Code §§ 1791.1(d) and 1794, Plaintiff and members of 4 the proposed California Class are entitled to damages and other legal and equitable 5 relief, including, at their election, the right to revoke acceptance of Class Vehicles or 6 the overpayment or diminution in value of their Class Vehicles. They are also 7 entitled to all incidental and consequential damages resulting from Honda's breach, 8 as well as reasonable attorneys' fees and costs. 9 FOURTH CAUSE OF ACTION 10 Iowa Private Right of Action for Consumer Frauds Act, Iowa Code § 714H 11 (Plaintiff Fain on behalf of the proposed Iowa Class) 12 93. Plaintiff Fain incorporates the paragraphs above as if fully set forth 13 herein. 14 94. Honda is a "person" as defined by Iowa Code § 714H.2(7). 15 95. Plaintiff and proposed members of the Iowa Class are "consumers" as 16 defined by Iowa Code § 714H.2(3). 17 96. Honda's conduct described above related to the "sale" or 18 "advertisement" of "merchandise" as defined by Iowa Code §§ 714H.2(2), (6), and 19 (8). 20 97. Honda engaged in unfair, deceptive, and unconscionable trade 21 practices, in violation of the Iowa Private Right of Action for Consumer Frauds Act 22 because Honda failed to disclose information that was material to Plaintiff and 23 proposed class members before they purchased or leased Class Vehicles. 24 Specifically, Honda sold and leased vehicles to class members with a known safety 25 defect, and Honda chose not to disclose its knowledge of the defect and its attendant 26 risks at the point of sale or otherwise, realizing that warning about the defect would 27 dissuade class members from purchasing and leasing the vehicles. Honda now 28 32 AMENDED CLASS ACTION COMPLAINT CASE NO. 2:19-CV-02945-MWF-PJW 8 Page ID #:97 1 claims to be unable or unwilling to adequately repair the vehicles so as to eliminate 2 the defect. 3 98. Honda had ample means and opportunities to disclose these facts to 4 Plaintiff Fain and proposed class members before they purchased or leased Class 5 Vehicles. 6 99. Honda knew that Plaintiff and proposed class members reasonably 7 relied on Honda's omissions. It also intended to mislead Plaintiff and proposed 8 class members and induce them to rely on its omissions. Plaintiff and proposed class 9 members had no way of knowing that Honda's omissions were false and misleading 10 and that their vehicles contained defective Honda Sensing systems. 11 100. Honda acted intentionally, knowingly, and maliciously, to violate 12 Iowa's Private Right of Action for Consumer Frauds Act, and recklessly disregarded 13 the rights of Plaintiff and members of the proposed Iowa Class. 14 101. As a direct and proximate result of Honda's omissions, Plaintiff Fain 15 and the proposed class members have suffered actual damages. Had Honda not 16 made misleading omissions concerning the defective Honda Sensing system in Class 17 Vehicles, Plaintiff Fain and proposed class members would not have purchased their 18 vehicles or would have paid substantially less for them. In the meantime, Honda 19 generated more revenue than it otherwise would have. 20 102. Plaintiff Fain has provided the requisite notice to the Iowa Attorney 21 General, whose office approved the filing of this class action lawsuit complaint 22 pursuant to Iowa Code § 714H.7. 23 103. Plaintiff and the members of the proposed Iowa Class seek all monetary 24 and non-monetary relief allowed by law, including injunctive relief, damages, 25 punitive damages, and reasonable attorney's fees and costs. 26 27 28 33 AMENDED CLASS ACTION COMPLAINT CASE NO. 2:19-CV-02945-MWF-PJW 8 Page ID #:98 1 FIFTH CAUSE OF ACTION 2 Breach of Implied Warranty, 3 Iowa Code § 554.2314, et al. 4 (Plaintiff Fain on behalf of the proposed Iowa Class) 5 104. Plaintiff re-alleges the paragraphs above as if fully set forth herein. 6 105. Class Vehicles are "goods" and Honda is a "seller" and "merchant" 7 within the meaning of Iowa Code §§ 554.2103-554.2105. 8 106. The implied warranty of merchantability included with the sale of 9 each Class Vehicle means that Honda warranted that each Class Vehicle (a) would 10 pass without objection in trade under the contract description; (b) was fit for the 11 ordinary purposes for which the Class Vehicle would be used; and (c) conformed to 12 the promises or affirmations of fact made on the container or label. 13 107. The Class Vehicles would not pass without objection in the 14 automotive trade because they contain the above-described defect, which also makes 15 them unfit for the ordinary purpose for which a Class Vehicle would be used. 16 108. The Class Vehicles are not adequately labeled because their labeling 17 fails to disclose the defect and does not advise the members of the proposed 18 California Class of the existence of the danger prior to experiencing failure firsthand. 19 109. Honda's actions have deprived Plaintiff and the members of the 20 proposed Iowa Class of the benefit of their bargains and have caused Class Vehicles 21 to be worth less than what Plaintiff and other members of the proposed Iowa Class 22 paid. 23 110. As a direct and proximate result of Honda's breach of implied 24 warranty, members of the proposed Iowa Class received goods whose condition 25 substantially impairs their value. Plaintiff and members of the proposed Iowa Class 26 have been damaged by the diminished value of their Class Vehicles. 27 111. Plaintiff Fain notified Honda of its breach within a reasonable time. 28 34 AMENDED CLASS ACTION COMPLAINT CASE NO. 2:19-CV-02945-MWF-PJW 8 Page ID #:99 1 112. Plaintiff and members of the proposed Iowa Class are entitled to 2 damages and all incidental and consequential damages resulting from Honda's 3 breach. 4 SIXTH CAUSE OF ACTION 5 Unjust Enrichment 6 (Plaintiff Fain on behalf of the proposed Iowa Class) 7 113. Plaintiff re-alleges the paragraphs above as if fully set forth herein. 8 114. As described above, Honda sold vehicles to class members even though 9 the vehicles are defective and pose a safety hazard, and failed to disclose its 10 knowledge of the defect and its attendant risks at the point of sale or otherwise. 11 Furthermore, Honda claims to be unable or unwilling to adequately repair the 12 vehicles so as to eliminate the defect. 13 115. As a result of its fraudulent acts and omissions related to the defect, 14 Honda obtained monies which rightfully belongs to Plaintiff and proposed Iowa 15 Class members to the detriment of Plaintiff and the class. 16 116. Honda appreciated, accepted, and retained the non-gratuitous benefits 17 conferred by Plaintiff and the proposed class members, who, without knowledge of 18 the defect, paid a higher price for their vehicles than those vehicles were worth. 19 117. It would be inequitable and unjust for Honda to retain these wrongfully 20 obtained profits. 21 118. Honda's retention of these wrongfully-obtained profits would violate the 22 fundamental principles of justice, equity, and good conscience. 23 119. Plaintiff and the proposed Class are entitled to restitution of the profits 24 Honda unjustly obtained, plus interest. 25 SEVENTH CAUSE OF ACTION 26 Claim in Quasi-Contract Under California Law 27 (Plaintiff Cheathon on behalf of the proposed California Class) 28 120. Plaintiff re-alleges the paragraphs above as if fully set forth herein. 35 AMENDED CLASS ACTION COMPLAINT CASE NO. 2:19-CV-02945-MWF-PJW 8 Page ID #:100 1 121. As described above, Honda sold vehicles to class members even though 2 the vehicles are defective and pose a safety hazard, and failed to disclose its 3 knowledge of the defect and its attendant risks at the point of sale or otherwise. 4 Furthermore, Honda claims to be unable or unwilling to adequately repair the 5 vehicles so as to eliminate the defect. 6 122. As a result of its fraudulent acts and omissions related to the defect, 7 Honda obtained monies which rightfully belongs to Plaintiff and proposed 8 California Class members to the detriment of Plaintiff and the class. 9 123. Honda appreciated, accepted, and retained the non-gratuitous benefits 10 conferred by Plaintiff and the proposed class members, who, without knowledge of 11 the defect, paid a higher price for their vehicles than those vehicles were worth. 12 124. It would be inequitable and unjust for Honda to retain these wrongfully 13 obtained profits. 14 125. Honda's retention of these wrongfully-obtained profits would violate the 15 fundamental principles of justice, equity, and good conscience. 16 126. Plaintiff and the proposed Class are entitled to restitution of the profits 17 Honda unjustly obtained, plus interest. 18 PRAYER FOR RELIEF 19 WHEREFORE, Plaintiffs request that the Court enter a judgment awarding 20 the following relief: 21 a. An order certifying the proposed California and Iowa Classes, and 22 appointing Plaintiffs' counsel to represent the classes; 23 b. An order awarding Plaintiffs and class members their actual damages, 24 punitive damages, and/or any other form of monetary relief provided by 25 law; 26 c. An order awarding Plaintiffs and the classes restitution, disgorgement, 27 or other equitable relief as the Court deems proper; 28 d. An order requiring Honda to adequately disclose and repair the defect; 36 AMENDED CLASS ACTION COMPLAINT CASE NO. 2:19-CV-02945-MWF-PJW 8 Page ID #:101 1 e. An order awarding Plaintiffs and the classes pre-judgment and post- 2 judgment interest as allowed under the law; 3 f. An order awarding Plaintiffs and the classes reasonable attorneys' fees 4 and costs of suit, including expert witness fees; and 5 g. An order awarding such other and further relief as this Court may deem 6 just and proper. 7 8 JURY DEMAND 9 Pursuant to Fed. R. Civ. P. 38(b), Plaintiffs demand a trial by jury for all 10 issues so triable under the law. 11 12 DATED: June 27, 2019 Respectfully submitted, 13 GIBBS LAW GROUP LLP 14 By: /s/ David Stein 15 16 Eric H. Gibbs (SBN 178659) 17 David Stein (SBN 257465) Steven Lopez (SBN 300540) 18 505 14th Street, Suite 1110 19 Oakland, California 94612 20 Telephone: (510) 350-9700 Facsimile: (510) 350-9701 21 ehg@classlawgroup.com 22 ds@classlawgroup.com sal@classlawgroup.com 23 24 Attorneys for Plaintiffs 25 26 27 28 37 AMENDED CLASS ACTION COMPLAINT CASE NO. 2:19-CV-02945-MWF-PJW