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Ferrari v. Autobahn Motors.

Third Amended Complaint

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Herman Franck, Esq. (SB #123476)

Elizabeth Betowski, Esq. (SB #245772)

FRANCK & ASSOCIATES 

910 Florin Road, Suite 212

Sacramento, CA 95831

Tel. (916) 447-8400; Fax (916) 447-0720

Janet R. Varnell, (Admitted Pro Hac Vice)

Brian W. Warwick, (Admitted Pro Hac Vice)

David Lietz (Admitted Pro Hac Vice)

VARNELL & WARWICK, P.A.

P.O. Box 1870

Lady Lake, FL 32158

Tel. (352) 753-8600; Fax (352) 504-3301

Attorneys for Plaintiffs Steve Ferrari, Mike Keynejad et al.

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

STEVE FERRARI, MIKE KEYNEJAD, PATRICIA 

RUBIN, JOHN DIAZ, AND RAY GAPASIN;

individually and as representatives of the Class of 

Persons Similarly Situated; and individual Plaintiffs 

HAROLD FETHE, HOOSHANG JOWZA, CELSO 

FRAZAO, RENUKA NARAYAN, GERTRUD 

FRANKRONE, ERNEST SALINAS, 

KALKHUSAN SAREEN, HOSSEIN JALALI, RON 

WOLFE, SOHRAB RAHIMZADEH, FRED 

GRANT, ESTER GRANT, VINCENT LEUNG, 

JESSICA LANGRIDGE, TONY NICOLOSI,

DONALD LYANG, and ARTUR SEMICHEV,

Plaintiffs,

v. 

AUTOBAHN, INC. DBA AUTOBAHN MOTORS; 

MERCEDES-BENZ USA, LLC; AND SONIC 

AUTOMOTIVE, INC.

 Defendants

Case No. 17-CV-00018-YGR

THIRD AMENDED COMPLAINT FOR

1. BREACH OF CONTRACT

2. VIOLATION OF CIVIL CODE 

SCTION 1770 (CONSUMERS 

LEGAL REMEDIES ACT)

3. VIOLATION OF B&P CODE 

SECTION 17200 (UNFAIR 

COMPETITION ACT)

4. VIOLATION OF B&P CODE 

SECTION 17500 (MISLEADING 

ADVERTISING)

5. TRESPASS TO CHATTEL

6. NEGLIGENCE

7. UNJUST ENRICHMENT

8. COMMON LAW FRAUD

9. NEGLIGENT 

MISREPRESENTATION

10. BREACH OF CONTRACT

11. VIOLATION OF B&P CODE 

SECTION 17200 (UNFAIR 

COMPETITION ACT)

12. VIOLATION OF B&P CODE 

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SECTION 17200 (CAL. VEH. 

CODE 11713.18)

13. VIOLATION OF B&P CODE 

SECTION 17500 (MISLEADING 

ADVERTISING)

14. NEGLIGENCE

15. UNJUST ENRICMENT

DEMAND FOR JURY TRIAL

Named Class Plaintiffs Steve Ferrari, Mike Keynejad, Patricia Rubin, John Diaz, and 

Ray Gapasin, along with individual Plaintiffs Harold Fethe, Hooshang Jowza, Celso Frazao, 

Renuka Narayan, Gertrud Frankrone, Ernest Salinas, Kalkhusan Sareen, Hossein Jalali, Ron 

Wolfe, Sohrab Rahimzadeh, Fred Grant, Ester Grant, Vincent Leung, Jessica Langridge, Tony 

Nicolosi, Donald Lyang, and Artur Semichev, submit this Third Amended Complaint for Breach 

of Contract; Violation of Civil Code Section 1770 (Consumers Legal Remedies Act); B&P Code 

Section 17200 (Unfair Competition Act); Violation of B&P Code Section 17200 (Unfair 

Competition Law and California Vehicle Code 11713.18); Violation of B&P Code Section 17500 

(Misleading Advertising); Trespass to Chattel; Negligence; Unjust Enrichment; Common Law 

Fraud (individually) and Negligent Misrepresentation (individually). 

In support of these claims, Plaintiffs allege and state as follows:

INTRODUCTION

1. This case involves three systematic and intentional schemes to manipulate and 

deceive Mercedes-Benz customers regarding to the sale or non-sale of “Genuine Mercedes-Benz” 

auto parts. Together, these schemes bilked millions of dollars from unknowing consumers and

potentially voided thousands of warranties. 

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2. First, between 2004 and 2015, Defendant Autobahn Motors, a Mercedes-Benz

certified auto dealer located in Northern California, regularly invoiced its maintenance and repair 

customers for Genuine Mercedes-Benz Parts. Unbeknownst to the customers, however, Autobahn 

installed non-Genuine parts and pocketed the difference as additional hidden profit. Regular 

maintenance items such as air filters, oil filters, oil, spark plugs, etc., were routinely invoiced as 

Genuine Mercedes-Benz Parts, but customers were actually provided cheaper non-Genuine 

versions. 

3. Second, Sonic and Autobahn orchestrated a scheme to force their customers to 

purchase the oil additive “zMAX” as a non-negotiable component a standard oil change at any 

Sonic Dealership, including but not limited to Autobahn. Not only did customers not request 

zMAX, but zMAX caused harm to the internal components of the engine and voided the 

manufacturers’ warranty on thousands of vehicles. 

4. Third, Defendants have engaged in a well-documented marketing campaign 

promoting Genuine Mercedes-Benz parts as being superior to non-Genuine parts without 

exception. However, many non-Genuine parts are manufactured by the same companies that 

supply these products to Mercedes-Benz as Genuine Parts. Accordingly, these non-Genuine Parts 

are identical to many Genuine Parts but cost only one third the cost. As a result of this marketing 

campaign, Plaintiffs and the Class paid more for Genuine Parts when identical non-Genuine parts 

are readily available. 

5. Plaintiffs, on their own behalf and on behalf of all those similarly situated, assert 

the claims set forth herein against Defendants arising from these three unlawful schemes. 

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JURISDICTION AND VENUE

6. This case was re-filed in San Mateo Superior Court, after this United States District 

Court dismissed Plaintiffs’ RICO claims, and declined to retain jurisdiction over the remaining

state law claims. Plaintiffs then re-filed this action in the San Mateo County Superior Court, 

asserting a series of state law claims. Defendant Mercedes-Benz USA subsequently removed this 

case back to the United States District Court, on the basis of the Class Action Fairness Act of 2005, 

28 U.S.C. § 1332(d), 1453, and 1711–1715.

7. This Court has jurisdiction over this action pursuant to the Class Action Fairness 

Act (“CAFA”), 28 U.S.C. § 1332(d), because at least one Class member is of diverse citizenship 

from one Defendant, there are more than 100 Class members, and the aggregate amount in 

controversy exceeds $5,000,000, exclusive of interest and costs.

8. The Court has personal jurisdiction over Defendants pursuant to 18 U.S.C. §§ 

1965(b) and (d), and Cal. Code Civ. P. § 410.10, and supplemental jurisdiction over the state-law 

claims pursuant to 28 U.S.C. § 1367.

9. Venue is proper in this District under 28 U.S.C. § 1391(b) because a substantial 

part of the events or omissions giving rise to Plaintiffs’ claims occurred in this District, from 

transactions between the Plaintiffs with Autobahn Motors in Belmont, California.

PARTIES

10. Defendant, Autobahn, Inc. dba Autobahn Motors (“Autobahn” or “Autobahn 

Motors”) is a California Corporation with a principal place of business in Los Angeles, CA and

doing business as Autobahn Motors in Belmont, San Mateo, California. Autobahn Motors is a 

Mercedes Dealership and is wholly owned and operated by Defendant, Sonic Automotive. 

Autobahn is sued based upon its direct participation in the unlawful conduct described herein.

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11. Defendant, Sonic Automotive, Inc. (“Sonic” or “Sonic Automotive”) is a Fortune 

500 corporation organized under the laws of the state of Delaware, with its principal place of 

business in Charlotte, North Carolina. Sonic is among the largest automotive retailers in the United 

States. It operates over 100 dealerships in 14 states, including the Autobahn Motors MercedesBenz dealership located in Belmont, California. Sonic is sued based upon its direct participation 

and involvement in the unlawful conduct described herein.

12. Defendant Mercedes-Benz USA, LLC (“MB USA”) is a Delaware Limited 

Liability Company, with a principal place of business in Atlanta, Georgia. MB USA is sued herein 

based on its direct participation in the unlawful conduct described herein and based upon the 

actions of its agents, Autobahn and Sonic.

13. Plaintiff Steve Ferrari has taken his vehicles in for regular maintenance service at 

Autobahn Motors. Although Plaintiff Ferrari was charged for Genuine Mercedes Parts, 

Defendants installed non-Genuine parts into his vehicle(s). He was invoiced for Genuine 

Mercedes Benz parts, and suffered compensable damages as a proximate result. He is a resident 

of Woodside, California, located in San Mateo County, California. 

14. Plaintiff Mike Keynejad has taken his vehicles in for regular maintenance service 

at Autobahn Motors during which non-Genuine parts were installed into his vehicle(s). He was 

invoiced for Genuine Mercedes Benz parts, and suffered compensable damages as a proximate 

result. He is a citizen of the State of California and a resident of Hillsborough, California, located 

in San Mateo County.

15. Plaintiff Patricia Rubin has taken her vehicles in for regular maintenance service at 

Autobahn Motors during which non-Genuine parts were installed into her vehicle. She was 

invoiced for Genuine Mercedes Benz parts, and suffered compensable damages as a proximate 

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result. She is a citizen of the State of California and a resident of Woodside, CA, located in San 

Mateo County.

16. Plaintiff John Diaz brought one or more Mercedes-Benz automobiles into 

Autobahn Motors for repairs, received non-Genuine and non-OEM parts during those repairs, was 

invoiced for Genuine and OEM parts, and suffered compensable damages as a proximate result. 

He is a citizen of the State of California and a resident of San Francisco, California, located in San 

Francisco, County.

17. Plaintiff Harold Fethe purchased a 2005 S12 Mercedes-Benz as a Certified PreOwned (CPO) vehicle from Autobahn Motors in 2009. The CPO vehicle purchased by Plaintiff 

Fethe contained non-Genuine parts in violation of the Mercedes-Benz CPO Program including but 

not limited to zMAX. He is a citizen of the State of California and a resident of Half Moon Bay, 

California, located in San Mateo County.

18. Plaintiff Ray Gapasin had zMAX added to his engine by Defendants without his 

knowledge and the engine subsequently contained oil sludge caused by the zMAX, damaging the 

vehicle. He is a citizen of the State of California and a resident of Campbell, California, located 

in Santa Clara County.

19. Plaintiff Hooshang Jowza brought one or more Mercedes-Benz automobiles into 

Autobahn Motors for maintenance or repairs, received non-Genuine parts during those repairs, 

was invoiced for Genuine Mercedes-Benz parts, and suffered compensable damages as a 

proximate result. He is a citizen of the State of California and a resident of San Mateo, California, 

located in San Mateo County.

20. Plaintiff Celso Frazao brought one or more Mercedes-Benz automobiles into 

Autobahn Motors for maintenance or repairs, received non-Genuine parts during those repairs, 

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was invoiced for Genuine Mercedes-Benz parts, and suffered compensable damages as a 

proximate result. He is a citizen of the State of California and a resident of Palo Alto California, 

located in Santa Clara County.

21. Plaintiff Renuka Narayan brought one or more Mercedes-Benz automobiles into 

Autobahn Motors for maintenance or repairs, received non-Genuine parts during those repairs, 

was invoiced for Genuine Mercedes-Benz parts, and suffered compensable damages as a 

proximate result. She is a citizen of the State of California and a resident of San Mateo, California, 

located in San Mateo County.

22. Plaintiff Gertrud Frankrone brought one or more Mercedes-Benz automobiles into 

Autobahn Motors for maintenance or repairs, received non-Genuine parts during those repairs, 

was invoiced for Genuine Mercedes-Benz parts, and suffered compensable damages as a 

proximate result. She is a citizen of the State of California and a resident of San Mateo, California, 

located in San Mateo County.

23. Plaintiff Earnest Salinas brought one or more Mercedes-Benz automobiles into 

Autobahn Motors for maintenance or repairs, received non-Genuine parts during those repairs, 

was invoiced for Genuine Mercedes-Benz parts, and suffered compensable damages as a 

proximate result. He is a citizen of the State of California and a resident of Oakland, California, 

located in Glenn County.

24. Plaintiff Kalkhusan Sareen brought one or more Mercedes-Benz automobiles into 

Autobahn Motors for maintenance or repairs, received non-Genuine parts during those repairs, 

was invoiced for Genuine Mercedes-Benz parts, and suffered compensable damages as a 

proximate result. 

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25. Plaintiff Hossein Jalali brought one or more Mercedes-Benz automobiles into 

Autobahn Motors for maintenance or repairs, received non-Genuine parts during those repairs, 

was invoiced for Genuine Mercedes-Benz parts, and suffered compensable damages as a 

proximate result. He is a citizen of the State of California and a resident of Menlo Park, California, 

located in San Mateo County.

26. Plaintiff Ronald Wolfe brought one or more Mercedes-Benz automobiles into 

Autobahn Motors for maintenance or repairs, received non-Genuine parts during those repairs, 

was invoiced for Genuine Mercedes-Benz parts, and suffered compensable damages as a 

proximate result. He is a citizen of the State of Colorado.

27. Plaintiff Sohrab Rahimzadeh brought one or more Mercedes-Benz automobiles into 

Autobahn Motors for maintenance or repairs, received non-Genuine parts during those repairs, 

was invoiced for Genuine Mercedes-Benz parts, and suffered compensable damages as a 

proximate result. He is a citizen of the State of California and a resident of Atherton, California, 

located in San Mateo County.

28. Plaintiff Fred Grant brought one or more Mercedes-Benz automobiles into 

Autobahn Motors for maintenance or repairs, received non-Genuine parts during those repairs, 

was invoiced for Genuine Mercedes-Benz parts, and suffered compensable damages as a 

proximate result. He is a citizen of the State of California and a resident of Redwood City, 

California, located in San Mateo County.

29. Plaintiff Ester Grant brought one or more Mercedes-Benz automobiles into 

Autobahn Motors for maintenance or repairs, received non-Genuine parts during those repairs, 

was invoiced for Genuine Mercedes-Benz parts, and suffered compensable damages as a 

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proximate result. She is a citizen of the State of California and a resident of Redwood City, 

California, located in San Mateo County.

30. Plaintiff Vincent Leung brought one or more Mercedes-Benz automobiles into 

Autobahn Motors for maintenance or repairs, received non-Genuine parts during those repairs, 

was invoiced for Genuine Mercedes-Benz parts, and suffered compensable damages as a 

proximate result. He is a citizen of the State of California and a resident of Foster City, California, 

located in San Mateo County.

31. Plaintiff Jessica Langridge brought one or more Mercedes-Benz automobiles into 

Autobahn Motors for maintenance or repairs, received non-Genuine parts during those repairs, 

was invoiced for Genuine Mercedes-Benz parts, and suffered compensable damages as a 

proximate result. She is a citizen of the State of California and a resident of San Mateo, California, 

located in San Mateo County.

32. Plaintiff Tony Nicolosi brought one or more Mercedes-Benz automobiles into 

Autobahn Motors for maintenance or repairs, received non-Genuine parts during those repairs, 

was invoiced for Genuine Mercedes-Benz parts, and suffered compensable damages as a 

proximate result. He is a citizen of the State of California and a resident of Redwood City, 

California, located in San Mateo County.

33. Plaintiff Donald Lyang brought one or more Mercedes-Benz automobiles into 

Autobahn Motors for maintenance or repairs, received non-Genuine parts during those repairs, 

was invoiced for Genuine Mercedes-Benz parts, and suffered compensable damages as a 

proximate result.

34. Plaintiff Artur Semichev brought one or more Mercedes-Benz automobiles into 

Autobahn Motors for maintenance or repairs, received non-Genuine parts during those repairs,

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was invoiced for Genuine Mercedes-Benz parts, and suffered compensable damages as a 

proximate result. He is a citizen of the State of California and a resident of San Mateo, California, 

located in San Mateo County.

COMMON FACTUAL ALLEGATIONS

ALLEGATIONS REGARDING DEFENDANTS’ USE OF NON-GENUINE PARTS

35. Autobahn Motors is a Mercedes Dealership located in Belmont, California. 

Autobahn is a highly successful dealership selling thousands of vehicles per year in the profitable 

Northern California market. As part of its state-of-the-art facility, Autobahn services thousands 

of Mercedes brand vehicles every year. As a certified repair facility and dealership, Autobahn 

represents to its customers that its Mercedes Certified Technicians will install and use Genuine 

Mercedes-Benz Parts in the repair and maintenance of the vehicles it services.

36. The Autobahn Motors website for the period 2005 through the present states as 

follows concerning its use of OEM/genuine Mercedes-Benz parts at its Belmont, California 

location:

Year Statement

2005 Not currently available

2006 Not currently available

2007 “We use genuine Mercedes-Benz Parts” NOTE: the document does 

NOT state that sometimes Autobahn uses non-Genuine parts.

2008 “We use genuine Mercedes-Benz Parts” NOTE: the document does 

NOT state that sometimes Autobahn uses non-Genuine parts.

 2009 We use genuine Mercedes-Benz Parts” NOTE: the document does NOT 

state that sometimes Autobahn uses non-Genuine parts.

 2010 “We use genuine Mercedes-Benz Parts” NOTE: the document does 

NOT state that sometimes Autobahn uses non-Genuine parts.

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 2011 “We use genuine Mercedes-Benz Parts” NOTE: the document does 

NOT state that sometimes Autobahn uses non-Genuine parts.

 2012 “We use genuine Mercedes-Benz Parts” NOTE: the document does 

NOT state that sometimes Autobahn uses non-Genuine parts.

2013 “We use genuine Mercedes-Benz Parts” NOTE: the document does 

NOT state that sometimes Autobahn uses non-Genuine parts.

 2014 “Best of all, we only use OEM Certified Mercedes-Benz auto repair 

parts and accessories!” NOTE: the document does NOT state that 

sometimes Autobahn uses non-Genuine parts.

2015 “Best of all, we only use OEM Certified Mercedes-Benz auto repair 

parts and accessories!” NOTE: the document does NOT state that 

sometimes Autobahn uses non-Genuine parts. 

2017 “When work is performed on your vehicle, it’s important that the 

technicians are Mercedes-Benz factory-trained and are using genuine 

Mercedes-Benz parts.” 

37. Autobahn Motors also publishes a repair manual that is used by its Service Advisors 

and is kept for use and display in the Service Advisors’ work area. The Service Advisor is the 

person who meets with the repair customer and guides them through the various repair options. 

The repair manual published by Autobahn Motors states: “Our maintenance schedule meets or 

exceeded the manufacturer’s recommended recommendations for vehicle maintenance...” 

Mercedes-Benz recommends that Genuine Mercedes-Benz parts are always to be used.

38. However, these statements are untrue, as Autobahn secretly places non-Genuine 

parts into the vehicles it services and repairs in order to make hidden profit at the expense of its 

customers.

39. Autobahn’s secret non-Genuine parts scandal was first uncovered during the May 

20, 2015 deposition of Mike Del Rosario in an unrelated matter. Mr. Del Rosario testified that as 

a former Service Tech for Autobahn Motors from 2001 to 2012, he and other service techs were 

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instructed to and did install non-Genuine parts into thousands of Autobahn customer vehicles.

Critically, those customers were charged for Genuine Mercedes Parts and were not informed that 

Autobahn was surreptitiously using cheaper non-Genuine parts in the vehicles it serviced and 

repaired, pocketing the difference as additional profit.

40. The Del Rosario testimony was further supported by a series of documents 

produced via third-party subpoenas in the Maskay Inc. v. Autobahn lawsuit. According to these 

documents, Autobahn Motors placed a variety of auto parts purchased from SSF Auto, a major 

supplier of non-Genuine Mercedes-Benz parts, into its used car inventory and into thousands of 

customer vehicles. It was also discovered that from 2004 to May 2015, Autobahn Motors installed 

virtually every type of non-Genuine auto part sold by SSF Auto, from brake pads to shock 

absorbers and everything in between.

41. Autobahn Motors’ Parts Manager, Roopesh Chandra, confirmed that the nonGenuine parts purchased by Autobahn from SSF Auto covered virtually every auto part available 

for Mercedes-Benz automobiles. These non-Genuine parts were routinely installed in Autobahn’s 

used car inventory and into the vehicles if its maintenance/repair customers without the customer’s 

knowledge or consent.

42. Autobahn Motors also installed into its used car inventory and into 

maintenance/repair customer vehicles non-Genuine products sold by MOC Products. NonGenuine products purchased by Autobahn from MOC Products for use in customer vehicles 

includes the following:

• 2,520 bottles of non-OEM zMAX

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• 3,188 32 oz. bottles of non-OEM MOC brake fluid 

• 3,336 bottles of MOC non-OEM automatic transmission fluid conditioner

• 40,560 bottles of non-OEM windshield washer solvent

• 2,712 bottles of non-OEM MOC Gear Guard 75w-140 

• 2,856 units of non-OEM ultra-power steering flush kit, and

• 1,466 units of non-OEM power steering two-pack kits.

43. Upon information and belief, the MOC brake fluid and other MOC products are of 

a lower quality and do not constitute Genuine Mercedes-Benz approved products. For example, 

MOC Brake fluid is not approved by MB USA, but was regularly used by Autobahn Motors in 

maintenance-customer vehicles.

44. Autobahn also used non-Genuine parts purchased from Munich Auto Parts. 

According to data obtained from Munich Auto Parts, Autobahn purchased 17,795 non-Genuine oil 

filters during the class period. These non-Genuine oil filters were used in the maintenance and 

repair Autobahn Motors’ customer vehicles such as Plaintiffs herein.

45. In addition to oil filters, between 2005 and 2010, Autobahn Motors purchased 

69,431 additional non-Genuine parts from Munich Auto Parts Warehouse.

46. The dollar amounts sold by Munich Auto Parts to Autobahn are as follows: 

$174,120 in non-Genuine oil filters; $75,280.00 in non-Genuine spark plugs (13,670 units); $1,816 

in non-Genuine motor mounts; $16,484.50 in non-Genuine V-Belts; $18,358.50 in non-Genuine 

gaskets; $3,868.00 in non-Genuine engine mounts; $22,709.90 in non-Genuine battery units (5024 

units); $20,109.50 in non-Genuine brake sensors (5024 units); $28,570.00 in non-Genuine ignition 

cables; $330.00 in non-Genuine tightener pulleys; $30,736.00 in non-Genuine air mass sensors; 

$19,857.50 in non-Genuine fuel filters; $22,649.00 in non-Genuine part kits filters; $7,460.00 in 

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non-Genuine trans oil filters; $14,556.20 in non-Genuine cabin filters; $19,898.50 in non-Genuine 

air filters; $60,303.00 in non- OEM filter elements; adding up to a total of $537,106.60 in nonGenuine parts. 

47. Thousands of customers bring their automobiles to Autobahn Motors for regular 

maintenance, and Autobahn Motors installed non-Genuine parts in their vehicles without

permission. The number of class members that had their vehicles serviced by Autobahn during 

the class period likely exceeds 12,000. It was Autobahn’s practice to routinely invoice customers 

for Genuine Mercedes-Benz parts although they were not receiving Genuine Mercedes-Benz parts.

The customers were never informed that they were receiving non-Genuine parts at the time of 

service, and they were not given the opportunity to refuse the non-Genuine parts or to insist on 

Genuine Mercedes parts.

48. Plaintiff and putative class representative Steve Ferrari purchased one or more 

Mercedes-Benz vehicles from Autobahn Motors, and has taken his vehicle(s) to Autobahn for 

regular maintenance service during the class period. Although Plaintiff Ferrari was charged and 

paid for Genuine Mercedes-Benz Parts, Defendants installed non-Genuine parts into his vehicle.

49. Plaintiff and putative class representative Mike Keynejad purchased one or more 

Mercedes-Benz vehicles from Autobahn Motors, and has taken his vehicle(s) to Autobahn for 

regular maintenance service during the class period. Although Plaintiff was charged and paid for 

Genuine Mercedes-Benz Parts, Defendants installed non-Genuine parts into his vehicle.

50. Plaintiff and putative class representative Patricia Rubin purchased one or more 

Mercedes-Benz vehicles from Autobahn Motors, and has taken her vehicle(s) into Autobahn for 

regular maintenance service during the class period. Although Plaintiff was charged and paid for 

Genuine Mercedes-Benz Parts, Defendants installed non-Genuine parts into her vehicle.

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Ferrari v. Autobahn Motors.

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51. Plaintiff and putative class representative John Diaz brought one or more MercedesBenz vehicles to Autobahn Motors for repairs and/or service. Although Plaintiff was charged and 

paid for Genuine Mercedes-Benz Parts, Defendants installed non-Genuine parts into his vehicle.

52. Plaintiff Hooshang Jowza is an individual who brought one or more MercedesBenz automobiles into Autobahn Motors for repairs or service during the class period. She 

received non-Genuine parts during those repairs but was invoiced for Genuine Mercedes-Benz 

parts, and suffered compensable damages as a proximate result. She is not purporting to act as a 

class representative in this action.

53. Plaintiff Celso Frazao is an individual who brought one or more Mercedes-Benz 

automobiles into Autobahn Motors for repairs or service during the class period. She received 

non-Genuine parts during those repairs but was invoiced for Genuine Mercedes-Benz parts, and 

suffered compensable damages as a proximate result. She is not purporting to act as a class 

representative in this action.

54. Plaintiff Renuka Narayan is an individual who brought one or more Mercedes-Benz 

automobiles into Autobahn Motors for repairs or service during the class period. She received 

non-Genuine parts during those repairs but was invoiced for Genuine Mercedes-Benz parts, and 

suffered compensable damages as a proximate result. She is not purporting to act as a class 

representative in this action.

55. Plaintiff Gertrud Frankrone is an individual who brought one or more MercedesBenz automobiles into Autobahn Motors for repairs or service during the class period. She 

received non-Genuine parts during those repairs but was invoiced for Genuine Mercedes-Benz 

parts, and suffered compensable damages as a proximate result. She is not purporting to act as a 

class representative in this action.

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56. Plaintiff Earnest Salinas is an individual who brought one or more Mercedes-Benz 

automobiles into Autobahn Motors for repairs or service during the class period. He received nonGenuine parts during those repairs but was invoiced for Genuine Mercedes-Benz parts, and 

suffered compensable damages as a proximate result. H is not purporting to act as a class 

representative in this action.

57. Plaintiff Kalkhusan Sareen is an individual who brought one or more MercedesBenz automobiles into Autobahn Motors for repairs or service during the class period. He received 

non-Genuine parts during those repairs but was invoiced for Genuine Mercedes-Benz parts, and 

suffered compensable damages as a proximate result. He is not purporting to act as a class 

representative in this action.

58. Plaintiff Hossein Jalali is an individual who brought one or more Mercedes-Benz 

automobiles into Autobahn Motors for repairs or service during the class period. He received nonGenuine parts during those repairs but was invoiced for Genuine Mercedes-Benz parts, and 

suffered compensable damages as a proximate result. He is not purporting to act as a class 

representative in this action.

59. Plaintiff Ronald Wolfe is an individual who brought one or more Mercedes-Benz 

automobiles into Autobahn Motors for repairs or service during the class period. He received nonGenuine parts during those repairs but was invoiced for Genuine Mercedes-Benz parts, and 

suffered compensable damages as a proximate result. He is not purporting to act as a class 

representative in this action.

60. Plaintiff Sohrab Rahimzadeh is an individual who brought one or more MercedesBenz automobiles into Autobahn Motors for repairs or service during the class period. He received 

non-Genuine parts during those repairs but was invoiced for Genuine Mercedes-Benz parts, and 

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suffered compensable damages as a proximate result. He is not purporting to act as a class 

representative in this action.

61. Plaintiff Fred Grant is an individual who brought one or more Mercedes-Benz 

automobiles into Autobahn Motors for repairs or service during the class period. He received nonGenuine parts during those repairs but was invoiced for Genuine Mercedes-Benz parts, and 

suffered compensable damages as a proximate result. He is not purporting to act as a class 

representative in this action.

62. Plaintiff Ester Grant is an individual who brought one or more Mercedes-Benz 

automobiles into Autobahn Motors for repairs or service during the class period. She received 

non-Genuine parts during those repairs but was invoiced for Genuine Mercedes-Benz parts, and 

suffered compensable damages as a proximate result. She is not purporting to act as a class 

representative in this action.

63. Plaintiff Vincent Leung is an individual who brought one or more Mercedes-Benz 

automobiles into Autobahn Motors for repairs or service during the class period. He received nonGenuine parts during those repairs but was invoiced for Genuine Mercedes-Benz parts, and 

suffered compensable damages as a proximate result. He is not purporting to act as a class 

representative in this action.

64. Plaintiff Jessica Langridge is an individual who brought one or more MercedesBenz automobiles into Autobahn Motors for repairs or service during the class period. She 

received non-Genuine parts during those repairs but was invoiced for Genuine Mercedes-Benz 

parts, and suffered compensable damages as a proximate result. She is not purporting to act as a 

class representative in this action.

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Ferrari v. Autobahn Motors.

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65. Plaintiff Tony Nicolosi is an individual who brought one or more Mercedes-Benz 

automobiles into Autobahn Motors for repairs or service during the class period. He received nonGenuine parts during those repairs but was invoiced for Genuine Mercedes-Benz parts, and 

suffered compensable damages as a proximate result. He is not purporting to act as a class 

representative in this action.

66. Plaintiff Donald Lyang is an individual who brought one or more Mercedes-Benz 

automobiles into Autobahn Motors for repairs or service during the class period. He received nonGenuine parts during those repairs but was invoiced for Genuine Mercedes-Benz parts, and 

suffered compensable damages as a proximate result. He is not purporting to act as a class 

representative in this action.

67. Plaintiff Artur Semichev is an individual who brought one or more Mercedes-Benz 

automobiles into Autobahn Motors for repairs or service during the class period. He received nonGenuine parts during those repairs but was invoiced for Genuine Mercedes-Benz parts, and 

suffered compensable damages as a proximate result. He is not purporting to act as a class 

representative in this action.

ALLEGATIONS REGARDING zMAX

68. zMAX is an oil additive manufactured by non-party Speedway Motorsports Inc. 

Speedway Motorsports was founded by O. Burton Smith, who is also the former President and 

current Chairman of Sonic Automotive.

69. Sonic Automotive founder, O. Burton Smith, is the CEO of Speedway Motor 

Sports, and has published a letter on the zMAX website that falsely states:

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“Improving fuel mileage, reducing engine wear and emissions, increasing 

horsepower and helping vehicles to last longer and run smoother, are where zMAX 

® micro-lubricant really demonstrates its capabilities.

***

With the high prices at the pump today, the annual potential to save thousands of 

dollars per vehicle in fuel consumption alone is more than worth your while! These 

savings go right to the profit line on your corporate balance sheet, something all 

business owners and managers can appreciate”

70. Further noted on the zMAX website is the statement: “zMAX does not void 

manufacturer’s warranties.”

71. According to sworn deposition testimony in an unrelated matter, Mr. Smith 

instructed all the General Managers of the more than 100 Sonic Automotive Dealerships

throughout the country, including Autobahn Motors, to actively market zMAX to their customers 

and to automatically place zMAX into all of vehicles in the dealerships pre-owned inventory, 

including CPO Program vehicles.

72. Upon information and belief, Mr. Smith gave this directive regarding zMAX in 

order to increase the profits of Speedway Motorsports, thereby enriching himself.

73. Autobahn Motors, along with and through the actions of former Sonic Automotive 

Executive and Autobahn Motors General Manager Joe Cox, enforced and followed this directive

by Mr. Smith, and from approximately 2004 to the present, regularly caused zMAX to be placed 

into all pre-owned vehicles and into every vehicle that had its oil changed by Autobahn.

74. Based upon the testimony of Autobahn Motors General Manager Joe Cox, 

approximately 12,000 vehicles had zMAX placed in them.

75. Former Autobahn Motors salesperson Paul Grewal (employed 2004-2014) 

explained that all of the sales people at Autobahn Motors were aware of the practice of placing 

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Ferrari v. Autobahn Motors.

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zMAX into its CPO vehicles. They all knew it was non-genuine unapproved product. They 

collectively agreed not to tell customers about the use of zMAX.

76. One Autobahn Service Advisor, Mr. Steve Meade testified that: “I think zMAX got 

to a point where it wasn’t so much me selling it. It got to a point where the technicians were just 

told to use it, and it wasn’t – there wasn’t any option given to the client.”

77. Sonic Automotive knew that in so directing Autobahn Motors, it would cause 

Autobahn Motors to intentionally harm customers and their vehicles.

78. Paul Grewal explained the reason he did not tell customers that zMAX was optional 

is because “if I told him, he would have asked me what is zMAX, and I didn’t want to have to 

answer that question.” 

79. zMAX is a prohibited product for Mercedes-Benz vehicles. Mercedes-Benz

publishes the following statement at its website concerning the use of oil additives such as zMAX:

“Up to now, Daimler AG has not approved any product that is 

allowed to be introduced or mixed into approve, read-formulated 

lubricants for engines, transmissions, or major assemblies in 

Mercedes-Benz vehicles as a special additive! The vehicle owner is 

solely responsible if special additives are used in lubricants! If 

damage occurs the legal warranty and guarantee claims may be 

limited.”

80. Mercedes-Benz also publishes owners’ manuals for its automobiles which 

uniformly prohibit the use of oil additives such as zMAX.

81. Furthermore, by placing zMAX into the gas tanks of its used vehicle fleet and 

customer vehicles, compliance with the emissions standards set by California State law is 

diminished, and the process of confirming compliance through smog testing is altered and harmed. 

zMAX increases the emissions because it is primarily a petroleum based mineral oil.

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Ferrari v. Autobahn Motors.

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82. Defendants’ unfettered use of zMAX in order to increase the profits of Speedway 

Motorsports and to pad the pockets of Sonic’s Chairman has caused damage to thousands of 

vehicles and potentially voided the warranties covering thousands of vehicles. Some class 

members have already had warranty claims denied as a result of using zMAX. As indicated above, 

MB USA clarifies that it will deny such warranty claims if zMAX is used. Accordingly, Sonic 

and its dealership, Autobahn, were intentionally adding a product to customer vehicles that they 

knew or should have known would detrimentally affect the customers’ Mercedes-Benz warranty.

83. Plaintiff Ray Gapasin is an individual who purchased a pre-owned Mercedes–Benz

from non-party Peter Pan Motors, a BMW dealership located in Burlingame, CA. His vehicle had 

been sold to the previous owner by Autobahn Motors. His VMI report shows that zMAX was 

placed into the vehicle’s engine by Autobahn Motors, when the vehicle was brought to Autobahn 

for repairs. Without Plaintiff Gapasin’s consent, Autobahn added zMAX to his engine on 

September 30, 2010.

84. Plaintiff Gapasin’s automobile is an example of zMAX causing damage to the 

vehicle in the form of oil sludge that is now throughout the engine. Repairing the vehicle to remove 

engine sludge will require that the entire engine be cleaned piece by piece. Plaintiff Gapasin only 

first discovered the use of zMAX in 2015 when he took the vehicle in for repairs.

85. Plaintiff and putative class representative Ray Gapasin seeks to represent all those 

who purchased a pre-owned vehicle from a Sonic Automotive dealership, including but not limited 

to Autobahn Motors, in which zMAX was placed between 2004 and the present. 

ALLEGATIONS REGARDING THE SUPERIORITY AND LONGEVITY

OF GENUINE MERCEDES-BENZ PARTS

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Ferrari v. Autobahn Motors.

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86. Defendants have falsely represented in a longtime advertising campaign that 

Genuine Mercedes-Benz Parts have numerically designated greater longevity and are of superior 

quality when compared to non-Genuine parts.

87. Among others, these advertisements take the form of promotional brochures mailed 

out and given out to consumers, and statements on MB USA’s website.

88. Defendant Sonic Automotive authorizes the advertisements issued by Autobahn 

Motors, its wholly-owned subsidiary.

89. MB USA provides content for the ads and makes its own representations regarding 

the higher quality of Genuine Parts.

90. Autobahn Motors prepares and disseminates these statements through direct 

mailers and email-blasts.

91. Among others, the ads take the following general approach:

a. MB USA’s website states:

“Using only Genuine Mercedes-Benz Parts affords you measurable differences 

every mile you travel. Longevity, safety and warranty are just a few of many 

reasons to buy Genuine Parts.”

“Being history's first car company has afforded us the time and expertise to instill 

durability into our parts. For example, our fleece oil filter lasts up to 45% longer 

than conventional filters, minimizing engine wear.”

b. A brochure mailed and the MB USA link to Autobahn Motors quotes statements 

made by MB USA:

Oil filters: “can last 45% longer than other aftermarket oil filters.”

Air filters: “lasts at least 40,000 miles. Other aftermarket filters might need to be replaced 

at 12,000 miles.” and “capture 28% more soot over their lifetime than most brands.”

Cabin filters: “are 36% more effective at filtering soot than tested aftermarket filters.”

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Ferrari v. Autobahn Motors.

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Wiper blades: “can provide up to 800,000 more wiping cycles than other aftermarket 

brands.”

Brakes: “tested lower in vibration versus other aftermarket brands.”

92. These statements are materially false when the so-called non-Genuine 

“aftermarket” parts are produced by the same manufacturers that produce Genuine Parts for 

Mercedes-Benz. 

93. For example, Mann Filter Company makes Genuine oil filters for Mercedes-Benz. 

That filter has the Mercedes-Benz star logo emblazoned upon it. However, Mann Filter also sells 

non-Genuine versions of the same oil filters that are identical to the Genuine oil filter in all respects 

other than having the Mercedes-Benz logo. Critically, the Genuine Mann filter costs 

approximately three times the price of same non-Genuine Mann oil filter without the logo. The 

only actual difference between the Genuine and non-Genuine oil filters manufactured by Mann 

Filter Company is the logo.

94. Mann Filter company’s website states:

“MANN-FILTER is not only a leading development partner and OE

supplier to the international automotive industry, but also supplies worldfamous MANN-FILTER brand products in the aftermarket to fit most 

vehicles around the world. The MANN-FILTER range of products also 

meets the highest standards of quality and service demanded by our OE 

customers.”

95. According to Mann Filters, the non-Genuine products are in every way as good 

performance-wise as the Genuine Mercedes products.

96. These Mann non-Genuine filters are among the filters sold to Plaintiffs and 

members of the class, albeit at the higher Genuine Parts price.

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Ferrari v. Autobahn Motors.

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97. Another example is Bosch spark plugs. Bosch makes a Genuine spark plugs for 

Mercedes-Benz which contain the Mercedes-Benz logo. Bosch also makes a non-Genuine spark 

plug that is identical to the Genuine spark plugs, for a fraction of the cost.

98. MB USA’s statements about the longevity of its Genuine parts are not mere puffery, 

but instead are based on factual statements using a numerical designation to describe MB Genuine 

parts as having better longevity than non–Genuine parts.

99. Autobahn Motors knows this is an untrue statement, as it has stated in court papers 

in the previous federal RICO case that it should not be held liable for fraud because Plaintiffs were 

not damaged by receiving non-Genuine parts because the parts they received were of the same 

quality as Genuine parts.

100. Plaintiffs believe that the position of Autobahn Motors to be true with respect to 

the various non-Genuine products sold to Autobahn Motors from Munich Parts Warehouse. This 

is not inconsistent with Plaintiffs’ other claims of harm from these products, in that Plaintiffs were 

charged for Genuine Mercedes parts at the Genuine Mercedes parts (or higher) price for these 

products, and in fact received lower priced non-Genuine parts, and thus suffered actual damage. 

If the Genuine products are found not to be of superior quality, then Defendants engaged in 

unlawful conduct by charging higher amounts for Genuine Parts. In addition, the non-Genuine 

parts are not covered by MB USA warranty, which is a further actual damage suffered by Plaintiffs.

101. MB USA knowingly causes its advertising brochures to be sent out in bulk mail to 

customers, knowing them to be false, because it knows (just like Autobahn Motors knows) that 

many producers of its own Genuine Mercedes products also make the same exact product as a nonGenuine alternative, and that the only actual difference is one has a Mercedes-Benz logo, and the 

other does not.

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102. MB USA disseminates its false superiority and longevity claims through statements 

on its website, and also through the use of displays physically placed inside Mercedes-Benz

dealerships throughout the state of California. There are approximately 50 Mercedes-Benz

authorized dealerships within the state of California. Plaintiffs believe that this display 

advertisement, which takes the form of a stand-alone monument, is placed in each dealership.

103. This Mercedes-Benz display is entitled “Why Genuine Mercedes-Benz Parts,” and 

is placed in a prominent place in lobby area of Autobahn Motors.

104. Autobahn Motors knew that the display monument ad contained false factual 

statements, as described above, and yet knowingly and willfully accepted the display monument 

ad. Autobahn Motors knowingly and willfully co-published this ad with MB USA by placing it 

in its lobby.

105. Further, MB USA publishes information about its claims of superiority and 

longevity on its MB USA website. Its website currently shows the following further false 

statement about its parts:

“Genuine New Parts - They don't merely perform. They endure. 

Quality doesn't simply reside in how well a part functions at the get-go: it's a function of 

how well it performs over time. And Genuine Parts endure because they're engineered 

specifically for your car—they fit like no other parts can, they're engineered to work with 

the other parts and systems, and they ́re made with the finest materials available.”

Web link for above quote: https://www.mbusa.com/mercedes/service_and_parts/genuine_parts

106. Mercedes-Benz also publishes several YouTube videos concerning the benefits of 

Genuine Parts over non-Genuine parts.

107. Defendants knowingly concealed from Plaintiffs and members of the class the true 

facts regarding non-Genuine parts in order to cause them to purchase only Genuine Parts despite 

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Ferrari v. Autobahn Motors.

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virtually identical parts made by the same manufacturer being available at reduced prices. 

Defendants also kept Plaintiffs from knowing these true facts, and made statements about Genuine

products that are rendered untrue and misleading by concealing these true facts, and by hiding 

facts which are known to Defendants. 

108. The true facts are that non-Genuine products produced by the same manufacturers 

of Genuine products are every bit as good and any statements to the contrary are demonstrably 

false.

109. The misrepresentations and false statements of Mercedes-Benz about the 

superiority and longevity of genuine Mercedes parts and products were part of an extensive and 

long-term advertising campaign, a campaign that included (without limitation) all the advertising 

media detailed above (i.e. bulk mail brochures, website, physical displays including monument 

ads, YouTube videos, etc.), as well as television advertisements. For the last several years, 

Mercedes Benz’ advertising tagline has been “The Best or Nothing...” This campaign solidifies 

the superior nature of Mercedes Benz vehicles and the parts that go into them. As a result, any 

consumer interested in purchasing a Mercedes Benz vehicle has been exposed, on multiple 

occasions, to the Mercedes Benz marketing campaign touting their vehicles as “the best” when 

compared to their competition. 

110. Putative class representatives Diaz, Ferrari, Rubin, and Keynejad, as well as all 

class members, were all repeatedly exposed to Mercedes-Benz’s extensive and long-term 

advertising campaign, touting the alleged superiority of Mercedes vehicles and the superiority and 

longevity of genuine Mercedes parts and products.

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111. While putative class representative Diaz, Ferrari, Rubin, and Keynejad cannot point 

to any specific advertisement or advertising media, all of these individuals were made aware of 

Mercedes-Benz’s claims of alleged superiority and longevity of genuine Mercedes parts and 

products, via Mercedes-Benz’s extensive and long-term advertising campaign. These Plaintiffs 

took their vehicles to a Mercedes Benz dealership for maintenance and ordered Genuine Mercedes 

parts believing them to be superior to non-genuine parts. 

CLASS ACTION ALLEGATIONS

112. This action has been brought and may be properly maintained on behalf of each of

the Classes proposed herein under Federal Rule of Civil Procedure 23 and satisfies the numerosity, 

commonality, typicality, and adequacy requirement of Rule 23(a) as well as the predominance, 

and superiority requirements of Rule 23(b). 

Class Definition(s)

113. Plaintiffs bring this lawsuit as a class action pursuant to Federal Rules of Civil

Procedure 23(a); and (b)(3) on behalf of themselves and all others similarly situated as members 

of the following Subclasses (collectively, the “Class”); on their federal and state claims.

114. Plaintiffs propose the following class definitions:

(a) Non-Genuine Parts Class: Any person or entity who brought one or more 

Mercedes-Benz automobiles to any Autobahn Motors dealership in the state of California for 

service, repair, or maintenance from January 1, 2005 to the date that Notice issues to the Class, 

who received non-OEM/non-genuine/approved Mercedes-Benz parts, supplies, and/or oil from 

Autobahn Motors, and were invoiced for Genuine Mercedes-Benz parts.

zMAX Subclass: All members of the Non-Genuine Parts Class that had zMAX added to 

their vehicle as part of Autobahn’s regular maintenance program. 

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(b) Genuine Parts Class: All consumers within the state of California that paid for 

Genuine Mercedes-Benz spark plugs, oil filters, air filters, brake pads and/or wiper blades from 

any California Mercedes Benz dealership between September 24, 2011 and the date the Notice 

issues to the class. 

Numerosity and Ascertainability

115. Federal Rule of Civil Procedure 23(a)(1) requires that “the class is so numerous 

that joinder of all members is impracticable.” 

116. As set forth above, Autobahn purchased tens of thousands of non-Genuine parts 

from various retailers during the proposed class period of January 1, 2005 to the present. These 

parts were all installed in thousands of customer vehicles.

117. Based upon the testimony of Autobahn Motors General Manager, Joe Cox, 

Autobahn placed zMAX into approximately 12,000 vehicles during the class period. Furthermore, 

the size and location of Autobahn indicates that it services hundreds of vehicles each month. 

During the class period, each of those service customers was charged for Genuine Mercedes-Benz 

parts, but received non-Genuine parts instead.

118. Accordingly, the members of the Classes set forth above are so numerous and 

geographically dispersed that individual joinder of all Class members is impracticable.

119. The precise number and identities of Class members may be ascertained from 

Autobahn Motors’ repair records as such records are maintained for each Mercedes vehicle and 

shared nationally with all Mercedes dealerships. For example, all Mercedes-Benz dealerships use 

a Vehicle Master Inquiry (“VMI”) database to track service and repairs of Mercedes vehicles. The 

VMI database also tracks which dealer performed which services and the specific parts used. This 

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information can be used to identify and track class members and to calculate damages and/or 

restitution.

Commonality

120. Federal Rule of Civil Procedure 23(a)(2) requires that “there are questions of law 

or fact common to the class.”

121. The claims advanced herein are based upon common courses of conduct by 

Defendants.

122. First, Autobahn’s employees have testified that during the class period Autobahn 

regularly and routinely used non-Genuine parts to service and repair customer vehicles, while 

charging their customers for Genuine Mercedes-Benz parts. The legality of this routine practice 

is common for all class members as the decision will turn on common evidence. 

123. Second, the legality of Defendants’ practice of using zMAX in customer vehicles 

without request or permission as part of routine maintenance will also turn on common claims. If 

Defendants’ conduct in this manner is found to be illegal in the transactions of the named class 

representatives, it will be the same for each member of the putative class.

124. Third, the determination regarding whether Mercedes-Benz’s advertising program 

misrepresented the superiority and longevity of Genuine Parts when compared to the same parts 

sold by the same manufacturers is a common representation that will turn on common evidence.

125. Since only one common issue of law or fact is required under Rule 23(a)(2), this 

second requirement is easily established by the common conduct of the Defendants.

Typicality

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126. Rule 23(a)(3) requires that “the claims of defenses of the representative parties are 

typical of the claims or defenses of the class.”

127. The named Plaintiffs’ claims are typical of the nature and types of claims held by 

members of the class. They are all owners of Mercedes-Benz automobiles that had their vehicles 

serviced and/or repaired Autobahn Motors, received non-Genuine parts, and were invoiced for 

Genuine Mercedes-Benz parts at elevated prices. Plaintiffs wished to have Genuine Parts installed 

in their vehicles because MB USA’s advertising campaign represented Genuine Mercedes-Benz 

Parts as being of superior quality to all other aftermarket parts.

128. Multiple Plaintiffs had zMAX installed in their vehicles by Autobahn Motors. The 

representative Plaintiffs, like all Class members, have been damaged by Defendants’ misconduct 

in that they have incurred similar or identical losses relating to the use of non-Genuine parts and 

products in the Class vehicles. Furthermore, the factual bases of Defendants’ misconduct are 

common to all Class members and represent a common thread of misconduct resulting in injury to 

all Class members.

Adequate Representation

129. Rule 23(a)(4) requires that “the representative parties will fairly and adequately 

protect the interests of the class. This inquiry focuses on the named representatives and putative 

class counsel.

130. Named Plaintiff Steve Ferrari is a longtime Mercedes-Benz owner with multiple 

vehicles regularly serviced by Autobahn Motors. He was given non-Genuine parts during those 

service appointments and was charged for Genuine Mercedes-Benz parts. He has no interest 

antagonistic to the class members he seeks to represent.

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131. Plaintiff Mike Keynejad has taken his vehicles in for regular maintenance service 

at Autobahn Motors during which non-Genuine parts were installed into his car. Plaintiff

Keynejad has been instrumental in receiving news and evidence of the non-Genuine parts scandal, 

and the production of documents. Plaintiff Keynejad is a skilled mechanic whose shop, Eurotech,

has become a clearinghouse for Autobahn’s former technicians. Plaintiff Keynejad is also an 

expert concerning Mercedes-Benz repair procedures, and the interrelationships that form the 

Mercedes-Benz auto repair business. He has no interest antagonistic to the class members he seeks 

to represent. 

132. Plaintiff John Diaz is a prospective class representative on non-Genuine parts 

claims. He has specific expertise in all facets of automotive sector advertising, and specifically 

with respect to Mercedes-Benz and other high-end automobiles. He also is an owner of a preowned Mercedes-Benz automobile which was brought in for service at Autobahn Motors. He has 

no interests antagonistic to the class members he seeks to represent.

133. Plaintiff Ray Gapasin is a proposed class representative for individuals who own a

vehicle in which zMAX and other non-Genuine products were placed, during the class period. 

Plaintiff Gapasin purchased a preowned Mercedes-Benz that was previously sold by Autobahn 

Motors, and that had zMAX placed into the car by Autobahn Motors, when it sold the car to the 

previous owner. Again in September 2010 when the car was taken into Autobahn for a repair

zMAX was added again to the vehicle without request or permission from Gapasin. Ray Gapasin 

is an auto enthusiast who has a substantial level of knowledge concerning the operation of 

automobiles generally, and his own Mercedes-Benz. Plaintiff Gapasin’s vehicle was damaged by 

zMAX (sludge in the engine) as described above. He has no interest antagonistic to the class 

members he seeks to represent.

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Adequacy of Class Counsel

134. Plaintiffs have retained Herman Franck, Esq. of Franck & Associates to prosecute 

this claim. Attorney Franck and Franck and Associates will serve as class counsel, and have the 

following credentials to show that they will be adequate counsel for the class. Attorney Franck is 

a Georgetown University Law Center Graduate (Juris Doctorate 1985) with a Masters of 

Economics (1985) and a BA (honors) in Political Economy from UC Berkeley (1981). Mr. Franck 

has been a member of the California State Bar since 1986 (SBN 123476), and has owned and 

operated Franck & Associates in Sacramento since the year 2000. Mr. Franck represents an auto 

body shop in San Mateo by the name of Eurotech in a lawsuit against Autobahn and MB USA 

concerning an ad co-op scheme, illegal tying arrangement, and price fixing (Maskay Inc. dba 

Eurotech vs Autobahn Motors Inc. dba Autobahn Motors; MB USA; Rick Ali, Bobby Ali, AW 

Collision Inc. San Mateo Superior Court Case No. CIV525559).

135. Plaintiffs have also engaged and partnered with the consumer class action law firm 

of Varnell & Warwick, P.A. to assist in the representation of the class. Varnell & Warwick, P.A. 

and its partners Janet R. Varnell and Brian W. Warwick have substantial experience in consumer 

class actions and have prosecuted dozens of consumer class actions in state and federal courts 

across the United States.

Predominance of Common Questions

136. Once all the requirements of Rule 23(a) have been established, the two additional 

requirements of Rule 23(b), predominance and superiority, must also be met.

137. There are numerous questions of law and fact common to Plaintiffs and Class 

members that predominate over any question affecting only individual Class members. The 

answers to these common questions will advance the adjudication or resolution of the litigation as 

to all Class members.

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138. The predominating common legal and factual questions include:

a. Whether Defendants charged customers for Genuine Mercedes-Benz parts, but 

installed non-Genuine parts without the customers’ knowledge; 

b. Whether Defendants breached their contracts with customers by charging for 

Genuine Mercedes-Benz parts but installing non-Genuine parts; 

c. Whether Defendants breached their contracts with service customers by 

automatically installing zMAX as part of a routine maintenance; 

d. Whether Defendants violated the Consumer Legal Remedies Act by selling nonGenuine Parts to unknowing consumers or by representing Genuine Parts as superior and 

longer lasting than non-Genuine parts made from the same manufacturer; 

e. Whether Defendants’ practices of using non-Genuine parts without informing their 

customers is an unfair and/or deceptive trade practice in violation of California Vehicle 

Code 11713.18, thereby violating California Code section 17200; 

f. Whether Defendants’ practice of automatically installing zMAX without a request 

from the customer constitutes an unfair and/or deceptive practice in violation of California 

Vehicle Code 11713.18, thereby violating California Code section 17200;

g. Whether Defendants’ practice of charging for Genuine parts but installed nonGenuine parts violates Business & Professions Code Section 17500; 

h. Whether Defendants’ advertising campaign misrepresents Genuine Mercedes-Benz 

Parts and being superior to all other aftermarket parts;

i. Whether Defendants were unjustly enriched by charging for Genuine MercedesBenz parts while providing customers non-Genuine parts; and

j. Whether Defendants negligently breached their duty to provide Genuine MercedesBenz parts to customers.

Superiority

139. Defendants’ scheme treated consumers as a class of uniformly deceived. However, 

the individual damages suffered by each class member are most often to be the difference between 

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what was promised and what was received, which will be a relatively modest amount. Plaintiffs

and Class members have all suffered and will continue to suffer economic harm and damage as a 

result of Defendants’ unlawful and wrongful conduct, which was directed toward Class members 

and the public as a whole, rather than specifically or uniquely against any individual Class 

members.

140. Absent a class action, most Class members would likely find the cost of litigating 

their claims prohibitively high and would therefore have no effective remedy at law. The respective 

value of the claims, person by person, are inadequate to litigate on their own. Because of the 

relatively small size of the individual Class members’ claims, it is likely that only a few Class 

members could afford to seek legal redress for Defendants’ misconduct. Absent a class action, 

Class members will continue to incur damages, and Defendants’ misconduct will continue 

unchecked and without an effective remedy.

141. Class treatment will conserve the resources of the courts and the litigants, and will 

promote consistency and efficiency of adjudication by providing common answers to the common 

questions of knowledge, conduct, duty and breach, that predominate in this action.

142. Accordingly, the disposition of the claims of Class members in a single action will 

provide substantial benefits to all parties and to the Court. Class members may be readily notified 

of the pendency of this action by recognized, Court-approved notice dissemination methods, which 

may include U.S. mail, electronic mail, Internet postings, and/or published notice. Accordingly, a 

class action is superior to all other available methods for the fair and efficient adjudication of this 

controversy.

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TOLLING OF THE STATUTES OF LIMITATIONS

Discovery Rule

143. As discussed above, the Defendants hid their practice of using non-Genuine parts from 

their customers. Unlike vehicles of the past, the vehicles of today can only be serviced by trained 

technicians with appropriate computers, tools and knowledge. As a result, the vast majority of 

class members remain completely unaware that Defendants were using non-Genuine parts in the 

service and repair of their vehicles.

144. Defendants’ unlawful conduct was elaborate and well concealed. Autobahn Motors 

actively concealed the true character, quality, and nature of the non-Genuine parts and products, 

and knowingly made material omissions regarding the quality, reliability, characteristics, and 

performance of the non-Genuine parts and products.

145. Plaintiffs and Class members had no realistic ability to discover the presence of the nonGenuine parts or products, or to otherwise learn of the unlawful conduct.

146. Any statutes of limitation otherwise-applicable to any claims asserted herein have been 

tolled by the discovery rule.

Intentional Concealment

147. All applicable statutes of limitation have also been tolled by Autobahn Motor’s 

knowing, active and ongoing fraudulent concealment of the facts alleged herein.

148. Defendants have known of the non-Genuine parts and products installed in the 

Class Vehicles since at least 2004 when Autobahn Motors began installing them. Since then 

Autobahn Motors has intentionally concealed from or failed to notify Plaintiffs, Class members, 

and the public of the non-Genuine parts and products in the Class vehicles.

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149. Autobahn Motors installed the non-Genuine parts in order to charge Mercedes 

Genuine parts prices for lower-priced non-Genuine parts, installed zMAX as part of a concerted 

scheme with Sonic Automotive to market and sell the unapproved oil additive zMAX, and sold 

CPO vehicles with non-Genuine parts and products installed.

150. Despite knowing about the non-Genuine parts and products (including zMAX), 

Defendants did not acknowledge the problem, and in fact actively concealed it, until after it was 

discovered in separate litigation beginning in or about May 2015.

151. Any otherwise-applicable statutes of limitation have therefore been tolled by

Defendants’ exclusive knowledge and Autobahn Motors’ active concealment of the facts alleged

herein.

Estoppel

152. Defendants were and are under a continuous duty to disclose to Plaintiffs and Class 

members the true character, quality, and nature of the non-Genuine parts and products installed in 

the Class vehicles. Instead, Autobahn Motors actively concealed the true character, quality, and 

nature of the non-Genuine parts and products, and knowingly made misrepresentations about the 

quality, reliability, characteristics, and performance of the non-Genuine parts and products.

153. Plaintiffs and Class members reasonably relied upon Autobahn Motors’ knowing 

and affirmative misrepresentations and/or active concealment of these facts.

154. Based on the foregoing, Defendants are estopped from relying on any statutes of 

limitation in defense of this action.

RELATION BACK

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155. This action relates back to a similar action filed by Plaintiffs in the United States 

District Court, Northern district of California, entitled Ferrari et al. v. Mercedes-Benz et al., Case 

No. 4:15-cv-04379-YGR, initially filed on September 24, 2015.

156. That action included a federal claim under RICO Action, 18 U.S.C. Section 1961 

et seq., and state law claims of false advertising, fraud, negligent misrepresentation, negligence, 

violation of B&P Code section 17200. The federal case was dismissed by Order granting 

defendants Motions to Dismiss, dated December 12, 2016.

157. The dismissal was based on the RICO claim only, and the District Court’s 

unwillingness to retain supplemental jurisdiction over the state law claims absent a viable federal 

law claim. The Court’s decision states:

“In short, the allegations of the SAC might state a simple claim for fraud2or unfair 

business practices by their respective companies, but they do not allege that the 

individual defendants participated in a pattern of racketeering acts by a RICO

enterprise.

FN 2 The Court notes that the website printout referenced in the SAC, attached as 

Exhibit D, does not indicate that Autobahn only uses OEM parts, but that “[o]ur 

service center has access to OEM Certified auto parts and accessories.” (SAC, 

Exh. D. ECF 66-1 at 25.) Further, the warranty information on the back of the 

invoice exemplar includes a separate statement of a “Parts Warranty for NonMercedes-Benz Parts” in the lower left corner of that page. (Id., Exh. C.) Further, 

the alleged “newsletter” at Exhibit G to the SAC appears to be part of an owners’ 

manual and part of a service form, neither of which appear false, much less to have 

been disseminated through the mails. Thus, the allegations lack plausibility even 

to allege garden variety fraud.”

158. This Court previously ruled that the state law claims against Autobahn Motors had 

been sufficiently stated, and DENIED Autobahn Motors’ Motion to Dismiss the Fraud Claims.

This Court made the following finding in its Order granting in part the series of motions to dismiss 

the initial complaint:

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“As to the claims for fraud, fraudulent inducement, negligent misrepresentation, and 

negligence, Autobahn argues only that, as with the RICO claim, the allegations are 

insufficiently pleaded per the standards set forth in Rule 9(b). The Court does not agree. 

While Plaintiffs’ Complaint is not a model of clarity, there are factual allegations in support 

of the claimed fraudulent and deceptive conduct by Autobahn which are pleaded with 

sufficient particularity as to the nature of the false representations, made by whom, and 

when.”

COUNT I

BREACH OF CONTRACT

(Class Action Claim Against All Defendants)

159. Plaintiffs incorporate by reference paragraphs 1 through 158 as if fully set forth 

herein. 

160. Plaintiffs assert breach of contract claims in connection with each Class defined 

above.

161. The members of the Non-Genuine Parts Class entered into a contract with Sonic 

and its agent, Autobahn, when they brought their vehicles to Autobahn for service and/or repair. 

As part of that contract, Autobahn represented that Genuine Mercedes-Benz Parts were to be used 

in the repair or service of customer vehicles. Autobahn breached its contract with the Non-Genuine 

Parts Class members by installing and using non-Genuine parts in the repair or service of class 

member vehicles. Members of the Non-Genuine Parts Class have been damaged by Autobahn’s 

breach in that did not receive the benefit of their bargain and received goods that were not specified 

and were of lesser quality. Defendants’ conduct caused actual damage to Non-Genuine Class 

members in the form of the difference in price between the Genuine Mercedes-Benz parts and 

products specified and the non-Genuine parts and products that were actually used.

162. Members of the zMAX Subclass entered into contracts with Autobahn, a Mercedes 

qualified service center and dealership, to have their vehicles serviced with products approved by 

Mercedes. Autobahn breached its contracts with these class members by installing zMAX as part 

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of its routine oil change and service because zMAX is not part of Mercedes’ maintenance program 

and is not approved by Mercedes and may void the Mercedes Warranty. Further, Autobahn 

breached its contract with the zMAX Subclass members by automatically adding zMAX to the 

service without the customer’s knowledge or permission. 

163. As a direct and proximate result of the Defendants’ breaches described above, 

Plaintiffs and Class members have been damaged in an amount to be proven at trial, which shall 

include, but is not limited to, restitution, all compensatory damages, incidental and consequential 

damages, and other damages allowed by law.

164. WHEREFORE Plaintiffs pray for judgment as set forth below.

COUNT II

VIOLATION OF CALIFORNIA CONSUMERS LEGAL REMEDIES ACT

CIVIL CODE § 1750, et seq.

(Class Action Claim Against All Defendants)

165. Plaintiffs incorporate by reference paragraphs 1 through 158 as if fully set forth 

herein. 

166. This cause of action is brought pursuant to the Consumers Legal Remedies Act, 

Cal. Civ. Code § 1750, et seq. (the “CLRA”), because Defendants’ actions and conduct described 

herein constitute transactions that have resulted in the sale or lease of goods or services to 

consumers. 

167. Plaintiff and each member of the Class are consumers as defined by Cal. Civ. Code 

§ 1761(d).

168. Cal. Civ. Code § 1770(a)(1), (2), (3), (5), (7), and (8) lists the following as 

prohibited unlawful acts which have been violated by Defendants as follows:

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(1) Passing off goods or services as those of another. Defendants violate this provision 

by passing off non-Genuine Parts as Genuine Mercedes-Benz Parts when used in the 

maintenance and/or repair of customer vehicles. 

(2) Misrepresenting the source, sponsorship, approval, or certification of goods or 

services. Defendants violate this provision by mispresenting the source, sponsorship and 

approval of non-Genuine Parts as if they were Genuine Mercedes-Benz Parts when used in 

the maintenance and/or repair of customer vehicles. Defendants also violate this provision 

by making unfounded superiority and longevity claims regarding Genuine Parts as 

described herein. 

(3) Misrepresenting the affiliation, connection, or association with, or certification by, 

another. Defendants violate this provision by mispresenting the source, sponsorship and 

approval of non-Genuine Parts as if they were Genuine Mercedes-Benz Parts when used in 

the maintenance and/or repair of customer vehicles. Defendants also violate this provision 

by making unfounded superiority and longevity claims regarding Genuine Parts as 

described herein. 

(5) Representing that goods or services have sponsorship, approval, characteristics, 

ingredients, uses, benefits, or quantities that they do not have ... Defendants violate 

this provision by mispresenting the source, sponsorship and approval of non-Genuine Parts 

as if they were Genuine Mercedes-Benz Parts when used in the maintenance and/or repair

of customer vehicles. Defendants also violate this provision by making unfounded 

superiority and longevity claims regarding Genuine Parts as described herein. Defendants 

use of zMAX also violates this provision because zMAX is not approved by MercedesBenz to be used in any Mercedes vehicles. 

(7) Representing that goods or services are of a particular standard, quality, or grade, 

or that goods are of a particular style or model, if they are of another. Defendants 

violate this provision by mispresenting the source, sponsorship and approval of nonGenuine Parts as if they were Genuine Mercedes-Benz Parts when used in the maintenance 

and/or repair of customer vehicles. Defendants also violate this provision by making 

unfounded superiority and longevity claims regarding Genuine Parts as described herein. 

Defendants use of zMAX also violates this provision because zMAX is not approved by 

Mercedes-Benz to be used in any Mercedes vehicles.

(8) Disparaging the goods, services, or business of another by false or misleading 

representation of fact. Defendants violate this provision by making unfounded 

superiority and longevity claims regarding Genuine Parts, as alleged herein, when 

compared to aftermarket parts sold by the same Genuine Parts manufacturer. 

169. On or about November 14, 2017, Plaintiffs notified Defendants in writing, by 

certified mail, of the CLRA violations alleged herein and demanded that Defendant remedy those 

violations.

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170. Defendants failed to rectify or agree to rectify the problems associated with the 

actions detailed above after being provided notice on November 14, 2017. 

171. As of February 6, 2018, Defendants have continued to deny any wrongdoing and 

failed to take any steps to remedy the CLRA violations set forth herein. 

172. Accordingly, pursuant to § 1782 of the CLRA, Plaintiffs seek actual, punitive, and 

statutory damages pursuant to the CLRA for the unlawful, unfair and deceptive conduct alleged 

herein. 

173. Plaintiffs and the Class also seek a Court order enjoining the above-described 

wrongful acts and practices of Defendants and for restitution, disgorgement, statutory damages, 

and any other relief that the Court deems proper.

174. Defendants’ conduct is malicious, unlawful, deceptive and wanton in that 

Defendants intentionally and knowingly provide misleading information to the public and charge 

consumers for items not delivered and without their consent.

175. Pursuant to Cal. Civ. Code §§ 1780 and 1781, Plaintiffs and Class Members hereby

request certification of Plaintiffs’ Class, injunctive relief, and attorneys’ fees, costs, and expenses.

176. WHEREFORE Plaintiffs pray for judgment as set forth below.

COUNT III

VIOLATION OF CALIFORNIA UNFAIR COMPETITION LAW,

BUSINESS AND PROFESSIONS CODE SECTION 17200

(Class Action Claim Against Defendants Sonic and Autobahn)

177. Plaintiffs incorporate by reference paragraphs 1 through 158 as if fully set forth 

herein.

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178. Business & Professions Code § 17200, et seq., the Unfair Competition Law

(“UCL”), prohibits acts of “unfair competition”, which is defined by Business & Professions Code 

§ 17200 as including any “any unlawful, unfair or fraudulent business act or practice . . ..”

179. As set forth above, Defendants have engaged in several unfair, deceptive and 

unlawful actions through the use of Non-Genuine Parts and the undisclosed use of zMAX as 

alleged herein.

180. The members of the Non-Genuine Parts Class suffered damages when Autobahn 

installed non-Genuine parts in the repair or service of class member vehicles, while charging for 

Genuine Mercedes-Benz parts. As a result of this unlawful, unfair and deceptive business practice, 

Plaintiffs and members of the Non-Genuine Parts Class received goods that were not as specified 

and/or which were of lesser quality. Defendants’ conduct caused actual damage to Non-Genuine 

Class members in the form of the difference in price between the Genuine Mercedes-Benz parts 

and products specified and the non-Genuine parts and products that were actually used.

181. Members of the zMAX subclass were also damaged by Autobahn’s unlawful, 

unfair and deceptive business practice of installing zMAX in their vehicles as part of its routine 

oil change and service without the customer’s knowledge or permission. Customers were never 

informed that zMAX is not part of Mercedes’ regular maintenance program and is not approved 

by Mercedes and may void the Mercedes Warranty.

182. Members of the Genuine Parts Class suffered damages as a result of the Mercedes 

Benz advertising campaign depicting Genuine Mercedes Parts as lasting longer and being of 

superior quality to all aftermarket products, when many aftermarket products cost significantly 

less and are identical to the Genuine Parts and sold by the same manufacturer.

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183. Defendant Sonic Automotive is liable for this harm and damages because it is the 

corporate owner of Autobahn Motors, and because it actively aided and abetted the conduct of 

Autobahn Motors by expressly directing Autobahn Motors (through its General Manager, Joe Cox, 

and David Ahlheim, its Fixed Operations Director) to use zMAX, MOC Products, SSF Auto Parts 

products, Munich Auto parts non-genuine parts, and other non-genuine parts. 

184. Defendants’ conduct was willful, premediated, done with substantial planning and 

intentional wrongful conduct, was known to be concealed by the public, was willfully concealed 

from Plaintiffs, was done in disregard of Plaintiffs’ rights, was done oppressively and wantonly, 

with knowledge that Plaintiffs would be harmed, which constitutes a basis for punitive damages 

pursuant to California Civil Code Section 3294 in an amount according to proof.

185. Pursuant to Cal. Civ. Code § 1780, any consumer who suffers damage as a result 

of the use or employment of any act or practice declared unlawful by § 1770, may recover actual 

damages, restitution, punitive damages and injunctive relief.

186. Plaintiffs request injunctive relief, and state that unless and until Plaintiffs obtain 

injunctive relief, Plaintiffs will suffer irreparable harm that is undetected and undetectable, because 

Defendants are expected to continue to wrongfully market and sell zMAX and other non-Genuine 

parts as described above. Injunctive relief is therefore necessary in order to avoid multiplicity in 

actions; to avoid the rendering of a judgment ineffectual; and to avoid causing Plaintiffs further 

irreparable harm in the probability of an undetected reuse of zMAX.

187. Plaintiffs further request an injunction preventing Defendants from installing nonGenuine parts on customer maintenance/repair vehicles without express written permission of the 

customer.

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188. Plaintiffs request actual damages and restitution, including without limitation any 

overpayments made for non-Genuine parts at OEM prices, actual out of pocket expenses for repair 

costs paid as a consequence of voided warranties, and the increased price paid for Genuine Parts 

where identical aftermarket parts were available at a reduced price.

189. WHEREFORE Plaintiffs pray for judgment as set forth below.

COUNT IV

VIOLATION OF THE CALIFORNIA FALSE ADVERTISING LAW

BUSINESS & PROFESSIONS CODE SECTION 17500

(Class Action Claim Against All Defendants)

190. Plaintiffs incorporate by reference paragraphs 1 through 158, above as if fully set 

forth herein.

191. Plaintiffs assert this claim for relief for violation of Business & Professions Code 

section 17500 against all Defendants.

192. The allegations of fraudulent conduct, including the publication of advertisements 

and how they were done in a fraudulent and knowing manner, are set out in the factual allegation 

sections above, which are also incorporated into this claim for relief.

193. Defendants’ conduct constitutes the dissemination and publication of false and 

misleading advertisements in violation of Business & Professions Code section 17500, which 

provides:

“It is unlawful for any person, firm, corporation or association, or any employee thereof 

with intent directly or indirectly to dispose of real or personal property or to perform 

services, professional or otherwise, or anything of any nature whatsoever or to induce the 

public to enter into any obligation relating thereto, to make or disseminate or cause to be 

made or disseminated before the public in this state, or to make or disseminate or cause to 

be made or disseminated from this state before the public in any state, in any newspaper or 

other publication, or any advertising device, or by public outcry or proclamation, or in any 

other manner or means whatever, including over the Internet, any statement, concerning 

that real or personal property or those services, professional or otherwise, or concerning 

any circumstance or matter of fact connected with the proposed performance or disposition 

thereof, which is untrue or misleading, and which is known, or which by the exercise of 

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reasonable care should be known, to be untrue or misleading, or for any person, firm, or 

corporation to so make or disseminate or cause to be so made or disseminated any such 

statement as part of a plan or scheme with the intent not to sell that personal property or 

those services, professional or otherwise, so advertised at the price stated therein, or as so 

advertised. Any violation of the provisions of this section is a misdemeanor punishable by 

imprisonment in the county jail not exceeding six months, or by a fine not exceeding two 

thousand five hundred dollars ($2,500), or by both that imprisonment and fine.”

194. Defendants violated § 17500 by representing on its invoices delivered to customers 

that its repair and/or maintenance customers were receiving Genuine Mercedes-Benz parts when, 

in fact, they were receiving non-Genuine parts. It is also a misrepresentation to conceal from 

customers the fact that non-Genuine parts were being used. These representations took place on 

the invoices provided to all customers. Genuine parts codes were used and Defendants never 

informed customers that non-Genuine parts were being used or could be used or and Defendants 

never obtained customer approval before installing and using non-Genuine parts. Customers were 

not given option of choosing non-Genuine versus Genuine parts.

195. Defendant Sonic Automotive is liable for this harm and damages because it is the 

corporate owner of Autobahn Motors, and because it actively aided and abetted the conduct of 

Autobahn Motors by expressly directing Autobahn Motors (through its General Manager, Joe Cox, 

and David Ahlheim, its fixed operations director) to use zMAX, MOC Products, SSF Auto Parts 

products, and Munich Auto parts non-genuine parts.

196. Members of the Genuine Parts Class suffered damages as a result of Defendants’ 

advertising campaign depicting Genuine Mercedes Parts as lasting longer and being of superior 

quality to all aftermarket products, when many aftermarket products cost significantly less and are 

identical to the Genuine Parts and sold by the same manufacturer.

197. Defendants’ conduct was willful, premediated, done with substantial planning and 

intentional wrongful conduct, was known to be concealed by the public, was done oppressively 

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Third Amended Complaint

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and wantonly, knowing that Plaintiffs would thereby be harmed, which constitutes a basis for 

punitive damages pursuant to California Civil Code Section 3294 in an amount according to proof.

198. Plaintiffs request injunctive relief, and state that unless and until Plaintiffs obtain 

injunctive relief, Plaintiffs will suffer irreparable harm that is undetected and undetectable, because 

Defendants are expected to continue to wrongfully market and sell zMAX and other non-Genuine 

parts as described above. Injunctive relief is therefore necessary in order to avoid multiplicity in 

actions; to avoid the rendering of a judgment ineffectual; and to avoid causing Plaintiffs further 

irreparable harm in the probability of an undetected reuse of zMAX, 

199. Accordingly, Plaintiffs request injunctive relief in the form of an injunction 

requiring Defendant Sonic Automotive, Autobahn Motors and MB USA to cease the distribution, 

sale and use of zMAX products in any automobile in which the manufacturers or other third-party 

warranties are rendered void or voidable by the use of zMAX; or such other injunctive relief this 

court deems just and appropriate.

200. Plaintiffs also request restitution for non-Genuine parts being provided at Genuine 

Parts prices, and for the inflated cost of Genuine Parts when identical aftermarket parts are 

available.

201. WHEREFORE Plaintiffs pray for judgment as set forth below.

COUNT V

CLAIM FOR TRESPASS TO CHATTELS

(Class Action Claim Against Defendants Sonic and Autobahn)

202. Plaintiffs incorporate by reference paragraphs 1 through 158 as if fully set forth 

herein.

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203. This is a claim for relief by all Plaintiffs Non-Genuine class members against 

Defendants Autobahn, Inc. dba Autobahn Motors (“Autobahn”) and Sonic Automotive Inc. 

(“Sonic”) for Trespass to Chattel.

204. Under California law, a trespass to chattels claim lies where an intentional 

interference with the possession of personal property has proximately caused injury. In cases of 

interference with possession of personal property not amounting to conversion, the owner has a 

cause of action for trespass, and may recover actual damages suffered by reason of the impairment 

of the property.

205. Autobahn and Sonic committed the intentional tort of trespass to chattels against 

each named Plaintiff and the Non-Genuine Parts Class in several ways.

206. From approximately January 1, 2005 to the present, Autobahn Motors regularly, 

repeatedly, and automatically used and installed various non-Genuine parts and products into 

service and repair customers’ vehicles without the customer’s knowledge or permission.

207. None of the Plaintiffs consented to the placement of non-Genuine parts into their 

vehicles.

208. The placement of these non-Genuine parts is done in a secret, concealed and 

deceptive manner, and is done purposely by Autobahn Motors at the direction of its owner, Sonic 

Automotive.

209. The non-Genuine parts placed into Plaintiffs’ automobiles proximately caused 

damage to the vehicles in the form of cheaper and non-approved parts.

210. Defendant Autobahn Motors secretly installed the non-Genuine parts, and then 

invoiced the customers as though the parts were Genuine Mercedes-Benz parts and charged for 

Genuine parts. 

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211. Plaintiffs and members of the Class are not present when the non-Genuine parts are 

placed into their vehicles. This placement of non-Genuine parts occurs in the repair service area 

of Autobahn Motors, a place where customers are generally not allowed.

212. With respect to the zMAX product, the use of this oil additive damaged the vehicles 

of Plaintiffs and the Class. MB USA’s website confirms this damage, as stated above.

213. In addition, Plaintiff Ray Gapasin’s vehicle sustained actual damage in the form of 

sludge or “gunk” caused by the use of zMAX, which infiltrated his entire automobile engine. 

214. The use of the zMAX product has caused a present damage and injury to the 

vehicles of Plaintiffs, the named Plaintiffs and the putative class members in that (a) the zMAX

product has caused a physical damage to the vehicle; (b) the zMAX product jeopardizes the MB

USA warranty, which excludes coverage for any damage to the car caused by the use of a 

prohibited oil additive such as zMAX. Plaintiffs service warranties issued by MB USA, through 

its agent Autobahn Motors, are thus in present jeopardy.

215. The use of the series of other non-Genuine products has also caused a present 

damage to the vehicles of Plaintiffs, named Plaintiffs and the Class members in that (a) nonGenuine products have caused a physical damage to the value of the vehicle because it contains 

unapproved parts and products; (b) the use of these non-Genuine products jeopardizes the MB

USA warranty, which excludes coverage for any damage to the vehicle caused by non-Genuine 

products.

216. Defendant Autobahn Motors’ conduct was intentional in that it knowingly placed 

these non-Genuine parts and products into the vehicles of Plaintiffs, named Plaintiffs and members 

of the Class, knowing that they consent to or request non-Genuine parts. 

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217. Defendant Sonic Automotive is sued herein based on its conduct in aiding and 

abetting the conduct of Autobahn Motors. Sonic Automotive intentionally aided and abetted this 

conduct by directing that zMAX be placed into customer vehicles.

218. As a proximate result of these two Defendants’ trespass to chattels, and aiding and 

abetting the trespass to chattels, Plaintiffs, named Plaintiffs and putative class members have 

suffered actual damage in an amount according to proof.

219. These two Defendants’ conduct was willful, deceptive, fraudulent, and was done 

with premeditation, and deliberate indifference to the rights of Plaintiffs, which warrants the 

imposition and award of punitive damages in an amount according to proof.

220. Plaintiffs will be irreparably harmed and are without a remedy at law unless 

injunctive relief is granted. Plaintiffs seek an injunction stopping defendants from this pattern and 

practice of regularly placing non-Genuine products into Plaintiffs’ cars without Plaintiffs’ consent.

221. WHEREFORE Plaintiffs pray for judgment as set forth below.

COUNT VI

NEGLIGENCE

(Class Action Claim against All Defendants)

222. Plaintiffs incorporate by reference paragraphs 1 through 158 as if fully set forth 

herein.

223. Plaintiffs assert this claim for relief for negligence against all Defendants.

224. Defendants’ conduct was careless, reckless, and in breach of Defendants’ duty 

owed to Plaintiffs, and in violation of California Civil Code 1714(a).

225. Defendants negligently each and all took steps to conceal the true facts about the 

use of zMAX and other non-OEM/non-genuine products on MB USA warranties, and similar 

warranties given by third parties.

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Third Amended Complaint

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226. Autobahn Motors and Sonic Automotive have breached the duty of due care owed 

pursuant to Civil Code Section 1714(a) by negligently and wrongfully marketing, distributing, 

selling, and placing zMAX into automobiles, knowing that in so doing, the manufacturer’s 

certified pre-owned warranties, or such similar warranties issued by third parties, are thereby 

rendered void or voidable at the option of the warrantor. One such warrantor and beneficiary of 

this negligence is Defendant MB USA, who, if it stands by and does nothing, gets the advantage 

of voiding any warranty claims due to the prohibited use of zMAX.

227. MB USA committed negligence based on its ICRs, and by failing to enforce its own 

policies and procedures regarding repairs, the use of non-Genuine Mercedes parts by authorized 

Mercedes dealerships, and the use of an oil additive (zMAX) by authorized Mercedes dealerships.

228. MB USA had a legal duty pursuant to Civil Code section 1714(a) to use reasonable 

care to prevent harm to Plaintiffs and putative class members.

229. MB USA breached this duty by the conduct described in the common allegations 

of fact above.

230. MB USA was further negligent in that it knew full well through VMI reports, and 

the pendency of this very litigation, that Sonic Automotive, Speedway Motorsports, and dealers 

owned by Sonic Automotive were and still are actively, selling, and marketing zMAX in a manner 

that is expressly prohibited by the automobile manufacturers’ warranty.

231. The Defendants’ use of zMAX renders both Mercedes warranties and third-party 

warranties void or voidable at the option of MB USA and/or any third-party warrantor, by the 

express terms of the warranties.

232. MB USA receives actual knowledge through the VMI process that during the 

pendency of the warranty, zMAX was added into the car by Autobahn Motors (as in the case of 

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Gapasin and Fethe) or to customers at any of the other 133 dealerships owned by Sonic 

Automotive.

233. MB USA further had a duty, because Autobahn Motors was using the benefit of the 

MB trademark star and name to market a product as though it were approved by MB USA. 

Mercedes-Benz breached this duty of due care by failing to take appropriate steps to correct the 

circumstances by mandating to Sonic Automotive and/or directly to the MB Authorized 

dealerships owned by Sonic to stop putting zMAX in Mercedes-Benz Automobiles. Instead MB 

USA has joined forces with Autobahn Motors and Sonic to squelch any attempt to bring the truth 

of zMAX widespread use by dealerships owned by Sonic Automotive.

234. Autobahn Motors had a legal duty pursuant to California Civil Code section 

1714(a) to use reasonable care to prevent harm to Plaintiffs.

235. Autobahn Motors has brought forward an objectively reasonable expectation by its 

repair customers that genuine Mercedes-Benz parts will be used and that non-approved parts will 

not be used. By virtue of this legal duty, Autobahn Motors has an affirmative duty to inform 

customers, including Plaintiffs, of the use of non-genuine parts. Autobahn Motors has a legal duty 

not to use non-approved fuel additives like zMAX and MOC products.

236. Autobahn Motors creates this reasonable expectation by the use of the MercedesBenz name and trademark throughout the dealership. When customers go there for repairs, they 

naturally and reasonably expect that genuine parts only will be used.

237. Autobahn Motors knew or should have known that its customers expected and 

trusted that it would use genuine/OEM parts only.

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238. Autobahn Motors breached this duty of reasonable care by not living up to its 

customers’ objectively reasonable expectations and trust, by regularly placing zMAX, MOC 

products, and other non-genuine parts into customers’ cars, including Plaintiffs’ cars.

239. Sonic Automotive had a legal duty pursuant to Civil Code section 1714(a) to use 

reasonable care to prevent harm to Plaintiffs.

240. Sonic Automotive knew or should have known that its customers expected and 

trusted that it would use genuine/approved parts only. Mainly, Sonic Automotive directed

Autobahn Motors and other Sonic-owned dealerships, to regularly use zMAX, MOC, and other 

non-genuine parts in customers’ cars, including Plaintiffs’ vehicles. This conduct constitutes 

Sonic’s breach of the reasonable duty of care.

241. Sonic Automotive further breached its duty of reasonable care by requiring 

Autobahn Motors to regularly purchase and use various non-genuine parts in all repairs at 

Autobahn Motors.

242. Individuals who have unknowingly received zMAX in their car either (a) at one of 

the Sonic dealerships owned by Sonic; or (b) when it was placed in the car as part of the repair 

process, have suffered the following harm proximately caused by all Defendants.

243. The people who received zMAX in their car, had their warranty rendered void 

and/or voidable at the option of MB USA or third-party warrantor. The warranty was thereby 

transformed from a solid and enforceable, to that of warranty enforceable at the option of the 

warrantor. The status/ existence/nature/and pendency of a pre-owned automobile’s warranty is 

extremely significant aspect concerning the value of that car.

244. The same impact and damage as described above with respect to zMAX applies 

equally to Plaintiffs through receipt of non-approved, non-genuine oil.

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Third Amended Complaint

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245. Plaintiffs request injunctive relief, and state that unless and until Plaintiffs obtain 

injunctive relief, Plaintiffs and the absent class members will suffer irreparable harm that is 

undetected and undetectable, because Defendants are expected to continue to negligently and 

wrongfully market and sell zMAX and other non-Genuine parts, as described above. Injunctive 

relief is therefore necessary in order to avoid multiplicity in actions; to avoid the rendering of a 

judgment ineffectual; and to avoid causing Plaintiffs further irreparable harm in the probability of 

an undetected use of zMAX. 

246. Accordingly, Plaintiffs request injunctive relief in the form of an injunction 

requiring Defendants Sonic Automotive, and Autobahn Motors to cease the distribution, sale and 

use of zMAX products in Mercedes-Benz Automobiles, and in any automobile in which the 

manufacturers or other third-party warranties are rendered void or voidable by the use of zMAX; 

or such other injunctive relief this court deems just and appropriate.

247. Plaintiffs further seek such other relief as the Court deems just and appropriate, 

including without limitation disgorgement of profits, return of funds deemed to constitute unjust 

enrichment, and injunctive relief; or such other equitable relief as the Court deems appropriate.

248. WHEREFORE Plaintiffs Pray for relief as set forth below in the Prayer for Relief.

COUNT VII

UNJUST ENRICHMENT

(Class Action Claim Against Defendants Autobahn and Sonic)

249. Plaintiffs incorporate by reference paragraphs 1 through 158 as if fully set forth 

herein.

250. Defendants Autobahn Motors and Sonic Automotive have benefitted from selling 

and installing non-Genuine parts and products at genuine-part prices, and from concealing their 

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use and sale of non-genuine parts and products, and Plaintiffs and Class members overpaid for 

repairs and maintenance on their vehicles.

251. Defendants Autobahn Motors and Sonic Automotive have received and retained 

unjust benefits from the Plaintiffs and Class members, and inequity has resulted.

252. It is inequitable and unconscionable for these Defendants to retain these benefits.

253. Because these two Defendants concealed their unlawful conduct, Plaintiffs and 

Class

members were not aware of the true facts concerning the maintenance and repair of their 

vehicles and did not benefit from Defendants’ misconduct.

254. Defendants Autobahn and Sonic knowingly accepted the unjust benefits of their

unlawful conduct.

255. As a result of these two Defendants’ misconduct, the amount of its unjust 

enrichment should be disgorged and returned to Plaintiffs and Class members, in an amount to be 

proven at trial.

256. WHEREFORE Plaintiffs Pray for relief as set forth below in the Prayer for Relief.

COUNT IX

COMMON LAW FRAUD

(Individual Claim by Plaintiffs against All Defendants)

257. Plaintiffs incorporate by reference paragraphs 1 through 158 as if fully set forth 

herein.

258. This is a non-class claim for relief by all Plaintiffs against Defendants Sonic 

Automotive, Mercedes-Benz USA, LLC, and Autobahn Motors.

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259. As a proximate result of defendants’ fraudulent conduct involving the installation 

and use of non-Genuine parts when Genuine Parts were specified, the use of zMAX in MercedesBenz vehicles, and the misrepresentations regarding the longevity and superiority of Genuine 

Parts, as set forth more fully herein, Plaintiffs have been damaged in an amount according to proof. 

260. Defendants engaged in the fraudulent conduct described herein in order to entice 

consumers to enter into transactions involving higher priced Genuine Mercedes-Benz Parts, and 

Plaintiffs Diaz, Ferrari, Rubin, and Keynejad relied on these representations and were damaged as 

a result. Plaintiffs paid for Genuine Parts they did not receive, paid for zMAX as if it were an 

approved product, and were led to believe that Genuine Parts were of superior quality when 

compared to all other aftermarket parts.

261. Plaintiff Ferrari gave deposition testimony where he testified that he remembered 

“seeing a sign at the entrance that, you know, would dictate the parts that they used were factory 

parts and the life spans between the two parts and what you were --- the benefits of going with 

Mercedes parts.”

262. In making their decisions to service their vehicles at Autobahn Motors (an 

authorized Mercedes repair facility), Plaintiffs Diaz, Ferrari, Rubin, and Keynejad all relied upon 

Mercedes’ misrepresentations and false statements about the alleged superiority and longevity of 

genuine Mercedes parts.

263. Plaintiffs Diaz, Ferrari, Rubin, and Keynejad relied to their detriment on the 

misrepresentations and false statements of Mercedes about the alleged superiority and longevity 

of genuine Mercedes parts, and suffered injury as a direct and proximate result of their reliance, in 

the form of paying more for genuine Mercedes parts that were neither superior nor which had any 

greater longevity.

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264. Defendants’ conduct was willful, deceptive, fraudulent, and was done with 

premeditation, and deliberate indifference to the rights of Plaintiffs, which warrants the imposition 

and award of punitive damages in an amount according to proof.

265. Plaintiffs will be irreparably harmed and are without a remedy at law unless 

injunctive relief is granted. Plaintiffs seek an injunction stopping defendants from this pattern and 

practice of falsely stating that MB genuine parts have numerically designated longevity over nonGenuine parts, and request and injunction prohibiting the use of non-Genuine parts when Genuine 

parts are specified on the invoice. 

266. WHEREFORE Plaintiffs pray for judgment as set forth below. 

COUNT X

NEGELIGENT MISREPRESENTATION

(Individual Claim Against All Defendants)

267. Plaintiffs incorporate by reference paragraphs 1 through 158, and paragraphs 258

to 265 as if fully set forth herein.

268. Defendants negligently misrepresented, concealed, and made false promises as 

alleged in paragraphs 1 through 158 above.

269. MB USA committed a negligent misrepresentation based on its CPO publications 

and ICRs, by representing that all Certified Pre-Owned Mercedes were reconditioned with 

Genuine Mercedes parts.

270. MB USA committed a negligent misrepresentation by publishing false and 

misleading statements about the longevity and superiority of its Genuine Mercedes parts.

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271. MB USA had no reasonable grounds for believing that the representations it made 

about the CPO program and its genuine parts longevity superiority were true when it made the 

representations.

272. Defendant MB USA intended that Plaintiffs would rely on the representations.

273. In making their decisions to service their vehicles at Autobahn Motors (an 

authorized Mercedes repair facility), Plaintiffs Diaz, Ferrari, Rubin, and Keynejad all relied upon 

Mercedes’ misrepresentations and false statements about the alleged superiority and longevity of 

genuine Mercedes parts.

274. Plaintiff Ferrari gave deposition testimony where he testified that he remembered 

“seeing a sign at the entrance that, you know, would dictate the parts that they used were factory 

parts and the life spans between the two parts and what you were --- the benefits of going with 

Mercedes parts.”

275. Plaintiffs Diaz, Ferrari, Rubin, and Keynejad relied to their detriment on the 

misrepresentations and false statements of Mercedes about the alleged superiority and longevity 

of genuine Mercedes parts, and suffered injury as a direct and proximate result of their reliance, in 

the form of paying more for genuine Mercedes parts that were neither superior nor which had any 

greater longevity.

276. Plaintiffs Diaz, Ferrari, Rubin, and Keynejad reasonably relied on the Defendants’ 

misrepresentations to their detriment by either purchasing but not receiving Genuine Parts during 

a maintenance visit, and/or by bringing their automobiles into Autobahn Motors for repairs. 

277. Defendants also negligently misrepresented that all aftermarket products were 

inferior to Genuine Parts when, in fact, several of its own manufacturers sell the identical product 

at lower prices.

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278. As a proximate result of Defendants’ negligent conduct, Plaintiffs Diaz, Ferrari, 

Rubin, and Keynejad have been damaged in an amount according to proof.

279. Plaintiffs will be irreparably harmed and are without a remedy at law unless 

injunctive relief is granted. Plaintiffs seek an injunction stopping defendants from this pattern and 

practice of regularly placing non-Genuine product into Plaintiffs’ cars without Plaintiffs’ consent.

280. WHEREFORE Plaintiffs pray for relief as set forth below in the Prayer for Relief.

FACTUAL ALLEGATIONS REGARDING THE CPO PROGRAM

AS THEY PERTAIN TO PLAINTIFF HAROLD FETHE1

281. Autobahn’s common practice of using non-Genuine parts to make hidden profit 

bled over into the Mercedes-Benz Certified Pre-Owned Program (“CPO”). According to 

Autobahn Motors General Manager Joe Cox, between December 2004 to May 2015, there were 

thousands of non-Genuine parts placed into Autobahn Motors pre-owned fleet, including 

automobiles that were eventually sold under the CPO Program.

282. Apart from the allegations herein, Mercedes-Benz USA has good reason to be 

proud of its CPO program. The program is advertised on the MB USA website as having strict 

compliance standards: “To qualify for Pre-Owned Certification, a Mercedes-Benz vehicle must 

meet stringent criteria and pass a rigorous inspection.” 2

283. The website and a YouTube video published by MB USA describe the CPO 

Program as “a 155-point inspection regime covering all aspects of the automobile including: 

Fluid check; engine components; electrical systems and functions; drivetrain and undercarriage; 

 

1 Plaintiffs acknowledge that Counts X through XV are stayed, as Plaintiff Fethe’s claims were 

referred to arbitration by Court Order dated 1/18/18 (DE 117). The allegations are contained 

here so as not to confuse the class allegations asserted by other Plaintiffs. 

2 https://www.mbusa.com/mercedes/cpo#waypoint=cpocertification&!layout=/cpo/overview/

certification

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chassis and body; road test; post road test inspection.” According to the YouTube video (at 

1:24), “it’s a vigorous regime of multiple multi point inspections.” 3

284. Under the CPO Program, the vehicle is supposed to be checked by MercedesBenz factory trained techs, and qualifying vehicles are to be re-conditioned with genuine 

Mercedes-Benz parts. (YouTube video, at 2:03).

285. The YouTube video further states that “exceeding expectation is also what sets a 

certified pre-owned Mercedes-Benz apart from the rest...” The YouTube video also states that 

the Mercedes -Benz CPO program “. . .continues to lead the way . . .”

286. In addition, MB USA publishes a CPO “Program Guide” which states:

• “Quality Certified Mercedes-Benz Technicians perform repairs using only genuine 

Mercedes-Benz Parts, exchange units, and factory-approved accessories.” Id. p. 7. 

• “The ICR and all reconditioning work must be performed on a qualifying vehicle to bring 

it up to MB CPO Standards using Mercedes-Benz Genuine Parts.” Id. p. 17.

• “Prior to vehicle sale: Provide Inspection and Certification Report to Customer - 

Disclose any prior repair and service history - Provide supporting repair orders for CPO 

reconditioning.” Id. p. 19. 

• “The ICR must be reviewed with the Customer prior to sale. o Items on the vehicle that 

are excluded from the MB USA warranty because they are non-Mercedes-Benz or 

aftermarket components and/or accessories should be checked off by the Technician on the 

online form. Id. p. 21.

 

3 https://www.youtube.com/watch?v=f7PzX4d50tY

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287. The Service Manager signs the Inspection and Certification Report (“ICR”) that 

establishes the vehicle as certified according to MBCPO Standards, as stated in the vehicle 

manuals:

• Page 18 states: NetStar automatically flags MBCPO vehicles that must be recertified and 

prevents data entry of the vehicle as an MBCPO sale 

• page 19 states: 3.16 Prior to vehicle sale: • Provide Inspection and Certification 

Report to Customer • Disclose any prior repair and service history • Provide 

supporting repair orders for CPO reconditioning

• page 21 states: The ICR must be reviewed with the Customer prior to sale. o Items on 

the vehicle that are excluded from the MB USA warranty because they are nonMercedes-Benz or aftermarket components and/or accessories should be checked off 

by the Technician on the online form. The online ICR must include (in the “Notes” 

section) any body repairs of a cumulative value in excess of 10 percent of the 

vehicle’s current market value. For a vehicle to be certified, the appropriate ICR and 

all reconditioning work must be performed on a qualifying vehicle to bring it up to 

MBCPO standards using Mercedes-Benz Genuine Parts, exchange units, and factoryapproved accessories. The original completed, signed technical ICR and supporting 

repair orders (ROs) must be maintained in Dealer Service files. The consequences of 

noncompliance with MBCPO standards are stated in Section H of this manual. 

Consult your shop’s Workshop Information System (WIS) for the latest information 

and standards for inspection and repair procedures, tools, materials, and safety 

procedures for specific models and model years.

• Page 27 states: 1.1.5 The Service Department will make repairs using only Genuine 

Mercedes-Benz Parts, exchange units, and factory-approved accessories.

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• Page 27: “Reconditioning is a Team Effort,” stating in pertinent part: “The service 

Department will make repairs using only Genuine Mercedes-Benz parts.” 

• Page 28 states & explain managements responsibilities: Service Manager • 

Designating one person to administer the entire Service Department process • 

Expediting the vehicle through the process • Keeping the Pre-Owned Manager or 

designated person informed of the current status of the vehicle while it is in the 

process • Approving repairs in a timely fashion • Performing the required inspection 

on each vehicle presented for reconditioning and reporting to the Pre-Owned 

Manager or designated person the extent and estimated costs of the repairs • Ensuring 

MBCPO-quality repairs • Returning the vehicle to the Pre-Owned Department or 

Detail Department, as directed, immediately upon completion of repairs • Ensuring 

that the Pre-Owned Manager or designated person receives the actual reconditioning 

costs when receiving the vehicle.

• Page 39 states: Consult your shop’s Workshop Information System (WIS) for the 

latest information and standards for inspection and repair procedures, tools, materials, 

and safety procedures for specific models and model years.

• Page 49 states: 2.1.3 Carcannon Reporting Reviews—Depending on the results of the 

periodic Carcannon Consultations, a PIR may be scheduled with the dealer. Vehicle 

file reviews will be conducted by MB USA as well as inspection of certified vehicles 

in dealer inventory.

• 2.2.2.1Certification Training Review—The Reviewer determines whether the current 

Pre-Owned Manager, Service Manager, and F&L Manager have completed 

appropriate MBCPO online training. The Reviewer also determines if the appropriate 

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Dealership Representatives who sell new vehicles, pre-owned vehicles, or both are 

trained and certified according to MBCPO Standards.

• Page 50 states:• Vehicle, process, and overall Dealership compliance scores • Top 

five noncompliant vehicle categories; if less than five categories are noncompliant, 

those categories are listed • Vehicle file and documentation findings (documentation 

present, etc.) • Vehicle inspection graphs for exterior appearance, interior appearance, 

and mechanical • Electronic Extended Limited Warranty (number of days from 

delivery to DDR, Customer signature, etc.) • Inventory reconciliation • Reasons 

vehicle was unavailable for inspection by PIR Reviewers • Training certification 

report • Pre-owned capacity report • Point-of-sale (POS) materials report • Top 25 

problem categories • Vehicle level reporting (individual vehicle condition report).

• page 54: Noncompliance with any of the MBCPO Training and Certification 

Standards can result in the Dealership losing the right to participate in the MBCPO 

Program.

288. The MB USA checklist likewise states: “The following items are to be 

specifically brought to the attention of the customer because they are non-Mercedes-Benz or 

aftermarket components. These items are excluded from the Mercedes-Benz certified pre-owned 

limited Warranty.

289. A document in the service advisor’s office area kept at Autobahn Motors also 

states that all automobiles are repaired according to factory guidelines. Mercedes-Benz factory 

guidelines specify that only MB Genuine/OEM/approved parts are to be used.

290. Former parts advisers from Autobahn Motors’ have explained that they keyed in 

the Genuine part numbers for non-Genuine products, at the direction of Autobahn Motors 

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management. On information and belief, Autobahn Motors in turn was directed to act from 

directives of its corporate owner, Sonic Automotive.

291. The MB USA CPO program further advertises in the form of website publications 

by its dealerships, including Autobahn Motors, in which the following false statement is made:

“Maintenance performed by Mercedes-Benz trained technicians using Genuine 

Mercedes-Benz parts. Potential increase in resale value.”

292. This ad, or a similar one, has been published on the Autobahn Motors’ website, as 

part of the Mercedes-Benz CPO program, and in the name of Mercedes-Benz USA.

293. Plaintiffs accordingly plead and allege against MB USA that it is responsible for 

not only false statements that occurring during the initial sale of the CPO Program vehicles, but 

also during the ensuing maintenance and/or repair after the sale.

294. Plaintiff Harold Fethe purchased a CPO Program vehicle from Autobahn which 

included an ICR reports which stated at page 1: "This report shows that your newly acquired preowned Mercedes-Benz vehicle has been inspected and when required reconditioned to our 

exacting standards. Further, it is our assurance that you will receive the same considerate 

customer service that we provide to our new vehicle owners.”

295. In a brief filed by MB USA in San Mateo County Superior Court Action No. 

CIV525559, MB USA stated: “MB USA’s certification program is a promise (or certification) to 

the repair customer that the vehicle will be repaired with OEM parts and to MB standards (those 

which they had prior to the collision).”

296. MB USA, through its agent Autobahn Motors, and with the connivance, 

assistance, and facilitation of Sonic Automotive, willfully misrepresented CPO vehicles sold by 

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Autobahn Motors as being in compliance with the MB USA CPO Program’s mandates to use 

only Genuine Mercedes-Benz parts in the re-conditioning of CPO Program vehicles.

297. However, CPO vehicles sold by Autobahn Motors did not comply with the 

Program mandate as non-Genuine parts were routinely used in the refurbishment of the CPO 

Program vehicles. Various parts, including but not limited to: zMAX, MOC products, nonGenuine Parts from SSF auto, non-Genuine parts from Munich Auto Parts (oil filters, air filters, 

cabin filters, spark plugs, brake censors and other various parts) were regularly and 

systematically placed into the Autobahn Motors CPO Program vehicles during the CPO 

reconditioning process.

298. MB USA’s actual knowledge of Autobahn Motors’ practice of using zMAX and 

MOC Products in CPO Program vehicles is evident from a review of the vehicle repair history 

reports called “VMI reports.” These VMI reports show the regular use of zMAX and other nonGenuine products in vehicles represented as CPO compliant by Autobahn. MB USA is the 

keeper of these reports, and as such has actual knowledge of the regular use of these nonGenuine products in CPO Program vehicles sold and or serviced by Autobahn Motors.

299. Many of these non-Genuine products fail to meet Mercedes’ own internal 

requirements. For example, the MB USA website states that the proper approved brake fluid is 

described as follows: “We recommend using only products which are distinctly marked with the 

label indicating the approval of Mercedes-Benz, e.g. MB-Approval 229.51” 4

300. Autobahn Motors and MB USA concealed the use of various non-Genuine parts 

from consumers by failing to adhere to MB USA’s CPO Program’s mandates, and the mandate 

 

4 https://bevo.mercedesbenz.com/bevolisten/331.0_en.html

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of California Law, Vehicle Code Section 11713.18, by failing to provide customers with a signed 

CPO inspection report detailing the non-compliant parts. 

301. Plaintiff Harold Fethe purchased a 2005 S12 Mercedes-Benz as a Certified PreOwned (CPO) vehicle from Autobahn Motors in 2009. The VMI report on the repair and 

purchase history of the 2005 S12 shows that zMAX was put into the vehicle by Autobahn 

Motors.

302. Former Autobahn Parts Advisor Roopesh Chandra testified that Autobahn placed 

zMAX in all of its pre-owned vehicles during Chandra’s 10-year term of employment.

303. The VMI Report for Plaintiff Fethe’s vehicle, reviewed for the first time in 2016, 

indicates that Autobahn placed zMAX into the vehicle’s engine block during a repair service that 

took place on or about May 14, 2012 and January 30, 2013.

304. Plaintiff Harold Fethe did not learn of the underlying facts of the deceptive and 

unfair conduct of the Defendants until approximately April 2016, when he contacted Maskay, 

Inc. dba Eurotech in connection with the repair of his vehicle. Plaintiff Fethe did not receive an 

Inspection and Certification Report or other writing when he purchased the vehicle advising him 

that certain non-Genuine parts or liquids such as zMAX had been used in his vehicle.

305. Plaintiff Harold Fethe could not have learned of these claims before April 2016, 

even exercising reasonable diligence, due to Autobahn’s practice of concealing its use of nonGenuine parts and liquids in Plaintiff Fethe’s vehicle.

COUNT X

BREACH OF CONTRACT

(Individual Claim of Plaintiff Harold Fethe)

306. Plaintiffs incorporate by reference paragraphs 1 through 158 as if fully set forth 

herein.

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307. Plaintiff Harold Fethe entered into a contract with Defendants to purchase a 

vehicle that was compliant with the Mercedes-Benz Certified Pre-Owned Program, including 

being re-conditioned with only Genuine Mercedes-Benz Parts. Defendants breached their 

contract with Plaintiff Fethe by re-conditioning his CPO Vehicle with non-Genuine parts 

contrary to the CPO Program directives. Plaintiff Fethe was damaged in that he did not receive 

the benefit of his bargain. He was to receive a vehicle that had been re-conditioned with 

Genuine Mercedes-Benz parts. He was also damaged by the inclusion of zMAX in his CPO 

Program vehicle as it is not a Mercedes approved product and may void the extended warranty 

that comes with CPO Program vehicles.

308. As a direct and proximate result of the Defendants’ breaches described above, 

Plaintiff Fethe has been damaged in an amount to be proven at trial, which shall include, but is not 

limited to, all compensatory damages, incidental and consequential damages, and other damages 

allowed by law.

309. WHEREFORE Plaintiffs pray for judgment as set forth below.

COUNT XI

VIOLATION OF CALIFORNIA CONSUMERS LEGAL REMEDIES ACT

CIVIL CODE § 1750, et seq.

(Individual Claim of Plaintiff Harold Fethe Against All Defendants)

310. Plaintiffs incorporate by reference paragraphs 1 through 158 as if fully set forth 

herein. 

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311. This individual cause of action is brought pursuant to the Consumers Legal 

Remedies Act, Cal. Civ. Code § 1750, et seq. (the “CLRA”), because Defendants’ actions and 

conduct described herein constitute transactions that have resulted in the sale or lease of goods or 

services to consumers. 

312. Plaintiff Harold Fethe is a consumer as defined by Cal. Civ. Code § 1761(d).

313. Cal. Civ. Code § 1770(a)(2), (3), (5) and (7) ists the following as prohibited 

unlawful acts which have been violated by Defendants as follows:

(2) Misrepresenting the source, sponsorship, approval, or certification of goods or 

services. Defendants violated this provision by selling a vehicle to Plaintiff Fethe a as 

qualified CPO Program vehicle, when the vehicle was not reconditioned with Genuine 

Parts and in violation of Mercedes-Benz factory standards as required by the CPO Program. 

(3) Misrepresenting the affiliation, connection, or association with, or certification by, 

another. Defendants violated this provision by selling a vehicle to Plaintiff Fethe as a

qualified CPO Program vehicle, when the vehicle was not reconditioned with Genuine 

Parts as required by the CPO Program. 

(5) Representing that goods or services have sponsorship, approval, characteristics, 

ingredients, uses, benefits, or quantities that they do not have ... Defendants violated

this provision by selling a vehicle to Plaintiff Fethe as a qualified CPO Program vehicle, 

when the vehicle was not reconditioned with Genuine Parts as required by the CPO 

Program. 

(7) Representing that goods or services are of a particular standard, quality, or grade, 

or that goods are of a particular style or model, if they are of another. Defendants 

violated this provision by selling a vehicle to Plaintiff Fethe as a qualified CPO Program 

vehicle, when the vehicle was not reconditioned with Genuine Parts as required by the CPO 

Program. 

314. On or about November 14, 2017, Plaintiffs notified Defendants in writing, by 

certified mail, of the violations alleged herein and demanded that Defendant remedy those 

violations.

315. Defendant failed to rectify or agree to rectify the problems associated with the 

actions detailed above and give notice to all affected consumers within 30 days of receipt of 

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Plaintiff’s written notice pursuant to § 1782 of the CLRA. Plaintiff Fethe therefore claims actual, 

punitive, and statutory damages pursuant to the CLRA. Plaintiff Fethe also seeks a Court order 

for restitution, disgorgement, statutory damages, and any other relief that the Court deems proper.

316. Defendants’ conduct is malicious, fraudulent, and wanton in that Defendants

intentionally and knowingly provided misleading information to the public and charged consumers

such as Plaintiff Fethe without their consent.

317. WHEREFORE Plaintiffs pray for judgment as set forth below.

COUNT XII

VIOLATION OF CALIFORNIA UNFAIR COMPETITION LAW,

BUSINESS AND PROFESSIONS CODE SECTION 17200

(Individual Claim of Plaintiff Harold Fethe Against All Defendants)

318. Plaintiffs incorporate by reference paragraphs 1 through 158 as if fully set forth 

herein.

319. Business & Professions Code § 17200, et seq., the Unfair Competition Law 

(“UCL”), prohibits acts of “unfair competition”, which is defined by Business & Professions Code 

§ 17200 as including any “any unlawful, unfair or fraudulent business act or practice . . ..”

320. As set forth above, Defendants have engaged in several unfair, deceptive and 

fraudulent actions through the CPO Program Fraud as alleged herein.

321. Plaintiff Fethe was damaged by Autobahn’s unlawful, unfair, deceptive and 

fraudulent business practice of re-conditioning CPO Program Vehicles with non-Genuine parts 

contrary to the CPO Program directives. Plaintiff Fethe was damaged in that they did not receive 

the benefit of his bargain. He was to receive a vehicle that had been re-conditioned with Genuine 

Mercedes-Benz parts. He was also damaged by the inclusion of zMAX in his CPO Program 

vehicle as it is not a Mercedes approved product and identified by MB USA to be a detrimental 

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product that may void the extended warranty that comes with CPO Program vehicles. Defendants 

Autobahn and Sonic knowingly and intentionally hid from Plaintiff Fethe their use of non-Genuine 

parts in CPO Program vehicles.

322. MB USA is liable for this harm and damages suffered by Plaintiff Fethe because 

the conduct of Autobahn Motors in misrepresenting and concealing the use of non-genuine parts 

was done as part of the MB USA CPO program in the name of MB USA, but actually done 

pursuant to an agency assignment by MB USA to Autobahn Motors.

323. Defendant Sonic Automotive is liable for this harm and damages because it is the 

corporate owner of Autobahn Motors, and because it actively aided and abetted the conduct of 

Autobahn Motors by expressly directing Autobahn Motors (through its General Manager, Joe Cox, 

and David Ahlheim, its Fixed Operations Director) to use zMAX, MOC Products, SSF Auto Parts 

products, Munich Auto parts non-genuine parts, and other non-genuine parts in the CPO cars at 

Autobahn Motors.

324. Defendants’ conduct was willful, premediated, done with substantial planning and 

intentional wrongful conduct, was known to be concealed by the public, was willfully concealed 

from Plaintiff Fethe in violation of the express rules of the MB CPO program and California 

Vehicle Code 11713.18 , was done in disregard of Plaintiff Fethe’s rights as a purchaser of a CPO 

cars, was done fraudulently oppressively and wantonly, knowing that Plaintiff Fethe would thereby 

be harmed, which constitutes a basis for punitive damages pursuant to California Civil Code 

Section 3294 in an amount according to proof.

325. Pursuant to Cal. Civ. Code § 1780, any consumer who suffers damage as a result 

of the use or employment of any act or practice declared unlawful by § 1770, may recover actual 

damages, restitution, punitive damages and injunctive relief.

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326. Plaintiff Fethe requests actual damages and restitution, including without limitation 

any diminution of value (both actual value and resale value for his CPO Vehicle).

327. WHEREFORE Plaintiffs pray for judgment as set forth below.

COUNT XIII

VIOLATION OF THE CALIFORNIA UNFAIR COMPETITION LAW,

BUSINESS AND PROVESSIONS CODE SECTION 17200

FOR VIOLATIONS OF CALIFORNIA VEHICLE CODE SECTION 11713.18

(Individual Claim of Plaintiff Harold Fethe Against All Defendants)

328. Plaintiffs incorporate by reference paragraphs 1 through 158 as if fully set forth 

herein.

329. Business & Professions Code § 17200, et seq., the UCL, prohibits acts of “unfair 

competition”, which is defined by Business & Professions Code § 17200, as including any “any 

unlawful, unfair or fraudulent business act or practice . . ..”

330. California Vehicle Code Section 11713.18 makes it illegal to sell a certified 

automobile under certain circumstances, including as follows:

It is a violation of this code for the holder of any dealer's license issued under this article 

to advertise for sale or sell a used vehicle as “certified” or use any similar descriptive term in the 

advertisement or the sale of a used vehicle that implies the vehicle has been certified to meet the 

terms of a used vehicle certification program if any of the following apply:

***

(6) Prior to sale, the dealer fails to provide the buyer with a completed inspection 

report indicating all the components inspected.

***

(9) The term “certified” or any similar descriptive term is used in any manner that 

is untrue or misleading or that would cause any advertisement to be in violation of 

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subdivision (a) of Section 11713 of this code or Section 17200 or 17500 of the 

Business and Professions Code.” 

331. A violation of § 11713.18 is per se actionable under the California Unfair 

Competition Law Section 17200.

332. Plaintiff Fethe falls within the above definition, having purchased a CPO Program 

vehicle from Defendants.

333. In violation of § 11713.18(6), Autobahn failed to provide buyers of CPO Program 

vehicles like Plaintiff Fethe with the required inspection report indicating the components 

inspection and listing any non-Genuine parts. Thus, the sales transaction with Plaintiff Fethe was

made in violation of § 11713.18(6).

334. Furthermore, Autobahn at the direction of Sonic, also used the term “certified” in 

an untrue and misleading manner by presenting the vehicle sold to Plaintiff Fethe as compliant 

with the MB USA CPO Program, while knowing that non-Genuine parts were installed in the reconditioning process in direct violation of the CPO Program directives.

335. The CPO program is administered by MB USA through its agents, Autobahn 

Motors and Sonic. The warranty is given by MB USA, but is actually issued through its agent(s) 

Autobahn Motors, whereby Autobahn Motors actually performs the entire CPO vehicle 

reconditioning and certification process, and issues a MB USA CPO warranty on behalf of MB 

USA.

336. Under the Mercedes-Benz/Autobahn Motors CPO program rules, published at the 

MB USA website, only OEM parts are to be used in the re-conditioning process. The MB USA 

guidebook states at page 7: “Quality Certified Mercedes-Benz Technicians perform repairs using 

only genuine Mercedes-Benz Parts, exchange units, and factory-approved accessories.”

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337. In addition to simply installing non-conforming non-Genuine parts, Defendants 

deliberately misrepresent that zMAX was a Genuine Mercedes-Benz approved product when 

placed into CPO Program vehicles.

338. Sonic Automotive is sued herein based on its conduct in aiding and abetting the 

fraudulent conduct of Autobahn Motors and its other California dealerships in misrepresenting the 

CPO Program vehicle sold to Plaintiff Fethe.

339. MB USA clearly states in its the owners’ manuals and on its website, that oil 

additives are prohibited, and that damage to the car from the use of oil additives will be excluded 

from MB USA warranty coverage on the automobile.

340. Defendants intentionally concealed the use of non-Genuine parts in the CPO 

Program vehicle sold to Plaintiff Fethe and the impact on the MB USA warranty.

341. Defendants have actively concealed the above described facts, and have prevented 

Plaintiff Fethe from discovering the truth, by refusing to provide CPO checklist documents

showing the use of Non-Genuine products as described above and as mandated by California 

Vehicle Code Section 11713.18.

342. As a proximate result of Defendants’ conduct described herein, Plaintiff Fethe has

been actually damaged in an amount according to proof.

343. Defendants conduct was willful, deceptive, fraudulent, and was done with 

premeditation, and deliberate indifference to the statutory obligations placed upon them and the 

rights of Plaintiff Fethe, which warrants the imposition and award of punitive damages in an 

amount according to proof.

344. WHEREFORE Plaintiffs pray for judgment as set forth below.

COUNT XIV

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NEGLIGENCE

(Individual Claim of Plaintiff Harold Fethe against All Defendants)

345. Plaintiffs incorporate by reference paragraphs 1 through 158 as if fully set forth 

herein.

346. Defendants’ conduct was careless, reckless, and in breach of Defendants’ duty 

owed to Plaintiff Fethe, and in violation of California Civil Code 1714(a).

347. Defendants negligently each and all took steps to conceal the true facts about the 

use of zMAX and other non-OEM/non-genuine products on MB USA warranties, and similar 

warranties given by third parties.

348. Autobahn Motors and Sonic Automotive have breached the duty of due care owed 

pursuant to Civil Code Section 1714(a) by negligently and wrongfully marketing, distributing, 

selling, and placing zMAX into automobiles, knowing that in so doing, the manufacturer’s 

certified pre-owned warranties, or such similar warranties issued by third parties, are thereby 

rendered void or voidable at the option of the warrantor. One such warrantor and beneficiary of 

this negligence is Defendant MB USA, who, if it stands by and does nothing, gets the advantage 

of voiding any warranty claims due to the prohibited use of zMAX.

349. MB USA committed negligence based on its ICRs, and by failing to enforce its own 

policies and procedures regarding repairs, the use of non-Genuine Mercedes parts by authorized 

Mercedes dealerships, and the use of an oil additive (zMAX) by authorized Mercedes dealerships.

350. MB USA had a legal duty pursuant to Civil Code section 1714(a) to use reasonable 

care to prevent harm to Plaintiff Fethe.

351. MB USA breached this duty by the conduct described in the common allegations 

of fact above.

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352. MB USA was further negligent in that it knew full well through VMI reports, and 

the pendency of this very litigation, that Sonic Automotive, Speedway Motorsports, and dealers 

owned by Sonic Automotive were and still are actively, selling, and marketing zMAX in a manner 

that is expressly prohibited by the automobile manufacturers’ warranty.

353. The Defendants’ use of zMAX renders both Mercedes warranties and third-party 

warranties void or voidable at the option of MB USA and/or any third-party warrantor, by the 

express terms of the warranties.

354. An exemplar of a third party pre-owned car warranty is Easy Care Warranty, which 

is a warranty product offered for sale through Sonic Automotive. This Easy Care warranty held 

by Plaintiff Harold Fethe states:

“YOU must follow YOUR VEHICLE manufacturer’s maintenance guidelines to 

avoid denial of a claim because of improper maintenance.”

355. MB USA is the party issuing a CPO warranty, at a time when it simultaneously 

receives actual knowledge through the VMI process that at a time either before the sale of a car, 

or during the pendency of the warranty, zMAX was added into the car by Autobahn Motors (as in 

the case of Fethe).

356. MB USA is motivated by its own economic interest, because, as described above, 

it is a beneficiary of the scheme and benefits from standing idly by while its certified pre-owned 

warranties become void or voidable at its options.

357. Autobahn Motors had a legal duty pursuant to California Civil Code section 

1714(a) to use reasonable care to prevent harm to Plaintiff Fethe.

358. Autobahn Motors has brought forward an objectively reasonable expectation by its 

CPO customers and repair customers that genuine Mercedes-Benz parts will be used and that nonCase 4:17-cv-00018-YGR Document 126 Filed 02/06/18 Page 74 of 78
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approved parts will not be used. By virtue of this legal duty, Autobahn Motors has an affirmative 

duty to inform customers, including Plaintiff Fethe, of the use of non-genuine parts. Autobahn 

Motors has a legal duty not to use non-approved fuel additives like zMAX and MOC products.

359. Sonic Automotive had a legal duty pursuant to Civil Code section 1714(a) to use 

reasonable care to prevent harm to Plaintiff Fethe.

360. Sonic Automotive breached its duty of reasonable care by requiring Autobahn 

Motors to regularly purchase and use various non-genuine parts in the CPO reconditioning process, 

including in the CPO vehicle sold to Plaintiff Fethe.

361. Plaintiff Fethe, who unknowingly received zMAX as it was placed in the car he 

purchased as a CPO from Autobahn suffered the following harm proximately caused by all 

Defendants: Plaintiff Fethe had his Certified Pre-owned warranties issued by MB USA or other 

third-party warrantors, rendered void and/or voidable at the option of MB USA or other third-party 

warrantor. The warranty was thereby transformed from a solid and enforceable, to that of warranty 

enforceable at the option of the warrantor. The status/ existence/nature/and pendency of a preowned automobile’s warranty is extremely significant aspect concerning the value of that car.

362. Plaintiff Fethe seeks statutory damages, and such other relief as the Court deems 

just and appropriate, including without limitation disgorgement of profits, return of funds deemed 

to constitute unjust enrichment, or such other equitable relief as the Court deems appropriate.

363. WHEREFORE Plaintiffs Pray for relief as set forth below in the Prayer for Relief.

COUNT XV

UNJUST ENRICHMENT

(Individual Claim of Plaintiff Harold Fethe Against All Defendants)

364. Plaintiffs incorporate by reference paragraphs 1 through 158 as if fully set forth 

herein.

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365. All Defendants have benefitted from selling and leasing CPO Class vehicles whose 

value was artificially inflated by Defendants’ concealment of the non-OEM parts and products 

installed in the vehicles, and Plaintiff Fethe overpaid for his CPO vehicle.

366. All Defendants have received and retained unjust benefits from Plaintiff Fethe, and 

inequity has resulted.

367. It is inequitable and unconscionable for Defendants to retain these benefits.

368. Because Defendants concealed their fraud and deception, Plaintiff Fethe was not 

aware of the true facts concerning his CPO vehicle, and did not benefit from Defendants’ 

misconduct.

369. Defendants knowingly accepted the unjust benefits of their fraudulent conduct.

370. As a result of Defendants’ misconduct, the amount of its unjust enrichment should 

be disgorged and returned to Plaintiff Fethe, in an amount to be proven at trial.

371. WHEREFORE Plaintiffs Pray for relief as set forth below in the Prayer for Relief.

PRAYER FOR RELIEF

WHEREFORE PLAINTIFFS pray for relief as follows: 

1. For compensatory and consequential damages as to each claim for relief allowing damages, as 

described above, in an amount according to proof. 

2. For prejudgment interest in an amount according to proof. 

3. For exemplary damages against each and every Defendant pursuant to CC Section 3294 based 

on the intentional, oppressive, and fraudulent misconduct described above.

4. For injunctive relief as to each claim for relief allowing for injunctive relief, as requested 

above, or such other injunctive relief as the court deems just and proper. 

5. Plaintiffs request injunctive relief for violations of the CLRA Civil Code Section 1770 and 

B&P Code section 17500 as requested above.

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6. Plaintiffs request the following equable remedies for their claims of violation of B & P Code 

Section 17200, as requested above, including without limitation disgorgement of profits, return 

of funds deemed to constitute unjust enrichment, and injunctive relief, restitution or such other 

equitable relief as the Court deems appropriate 

7. For Defendants Autobahn Motors and Sonic Automotive to provide an accounting of all profits 

earned as a result of their mutual transactions pursuant to CCP section 872.140 and B&P Code 

Section 17200.

8. For attorneys’ fees pursuant to the CLRA Civil Code Section 1770, B & P Code Sections

17200 and 17500. The request for reimbursement/payment of attorneys’ fees is based on the 

common fund doctrine in an amount according to proof.

9. For litigation costs. 

10. For such other relief as the Court deems just and appropriate.

JURY DEMAND

PLAINTIFFS demand a trial by jury as to all claims for relief triable before a jury. 

Respectfully submitted, 

//s// Herman Franck

____________________________ Date: February 6, 2018 

Herman Franck, Esq. 

Franck & Associates

//s// Brian W. Warwick

____________________________

Brian W. Warwick, (Admitted Pro Hac Vice)

bwarwick@varnellandwarwick.com

Janet R. Varnell, (Admitted Pro Hac Vice)

jvarnell@varnellandwarwick.com

David Lietz (Admitted Pro Hac Vice)

dlietz@varnellandwarwick.com

VARNELL & WARWICK, P.A.

P.O. Box 1870

Lady Lake, FL 32158

Telephone: (352) 753-8600

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Facsimile: (352) 504-3301

Attorney for Plaintiffs

STEVE FERRARI and MIKE KEYNEJAD,

PATRICIA RUBIN, HAROLD FETHE, 

JOHN DIAZ, AND RAY GAPASIN, individually and as

representatives of the Class of Persons Similarly Situated;

along with individual Plaintiffs, HOOSHANG OWZA, 

CELSO FRAZAO,RENUKA NARAYAN,

GERTRUD FRANKRONE, ERNEST SALINAS, 

KALKHUSAN SAREEN, HOSSEIN JALALI, 

RON WOLFE, SOHRAB RAHIMZADEH, 

FRED GRANT, ESTER GRANT, VINCENT LEUNG, 

JESSICA LANGRIDGE, TONY NICOLOSI,

DONALD LYANG, and ARTUR SEMICHEV

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