Case 3:21-cv-09635-TSH Document 1 Filed 12/14/21 Page 1 of 32
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`O'CONNOR LAW GROUP, P.C.
`Mark O'Connor, Esq. (SBN 157680)
`Larry S. Castruita, Esq. (SBN 279263)
`384 Forest Ave., Suite 17
`Laguna Beach, CA 92651
`Tel: (949) 494-9090 | Email: hello@teamolg.com
`WIRTZ LAW APC
`Richard M. Wirtz, Esq. (SBN 137812)
`4370 La Jolla Village Dr., Suite 800
`San Diego, CA 92122
`Tel: (858) 259-5009 | Email: rwirtz@wirtzlaw.com
`REALLAW APC
`Michael J. Hassen, Esq. (SBN 124823)
`1981 N. Broadway, Suite 280
`Walnut Creek, CA 94596
`Tel: (956) 359-7500 | Email: mjhassen@reallaw.us
`
`Attorneys for Plaintiff:
`
`
`
`DANIEL AARON HOROWITZ
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`
`DANIEL AARON HOROWITZ,
`individually and on behalf of all others
`similarly situated,
`
`
`Plaintiff,
`
`Case No.
`
`CLASS ACTION COMPLAINT
`1. BREACH OF CONTRACT;
`2. VIOLATION OF THE UNFAIR
`COMPETITION LAW (California
`Business & Professions Code
`§17200);
`3. BREACH OF THE COVENANT OF
`GOOD FAITH AND FAIR
`DEALING
`4. VIOLATION OF THE
`CONSUMER LEGAL REMEDIES
`ACT (California Civil Code §1760, et
`seq.) (Injunctive Relief)
`
`
`DEMAND FOR JURY TRIAL
`
`
`TESLA MOTORS, INC., a Delaware
`Corporation,
`
`
`vs.
`
`Defendant.
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`Horowitz v. Tesla - CLASS ACTION COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF
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`Case 3:21-cv-09635-TSH Document 1 Filed 12/14/21 Page 2 of 32
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`CLASS ACTION COMPLAINT AND DEMAND FOR JURY TRIAL
`Plaintiff DANIEL AARON HOROWITZ brings this Class Action Complaint and Demand
`for Jury Trial and alleges as follows against Defendant TESLA MOTORS, INC., a Delaware
`Corporation. Plaintiff, for this Complaint, alleges as follows upon personal knowledge as to
`himself and his own acts and experiences, and as to all other matters upon information and belief,
`including investigation conducted by his counsel.
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`DEMAND FOR JURY TRIAL
`1.
`Plaintiff on behalf of himself and other similarly situated, hereby demands trial by
`jury in this action pursuant to Rule 38 of the Federal Rules of Civil Procedure.
`
`
`THE PARTIES
`2.
`Plaintiff DANIEL AARON HOROWITZ (hereinafter "[Mr.] Horowitz" or
`"Plaintiff") is an individual residing in Lafayette, County of Contra Costa, and State of California.
`3.
`Defendant TESLA MOTORS, INC. (hereinafter "Tesla" or "Defendant") is and at
`all relevant times was, a Delaware Corporation registered to do business in the State of California
`with its registered office in the City of Fremont, County of Alameda, and State of California.
`4.
`Additionally, TESLA engages in the marketing, supplying, distribution and retail
`sales of automobiles to the public at large through both its website a broad network of sales
`facilities across the United States.
`
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`JURISDICTION AND VENUE
`5.
`This Court has subject matter jurisdiction of this action pursuant to the Class Action
`Fairness Act of 2005 ("CAFA"), codified in pertinent part at 28 U.S.C. §1332(d)(2), which
`provides for original jurisdiction in the federal courts over any class action in which a member of
`the plaintiff class is a citizen of a State different from the State citizenship of any defendant, and
`the amount in controversy exceeds the sum of $5,000,000.00 exclusive of interests and costs. Here,
`there is an aggregate amount in controversy exceeding $5,000,000.00 exclusive of interest and
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`costs and there is minimal diversity between Plaintiff and Defendant. Additionally, this Court also
`has supplemental jurisdiction over the set forth state law claims pursuant to 28 U.S.C. §1367.
`6.
`This Court has personal jurisdiction over Tesla because Tesla conducts substantial
`business in this judicial district, thereby purposely and intentionally availing itself of the benefits
`and protections of this district when placing motor vehicles into the stream of commerce within
`California and the United States. Personal jurisdiction over Tesla is foreseeable, fair, and proper.
`7.
`Venue is proper in this judicial district pursuant to 28 U.S.C. §1391. Tesla transacts
`substantial business in this district with regularity and it is subject to personal jurisdiction in this
`district. Additionally, Tesla advertises and markets its products in this district, and has received
`substantial revenue and profits from its sales and leasing of motor vehicles in this district. Thus, a
`substantial part of the events and/or omissions giving rise to the present claims occurred in within
`this district. Therefore, venue is proper.
`8.
`All acts of corporate employees as alleged were authorized or ratified by an officer,
`director, or managing agent of the corporate employer.
`
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`COMMON FACTUAL ALLEGATIONS
`9.
`Tesla is manufacturer and direct to consumer retail seller of electric vehicles
`throughout the country. Tesla is "vertically integrated"; meaning it, unlike traditional
`manufacturers of motor vehicles does not sell through separate entities (dealerships) but rather acts
`as its own distributor and retail sales arm. It has only 4 base model vehicles; the S, 3, X and Y.
`Each has various options or configurations of features such as interior colors, trim and so forth.
`10.
`Tesla, by virtue of being "vertically integrated" knows exactly how many vehicles
`are being ordered by consumers and the exact composition of each individual vehicle as ordered
`by each consumer. Thus, Tesla can plan its manufacturing, the features of each individual vehicle
`and when and if certain features or "options" will be available to each individual who orders their
`car. In this way Tesla will always know and be capable to inform consumers when any particular
`feature, option or characteristic of one of its 4 base models (The S, 3, X and Y) will either be
`discontinued or not available.
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`11.
`In order to purchase one of its vehicles, a consumer must visit Tesla's website to
`begin their order of a desired vehicle.
`12.
`On the website a customer will select the model (e.g., Model S, Model 3, Model X,
`Model Y) and will select various options including items such as the base vehicle (typically
`delineated by the size of the battery and range capability) exterior color, wheels, interior décor,
`number of seats, Autopilot, Self-Driving Capability, and charging options.
`13.
`Once the order is complete, and a customer has paid an order fee of one hundred
`dollars ($100.00), Tesla will send a Motor Vehicle Order Agreement ("MVOA") which states that
`the order was "placed electronically with accepted terms" and contains a total price not including
`taxes and governmental fees.
`14.
`Consumers reasonably rely on the stated price in Tesla's online order form and that
`the terms of the agreement, specifically the features ordered for the vehicle and the price, will not
`change.
`15.
`Despite promising to sell cars to consumers at certain prices Tesla has rather
`engaged in the practice of unilaterally sending modified Motor Vehicle Order Agreement contracts
`to customers, such as Plaintiff, who have already entered into a contract with Tesla for a model of
`vehicle with certain features and options. These "modified" orders, which appear and are sent to
`consumers fully executed, contain different terms, most notably increased prices for the same base
`model vehicle (or a lesser base model) and increased process for the same features (such as auto
`pilot). Tesla engaged in exactly this conduct with Plaintiff Horowitz and, further, informed
`Plaintiff that the changes were necessary because the model he ordered was no longer available;
`in essence Tesla stated as a fact that the vehicle the customer ordered was no longer available even
`though Tesla knew, when Horowitz ordered the vehicle, what options were available. However,
`the truth is that Tesla changed nothing other than the price, increasing it unilaterally and
`fraudulently. And Tesla strong-armed consumers into changing their orders by simply telling them
`the originally ordered vehicle would not be available or would not be produced. In essence, Tesla
`determined a way to force consumers to alter their orders on the pretext of non-available options
`and enforce a price increase on other features that remained the same (such as the base vehicle or
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`auto pilot). Tesla simply refused to actually manufacture the vehicle the consumer ordered, and
`for which Tesla took the order, in order to increase the price on already ordered vehicles.
`16.
`Plaintiff, and other similarly situated persons, do not sign, click, or execute in
`anyway the modified contracts. Tesla merely enforces the new terms on its existing customers with
`existing contracts.
`17.
`Not only do the new contracts contain configurations not agreed to by the customer,
`but they also contain a higher price.
`18.
`Tesla gave only two options: pay the higher price for a different model or cancel
`the contract.
`19.
`Tesla knows and understands that it lacks any real competition and that its
`customers lack any alternatives to complete their vehicle orders in hopes that consumers will give
`in to the changed configurations and price increases.
`20.
`Plaintiff and all classes set forth herein now seek to enforce their contracts with
`Tesla for the originally agreed-upon configuration and price.
`
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`ALLEGATIONS SPECIFIC TO PLAINTIFF
`21.
`Plaintiff brings this action individually for himself and on behalf of all persons who
`entered into a contract for the purchase of a Tesla Vehicle where the Tesla unliterally changed
`their configurations and increased the purchase price after the execution of the contract.
`On or around October 7, 2020, Plaintiff entered into a binding contract with
`22.
`Defendant whereby Defendant provided a "Motor Vehicle Order Agreement" ("MVOA") (the
`"October Agreement") with "electronically accepted terms" setting forth the price for the purchase
`of a 2020 model year Tesla Model X (hereinafter "[the] vehicle"). Tesla assigned an order number
`"RN113924080" to the contract. Said contract is attached hereto as Exhibit "A".
`23.
`The delivery date was to be December 28, 2020, which coincided with the
`expiration of Plaintiff's previous lease of a different Tesla vehicle.
`24.
`The particular configuration of the vehicle on the October contract contained,
`among other things, a selection of a "Model X Long Range Plus", Midnight Silver Metallic
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`Exterior color, 20" Silver Wheels, All Black premium Interior with Figured Ash Wood Décor, Six
`Seat Interior, Auto Pilot, Full Self Driving Capability, and Pay-as-you-go Supercharging.
`25.
`The total price of the vehicle selected by Plaintiff was $97,290.00.
`26.
`As of the date of the October Agreement, there was no Vehicle Identification
`Number ("VIN") attached to the Vehicle.
`27.
`The first page of the October Agreement sets forth an order fee of $100.00 which
`was paid by Plaintiff on that date.
`28.
`Plaintiff's contract contains the words "Order Placed with electronically accepted
`terms."
`29.
`Beginning in or about December of 2020 Plaintiff made multiple documented
`attempts to contact Tesla to inquire about the delivery of his new vehicle as he was receiving
`emails from Tesla regarding the expiration of his previous lease on December 28, 2020. These
`attempts were ignored by Tesla.
`30.
`Disregarding all communications from Plaintiff, Tesla sent Plaintiff notice that his
`lease would "mature"1 on December 28, 2020; a fact already known to Plaintiff having pointed
`this out to Tesla. Tesla then gave Plaintiff only one viable option; to extend the lease. But Tesla
`demanded a lease payment that was the same as the original lease despite the fact that Plaintiff
`was, at that point, then leasing a vehicle with over 37,000 miles. Essentially Tesla demanded a
`"New" vehicle lease amount for a used vehicle having failed to provide the new vehicle Plaintiff
`ordered. With no other options and no one from Tesla contacting Plaintiff regarding his new
`vehicle, Plaintiff was forced to pay to extend his existing lease.
`31.
`On February 23, 2021, Plaintiff sent a letter detailing the issues set forth herein to
`Tesla's General Counsel. Tesla ignored this communication.
`32.
`On May 19, Plaintiff sent a follow up letter to Tesla's General Counsel detailing the
`issues set forth herein, with a request to preserve certain evidence.
`///
`///
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`1 Tesla uses the word "mature" in the place of "expire" when referring to the end date of its leases.
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`33.
`On May 24, 2021, Tesla unilaterally sent Plaintiff a new MVOA with the exact
`same order number RN113924080 for a Model X Tesla which was different in configuration
`specifically the difference in configuration was:
`a. Instead of a Model X Long Range Plus, the vehicle was changed to a lesser
`Model X Long Range2;
`b. The price of the base vehicle - the Model X Long Range (not Plus) was
`increased $10,000.00 from $79,990.00 to $89,990.00, even though the vehicle
`was a lesser model base vehicle because it had a decreased range capability;
`c. Instead of 20" Silver Wheels, they were now 20" Cyberstream Wheels;
`d. Instead of a Figured Ash Decor, it was now an Ebony Decor;
`e. It added a Yoke Steering Wheel;
`f. The price of the Full Self-Driving Capability was increased from $8,000.00 to
`$10,000.00; and,
`g. The "Order Fee" of $100.00 did not appear on the May 14, 2021, MVOA.
`34.
`The total price now demanded by Tesla was $109,190.00, an increase of $11,900.00
`for a vehicle with lesser range and capability and a few changes in color.
`35.
`Plaintiff did not and does not accept the changed configuration and demands for
`Tesla to honor its agreed upon price of $97,290.00.
`
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`CLASS ALLEGATIONS
`Nationwide Class
`36.
`Plaintiff brings this class action on behalf of himself and on behalf of the Class
`Members of the Nationwide Class. Plaintiff is informed and believes that all members of the
`Nationwide Class entered into a MVOA with Tesla for a specific configuration and price of a new
`vehicle and that each received a unilateral second contract with a higher price and possible changes
`to their selected configurations.
`
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`2 According to Car and Driver the Tesla Model S "Long Range" has a range capability of 373-miles while the "Long
`Range Plus" has a 390-mile range capability. Therefore, Tesla both increased the price by $10,000.00 and decreased
`the range capability to a lesser model.
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`37.
`Plaintiff brings this lawsuit as a class action on behalf of himself and similarly
`situated individuals pursuant to Rule 23 of the Federal Rules of Civil Procedure.
`38.
`Plaintiff brings this class action on behalf of himself and all other similarly situated
`members of a proposed Nationwide Class, defined as follows:
`All individuals in the United States Who Entered into a Motor
`Vehicle Order Agreement (either a sale or a lease) and Later
`Received a New Agreement Containing a Higher Price and/or
`different configuration of options for essentially the same or
`lesser vehicle or for an altered vehicle configurations when the
`original configuration was available.
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`California Subclass
`39.
`Plaintiff brings this class action on behalf of himself and on behalf of the Class
`Members of the California Subclass. Plaintiff is informed and believes that all members of the
`California Subclass are California residents who entered into a MVOA with Tesla for a specific
`configuration and price of a new eclectic vehicle and that each received a unilateral second contract
`with a higher price and possible changes to their selected configurations.
`40.
`Plaintiff brings this lawsuit as a class action on behalf of himself and similarly
`situated individuals pursuant to Rule 23 of the Federal Rules of Civil Procedure.
`41.
`Plaintiff brings this class action on behalf of himself and all other similarly situated
`members of a proposed California Subclass, defined as follows:
`All individuals in the California Who Entered into a Motor
`Vehicle Order Agreement (either a sale or a lease) and Later
`Received a New Agreement Containing a Higher Price and/or
`different configuration of options for essentially the same or
`lesser vehicle or for an altered vehicle configurations when the
`original configuration was available.
`
`///
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`42.
`Excluded from both the Nationwide Class and the California Subclass are: 1) Tesla,
`any affiliated parent or sister company, any entity or division in which Tesla has a controlling
`interest, its legal representatives, officers, directors, assigns, and successors; 2) the Judge to whom
`this case is assigned and the Judge's staff; 3) governmental entities; and, 4) claims for personal
`injuries resulting from the facts alleged herein. Plaintiffs reserve the right to amend the class
`definitions if discovery and further investigation reveal that the Class should be expanded, divided
`into subclass, or modified in any other way.
`43.
`Plaintiff reserves the right to amend the classes, and to add subclasses, if discovery
`and further investigation reveals such action is warranted.
`Numerosity: Although the exact number of the Nationwide Class and the
`44.
`California Subclass Members is uncertain and can only be ascertained through appropriate
`discovery, Plaintiff believes and, on that basis, alleges that thousands of members of both classes
`have been entered into a MVOA only to later receive a new unilateral MVOA with altered terms
`and price, so the number of the Nationwide Class and the California Subclass Members is great
`enough that joinder is impracticable. The disposition of the claims of these class members in a
`single action will provide substantial benefits to all parties and to the Court. The class members
`are readily identifiable from information and records in Tesla's possession, custody, or control.
`
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`TESLA'S ARBITRATION PROVISION
`45.
`All relevant MVOA's of each Class Member contains an arbitration provision that
`is unenforceable as its only provision to opt-out creates a contractual impossibility.
`46.
`The arbitration provision states:
`You may opt out of arbitration within 30 days after signing this
`Agreement by sending a letter to: Tesla, Inc.; P.O. Box 15430;
`Fremont, CA 94539-7970, stating your name, Vehicle Identification
`Number, and intent to opt out of the arbitration provision.
`47.
`The MVOA's are a contract to order a vehicle. Thus, at the time the contracts are
`entered into and for a period more than thirty (30) days thereafter, Plaintiff and any Class Member
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`could not have had possession of a VIN in order to satisfy the preceding condition. The arbitration
`provision is designed to frustrate any consumes ability to exercise the opt out provision. However,
`Plaintiff has sent a letter requesting to opt out of the arbitration provision without a VIN.
`Typicality: The claims of the representative Plaintiff are typical of the claims of
`48.
`the Class in that the representative Plaintiff, like all Class Members, entered into a binding
`agreement with Tesla for a specific configuration of vehicle at a specific Price only to have Tesla
`later unilaterally and without class members agreement altered the material terms of their
`agreement including the configuration of the vehicle and the price. In each case all Plaintiff and
`all class members deposited monetary funds in consideration of their binding agreements with
`Tesla. Some class members actually paid the higher price for a car they did not select, and others
`were prevented from purchasing the vehicles at the higher price and were not given refunds of
`their deposits. The representative Plaintiff, like all potential Class Members, has been damaged by
`Defendant's misconduct monetarily and that they did not receive the benefit of the contract entered
`into with Tesla. Furthermore, the factual bases of Defendant's misconduct are common to all
`potential Class Members and represent a common thread of fraudulent, deliberate, and negligent
`misconduct resulting in injury to all potential Class Members, including Plaintiff.
`49.
`No violations alleged in this complaint are contingent on any individualized
`interaction of any kind between potential Class Members and Tesla. Rather, all claims in this
`matter arise from the identical acts, omissions, concealments, and representations of Tesla.
`Existence and Predominance of Common Questions of Fact and Law: There
`50.
`are common questions of law and fact as to the potential Class Members that predominate over
`questions affecting only individual members, including, but not limited to:
`a. whether Tesla engaged in unlawful, unfair, or deceptive business practices in
`contracting for the sale or the sale of Class Vehicles to Plaintiff and other
`potential Class Members;
`b. whether Tesla made false misrepresentations or omitted and concealed material
`facts with respect to the Class Vehicles it sold to potential Class Members;
`///
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`c. whether the Tesla's increase in price benefitted Tesla to the detriment of the
`Class Members;
`d. whether Tesla beached its initial contract with Class Members by unilaterally
`altering the material terms before performing on any obligations therein and
`without mutual agreement;
`e. whether Tesla violated California Business and Professions code Section
`17200, et seq. with respect to the California Subclass;
`f. whether Tesla's unlaw, unfair and/or deceptive practices harmed Plaintiff and
`potential Class Members; and,
`g. Whether Tesla violated California's Consumer's Legal Remedies Act with
`respect to the California Subclass.
`51.
`Plaintiff's claims are not only typical of all potential Nationwide and California
`Class Members, but they are also essentially identical.
`52.
`All of Plaintiff's claims and all potential Nationwide and California Class Members'
`claims are based on the exact same legal theories. Plaintiff's damages and payer for relief also
`mirror the damages suffered by all potential Nationwide and California Class Members - viz., an
`injunction for specific performance on the original contracts, and monetary damages in the form
`of a refund of deposits, and/or a refund of the difference of the original contracts and the
`unilaterally altered contracts. Further, Plaintiff has no interest antagonistic to, or in conflict with,
`those of the Class.
`Adequate Representation: Plaintiff is qualified to, and will, fairly and adequately
`53.
`protect the interests of each Class Member. Plaintiff has retained attorneys experienced in the
`prosecution of class actions and consumer claims similar to the present matter. Plaintiff intends to
`prosecute this action vigorously.
`Predominance and Superiority: Plaintiff and the potential Class Members have
`54.
`all suffered and will continue to suffer harm. A class action is superior to other available methods
`for the fair and efficient adjudication of the controversy. Absent a class action, most potential Class
`Members would find the cost of litigating their claims prohibitively high and would therefore have
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`no effective remedy at law. Because of the relatively small size of the individual potential Class
`Members' claims, it is likely that only a few potential Class Members could afford to seek legal
`redress for Defendant's misconduct. Absent a class action, potential Class Members will continue
`to incur damages, future consumers will enter into contracts with Tesla which Tesla has no
`intention to perform on, and Defendant's misconduct will continue without remedy. Class
`treatment of common questions of law and fact would also be a superior method to multiple
`individual actions or piecemeal litigation in that class treatment will conserve the resources of the
`courts and the litigants and will promote consistency and efficiency of adjudication.
`55.
`In sum, Plaintiff will thoroughly and adequately protect the interests of the Class,
`having retained qualified and competent legal counsel to represent himself and the lass, common
`questions will predominate, and there will be no unusual manageability issues.
`
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`FIRST CLAIM FOR RELIEF
`Breach of Contract
`(On Behalf of Plaintiff and Members of the Nationwide Class and the California Subclass)
`56.
`Plaintiff incorporates the foregoing allegations as if fully set forth herein.
`57.
`Plaintiff and the Nationwide Class entered into a valid contract with Defendant for
`the purchase of Tesla vehicles. Most importantly, Plaintiff and the Nationwide Class agreed to a
`specific contract price for the purchase of specific configurations.
`58.
`The contracts of adhesion drafted by Defendant states: "Order Placed with
`electronically accepted terms."
`59.
`Plaintiff and the Nationwide Class paid a deposit to purchase the vehicles and, in
`reliance on Defendant honoring the contract price.
`60.
`In further reliance, Plaintiff and the class members did not purchase vehicles from
`other manufactures based on their reliance on the contracts.
`61.
`Defendant breached its contract with Plaintiff and the Nationwide Class by
`increasing the price of the vehicles in violation of the contract. Defendant also anticipatorily
`breached the contract by indicating that if Plaintiff and all Nationwide class members did not pay
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`Case 3:21-cv-09635-TSH Document 1 Filed 12/14/21 Page 13 of 32
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`the higher price for the altered vehicles, they would simply not receive their benefit of the bargain
`and would not receive their deposits back.
`62.
`Plaintiff and the Nationwide Class are now damaged as a result of Defendant's
`breach and anticipatory breach. In order to mitigate their losses, Plaintiff and the Nationwide Class
`will be forced to pay for the price increase.
`63.
`Because no comparable products to the Tesla vehicles which were selected by the
`Class Members currently exist, there is no adequate remedy for Plaintiff and the Nationwide Class
`under the law. As such, Plaintiff and the Nationwide Class seek specific performance under the
`initial contracts that existed prior to the unilaterally changes contracts with higher prices and
`different terms.
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`SECOND CLAIM FOR RELIEF
`Violation the Unfair Business Practices Act - Cal. Bus. & Prof. Code §§17200 et seq.
`(On Behalf of Plaintiff and Members of the California Subclass)
`64.
`Plaintiff incorporates herein by reference each and every allegation contained in the
`preceding and succeeding paragraphs as though herein fully restated and re-alleged.
`65.
`Actions for relief under the unfair competition law may be based on any business
`act or practice that is within the broad definition of the Unfair Business Practices Act - Cal. Bus.
`& Prof. Code §§17200 et seq. ("UCL"). Such violations of the UCL occur as a result of unlawful,
`unfair or fraudulent business acts and practices. A causal connection exists between Tesla's
`business practices and the alleged harm in that Tesla's conduct caused or was likely to cause
`substantial injury to Plaintiff and potential California Subclass Class Members.
`
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`Tesla's Unfair Business Acts and Practices
`66.
`Tesla's acts, omissions, misrepresentations, and practices as alleged herein
`constitute "unfair" business acts and practices within the meaning of the UCL in that its conduct
`is substantially injurious to consumers, offends public policy, and is immoral, unethical,
`oppressive, and unscrupulous as the gravity of the conduct outweighs any alleged benefits
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`Case 3:21-cv-09635-TSH Document 1 Filed 12/14/21 Page 14 of 32
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`attributable to such conduct. There were reasonably available alternatives to further Tesla's
`legitimate business interests, other than the conduct described herein. Plaintiff reserves the right
`to allege further conduct which constitutes other unfair business acts or practices. Such conduct is
`ongoing and continues to this date.
`67.
`Plaintiff's and potential California Subclass Members' injuries are: 1) substantial;
`2) not outweighed by any countervailing benefits to consumers or competition; and, 3) not injuries
`that consumers themselves could reasonably have avoided.
`68.
`Here, Tesla's conduct has caused and continues to cause substantial injury to
`Plaintiff and potential California Subclass Members. Plaintiff and potential California Subclass
`Members have suffered injury in fact due to Tesla's decision to knowingly enter into contracts that
`it states are binding, only to unilaterally alter the material terms of those contracts including
`increasing the price. Tesla's conduct has caused substantial injury to Plaintiff and potential
`California Subclass Members.
`69.
`Tesla's conduct as alleged herein solely benefits Tesla while providing no benefit
`of any kind to the Plaintiff or potential California Subclass Members. Such deception utilized by
`Tesla convinced Plaintiff and potential California Subclass Members that the Class Vehicles were
`of a certain value and price to induce them to pay deposits and rely on the contracts. Tesla has
`unfairly profited from or intends to unfairly profit from the unilateral price increases to all
`California Subclass Members The injury suffered by Plaintiff and the members of California
`Subclass is not outweighed by any countervailing benefits to consumers.
`70.
`The injuries suffered by Plaintiff and California Subclass Members are not injuries
`that they could reasonably have avoided. After Tesla falsely represented the configuration and
`price of the vehicles, Plaintiff and potential California Subclass Members suffered injury in fact
`due to their reliance and subsequent purchase and/or lease of the Class Vehicles. Tesla failed to
`take reasonable steps to negotiate in good faith with Plaintiff and potenti