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Aamco Transmissions, Inc v. Antonio A. Trovato; Ricardo S. Trovato; and Does 1-10

September 28, 2011


The opinion of the court was delivered by: Hayes, Judge:


The matter before the Court is the Motion to Dismiss Plaintiff's Complaint and Motion to Strike Improper Allegations and Motion for More Definite Statement ("Motion to Dismiss"), filed by Defendants Antonio A. Trovato and Ricardo S. Trovato. (ECF Nos. 6, 7).

I. Background

On June 22, 2011, Plaintiff Aamco Transmissions, Inc. ("Aamco") initiated this action by filing a Complaint in this Court. (ECF Nos. 1, 4).

A. Allegations of the Complaint

On July 23, 2004, Plaintiff and Defendant Antonio Trovato "entered into a franchise agreement, pursuant to which [Antonio] Trovato ... was authorized to use and has been using the name and mark 'AAMCO' in connection with the operation of an automotive transmission repair center located at 3141 India Street, San Diego, CA 92103 ('Center')." (Compl. ¶ 6, ECF No. 1). "By way of an amendment to the Franchise Agreement, also dated July 23, 2004, [Defendant Ricardo] Trovato [Defendant Antonio Trovato's son] ... was added as a co- franchisee to the Franchise Agreement." Id. ¶ 7.

"Under the Franchise Agreement, the Defendants are required to pay a weekly franchise fee to [Aamco] calculated as a percentage of the previous week's gross business sales from the Defendants' Center." Id. ¶ 8. "Along with their weekly franchise fee, Defendants are required to submit to [Aamco] an accurate weekly business report documenting the Center's sales. Defendants' weekly business report is used to calculate the weekly franchise fee." Id. ¶ 9. "[Aamco] requires its franchisees, including Defendants, to use official Aamco customer repair order receipts in their transactions with customers. Each repair order form has a control number assigned from [Aamco]. [Aamco]'s franchisees, including Defendants, are required to attach copies of each customer repair order receipt they issue during the preceding week to their weekly business report." Id. ¶ 11. The Franchise Agreement provides:

Franchisee agrees to keep true and correct books and records according to directions of Aamco, and to employ such recordkeeping systems as Aamco may request.... Franchisee agrees to use exclusively numerically certified work or repair orders provided by Aamco. Franchisee further agrees to furnish to Aamco bank deposit slips, verification of cash receipts and any other documents or information requested by Aamco as part of standard auditing procedures.... Aamco's representative may enter the Franchisee's center to inspect books and records to verify the accuracy of Franchisee's reports. Franchisee agrees to keep its books and records available in the center at all times, or to make them available there upon request by Aamco.

Id. ¶¶ 10, 15; see also Compl., Ex. A ¶¶ 11.1, 11.2, ECF No. 4.

"On February 11, 2011, [Aamco] was contacted by customer Vern Barney concerning a warranty problem he was having with the Defendants who had fixed his transmission at the Center." (Compl. ¶ 12, ECF No. 1). "Mr. Barney produced two ... non-[Aamco] authorized receipts issued by the Defendants to Mr. Barney which documented that Defendants were paid $2,400.00 for the repair transaction. Mr. Barney confirmed to [Aamco] that these receipts were the only paperwork that he was provided by the Defendants in connection with the repair." Id. ¶ 13. "Defendants had not reported Mr. Barney's repair transaction to [Aamco] and had not paid any franchise fee to [Aamco] in connection with the transaction." Id. ¶ 14.

"On February 22, 2011, [Aamco] sent two ... of its Field Auditors to the Center to inspect the books and records of the Defendants' Center business to verify the accuracy of Defendants' business reports submitted to [Aamco]." Id. ¶ 16. "During the course of the site audit, [Aamco]'s auditors discovered two ... non [Aamco] approved receipt books in a drawer in the Center's office which contained receipts similar to the receipts provided by Mr. Barney." Id. ¶ 17. "Upon discovering the receipt books, [Aamco]'s auditors requested to inspect and copy the receipt books, which request Defendants refused without any credible explanation." Id. ¶ 18.

"In a letter dated March 25, 2011, [Aamco] notified Defendants that they were in breach if section 11.2 of the Franchise Agreement and required that Defendants cure said breach within thirty ... days or face termination of the Franchise Agreement without further notice." Id. ¶ 19.

"Defendants, through their attorney, ... responded in a ... letter dated April 22, 2011, which denied that [Aamco] had any contractual or legal right to review Defendants' so-called 'private' records. The letter went on to state that Defendants had, nonetheless, 'enclosed the original ledger sheets that were requested in [Aamco's] March 25, 2011 letter.'" Id. ¶ 20. "The receipt books enclosed with [Defendants' attorney's] letter, referred to as 'ledger sheets' ... contained receipts which [Aamco] now knows to be bogus. The bogus receipts provided in [Defendants' attorney's] letter have been recreated to appear like real receipts, which real receipts have not been provided by Defendants to [Aamco]." Id. ¶ 21. "Without the real receipt books, [Aamco] has been denied its contractual right to inspect the Defendants' books and records to verify the accuracy of the Defendants' weekly business reports." Id. ¶ 23.

In the first cause of action for breach of the Franchise Agreement, Plaintiff alleges that Defendants breached the Franchise Agreement (a) "by failing to report sales and pay the corresponding franchise fees due and owing to [Aamco]," and (b) "when Defendants denied [Aamco]'s request to inspect their books and records at the Center." Id. ΒΆΒΆ 27, 28. Plaintiff alleges that, "[a]s a result of Defendants' material breaches ..., [Aamco] has been damaged ... in an amount ... believed to be in excess of seventy five ...

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