BART AULA RAJ KUMAR HAMAL YADAV -Member BHAKTA …bar.ca.gov/pdf/accusations/ard274332_2017_05_20_dec.pdfRAJ KUMAR HAMAL YADAV -Member BHAKTA THAPA -Member ASHWIN BIKRAM CHAUDHARY

BEFORE THE DIRECTOR DEPARTMENT OF CONSUMER AFFAIRS

BUREAU OF AUTOMOTIVE REPAIR STATE OF CALIFORNIA

In the Matter of the Accusation Against:

LIBERTY AUTO LLC. dba LIBERTY AUTO 435 23rd Avenue Oakland, CA 94606

RAJAN BART AULA - Member RAJ KUMAR HAMAL YADAV - Member BHAKTA THAPA - Member ASHWIN BIKRAM CHAUDHARY - Member

Automotive Repair Dealer Registration No. ARD 274332

Respondent.

DECISION

Case No. 77/16-51

The attached Stipulated Revocation of License and Order is hereby accepted and adopted as the Decision of the Director of the Department of Consumer Affairs in the above-entitled matter.

This Decision shall become effective

DATED:

1 KAMALA D. HARRIS Attomey General of California

2 FRANK H. PACOE Supervising Deputy Attorney General

3 JUSTrN R. SURBER Deputy Attorney General

4 State Bar No. 226937 455 Golden Gate Avenue, Suite 11000

5 San Francisco, CA 94102-7004 Telephone: (415) 355-5437

6 Facsimile: (415) 703 -5480 Attorneysfor Complainant

7 BEFORE THE

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DEPARTMENT OF CONSUMER AFFAIRS FOR THE BUREAU OF AUTOMOTIVE REPAIR

STATE OF CALIFORNIA

II In the Matter of the Accusation Against:

12 LIBERTY AUTO LLC. dba LIBERTY AUTO

13 43523rdAvcnuc Oakland, CA 94606

14 RAJAN BARTAULA- Member

15 RAJ KUMAR HAMAL YADAV- Member BHAKTA THAPA- Member

16 ASHWIN BIKRAM CHAUDHARY-

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Member

Automotive Repair Dealer Registl-ation No. ARD 274332

Respondent.

Case No. 77/ 16-51

STIPULATED REVOCATION OF LICENSE AND ORDER

22 IT IS HEREBY STIPULATED AND AGREED by and between the parties to the above-

23 entitled proceedings that the following matters are true:

24 PARTIES

25 1. Patrick Dorais (Complainant) is the Chief of the Bureau of Automotive Repair

26 (Bureau). He brought this action solely in his official capacity and is represented in this matter by

27 Kamala D. Harris, Attorney General of the State of California, by Justin R. Surber, Deputy

28 Attomey General.

Stipulated Revoca tion o r License (Case No. 7711 6-5 1)

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2. Re pondent Liberty Auto LL . ("Re'pondent") is repre nting it I f in this

proceeding and has chosen not to exerci e it right to be repre ented by counsel. Respondent is

acting in this proceeding through Rajan Bartaula Member, and he has been designated and

authorized by Respondent to enter into this agreem ent on behalf of Respondent (h<sreinafier

"Authorized Representative") .

3. On or about September 24, 2013 , the Bureau issued Automoti ve Repair Dealer

Registration No. ARD 274332 to Respondent. The Automoti ve Repair Dealer Registration was

in full force and effect at a ll times relevant to the charges brought in Accusat ion No . 77/ 16-5 l.

The Automotive Repair Dealer Registrat ion expired on September 30, 2016, and has not been

renewed.

JURISDICTION

4. 1. Accusation No. 77/16-51 was fi led before the Director of Consumer Affairs

(Director) , fo r the Bureau of Automotive Repair (Bureau), and is currently pend ing against

Respondent. The Accusation and all other statutorily required documents were properly served

on Respondent on April 15, 2016. Respondent timely filed its Notice of Defense contesting the

Accusation.

2. A copy of Accusation No. 77/16-51 is attached as exhibit A and incorporated herein

by reference.

ADVISEMENT AND VI AIVERS

5. Respondent has carefull y read and understands the charges and allegations in

21 Accusation No. 77/16-51. Respondent also has carefu lly read, and understands the effects of this

22 Stipulated Revocation of License and Order.

23 6. Respondent is fu lly aware of its legal rights in this matter, including the right to a

24 hearing on the charges and allegations in the Accusation; the right to be represented by counsel, at

25 its own expense; the right to confront and cross-examine the witnesses against them; the right to

26 present evidence and to testify on its own behalf; the ri ght to the issuance of subpoenas to compel

27 the attendance of witnesses and the production of documents; the right to reconsideration and

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Stipulated Revocation of License (Case No. 77/16-51)

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court review of an adverse decision; and all other rights accorded by the Ca lifornia

Administrative Procedure Act and other applicable laws.

7. Respondent voluntarily, knowingly, and intelligently waives and gives up each and

every right set f01th above.

CULP ABILITY

8. Respondent admits the truth of each and every charge and allegation in Accusation

No. 77/16-51 , agrees that cause exists for discipline and hereby agrees to the revocation of

Automotive Repair Deal er Registration No . ARD 274332.

9. Respolident und rstands th 'l t by signing thi stipulation it enabl s the Director to

10 issue an order revoking its Automotive Repair Dealer Regi tration 'vvithout further process.

11 CONTINGENCY

12 10. This stipulation shall be subject to approval by the Director or the Director's designee.

13 Respondent understands and agrees that counsel for Complainant and the staff of the Bureau of

14 Automotive Repair may communicate directly with the Director and staff regarding this

15 stipulation and order, without notice to or participation by Respondent. By signing the

16 stipulation, Respondent understands and agrees that they may not withdraw its agreement or seek

17 to rescind the stipulation prior to the time the Director considers and acts upon it. If the Director

18 fails to adopt this stipulation as the Decision and Order, the Stipulated Revocation and

19 Disciplinary Order shall be of no force or effect, except for this paragraph, it shall be inadmissible

20 in any legal action between the parties, and the Director shall not be disqualified from further

21 action by having considered this matter.

22 11. The parties understand and agree that POltable Document Format (PDF) and facsimile

23 copies of this Stipulated Revocation of License and Order, including POltable Document F0l111at

24 (PDF) and facsimile signatures thereto, shall have the same force and effect as the oliginals .

25 12, This Stipulated Revocation of License and Order is intended by the parties to be an

26 integrated writing representing the complete, fin al, and exclusive embodiment of their agreement.

27 [t super edes any and all prior or c ntemporaneoLls ngreements, understandings, discussions,

28 negotiations, and cOllunitments (written or oral). This Stipulated Revocation of License and

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Slipulated Revocation of License (Case No. 77/1 6-51) ~

1 Order may not be altered, amended, modified, supplemented, or otherwise changed except by a

2 writing executed by an authorized representative of each of the parties.

3 13. In consideration of the foregoing admissions and stipulations, the parties agree that

4 the Director may, without further notice or formal proceeding, issue and enter the following

5 Order:

6 ORDER

7 IT IS HEREBY ORDERED that Automotive Repair Dealer Registration No. ARD 274332,

8 issued to Respondent Liberty Auto LLC. is revoked by the Director of Consumer Affairs.

9 l. The revocation of Responclent's Automotive Repair Dealer Registration shall

10 constitute the imposition of discipline against Respondent. This stipulation constitutes a record of

11 the discipline and shall become a part of Respondent's license history with the Bureau of

12 Automotive Repair.

13 2. Respondent shall lose all rights and privileges as an Automotive Repair Dealer in

14 Califomia as of the effective date of the Director's Decision and Order.

15 .., J. Respondent shall cause to be delivered to the Bureau its pocket license and, if one

16 was issued, its wall certificate on or before the effective date of the Decision and Order.

17 4. If Respondent ever applies for licensure or petitions for reinstatement in the State of

18 California, the Bureau shall treat it as a new application for licensure. Respondent must comply

19 with all the laws, regulations and procedures for licensure in effect at the time the application or

20 petition is filed , and all of the charges and allegations contained in Accusation No. 77/16-51 shall

21 be deemed to be true, correct and admitted by Respondent when the Director determines whether

22 to grant or deny the application or petition.

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5. Respondent shall pay the agency its costs of investigation and enforcement in the

amount of$4,553.20 plior to issuance of a new or reinstated license.

ACCEPTANCE

1, Rajan Bartaula, Member and Authorized Representative of Liberty Auto LLC, have been

authorized to act on Respondent 's behalf in this matter and have carefully read the above

Stipulated Revocation and Disciplinary Order. 1 understand the stipulation and the effect it will

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Stipulated Revoca tion of License (Case No. 77/16-5 1)

have on Liberty Auto LLC' s Automotive Repair Dealer Registration. Liberty Auto LLC enters

2 into this Stipulated Revocation and Disciplinary Order voluntarily, knowingly, and intelligently,

3 and agrees to be bound by the Decision and Order' of the Director of Consumer Affairs.

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DATED: For L1BE~~ LLC, Respondent RAJAN BARTAULA, Member and Authorized Representative or Liberty Auto LLC

ENDORSEMENT

The foregoing Stipulated Revocation of License and Order is hereby respectfully submitted

for consideration by the Director of Consumer Affairs.

14 Dated: Respectfully submitted,

KAMALA D. HARRIS 15

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SF20J5403139 41623565.doc

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Attorney General of California FRANK H. PACOE Supervisin g Deputy Attorney General

JUSTIN R. SURBER Deputy Attorney General Attorneys for Complainant

Stipulated Revocation of License (Case No. 77/16-51)

have on Liberty Auto LLC's Automotive Repair Dealer Registration. Liberty Auto LLC enters

2 into this Stipulated Revocation and Disciplinary Order voluntarily, knowingly, and intelligently,

3 and agrees to be bound by the Decision and Order of the Director of Consumer Affairs.

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DATED: For LIBERTY AUTO LLC, Respondent RAJAN BARTAULA, Member and Authorized Representative of Liberty Auto LLC

ENDORSEMENT

The foregoing Stipulated Revocation of License and Order is hereby respectfully submitted

for consideration by the Director of Consumer Affairs.

SF2015403139 41623565.doc

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Respectfully submitted,

KAMALA D. HARRIS Attomey General of Cali fomi a FRANKH. PACOE Superv' in eputy Attorney General

'1:f IN R. SURBER Deputy Attomey General Attorneys for Complainant

Stipulated Revocation of License (Case No. 77/16-51)

Exhibit A

Accusation No. 77/16-51

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KAMALA D. HARRIS Attorney General of California FRANK H. P ACOE Supervising Deputy Attorney General JUSTIN R. SURBER Deputy Attorney General State Bar No. 226937

455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 355-5437 Facsimile: (4 t 5) 703-5480

Attorneys for Complainant

BEFORE THE DEPARTMENT OF CONSUMER AFFAIRS

FOR THE BUREAU OF AUTOMOTIVE REPAIR STATE OF CALIFORNIA

In the Matter of the Accusation Against:

LffiERTY AUTO LLC. dba LIBERTY AUTO 435 23rd Avenue Oakland, CA 94606

RAJAN BARTAULA- Member

Case No. ~r::t / \10 - "5 \

ACCUSATION

15 RAJ KUMAR HAMAL YADAV- Member BHAKTA THAP A- Member

16 ASHWIN BIKRAM CHAUDHARY- Member

17 Automotive Repair Dealer Registration No.

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ARD 274332

Complainant alleges:

Respondent.

PARTIES

22 1. Patrick Dorais (Complainant) brings this Accusation solely in his official capacity as

23 the Chief of the Bureau of Automotive Repair, Department of Consumer Affairs.

24 2. On or about September 24, 2013, the Bureau of Automotive Repair issued

25 Automotive Repair Dealer Registration Number ARD 274332 to Liberty Auto LLC.

26 (Respondent). The Automotive Repair Dealer Registration was in full force and effect at all times

27 relevant to the charges brought herein and will expire on September 30, 2016, unless renewed.

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(LIBERTY AUTO LLC.) ACCUSATION

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JURISDICTION AND STATUTORY PROVISIONS

3. This Accusation is broLlg.ht before the Director of the Department of Consumer

Affairs (Director) for the Bureau of Automotive Repair, under the authority of the following laws.

All section references are to the Business and Professions Code unless otherwise indicated.

4. Section 9884.7 of the Code states:

"(a) The director, where the automotive repair dealer cannot show there was a bona fide

error, may deny, suspend, revoke, or place on probation the registration or an automotive repair

dealer for any of the following acts or omissions related to the conduct of the business of the

automotive repair dealer, wh ich are done by the automotive repair dealer or any automotive

technician, employee, pattner, officer, or member of the automotive repair dealer.

(I) Making or authorizing in any manner or by any means whatever any statement written

or oral which is untrue or misleading and which is known, or which by the exel'ci e of reasonable

care should be known, to be untrue or misleading.

15 (4) Any other conduct which constitutes fraud.

16 (6) Failure in any material respect to comply with the provisions of this chapter or

17 regulations adopted pursuant to it.

18 (7) Any willful departure from or disregard of accepted trade standards for good and

19 workman like repair in any material respect, which is prejudicial to another without consent of the

20 owner or his or her duly authorized representative.

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22 "(c) Notw ithstanding subdivi sion (b), the director may Sll pend, revoke, or place on

23 probation the registration for all places of business operated in this state by an automotive repair

24 dealer upon a finding that the automotive repair dealer has, 01' is, engaged in a course of repeated

25 and willful violations of this chapter, or regulations adopted pursuant to it."

26 5. Section 9884. 13 of the Code provides, in pertinent part, that the expiration of a valid

27 registration shall not deprive the director or chief of jurisdiction to proceed with a di sciplinary

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(LIBERTY AUTO LLC.) ACCUSATION

proceeding against an automotive repair dea lcr or t render a decision inv'lIiclating a registration

2 temporarily or permanently.

3 REGULATORY PROVISIONS

4 6. California Code of Regulations, Title 16, section 3365, states:

5 "The accepted trade standards for good ancl workmanlike auto body and frame repairs shall

6 include, but not be limited to, the following:

7 (a) Repair procedures including but not limited to the sectioning of component parts, shall

8 be performed in accordance with OEM service specifications or nationally distributed and

9 periodically updated service specil"ications that are generally accepted by the autobody repair

10 industry.

II (b) A ll corrosion protection shall be applied in accordance with manufacturers'

12 specifications or nationally distributed and periodical ly updated service specifications that are

13 generally accepted by the autobody repair industry."

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15 7. Section 125.3 of the Code provides, in pertinent part, that the Board may request the

16 administrative law judge to direct a licentiate found to have committed a violation or violations of

17 the licens ing act to pay a sum not to exceed the reasonable costs of the investigation and

18 enforcement of the case, with failure of the licentiate to comply subjecting the license to not being

19 renewed or reinstated. If a case settles, recovery of investigation and enforcement costs may be

20 included in a tipulated settlement.

21 FACTUAL BACKGROUND

22 8. In or about January 2015, Respondent performed automotive repair work on a 20 13

23 Honda Civic, VIN 19XFB2F54DE2478 14 ("Honda Civic") that was in an accident. Respondent

24 cbarged and was paid by an insurance company fot: automotive repair work on the Honda Civic.

25 The Honda Civic was not repaired according to the insurance estimates. Respondent charged an

26 insurance company for work that was not performed. Respondent received $2,064.29 for repairs

27 that were not performed on the Honda Civic. The following repairs were charged for and not

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(LIBERTY AUTO LLC.) ACCUSAT10N

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The rear impact bar was not replaced as specitied

The left: bumper bracket was not replace as specified

The rear deck lid (trunk) was not replaced as specified

The rear body panel was not replaced as specified

The work Respondent did do on the Honda Civic did not: meet trade standards for

6 good and workmanlike repair. There were areas of the body of the Honda Civic with unrepaired

7 collision damage and wrinkled body panels as well as areas where Respondent failed to apply

8 corrosion protection. The owner of the Honda ivic did not consent to this nor did her

9 representative.

10 FIRST CAUSE FOR DISCIPLINE

11 (Fraud)

12 10. Respondent is subject to disciplinary action under section 9884.7, subsection (a)(4),

13 of the Code in that Respondent participated in conduct that constituted fraud. The circumstances

14 are described in paragraphs 8-9, above.

15 SECOND CAUSE FOR DISCIPLINE

16 (Untrue or Misleading Statements)

17 II . Respondent is subject to disciplinary action under section 9884.7, subsection (a)( I),

18 of the Code in that Respondent made statement that were untrue or misleading, and which were

19 known, or which by the exercise of reasonable care, should have been known, to have been untrue

20 or misleading. Respondent made statements that certain work was pertormed and parts were

21 installed on the Honda Civic when in fact that work was not performed and those parts were not

22 installed. The circumstances are further described in paragraphs 8-9, above.

23 THIRD CAUSE FOR DISCIPLINE

24 (Willfu l Violation of Trade Standards)

25 12. Respondent is subject to disciplinary action under section 9884.7, subsection (a)(7),

26 of the Code and section 9884.7, subsection (a)(6), of the Code in conjunction with California

27 Code of Regulation, Title 16, section 3365, subsection (b), in that Respondent made a willful

28 departure I'r'om or di regarded accepted trade standards for good and workmanlike repair in any

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(LIBERTY AUTO LLC.) ACCUSATION

material respect, which was prejudicial to another and was without consent of the owner or her

2 duly authorized representative. The circumstances are described in paragraph 9, above.

3 OTHER MATTERS

4 13. Pursuant to Code section 9884.7, subdivision (c), the Director may suspend, revoke,

5 or place on probation the registration for all places of business operated in this state by

6 Respondent, upon a finding that Respondent has, or is, engaged in a course of repeated and willful

7 violations of the laws and regulations pertaining to an automotive repair dealer.

8 , PRAYER

9 WHEREFORE, Complainant requests that a hearing be held on the matters herein alleged,

10 and that following the hearing, the Director of Consumer Affairs issue a decision:

11 1. Revoking or suspending Automotive Repair Dealer Registration Number ARD

12 274332, issued to Liberty Auto LLC.

13 2. Revoking or suspending any other automotive repair dealer registration issued in the

14 name of Liberty Auto LLC;

15 3. Ordering Liberty Auto LLC to pay the Bureau of Automotive Repair the reasonable

16 costs of the investigation and enforcement of this case, pursuant to Business and Professions Code

17 section 125.3;

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4. Taking such other and further action as deemed necessary and proper.

SF2015403139 41440755.doc

PA TRICK DORAIS Chief Bureau of Automotive Repair Department of Consumer Affairs State of California Complainant

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(LIBERTY AUTO LLC.) ACCUSATION