To_complaint_atty_universal

Response

Cal. Super. - 6th Dist.December 11, 2018

20 21 22 23 25 26 27 28 Electronically Filed JON D. UNIVERSAL, SBN 141255 by Superior Court of CA, JAMES P. MAYO, SBN 169897 County of Santa Clara, NEJLA NASSIRIAN, SBN 308730 on 1/16/2019 1:55 PM a8 Shin Nat Reviewed By: R. Tien j eal BEL 4 100s Case #18CV339237 BOBBY C. WALKER, SBN 321788 Envelope: 2386600 UNIVERSAL & SHANNON, LLP 2240 Douglas Boulevard, Suite 290 Roseville, California 95661 Telephone: (916) 780-4050 Facsimile: (916) 780-9070 Attorneys for Defendant FCA US LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA RICHARD CASILLAS MARTINEZ, Case No.: 18CV339237 Plaintiff Assigned to Judge Peter Kirwan, Dept. 19 Action Filed: December 11,2018 DEFENDANT FCA US LLC'S ANSWER FCA US LLC, a Delaware Limited Liability TO COMPLAINT Company, VS. Defendants. Defendant FCA US LLC hereby responds to Plaintiff’s Complaint herein, as follows: Pursuant to California Code of Civil Procedure § 431.30, Defendant denies each and every allegation in the Complaint and further denies that Plaintiff has been damaged in any sum whatsoever. FIRST AFFIRMATIVE DEFENSE (Comparative Fault) If Plaintiff sustained any damages, as alleged in his Complaint, that damage was proximately caused and contributed to by Plaintiff in failing to conduct himself in a manner ordinarily expected of a reasonably prudent person in the conduct of their affairs and business. Thus, Plaintiff’s contributory negligence and fault diminish any recovery sought. 1 1 DEFENDANT FCA US LLC'S ANSWER TO COMPLAINT 20 21 22 23 24 25 26 27 28 SECOND AFFIRMATIVE DEFENSE (Contributory Negligence of Third Parties) If Plaintiff sustained any damages, as alleged in his Complaint, that damage was proximately caused and contributed to by persons and/or parties other than Defendant in failing to conduct himself in a manner ordinarily expected of reasonably prudent persons in the conduct of their affairs and business. Thus, the contributory negligence and fault of persons and/or parties other than Defendant diminishes any recovery sought by Plaintiff. THIRD AFFIRMATIVE DEFENSE (Failure to State a Cause of Action) Plaintiff” Complaint, and each cause of action and count contained therein, fails to state sufficient facts to constitute a cause of action against Defendant. FOURTH AFFIRMATIVE DEFENSE (Disclaimer of Warranties) Plaintiff's cause of action for breach of express warranty and incidental and consequential damages is barred by the express disclaimers and limitations of liability contained in the alleged express warranties. FIFTH AFFIRMATIVE DEFENSE (Statute of Limitations) Any cause of action alleged in Plaintiff’s Complaint is barred by the statutes of limitation contained in the Code of Civil Procedure, specifically §§ 338 and 338.1, Code of Civil Procedure § 337, and/or Commercial Code § 2725. SIXTH AFFIRMATIVE DEFENSE (Failure to Mitigate Damages) If Plaintiff sustained any damages, as alleged in his Complaint, that damage was proximately caused and contributed to by Plaintiff in failing to mitigate damages. Thus, Plaintiff’s failure to mitigate damages diminishes any recovery herein. 1" nn 2 DEFENDANT FCA US LLC'S ANSWER TO COMPLAINT 22 23 24 25 26 27 28 SEVENTH AFFIRMATIVE DEFENSE (Estoppel) Defendant is informed and believes and, thus, alleges that Plaintiff has engaged in conduct and activity sufficient to estop them from asserting all or any part of the claims set forth in his Complaint. EIGHTH AFFIRMATIVE DEFENSE (Unclean Hands) Defendant is informed and believes and, thus, alleges that the claims and relief sought by Plaintiffs are barred by the doctrine of unclean hands. NINTH AFFIRMATIVE DEFENSE (Waiver) Defendant is informed and believes and, thus, alleges that Plaintiff has engaged in conduct and activities sufficient to constitute a waiver of any alleged breach of contract, breach of warranty, negligence, or any other conduct, as set forth in his Complaint. TENTH AFFIRMATIVE DEFENSE (Laches) Defendant is informed and believes and, thus, alleges that Plaintiff waited an unreasonable period of time to complain of the alleged acts or omissions at issue in their Complaint so as to prejudice Defendant. Plaintiff is, therefore, guilty of laches and is barred from recovery. ELEVENTH AFFIRMATIVE DEFENSE (Failure of Performance) Defendant is informed and believes and, thus, alleges that any failure to perform the obligations as described in the Complaint resulted from Plaintiff's failure to perform as required by the contract and/or warranty. Performance of Plaintiff's obligations are a condition precedent to the performance of Defendant's obligations. nn 1" nn 3 DEFENDANT FCA US LLC'S ANSWER TO COMPLAINT 22 23 24 25 26 27 28 TWELFTH AFFIRMATIVE DEFENSE (Alteration of Product) The vehicle was not defective or in an unmerchantable condition at any time when it left the possession, custody, and control of the manufacturer. Any damage to the subject automobile was caused and created by changes and alterations made to the vehicle, subsequent to the vehicle's manufacture and/or sale, by persons other than the manufacturer or any of its agents, servants, or employees; thus, barring Plaintiff’s recovery. THIRTEENTH AFFIRMATIVE DEFENSE (Failure to State Cause of Action for Civil Penalties) Plaintiff’s Complaint fails to state sufficient facts to warrant the imposition of civil penalties because it was believed that replacement or repurchase of the subject vehicle was not appropriate under the circumstances then known. FOURTEENTH AFFIRMATIVE DEFENSE (Civil Penalties) Any cause of action alleged in Plaintiff's Complaint seeking civil penalties is barred by the statute of limitations contained in the Code of Civil Procedure, specifically § 340. FIFTEENTH AFFIRMATIVE DEFENSE (Consent) The repair process to Plaintiff’s vehicle was appropriate and proper and is believed to have been done with Plaintiff’s consent. SIXTEENTH AFFIRMATIVE DEFENSE (Abuse or Failure to Maintain) Plaintiff is barred from recovery by virtue of Civil Code § 1794.3 since the claimed defect or nonconformity was caused by the unauthorized or unreasonable use of the vehicle following sale. I" " " 4 DEFENDANT FCA US LLC'S ANSWER TO COMPLAINT SEVENTEENTH AFFIRMATIVE DEFENSE (Civil Code § 1791.1(c)-Implied Warranty) Each and every cause of action based upon breach of implied warranty is barred by virtue of Civil Code § 1791.1(c). EIGHTEENTH AFFIRMATIVE DEFENSE (Failure to Provide Reasonable Opportunity to Repair) Plaintiff is precluded from any recovery pursuant to the Song-Beverly Consumer Warranty Act because Plaintiff failed and refused to provide a reasonable opportunity to repair. NINETEENTH AFFIRMATIVE DEFENSE (Improper Venue) AS A FURTHER SEPARATE AFFIRMATIVE DEFENSE, Defendant alleges that venue is improper pursuant to C.C.P. §§ 395, 395.5, 396b and 397, among others. WHEREFORE, Defendant, FCA US LLC, requests the following: 1. That Plaintiff recover nothing by way of his Complaint on file herein; 2. That judgment be entered in favor of Defendant for attorney’s fees and costs of suit; and, 3. For such other and further relief as the Court may deem just and proper. — DATED: January /5 2019 UNIVERSAL & SHANNON, LLP Po JON D. UNIVERSAL, ESQ. err for Defendant FCA US LLC 5 DEFENDANT FCA US LLC'S ANSWER TO COMPLAINT 24 25 26 27 PROOF OF SERVICE MARTINEZ (RICHARD CASILLAS) v. FCA US LLC, et al. SANTA CLARA COUNTY SUPERIOR COURT CASE NO. 18CV339237 I am employed in the County of Placer, State of California. I am over the age of 18 and not a party to the within action. My business address is 2240 Douglas Boulevard, Suite 290, Roseville, California 95661. On the date below, I served the following document described as DEFENDANT FCA US LLC’S ANSWER TO COMPLAINT on all interested parties in this action by placing a true copy [J the original thereof enclosed in sealed envelopes addressed as follows: Kathryn Abrams, Esq. Counsel for Plaintiff LEMON LAW GROUP PARTNERS, PLC PH: (888) 415-0610 150 N. Robertson Blvd., Ste. 307 FAX: (888) 809-7010 Beverly Hills, CA 90211 kabrams(@lemonlawgrouppartners.com a (BY OVERNIGHT DELIVERY/COURIER) I deposited such envelope in a box or facility regularly maintained by the express service carrier in an envelope or package designated by the express service carrier with delivery fees provided for. %| (BY MAIL, 1013a, 2015.5 C.C.P.) a [ deposited such envelope in the mail at Roseville, California. The envelope was mailed with postage thereon fully prepaid. MM I am readily familiar with the firm’s practice for collection and processing correspondence for mailing. Under that practice, this document will be deposited with the U.S. Postal Service on this date with postage thereon fully prepaid at Roseville, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. a (BY PERSONAL SERVICE) I caused to be personally delivered to the offices of the person(s) at the address(es) above. “ (STATE) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on January 16, 2019 at Roseville, California. ——— Be gr : HOTLY WILLIAMS **Courtesy copy emailed to the person(s) at the email address(es) as set forth above. PROOF OF SERVICE