Removal to Federal Court

Cal. Super. - 6th Dist.February 5, 2019

S C H N A D E R H A R R IS O N S E G A L & L E W IS L L P 6 50 C A L IF O R N IA S T R E E T ,1 9 T H F L O O R S A N F R A N C IS C O ,C A 94 10 8 -2 7 36 T E L E P H O N E :( 4 15 ) 36 4 -6 7 00 F A X :( 41 5 ) 36 4 -6 7 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 DEFENDANTS’ NOTICE OF REMOVAL OF STATE COURT ACTION TO THE UNITED STATES DISTRICT COURT STEPHEN H. DYE (SBN 104385) e-mail: sdye@schnader.com RICHARD J. MAY (SBN 234684) e-mail: rmay@schnader.com SCHNADER HARRISON SEGAL & LEWIS LLP 650 California Street, 19th Floor San Francisco, California 94108-2736 Telephone: (415) 364-6700 Facsimile: (415) 364-6785 Attorneys for Defendants FORD MOTOR COMPANY and MICHAEL C. STEAD, INC. d/b/a HILLTOP FORD KIA IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA SANTA CLARA COUNTY - UNLIMITED JURISDICTION RUTH PHILLIPS, Plaintiff, vs. FORD MOTOR COMPANY; HILLTOP FORD KIA; and DOES 1 through 10, inclusive, Defendants. Case No. 19CV342579 DEFENDANTS FORD MOTOR COMPANY AND MICHAEL C. STEAD, INC. D/B/A HILLTOP FORD KIA’S NOTICE OF REMOVAL OF STATE COURT ACTION TO THE UNITED STATES DISTRICT COURT Complaint Filed: February 5, 2019 Trial Date: None Set TO PLAINTIFF, HER COUNSEL OF RECORD, AND THE CLERK OF THE SANTA CLARA COUNTY SUPERIOR COURT: PLEASE TAKE NOTICE THAT Defendants FORD MOTOR COMPANY and MICHAEL C. STEAD, INC. d/b/a HILLTOP FORD KIA (“Defendants”) have filed in the United States District Court for the NORTHERN District of California a Notice of Removal of the above-captioned case pursuant to United States Code, Title 28, Section 1441(b). A copy of Defendants’ Notice of Removal is attached hereto as Exhibit “A.” Electronically Filed by Superior Court of CA, County of Santa Clara, on 3/18/2019 4:53 PM Reviewed By: R. Tien Case #19CV342579 Envelope: 2641476 S C H N A D E R H A R R IS O N S E G A L & L E W IS L L P 6 50 C A L IF O R N IA S T R E E T ,1 9 T H F L O O R S A N F R A N C IS C O ,C A 94 10 8 -2 7 36 T E L E P H O N E :( 4 15 ) 36 4 -6 7 00 F A X :( 41 5 ) 36 4 -6 7 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 DEFENDANTS’ NOTICE OF REMOVAL OF STATE COURT ACTION TO THE UNITED STATES DISTRICT COURT PLEASE TAKE FURTHER NOTICE THAT, pursuant to 28 U.S.C. section 1446(d), the filing of the Notice of Removal, together with this Notice, effects the removal of the action, and the above-captioned State court is requested to proceed no further unless and until the case is remanded. Dated: March 18, 2019 SCHNADER HARRISON SEGAL & LEWIS LLP By: RICHARD J. MAY Attorneys for Defendants FORD MOTOR COMPANY and MICHAEL C. STEAD, INC. d/b/a HILLTOP FORD KIA EXHIBIT A S C H N A D E R H A R R IS O N S E G A L & L E W IS L L P 6 50 C A L IF O R N IA S T R E E T ,1 9 T H F L O O R S A N F R A N C IS C O ,C A 94 10 8 -2 7 36 T E L E P H O N E :( 4 15 ) 36 4 -6 7 00 F A X :( 41 5 ) 36 4 -6 7 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. SECTION 1441(b) STEPHEN H. DYE (SBN 104385) e-mail: sdye@schnader.com RICHARD J. MAY (SBN 234684) e-mail: rmay@schnader.com SCHNADER HARRISON SEGAL & LEWIS LLP 650 California Street, 19th Floor San Francisco, California 94108-2736 Telephone: (415) 364-6700 Facsimile: (415) 364-6785 Attorneys for Defendants FORD MOTOR COMPANY and MICHAEL C. STEAD, INC. d/b/a HILLTOP FORD IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA (SAN JOSE DIVISION) RUTH PHILLIPS, Plaintiff, vs. FORD MOTOR COMPANY; HILLTOP FORD KIA; and DOES 1 through 10, inclusive, Defendants. Case No. NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. SECTION 1441(b) (Diversity Jurisdiction) Complaint Filed: February 5, 2019 Trial Date: None Set TO THE CLERK OF THE ABOVE-ENTITLED COURT: PLEASE TAKE NOTICE that Defendants FORD MOTOR COMPANY (“Ford”) and MICHAEL C. STEAD, INC. d/b/a HILLTOP FORD, erroneously sued as HILLTOP FORD KIA (“Hilltop”), by their counsel, hereby remove to this Court, pursuant to 28 U.S.C. §§ 1332, 1441 and 1446, based on diversity of citizenship, the claims pending as Case No. 19CV342579 in the Superior Court of California, County of Santa Clara. S C H N A D E R H A R R IS O N S E G A L & L E W IS L L P 6 50 C A L IF O R N IA S T R E E T ,1 9 T H F L O O R S A N F R A N C IS C O ,C A 94 10 8 -2 7 36 T E L E P H O N E :( 4 15 ) 36 4 -6 7 00 F A X :( 41 5 ) 36 4 -6 7 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. SECTION 1441(b) In support of this removal, Ford states: I. THE REMOVED CASE 1. The removed case is a civil action commenced in the Superior Court of California, County of Santa Clara by Plaintiff RUTH PHILLIPS (“Plaintiff”) against the Defendants, entitled Ruth Phillips v. Ford Motor Company, et al., Case No. 19CV342579 (the “State Action”). The two named Defendants are Ford and Hilltop. 2. Plaintiff filed the State Action on February 5, 2019, asserting claims against Ford for breach of express and implied warranties under the Song-Beverly Consumer Warranty Act (Cal. Civ. Code § 1790 et seq.) (“Song-Beverly”) and for fraud. The only claim Plaintiff lodged against Hilltop is for the breach of the implied warranty of merchantability, a claim that is barred by the statute of limitations. II. PROCEDURAL REQUIREMENTS 3. This notice of removal is timely because Ford and Hilltop were each served with a copy of the complaint on February 15, 2019. See 28 U.S.C. § 1446(b) and Fed. R. Civ. P. 6(a)(1)(C). 4. Pursuant to 28 U.S.C. § 1446(a), copies of all process, pleadings, and orders for the State Action in Ford’s possession are contained in Exhibit “A” filed herewith. 5. Pursuant to 28 U.S.C. § 1446(a), venue is proper in the Northern District of California because this district embraces the place in which the removed action has been pending. 6. Pursuant to 28 U.S.C. § 1446(d), a true and correct copy of this Notice of Removal will be filed with the Superior Court of California, County of Santa Clara promptly after filing of same in this Court. 7. Pursuant to 28 U.S.C. § 1446(d), written notice of filing of this Notice of Removal will be given to all adverse parties promptly after the filing of same in this Court. 8. Consistent with Congress’s intent that parties may amend allegations of jurisdiction if they are questioned, see 28 U.S.C. § 1653, this Court should not sua sponte remand this action, see Shockley v. Jones, 823 F.2d 1068, 1072-73 (7th Cir. 1987) (“This court S C H N A D E R H A R R IS O N S E G A L & L E W IS L L P 6 50 C A L IF O R N IA S T R E E T ,1 9 T H F L O O R S A N F R A N C IS C O ,C A 94 10 8 -2 7 36 T E L E P H O N E :( 4 15 ) 36 4 -6 7 00 F A X :( 41 5 ) 36 4 -6 7 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. SECTION 1441(b) has noted that sua sponte dismissals without prior notice or opportunity to be heard are ‘hazardous’ . . . A dismissal under Rule 12(b)(1) without notice or a hearing is similarly suspect.”). Thus, if any question arises as to the propriety of this removal, Ford and Hilltop request the opportunity to amend this notice of removal following any necessary discovery, briefing, and oral argument. 9. Nothing in this Notice of Removal shall be interpreted as a waiver or relinquishment of Ford’s and Hilltop’s right to assert defenses including, without limitation, the defenses of (i) lack of personal jurisdiction, (ii) improper venue and/or forum non conveniens, (iii) insufficiency of process, (iv) insufficiency of service of process, (v) improper joinder of claims and/or parties, (vi) failure to state a claim, (vii) failure to join indispensable party(ies), (viii) the right to arbitrate this controversy, or (ix) any other procedural or substantive defense available under state or federal law. III. THE AMOUNT IN CONTROVERSY REQUIREMENT IS MET 10. The amount in controversy in this action exceeds $75,000, exclusive of interest and costs. See 28 U.S.C. § 1332. 11. It is well-established that “the sum claimed by the plaintiff controls if the claim is apparently made in good faith,” and that “[i]t must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal.” St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89 (1938). 12. Ford and Hilltop dispute that they are liable to Plaintiff for any damages whatsoever. But the amount in controversy is met. There is no burden to present supporting evidence at this point. A removing party’s initial burden is to “file a notice of removal that includes ‘a plausible allegation that the amount in controversy exceeds the jurisdictional threshold.’” Ibarra v. Manheim Invs., Inc., 775 F.3d 1193, 1195 (9th Cir. 2015) (quoting Dart Cherokee Basin Operating Co., LLC v. Owens, 135 S. Ct. 547, 554 (2014). The notice of removal “need not contain evidentiary submissions.” Id. at 1197. “By design, § 1446(a) tracks the general pleading requirement stated in Rule 8(a),” which requires only that the grounds for removal be stated in a “short and plain statement.” Dart, 135 S. Ct. at 553. S C H N A D E R H A R R IS O N S E G A L & L E W IS L L P 6 50 C A L IF O R N IA S T R E E T ,1 9 T H F L O O R S A N F R A N C IS C O ,C A 94 10 8 -2 7 36 T E L E P H O N E :( 4 15 ) 36 4 -6 7 00 F A X :( 41 5 ) 36 4 -6 7 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. SECTION 1441(b) 13. Generally, a federal district court will first “consider whether it is ‘facially apparent’ from the complaint that the jurisdictional amount is in controversy.” Abrego v. Dow Chem. Co., 443 F.3d 676, 690 (9th Cir. 2006) (internal citation omitted). But a defendant may remove a suit to federal court notwithstanding the failure of the plaintiff to plead the required amount. Absent the facial showing from the complaint, the court may consider facts averred in the removal petition. Id. Next, if the defendant’s allegation(s) regarding the amount in controversy is challenged, then “both sides submit proof and the court decides, by a preponderance of the evidence, whether the amount-in-controversy requirement has been satisfied.” Ibarra, 775 F.3d at 1195. At that time, “it may be appropriate to allow discovery relevant to [the] jurisdictional amount prior to remanding.” Abrego, 443 F.3d at 691 (internal citation omitted). 14. In this case, Plaintiff expressly seeks damages in an amount that exceeds $25,000 plus a civil penalty of two times actual damages. (Complaint ¶¶ 13-16, 21, 24, and 28.) Among other damages, she seeks “the entire contract price” of $44,215.92. (Complaint ¶ 20; Declaration of Richard J. May (“May Decl.”) ¶ 6.) She also seeks attorney fees, prejudgment interest, incidental damages, punitive damages, and other claims for relief. (See Prayer in Complaint.) Claims for attorney fees in these types of cases also often approach or exceed $50,000. (May Decl., ¶ 5.) Thus, the Complaint on its face seeks recovery of more than $75,000. 15. The Court may include civil penalties potentially recoverable under California’s Song-Beverly Consumer Warranty Act in calculating the amount in controversy. See Romo v. FFG Ins. Co., 397 F. Supp. 2d 1237, 1240 (C.D. Cal. 2005); Brady v. Mercedes-Benz USA, Inc., 243 F. Supp. 2d 1004, 1009 (N.D. Cal. 2002); see also Cal. Civ. Code § 1794(c) (potential civil penalty up to two times actual damages). The amount in controversy also includes reasonable estimates of attorney fees. Brady, 243 F. Supp. 2d at 1011; Guglielmino v. McKee Foods Corp., 506 F.3d 696, 700 (9th Cir. 2007); Galt G/S v. JSS Scandinavia, 142 F.3d 1150, 1156 (9th Cir. 1998); see also Fritsch v. Swift Transp. Co. of Ariz., LLC, 899 F.3d 785, 788, 794-95 (9th Cir. 2018) (holding attorney fees are included in amount in controversy in cases removed under S C H N A D E R H A R R IS O N S E G A L & L E W IS L L P 6 50 C A L IF O R N IA S T R E E T ,1 9 T H F L O O R S A N F R A N C IS C O ,C A 94 10 8 -2 7 36 T E L E P H O N E :( 4 15 ) 36 4 -6 7 00 F A X :( 41 5 ) 36 4 -6 7 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. SECTION 1441(b) Class Action Fairness Act). 16. Plaintiff also prays for punitive damages. (Complaint, p. 10:12.) The amount in controversy also includes punitive damages. Gibson v. Chrysler Corp., 261 F.3d 927, 945 (9th Cir. 2001. When Plaintiff’s claims for restitution of the purchase price plus prejudgment interest, punitive damages, attorneys’ fees, and civil penalties of two times actual damages are considered, the amount in controversy far exceeds $75,000. IV. DIVERSITY OF CITIZENSHIP EXISTS 17. Plaintiff is, and was at the time of filing the Complaint, a citizen of California. 18. Ford is, and was at the time Plaintiff commenced this action, a corporation incorporated in and organized under the laws of the State of Delaware with its principal place of business in Michigan. This Court can take judicial notice of these facts. (See Exhibit “B,” Excerpt from Ford’s 2017 Form 10-K filing; see also Fed. R. Evid. 201(b)(2) (courts may judicially notice facts that “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”).) A. Defendant Hilltop and Fraudulent Joinder 19. “There are two ways to establish fraudulent joinder: ‘(1) actual fraud in the pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a cause of action against the non-diverse party in state court.’” Grancare, LLC v. Thrower ex rel. Mills, 889 F.3d 543, 548 (9th Cir. 2018) (citations omitted). This case involves the second situation. “Fraudulent joinder is established the second way if a defendant shows that an ‘individual[ ] joined in the action cannot be liable on any theory.’” Id. (citation omitted). In other words, removing parties must show “an ‘obvious’ failure to state a claim” against them. Id. at 549. 20. Ford contends that Plaintiff fraudulently joined Hilltop in this case for no reason other than to defeat diversity jurisdiction and prevent removal of the action to federal court. See In re Briscoe, 448 F. 3d 201, 217 (3d Cir. 2006) (“[fraudulent joinder exists where] there is no reasonable basis in fact or colorable ground supporting the claim against the joined defendant, or no real intention in good faith to prosecute the action against the defendants or seek a joint judgment”). S C H N A D E R H A R R IS O N S E G A L & L E W IS L L P 6 50 C A L IF O R N IA S T R E E T ,1 9 T H F L O O R S A N F R A N C IS C O ,C A 94 10 8 -2 7 36 T E L E P H O N E :( 4 15 ) 36 4 -6 7 00 F A X :( 41 5 ) 36 4 -6 7 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. SECTION 1441(b) 21. The Complaint asserts six Causes of Action. Only the Fifth cause of action for breach of implied warranty of merchantability is asserted against Hilltop. 22. The First, Second, Third, Fourth, and Sixth Causes of action, which assert claims for breach of express and implied warranties under the Song-Beverly Consumer Warranty Act (Cal. Civ. Code § 1790 et seq.) and for fraud are expressly asserted against Ford only, and not against AMF. 23. Plaintiff’s Fifth Cause of Action is the only cause of action asserted against Hilltop and alleges breach of implied warranty of merchantability. Plaintiff alleges that the implied warranty at issue “is coextensive in duration with the duration of the express warranty provided by Defendant.” (Complaint ¶ 30.) The only express warranty alleged in the Complaint is the express warranty provided by Ford; accordingly, the implied warranty at issue is Ford’s implied warranty that arose when the subject vehicle was sold new. Plaintiff does not allege a breach of any implied warranty that might (or might not) have arisen in connection with Hilltop’s sale of the subject vehicle. 24. Ford believes that Plaintiff has no intention of pursuing any claim against Hilltop, and that Hilltop was only named to defeat the claim of diversity and removal to Federal Court. B. Plaintiff Cannot Establish Claims Against Hilltop Based on Breach of Implied Warranty 25. Because the Song-Beverly Act does not establish a statute of limitations for implied warranty claims, the California Uniform Commercial Code’s four-year statute of limitations applies to such claims. Krieger v. Nick Alexander Imports, Inc., 234 Cal. App. 3d 205, 214-215 (1991); Carrau v. Marvin Lumber & Cedar Co., 93 Cal. App. 4th 281, 297 (2001); see Cal. U. Com. Code § 2725(1). 26. The accrual of a cause of action for breach of implied warranty under the Song- Beverly Act is also governed by the California Uniform Commercial Code, see Cal. Civ. Code § 1791.1(d), under which “[a] cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. A breach of warranty occurs when tender S C H N A D E R H A R R IS O N S E G A L & L E W IS L L P 6 50 C A L IF O R N IA S T R E E T ,1 9 T H F L O O R S A N F R A N C IS C O ,C A 94 10 8 -2 7 36 T E L E P H O N E :( 4 15 ) 36 4 -6 7 00 F A X :( 41 5 ) 36 4 -6 7 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. SECTION 1441(b) of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.” Cal. U. Com. Code § 2725(2). 27. The limitations trigger in California Uniform Commercial Code section 2725 for an implied warranty claim is not delayed by the discovery rule because the implied warranty is not a warranty that explicitly extends to the performance of future goods. (Cardinal Health 301, Inc. v. Tyco Electronics Corp., 169 Cal. App. 4th 116, 134 (2008); Carrau, 93 Cal. App. 4th at 292; Marvin Lumber and Cedar Co. v. PPG Industries, Inc. 223 F.3d 873, 879 (8th Cir. 2000). Thus, with respect to implied warranties, the “general limitations rule for a breach of warranty cause of action is four years from the date the goods are delivered (regardless of the date the buyer discovers the breach).” Cardinal Health, 169 Cal. App. 4th at 129; Cal. U. Com. Code § 2725(2). 28. Thus, the delayed discovery rule is not applicable to breach of implied warranty claims like Plaintiff’s. Lucas v. Breg, Inc., 212 F. Supp. 3d 950, 961 (S.D.Cal. 2016); Gerstle v. Am. Honda Motor Co., No. 16-cv-04384-JST, 2017 WL 2797810, at *12 (N.D.Cal. June 28, 2017); Marcus v. Apple Inc., No. C 14-03824 WHA, 2015 WL 151489, at *9 (N.D.Cal. Jan. 8, 2015) (applying the discovery rule to implied warranty claims “would be nonsensical. If a warranty period on a product did not begin to run until the purchaser discovers a defect, the statutory time limit on the warranty would be useless. A product could break twelve years after it was purchased and under plaintiffs’ theory, the warranty time period would begin then.”). 29. In sum, no California authority holds that a purchaser who does not discover a product’s defect until after expiration of the one-year warranty period would be able to overlook the entire period from sale to discovery, so as to have a full four-year period to file suit after discovery-regardless of how long after the sale plaintiff’s discovery occurred. 30. Plaintiff will not be able to establish a valid claim against Hilltop based on breach of implied warranty because any such claim is barred by the statute of limitations, and S C H N A D E R H A R R IS O N S E G A L & L E W IS L L P 6 50 C A L IF O R N IA S T R E E T ,1 9 T H F L O O R S A N F R A N C IS C O ,C A 94 10 8 -2 7 36 T E L E P H O N E :( 4 15 ) 36 4 -6 7 00 F A X :( 41 5 ) 36 4 -6 7 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. SECTION 1441(b) no tolling doctrine applies. Plaintiff alleges that she purchased the subject vehicle “[i]n or about November 5, 2013.” (Complaint ¶ 8.) She claims the subject vehicle was defective “at the time of purchase.” (Complaint ¶ 32.) Thus, Plaintiff was required to have brought an action for breach of implied warranty within four (4) years of purchase in order for the action to be timely. Plaintiff filed this action on February 5, 2019, more than five (5) years after she purchased the subject vehicle. 31. The joinder of Hilltop is fraudulent because the Complaint does not and cannot state a cause of action against Hilltop. Gasumyan v. Travelers Cas. Ins. Co. of Am., 2017 U.S. Dist. LEXIS 73013, at *4 (C.D. Cal. May 11, 2017). 32. Accordingly, Ford believes that Plaintiff has no intention of pursuing any claim against Hilltop, and that Hilltop was named in the Complaint only to defeat diversity and thus prevent removal to this Court. C. Hilltop is a “Dispensable Party” Pursuant to FRCP 21 and May Be Severed From This Action 33. Alternatively, under Fed. R. Civ. P. 21, “the court may, at any time, on just terms, add or drop a party.” “Rule 21 grants a federal district or appellate court the discretionary power to perfect its diversity jurisdiction by dropping a nondiverse party provided the nondiverse party is not indispensable to the action under Rule 19.” Sams v. Beech Aircraft Corp., 625 F.2d 273, 277 (9th Cir. 1980); see also Newman-Green, Inc. v. Alfonzo- Larrain, 490 U.S. 826, 832 (1989) (“it is well settled that Rule 21 invests district courts with authority to allow a dispensable nondiverse party to be dropped at any time, even after judgment has been rendered”). Accordingly, this Court should drop Hilltop as a party. 34. For the reasons stated above, there is diversity of citizenship between Plaintiff, a California citizen, and Ford, a citizen of Michigan and Delaware. Though Defendant Hilltop is a California citizen, the Court still has subject matter jurisdiction over this dispute under 28 U.S.C. § 1332, as Hilltop was fraudulently joined by Plaintiff. Alternatively, this Court may sever Hilltop and any claims against it (although there are none that are valid), as a dispensable and nondiverse party pursuant to FRCP 21. S C H N A D E R H A R R IS O N S E G A L & L E W IS L L P 6 50 C A L IF O R N IA S T R E E T ,1 9 T H F L O O R S A N F R A N C IS C O ,C A 94 10 8 -2 7 36 T E L E P H O N E :( 4 15 ) 36 4 -6 7 00 F A X :( 41 5 ) 36 4 -6 7 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. SECTION 1441(b) V. CONCLUSION For the reasons stated above, the State Action may be removed to this Court by Ford and Hilltop in accordance with the provisions of 28 U.S.C. §§ 1332 and 1441 because: (i) this action is a civil action pending within the jurisdiction of the United States District Court for the Central District of California, (ii) the amount in controversy exceeds $75,000.00, exclusive of interest and costs, and (iii) the action is solely between properly joined citizens of different states. WHEREFORE, Defendants hereby notify Plaintiff and her attorneys that the above- entitled action, formerly pending in the Santa Clara County Superior Court, has been removed from that court to this Court. Dated: March 18, 2019 SCHNADER HARRISON SEGAL & LEWIS LLP By: /s/ Richard J. May STEPHEN H. DYE RICHARD J. MAY Attorneys for Defendants FORD MOTOR COMPANY and MICHAEL C. STEAD, INC. d/b/a HILLTOP FORD EXHIBIT A Service of Process Transmittal 02/15/2019 CT Log Number 534934382 TO: Chris Dzbanski FORD MOTOR COMPANY 1 American Rd Whq 421-E6 Dearborn, MI 48126-2701 RE: Process Served in California FOR: Ford Motor Company (Domestic State: DE) Page 1 of 1 / JB Information displayed on this transmittal is for CT Corporation's record keeping purposes only and is provided to the recipient for quick reference. This information does not constitute a legal opinion as to the nature of action, the amount of damages, the answer date, or any information contained in the documents themselves. Recipient is responsible for interpreting said documents and for taking appropriate action. Signatures on certified mail receipts confirm receipt of package only, not contents. ENCLOSED ARE COPIES OF LEGAL PROCESS RECEIVED BY THE STATUTORY AGENT OF THE ABOVE COMPANY AS FOLLOWS: TITLE OF ACTION: Ruth Phillips, Pltf. vs. Ford Motor Company, et al., Dfts. DOCUMENT(S) SERVED: Summons, Complaint, Cover Sheet, Instructions, Notice COURT/AGENCY: Santa Clara County - Superior Court - San Jose, CA Case # 19CV342579 NATURE OF ACTION: Product Liability Litigation - Lemon Law - 2014 Ford Escape, VIN - 1FMCU0GX8EUB16627 ON WHOM PROCESS WAS SERVED: C T Corporation System, Los Angeles, CA DATE AND HOUR OF SERVICE: By Process Server on 02/15/2019 at 11:40 JURISDICTION SERVED : California APPEARANCE OR ANSWER DUE: Within 30 days after receipt ATTORNEY(S) / SENDER(S): Tionna Dolin Century Park East, Suite 430 Los Angeles, CA 90067 310-929-4900 ACTION ITEMS: CT has retained the current log, Retain Date: 02/15/2019, Expected Purge Date: 02/20/2019 Image SOP Email Notification, Chris Dzbanski cdzbansk@ford.com Email Notification, Mary Ann MacKinnon mmackin1@ford.com SIGNED: C T Corporation System ADDRESS: 818 West Seventh Street Los Angeles, CA 90017 TELEPHONE: 213-337-4615 e '3b SUMMONS FOR COURT I/SE ONLY (CITA CION JUDICIAL) (SOLO PARA (iSO aSIA CORTE) NOTICE TO DEFENDANT: E-FILED (AV!SO.4LDEMANDADO): 2/5/2019 3:54 PM FORD MOTOR COMPANY; HILLTOP FORD KIA; and DOES I Clerk of Court through 10, inclusive Superior Court of CA, YOU ARE BEING SUED BY PLAINTIFF: County of Santa Clara (LO ESTA DEMAND/WOO EL DEMANDANTE): 1 9CV342579 RUTH PHILLIPS Reviewed By: Yuet Lai Envelope: 2475596 NOTICE! You have been sued. The court may decide against you without your being heard unless you respond within 30 days. Read the information below. You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a written response at this court and have a copy served on the plaintiff. A letter or phone call will not protect you. Your written response must be in proper legal form if you want the court to hear your case. There may be a court form that you can use for your response. You can find these court forms and more information at the California Courts Online Self-Help Center (w.wi.coudinfo.r.a.gov/setfhelp), your county law library, or the courthouse nearest you. If you cannot pay the filing fee, ask the court clerk for a fee waiver form. If you do not file your response on time, you may lose the case by default, and your wages, money, and properly may be taken without further warning from the court. There are other legal requirements. You may want to call an attorney right away. If you do not know an attorney, you may want to call an attorney referral service. If you cannot afford an attorney, you may be eligible for free legal services from a nonprofit legal services program. You can locate these nonprofit groups at the California Legal Services Web site (www.lawholpcalifornia.org ), the California Courts Online Self-Help Center (www.counin!o.ca.gov/se/Thelp). or by contacting your local court or county bar association. NOTE: The court has a statutory lien for waived fees and costs on any settlement or arbitration award of $10,000 or more in a civil case. The court's lien must be paid before the court will dismiss the case. ;AVISO! La hen demandado. Si no rasp onde denim do 30 dies, to aorta puede decidir en su contra sin escuchar so versiOn. Lea ía in!ormacion a continuation. flone 300/As CE CALENOARIG dospues do quo to entreguen esta citation y papetes legates pam presents, una respuesta par escMfo on esta Corte hacer quo Se entregue una copia at demandanto. Una carla o una ltamada fe/elOnica no to pmtegen. So respuesta par escdto hone quo estar an form ato legal correcto Si desea quo proceson su caso an ía coMe. Es posiblo quo haya un forrnulado quo ustedpueda usarpara so respuesta. Puede oncontrar estos form ula,ios de to code y mas information an of Centre do Ayuda do Las Codes do California vww.sucorte.ca.gov), en Ia bibtioteca do byes do su con da do o on ía code quo /a quodo mat coma. Sine puodo pagar Ia cuota do proscntociOn, p/do at secrotatio de Ia coda quote dO on form ubado de oxencion do pago do cuotas Si no prosonta Cu mspuorjta a liompo, puodo pordor at cow por incumplimionto y /a coda It pedrO quitar su suebdo, dinoro y bienes sin mils adverlencia. Hay otms requisitos legatos. Es recomendablo quo Itamo a on obogodo inmodiotamonte. Si no Conoco a un abogado. puodo 1/amor Dun tcrvicio do remisiOn a abogados. Sine puede pagar a un abogado. es posible quo cumpta con los requisitos pare obtener sorvicios toga/es gratuilos de un pmgrama de servicios le gales sin fines do lucre. Puedo encontrar estos grupos sin fines do lucro an of si/jo web de California Legal Services. (Www.lawhetpcalifornia.org), an el Centro do Ayuda do las Codes do California, (www.sucorte.ca.gov) 0 poniendoso an contacto con to code o el cotogio do abogados locates. A V/SO: Par lay, to eerIe tiene derocho a recbamar las cuotas ytos costos exenfos par imponer un gravamen sabre cuaiquierrecuperacion do $10,000 0 mOs do valor recdbida medianto un acuerdo o una concosion be arbitraje an un caw de derocho civil. Tieno quo pagar of gravamen do to code antes do quota code pueda desoci,ar of caso. The name and address of the court is: - CASE NUMBER: (El nombre y direcciOn de to code es): Santa Clara Superior Court m0to ael fl,,o): 1 9CV342579 191 North First Street San Jose, CA 95113 The name, address, and telephone number of plaintiffs attorney, or plaintiff without an attorney, is: (El nombro, to dirocciOn ye! nOmoro do 1010 fono dol abogado del demandante, 0 del domandante quo no hone abogado, Os): Tionna Dolin; 1840 Century Park East, Suite 430, Los Angeles, CA 90067; Tel: (310) 929-4900 DATE: 2/5/2019 3:54 PM J Clerk, by Yuet Lai . Deputy (Focha) Clerk of Court (Secretario) (Adjunto) (For proof of service of this summons, use Proof of Service of Summons (form P05-010).) (Pam pruoba do ontrega do esta citation use of formularlo Proof of Service of Summons, (P05-010)). NOTICE TO THE PERSON SERVED: You are served I I i. 3 as an individual defendant. 2. as the person sued under the fictitious name of (specify): 3 on behalf of (specify): Iyiôtu C9Th j'n under. Ctl CCP 416.10 (corporation) CCP 416.60 (minor) m CCP 416.20 (defunct corporation) CCP 416.70 (conservatee) EJ CCP 416,40 (association or partnership) ii:j CCP 416.90 (authorized person) C other (specify): 4. L4J by personal delivery on (date): •7 (, I, q Fom Adopted for Mandaioiy Use itctdal Couicl of Cali(orra 5uM.100 IRm. My 1.2009) SUMMONS Code 01 OU Procedure §§ 412.20. 465 ,n'nv.wuainfo.cs.ov TIONNA DOLIN (SBN 299010) Email: tdolin@slpattorney.com STRATEGIC LEGAL PRACTICES A PROFESSIONAL CORPORATION 1840 Century Park East, Suite 430 Los Angeles, CA 90067 Telephone: (310) 929-4900 Facsimile: (310) 943-3838 Attorneys for Plaintiffs RUTH PHILLIPS RUTH PHILLIPS, Plaintiffs, vs. FORD MOTOR COMPANY; HILLTOP KJA; and DOES I through 10, inclusive, Defendants. B-FILED 2/5/2019 3:54 PM Clerk of Court Superior Court of CA, County of Santa Clara 19CV342579 Reviewed By: Yuet Lai Case Nos.: 19CV342579 Hon. Dept.: COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS JURY TRIAL DEMANDED 2 3 4 S 6 7 8 9 10 0 II 12 0 13 0 14 L5 • 15 0 16 - 0 17 18 Cl) 19 20 21 22 23 24 25 26 27 28 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA COMPLAINT; JURY TRIAL DEMANDED 7 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C 1J U),5 U B-U 0 U a F F C/) Plaintiffs allege as follows: PARTIES I. As used in this Complaint, the word Plaintiff' shall refer to Plaintiffs RUTH PHILLIPS. Plaintiff is a resident of Contra Costa County, California. As used in this Complaint, the word "Defendant shall refer to all Defendants named in this Complaint, unless otherwise specified. Defendant FORD MOTOR COMPANY ("Defendant FMC") is a corporation organized and in existence under the laws of the State of Delaware and registered with the California Department of Corporations to conduct business in California. At all times relevant herein, Defendant was engaged in the business of designing, manufacturing, constructing, assembling, marketing, distributing, and selling automobiles and other motor vehicles and motor vehicle components in Santa Clara County. Defendant HILLTOP FORD KIA ("Defendant HFK") is an unknown business entity conducting business in the State of California. At all times relevant herein, Defendant HFK was engaged in the business of selling automobiles in Contra Costa County, California. Plaintiff is ignorant of the true names and capacities of the Defendants sued under the fictitious names DOES 1 to 10. They are sued pursuant to Code of Civil Procedure section 474. When Plaintiff becomes aware of the true names and capacities of the Defendants sued as DOES 1 to 10, Plaintiff will amend this Complaint to state their true names and capacities. To the extent there are any statutes of limitation applicable to Plaintiff's claim-including, without limitation, his express warranty, implied warranty, and fraudulent omission claims-the running of the limitation periods have been tolled by equitable tolling, class action tolling (e.g. American Pipe rule) arising from the pendency of the Baranco v. Ford Motor Company matter (ND. Cal. No. 3:17-cv-03580), the discovery rule, fraudulent concealment rule, equitable estoppel, equitable tolling and/or repair rule. I/I COMPLAINT; JURY TRIAL DEMANDED FIRST CAUSE OF ACTION 2 BY PLAINTIFF AGAINST DEFENDANT FMC a VIOLATION OF SUBDIVISION (D) OF CIVIL CODE SECTION 1793.2 4 8. In or about November 5, 2013, Plaintiff purchased a 2014 Ford Escape, vehicle 5 identification number IFMCUOGX8EUB 16627 (hereinafter "Vehicle'), from Defendant HFK, 6 which was manufactured and or distributed by Defendant FMC. The Vehicle was purchased 7 or used primarily for personal, family, or household purposes. Plaintiff purchased the Vehicle 8 from a person or entity engaged in the business of manufacturing, distributing, or selling 9 consumer goods at retail. 10 9. In connection with the purchase, Plaintiff received an express written warranty, C-) 11 including, a 3-year/36,000 mile express bumper to bumper warranty, a 5-year/60,000 mile Cr.5 12 powertrain warranty which, inter alia, covers the engine and transmission, including a 10- 13 year/150,000 mile warranty extension covering the anti-lock brake (ABS) system. Defendant C-, 14 undertook to preserve or maintain the utility or performance of the Subject Vehicle .or to 15 provide compensation if there is a failure in utility or performance for a specified period of 0- 16 time. The warranty provided, in relevant part, that in the event a defect developed with the 0 17 Subject Vehicle during the warranty period, Plaintiff could deliver the Vehicle for repair C') 18 services to Defendant's representative and the Subject Vehicle would be repaired. 19 10. During the warranty period, the Vehicle contained or developed defects, 20 including but not limited to, defects relating to the engine; defects requiring performance of 21 Recall 17S09, relating to the coolant sensor system; defects causing storage of diagnostic 22 trouble code (DTC) P26137; defects causing the coolant bottle to leak; defects causing failure 23 and/or replacement of the coolant bottle; defects causing failure and /or replacement of the 24 coolant bypass valve; defects requiring installation of a coolant level sensor system; defects 25 requiring performance of Recall 14504; defects requiring reprogramming of the restraint 26 control module (RCM); defects relating to the door latches; defects requiring performance of 27 service message 14503; defects requiring performance of Recall 16S30; defects causing failure 28 and/or requiring replacement of the door latches; and/or any other defects described in the COMPLAINT; JURY TRIAL DEMANDED 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 0 o H U 0 U - 0 H Cl) Vehicle's repair history. Said defects substantially impair the use, value, or safety of the Vehicle. II. Defendant and its representatives in this state have been unable to service or repair the Vehicle to conform to the applicable express warranties after a reasonable number of opportunities. Despite this fact, Defendant failed to promptly replace the Vehicle or make restitution to Plaintiff as required by Civil Code section 1793.2, subdivision (d) and Civil Code section 1793.1, subdivision (a)(2). 12. Plaintiff has been damaged by Defendant's failure to comply with its obligations pursuant to Civil Code section 1793.2, subdivision (d) and Civil Code section 1793.1, subdivision (a)(2), and therefore bring this cause of action pursuant to Civil Code section 1794. 13. Plaintiff suffered damages in a sum to be proven at trial in an amount not less than $25,001.00. Defendant's failure to comply with its obligations under Civil Code section 1793.2, subdivision (d) was willful, in that Defendant and its representative were aware that they were unable to service or repair the Vehicle to conform to the applicable express warranties after a reasonable number of repair attempts, yet Defendant failed and refused to promptly replace the Vehicle or make restitution. Accordingly, Plaintiff is entitled to a civil penalty of two times Plaintiff's actual damages pursuant to Civil Code section 1794, subdivision (c). Defendant does not maintain a qualified third-party dispute resolution process which substantially complies with Civil Code section 1793.22. Accordingly, Plaintiff is entitled to a civil penalty of two times Plaintiff's actual damages pursuant to Civil Code section 1794, subdivision (e). Plaintiff seeks civil penalties pursuant to section 1794, subdivisions (c), and (e) in the alternative and does not seek to cumulate civil penalties, as provided in Civil Code section 1794, subdivision (0. I/I COMPLAINT; JURY TRIAL DEMANDED 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 U 0 U F' C') SECOND CAUSE OF ACTION BY PLAINTIFF AGAINST DEFENDANT FMC VIOLATION OF SUBDIVISION (B) OF CIVIL CODE SECTION 1793.2 Plaintiff incorporates by reference the allegations contained in the paragraphs set forth above. Although Plaintiff presented the Vehicle to Defendant's representative in this state, Defendant and its representative failed to commence the service or repairs within a reasonable time and failed to service or repair the Vehicle so as to conform to the applicable warranties within 30 days, in violation of Civil Code section 1793.2, subdivision (b). Plaintiff did not extend the time for completion of repairs beyond the 30-day requirement. Plaintiff has been damaged by Defendant's failure to comply with its obligations pursuant to Civil Code section 1793.2(b), and therefore bring this Cause of Action pursuant to Civil Code section 1794. Plaintiff has rightfully rejected and/or justifiably revoked acceptance of the Vehicle, and have exercised a right to cancel the purchase. By serving this Complaint, Plaintiff does so again. Accordingly, Plaintiff seeks the remedies provided in California Civil Code section 1794(b)(1), including the entire contract price. In the alternative, Plaintiff seeks the remedies set forth in California Civil Code section 1794(b)(2), including the diminution in value of the Vehicle resulting from its defects. Plaintiff believes that, at the present time, the Vehicle's value is de minimis. Defendant's failure to comply with its obligations under Civil Code section 1793.2(b) was willful, in that Defendant and its representative were aware that they were obligated to service or repair the Vehicle to conform to the applicable express warranties within 30 days, yet they failed to do so. Accordingly, Plaintiff is entitled to a civil penalty of two times Plaintiffs actual damages pursuant to Civil Code section 1794(c). 4 COMPLAINT; JURY TRIAL DEMANDED C-, 12 U).5 13 U 14 all 15 16 17 C, 18 20 21 22 23 24 25 26 27 28 THIRD CAUSE OF ACTION 2 BY PLAINTIFF AGAINST DEFENDANT FMC VIOLATION OF SUBDIVISION (A)(3) OF CIVIL CODE SECTION 1793.2 4 22. Plaintiff incorporates by reference the allegations contained in the paragraphs 5 I set forth above. 6 23. In violation of Civil Code section 1793.2, subdivision (a)(3), Defendant failed 7 to make available to its authorized service and repair facilities sufficient service literature and 8 replacement parts to effect repairs during the express warranty period. Plaintiff has been 9 damaged by Defendant's failure to comply with its obligations pursuant to Civil Code section 10 1793.2(a)(3), and therefore bring this Cause of Action pursuant to Civil Code section 1794. Defendant's failure to comply with its obligations under Civil Code section 1793.2, subdivision (a)(3) was willful, in that Defendant knew of its obligation to provide literature and replacement parts sufficient to allow its repair facilities to effect repairs during the warranty period, yet Defendant failed to take any action to correct its failure to comply with the law. Accordingly, Plaintiff is entitled to a civil penalty of two times Plaintiffs actual damages pursuant to Civil Code section 1794(c). FOURTH CAUSE OF ACTION BY PLAINTIFF AGAINST DEFENDANT FMC BREACH OF EXPRESS WRITTEN WARRANTY (CIV. CODE, § 1791.2, SUBD. (a); § 1794) Plaintiff incorporates by reference the allegations contained in paragraphs set forth above. In accordance with Defendant's warranty, Plaintiff delivered the Vehicle to Defendant's representative in this state to perform warranty repairs. Plaintiff did so within a reasonable time. Each time Plaintiff delivered the Vehicle, Plaintiff notified Defendant and its representative of the characteristics of the Defects. However, the representative failed to repair the Vehicle, breaching the terms of the written warranty on each occasion. 5 COMPLAINT; JURY TRIAL DEMANDED C-) 11 12 13 C-, 14 15 -:i 16 U?. F w 17 18 Cl) 19 27. Plaintiff has been damaged by Defendant's failure to comply with its 2 I obligations under the express warranty, and therefore bring this Cause of Action pursuant to 5 I Civil Code section 1794. 4 28. Defendant's failure to comply with its obligations under the express warranty 5 was willful, in that Defendant and its authorized representative were aware that they were 6 obligated to repair the Defects, but they intentionally refused to do so. Accordingly, Plaintiff 7 is entitled to a civil penalty of two times of Plaintiffs actual damages pursuant to Civil Code 8 section 1794(c). 9 FIFTH CAUSE OF ACTION 10 BY PLAINTIFF AGAINST DEFENDANTS BREACH OF THE IMPLIED WARRANTY OF MERCHANTABILITY (CIV. CODE, § 1791.1; § 1794; § 1795.5) Plaintiff incorporates by reference the allegations contained in the paragraphs I set forth above. Pursuant to Civil Code section 1792, the sale of the Vehicle was accompanied by Defendant's implied warranty of merchantability. Pursuant to Civil Code section 1791.1, the duration of the implied warranty is coextensive in duration with the duration of the express written warranty provided by Defendant, except that the duration is not to exceed one-year. Pursuant to Civil Code section 1791.1 (a), the implied warranty of 20 merchantability means and includes that the Vehicle will comply with each of the following 21 requirements: (1) The Vehicle will pass without objection in the trade under the contract 22 description; (2) The Vehicle is fit for the ordinary purposes for which such goods are used; (3) 23 The Vehicle is adequately contained, packaged, and labelled; (4) The Vehicle will conform to 24 the promises or affirmations of fact made on the container or label. 25 32. At the time of purchase, or within one-year thereafter, the Vehicle contained or 26 I developed the defects set forth above. The existence of each of these defects constitutes a 27 breach of the implied warranty because the Vehicle (1) does not pass without objection in the 28 trade under the contract description, (2) is not fit for the ordinary purposes for which such 6 COMPLAINT; JURY TRIAL DEMANDED goods are used, (3) is not adequately contained, packaged, and labelled, and (4) does not conform to the promises or affirmations of fact made on the container or label. Plaintiff has been damaged by Defendant's failure to comply with its obligations under the implied warranty, and therefore bring this Cause of Action pursuant to Civil Code section 1794. SIXTH CAUSE OF ACTION BY PLAINTIFF AGAINST DEFENDANT FMC (Fraud by Omission) Plaintiff incorporates by reference the allegations contained in the paragraphs set forth above. Defendant committed fraud by allowing the Vehicle to be sold to Plaintiff without disclosing that the Vehicle contain defects within the engine that can cause coolant leaks and overheating leading to cylinder head cracks and engine fires (the "Engine Cooling Defect"). . - In particular, Plaintiff is informed, believes, and thereon alleges that prior to Plaintiff acquiring the Vehicle, Ford was well aware and knew of the Engine Cooling Defect within the Subject Vehicle but failed to disclose this fact to Plaintiff at the time of sale and thereafter.' Specifically, Ford knew (or should have known) that 2014 Ford Escapes (including the Subject Vehicle), 2014 to 2015 Ford Fiesta STs, 2013 to 2014 Ford Fusions, and 2013 to 2015 Ford Transit Connects experience coolant leaks and engine overheating that crack cylinder heads and leak pressurized oil that can ignite and cause engine compartment fires. Plaintiff is informed, believes and thereon alleges that Ford acquired its knowledge of the Engine Cooling Defect prior to Plaintiff acquiring the Subject Vehicle, through sources not available to consumers such as Plaintiff, including but not limited to pre- Indeed, Defendant has issued various technical bulletins to its dealers (not consumers) concerning the Engine Cooling Defect. 7 COMPLAINT; JURY TRIAL DEMANDED 7 3 4 5 6 7 8 9 10 C-) 11 -c 12 13 C-) = 9 14 15 - 16 17 E. 18 19 20 21 22 23 24 25 26 27 28 9 3 4 5. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (3 U 0 • o - U (0 production and postproduction testing data, early consumer complaints about the Engine Cooling Defect made directly to Ford and its network of dealers, aggregate warranty data compiled from Ford's network of dealers, testing conducted by Ford in response to these complaints, as well as warranty repair and part replacements data received by Ford from Ford's network of dealers, amongst other sources of internal information. Plaintiff is informed, believes, and thereon alleges that while Defendant knew about the Engine Cooling Defect, and its safety risks since 2013, if not before, Defendant nevertheless concealed and failed to disclose the defective nature of the Vehicle and its engine to Plaintiff at the time of sale and thereafter. Had Plaintiff known that the Subject Vehicle suffered from the Engine Cooling Defect, he would not have purchased the Vehicle. Indeed, Plaintiff alleges that Defendant knew that the Vehicle and its engine suffered from an inherent defect, was defective, would fail prematurely, and was not suitable for its intended use. Defendant was under a duty to Plaintiff to disclose the defective nature of the Vehicle and its engine, its safety consequences and/or the associated repair costs because: Defendant acquired its knowledge of the Engine Cooling Defect and its potential consequences prior to Plaintiff acquiring the Vehicle, through sources not available to consumers such as Plaintiff, including but not limited to pre-production testing data, early consumer complaints about the Engine Cooling Defect made directly to Ford and its network of dealers, aggregate warranty data compiled from Ford's network of dealers, testing conducted by Ford in response to these complaints, as well as warranty repair and part replacements data received by Ford from Ford's network of dealers, amongst other sources of internal information; Defendant was in a superior position from various internal sources to know (or should have known) the true state of facts about the material defects contained in vehicles equipped with the defective engine; C. Plaintiff could not reasonably have been expected to learn or discover of the Vehicle's Engine Cooling Defect and its potential consequences until well after 8 COMPLAINT; JURY TRIAL DEMANDED Plaintiff purchased the Vehicle. Plaintiff discovered Defendant's wrongful conduct alleged herein shortly before filing the instant Complaint, following numerous attempts by Defendant to repair the Subject Vehicle which were all unsuccessful, as the Subject Vehicle continues to experience symptoms of the Engine Cooling Defect; and d. The Engine Cooling Defect is a safety concern. In failing to disclose the Vehicle's Engine Cooling Defect, Defendant has knowingly and intentionally concealed material facts and breached its duty not to do so. The facts concealed or not disclosed by Defendant to Plaintiff are material in that a reasonable person would have considered them to be important in deciding whether or not to purchase the Vehicle. Had Plaintiff known that the Vehicle and its engine were defective at the time of sale, he would not have purchased the Vehicle. Additionally, the facts concealed are material in that they concern the safety of the Subject Vehicle. The Engine Cooling Defect is a safety concern because it can cause sudden and unpredictable engine failure and can cause the engine compartment to ignite in flames. This poses an unacceptable to drivers, passengers, and others. Consumers rely on automakers, such as Ford, to promptly inform them and initiate a remedy or countermeasure when they discover a vehicle model contains a defect, especially one that is present in multiple models and model years and that puts the safety of themselves and their passengers at risk. Defendants have represented that their vehicles are safe and that the engine will operate normally, and their customers expect the vehicles to perform as represented. Contrary to this promise and expectation, the engine of the Subject Vehicle was designed, manufactured, and sold with a defect causing engine failure and vehicular fires, rendering the Subject Vehicle unsafe. Plaintiff is a reasonable consumer who did not expect the engine to fail and not work properly. Plaintiff further expects and assumes that Defendant will not sell or lease vehicles with known material defects, including but not limited to the Engine Cooling Defect and will disclose any such defect to its consumers before selling such vehicles. 9 COMPLAINT; JURY TRIAL DEMANDED 7 3 4 5 6 7 8 9 10 C-) 12 ti. 13 14 15 C-) 16 17 (ID EL 20 21 22 23 24 25 26 27 28 23 24 25 26 27 28 2 3 4 L) 0 E- (f) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 48. As a result of Defendant's misconduct, Plaintiff has suffered and will continue to suffer actual damages. PRAYER PLAINTIFF PRAYS for judgment against Defendant as follows: For Plaintiffs actual damages in an amount according to proof; For restitution; For a civil penalty in the amount of two times Plaintiffs actual damages pursuant to Civil Code section 1794, subdivision (c) or (e); For any consequential and incidental damages; For costs of the suit and Plaintiffs reasonable attorneys' fees pursuant to Civil Code section 1794, subdivision (d); For punitive damages; For prejudgment interest at the legal rate; and For such other relief as the Court may deem proper. DEMAND FOR JURY TRIAL Plaintiff hereby demands a jury trial on all causes of action asserted herein. Dated: February 5, 2019 STRATEGIC LEGAL PRACTICES, BY: Tionna Dolin Attorney for Plaintiff COMPLAINT; JURY TRIAL DEMANDED CM-010 ATIORNEY OR PARTY WITFIOW ATTORNEY (Name Slate Bar number, and address): 2990! - fjonr,a Dpi in S13N Electronically Filed iStrNtegic Legal Practices, Alt 1840 Century Park East, Suite 430 Los Angeles, California 90067 TELEPHONE NO.' (310) 929-4900 FAX NO.: (310) 943-3838 Dy Superior Court of CA, ATTORNEY FOR (Name): RUTH PHILLIPS :ounty of Santa Clara, :in 2/6/2019 3:54 PM SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA. STREET ADDRESS: 191 North First Street Reviewed By: Vuet Lai MAILING ADDRESS: Same CITY AND ZIP CODE: San Jose, California 95113 ase #19CV342579 BRANCH NAME: Downtown Superior Courthouse Envelope: 2475596 CASE NAME: (RUTH PHILLIPS v. FORD MOTOR COMPANY; HILLTOP FORD KIA; and DOES I through 10, inclusive CIVIL CASE COVER SHEET I Complex Case Designation CASEMJMBER: 19CV342579 E2J Unlimited C Limited I Counter C Joinder I JUDGE (Amount (Amount demanded demanded is I Filed with first appearance by defendant exceeds $25000) $25,000 or less) (Cal. Rules of Court, rule 3.402) DEPT: Items 1-6 below must be completed (see instructions on page 2). Check one box below for the case type that best describes this case: Auto Tort C Auto (22) Contract Breach of contractAvarranty (06) C Uninsured motorist (46) C Rule 3.740 collections (09) Other PI!PDmD (Personal Injury/Property C Other collections (09) Damage(Wrongful Death) Tort C Insurance coverage (18) C Asbestos (04) C Product liability Other contract (37) (24) . Real Property C Medical malpractice (45) C Eminent domairillnverse C Other PIIPDIWD (23) condemnation (14) Non-Pl/PDD (Other) Tort C C Wrongful eviction (33) EiJ Business tort/unfair business practice (07) Other real property (26) C Civil rights (08) unlawful Detainer C C Defamation (13) Commercial (31) 11J Fraud (16) C Residential (32) C Intellectual property (19) C Drugs (38) C Professional negligence (25) Judicial C Review C Other non-Pl/PDIWD tort (35) C Asset forfeiture (05) Employment Petition re: arbitration award (11) Wrongful termination (36) L_J Writ of mandate (02) Provisionally Complex Civil Litigation (Cal. Rules of Court, rules 3.400-3.403) C Antitrust/Trade regulation (03) LJ Construction defect (10) C Mass toil (40) C Securities litigation (28) [J Environmental/Toxic tort (30) C Insurance coverage claims arising from the above listed provisionally complex case types (41) Enforcement of Judgment C Enforcement of judgment (20) Miscellaneous Civil Complaint C RICO (27) C Other complaint (not specified above) (42) Miscellaneous Civil Petition C Partnership and corporate governance (21) C Other petition (not specified above) (43) 2. This case L....J is [/_J is not complex under rule 3.400 of the California Rules of Court If the case is complex, math the factors requiring exceptional judicial management: C Large number of separately represented parties d. C Large number of witnesses C Extensive motion practice raising difficult or novel e. C Coordination with related actions pending in one or more courts issues that will be time-consuming to resolve in other counties, states, or countries, or in a federal court C Substantial amount of documentary evidence f. C Substantial postjudgment judicial supervision 3. Remedies sought (check all that apply): a.2J monetary b.0 nonmonetary; declaratory or injunctive relief C. LZJ punitive 4. Number of causes of action (specify): six (6) 5. This case C is M is not a class action suit, 6. If there are any known related cases, file and serve a notice of related case. fYou may us!1Qmrc11 j.015.) Date: 02/05/19 Tionna Dolin • Plaintiff must file this cover sheet with the first paper filed in the action or proceeding (except small claims cases or cases filed under the Probate Code, Family Code, or Welfare and institutions Code). (Cal. Rules of Court, rule 3.220.) Failure to file m ay result in sanctions. • File this cover sheet in addition to any cover sheet required by local court rule. • If this case is complex under rule 3.400 et seq. of the California Rules of Court, you must serve a copy of this cover shee t on all other parties to the action or proceeding. • Unless this is a collections case under rule 3.740 or a complex case, this cover sheet will be used for statistical purposes only. - • Mataicry use CIVIL CASE COVER SHEET cal. RueS 01 Last rue, L.JU. 4.4W'-J.4UJ. J.IqIJ. lot cSItona Cal. slondaats of Judicial Admirdsuaton. sla 310 July I. 20071 wvw.courfin(o.ea.gov • INSTRUCTIONS ON HOW TO COMPLETE THE COVER SHEET CM-010 To Plaintiffs and Others Filing First Papers. If you are tiling a first paper (for example, a complaint) in a civil case, you must complete and file, along with your first paper, the Civil Case Cover Sheet contained on page 1. This information will be used to compile statistics about the types and numbers of cases filed. You must complete items 1 through 6 on the sheet. In item 1. you must check one box for the case type that best describes the case. If the case fits both a general and a more specific type of case listed in item 1, check the more specific one. If the case has multiple causes of action, check the box that best indicates the primary cause of action. To assist you in completing the sheet, examples of the cases that belong under each case type in item 1 are provided below. A cover sheet must be filed only with your initial paper. Failure to file a cover sheet with the first paper filed in a civil case may subject a party, its counsel, or both to sanctions under rules 2.30 and 3.220 of the California Rules of Court. To Parties in Rule 3.740 Collections Cases. A "collections case" under rule 3.740 is defined as an action for recovery of money owed in a sum stated to be certain that is not more than $25,000, exclusive of interest and attorney's fees, arising from a transaction in which property, services, or money was acquired on credit. A collections case does not include an action seeking the following: (1) tort damages, (2) punitive damages, (3) recovery of real property, (4) recovery of personal property, or (5) a prejudgment writ of attachment. The identification of a case as a rule 3.740 collections case on this form means that it will be exempt from the general time-for-service requirements and case management rules, unless a defendant files a responsive pleading. A rule 3.740 collections case will be subject to the requirements for service and obtaining a judgment in rule 3.740. To Parties in Complex Cases. In complex cases only, parties must also use the Civil Case Cover Sheet to designate whether the case is complex. If a plaintiff believes the case is complex under rule 3.400 of the California Rules of Court, this must be indicated by completing the appropriate boxes in items 1 and 2. If a plaintiff designates a case as complex, the cover sheet must be served with the complaint on all parties to the action. A defendant may file and serve no later than the time of its first appearance a joinder in the plaintiffs designation, a counter-designation that the case is not complex, or, if the plaintiff has made no designation, a designation that the case is complex. CASE TYPES AND EXAMPLES Auto Tort Auto (22)-Personal Injury/Properly Damage/Wrongful Death Uninsured Motorist (46) (if the case involves an uninsured motorist claim subject to arbitration, check this item instead of Auto) Other PI/PDIWD (Personal injury! Property Damage/wrongful Death) Tort Asbestos (04) Asbestos Property Damage Asbestos Personal Injury/ Wrongful Death Product Liability (not asbestos or toxic'environmental) (24) Medical Malpractice (45) Medical Malpractice- Physicians & Surgeons Other Professional Health Care Malpractice Other PI/PD(WD (23) Premises Liability (e.g., slip and fall) Intentional Bodily Injury/PD/WD (e.g., assault, vandalism) Intentional Infliction of Emotional Distress Negligent Infliction of Emotional Distress Other Pl/PDM'D Non-Pl/PD/wD (Other) Tort Business Tort/Unfair Business Practice (07) Civil Rights (e.g.. discrimination, false arrest) (not civil harassment) (08) Defamation (e.g., slander, libel) (13) Fraud (16) Intellectual Property (19) Professional Negligence (25) Legal Malpractice Other Professional Malpractice (not medical or legal) Other Non-Pl/PD/WD Tort (35) Employment Wrongful Termination (36) Other Employment (15) CM.OlOIRev. July 1, Contract Breath of Contract/Warranty (06) Breath of Rental/Lease Contract (not unlawful detainer or wrongful eviction) Contract/Warranty Breath-Seller Plaintiff (not fraud or negligence) Negligent Breach of Contract/ Warranty Other Breath of Contract/Warranty Collections (e.g.. money owed, open book accounts) (09) Collection Case-Seller Plaintiff Other Promissory Note/Collections Case Insurance Coverage (not provisionally complex) (18) Auto Subrogation Other Coverage Other Contract (37) Contractual Fraud Other Contract Dispute Real Property Eminent Domain/Inverse Condemnation (14) Wrongful Eviction (33) Other Real Property (e.g.. quiet title) (26) Writ of Possession of Real Properly Mortgage Foreclosure Quiet Title Other Real Property (not eminent domain, landlordftenant, or foreclosure) Unlawful Detalner Commercial (31) Residential (32) Drugs (38) (if the case involves illegal drugs, check this item: otherwise, report as Commercial or Residential) Judicial Review Asset Forfeiture (05) Petition Re: Arbitration Award It 1) Writ of Mandate (02) Writ-Administrative Mandamus Writ-Mandamus on Limited Court Case Matter Writ-Other Limited Court Case Review Other Judicial Review (39) Review of Health Officer Order Notice of Appeal-Labor CIVIL CASE COVER SHEET Provisionally Complex Civil Litigation (Cal. Rules of Court Rules 3.400-3.403) Antitrust/Trade Regulation (03) Construction Defect (10) Claims Involving Mass Tort (40) Securities Litigation (28) EnvironmentayToxic Tort (30) Insurance Coverage Claims (arising from provisionally complex case type listed above) (41) Enforcement of Judgment Enforcement of Judgment (20) Abstract of Judgment (Out of County) Confession of Judgment (non- domestic relations) Sister State Judgment Administrative Agency Award (not unpaid taxes) Petition/Certification of Entry of Judgment on Unpaid Taxes Other Enforcement of Judgment Case Miscellaneous Civil Complaint RICO (27) Other Complaint (not specified above) (42) Declaratory Relief Only Injunctive Relief Only (non- harassment) Mechanics Lien Other Commercial Complaint Case (non-tort/non-complex) Other Civil Complaint (non-tort/non-complex) Miscellaneous Civil Petition Partnership and Corporate Governance (21) Other Petition (not spec/fled above) (43) Civil Harassment Workplace Violence Elder/Dependent Adult Abuse Election Contest Petition for Name Change Petition for Relief From Late Claim Other Civil Petition ATTACHMENT CV-5012 CIVIL LAWSUIT NOTICE Superior Court of California, County of Santa Clara CASE NUMBER: 191 North First St., San José, CA 95113 19CV342579 PLEASE READ THIS ENTIRE FORM PLAINTIFF (the person suing): Within 60 days after filing the lawsuit, you must serve each Defendant with the Complaint, Summons, an Alternative Dispute Resolution (ADR) Information Sheet, and a copy of this Civil Lawsuit Notice, and you must file written proof of such service. DEFENDANT (The person sued): You must do each of the following to protect your rights: You must file a written response to the Complaint, using the proper legal form or format, in the Clerk's Office of the Court, within 30 days of the date you were served with the Summons and Complaint, You must serve by mail a copy of your written response on the Plaintiffs attorney or on the Plaintiff if Plaintiff has no attorney (to "serve by mail" means to have an adult other than yourself mail a copy); and You must attend the first Case Management Conference. Warning: If you, as the Defendant, do not follow these instructions, you may automatically lose this case. RULES AND FORMS: You must follow the California Rules of Court and the Superior Court of California, County of c_CountyName_> Local Civil Rules and use proper forms. You can obtain legal information, view the rules and receive forms, free of charge, from the Self-Help Center at 201 North First Street, San José (405-882-2900 x-2926). • State Rules and Judicial Council Forms: www.courtinfo.ca.pov/forrns and www.courtinfo.ca.gov/rules • Local Rules and Forms: http://www.sccsuperiorcourt.orp/civil/ruleltoc.htm CASE MANAGEMENT CONFERENCE (CMCJ: You must meet with the other parties and discuss the case, in person or by telephone at least 30 calendar days before the CMC. You must also fill out, file and serve a Case Management Statement (Judicial Council form CM-1 10) at least 15 calendar days before the CMC. You or your attorney must appear at the CMC. You may ask to appear by telephone -see Local Civil Rule 8. Arand, Mary E 9 Your Case Management Judge is: Department:______________________ The 161 CMC is scheduled for: (Completed by Clerk of Court) Date: 5/21/2019 Time: 1:30pm in Department:_________________ The next CMC is scheduled for: (Completed by party if the 1st CMC was continued or has passed) Date: Time: in Department:____________________ ALTERNATIVE DISPUTE RESOLUTION (ADR): If all parties have appeared and filed a completed ADR Stipulation Form (local form CV-5008) at least 15 days before the CMC, the Court will cancel the CMC and mail notice of an ADR Status Conference. Visit the Court's website at www.sccsuperiorcourt.org/civil/ADRJ or call the ADR Administrator (408-882-2100 x-2530) for a list of ADR providers and their qualifications, services, and fees. WARNING: Sanctions may be imposed if you do not follow the California Rules of Court or the Local Rules of Court. CV-5012 REV 08/01/16 CIVIL LAWSUIT NOTICE Page 1 of I S C H N A D E R H A R R IS O N S E G A L & L E W IS L L P 6 50 C A L IF O R N IA S T R E E T ,1 9 T H F L O O R S A N F R A N C IS C O ,C A 94 10 8 -2 7 36 T E L E P H O N E :( 4 15 ) 36 4 -6 7 00 F A X :( 41 5 ) 36 4 -6 7 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 DEFENDANT FORD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS STEPHEN H. DYE (SBN 104385) e-mail: sdye@schnader.com RICHARD J. MAY (SBN 234684) e-mail: rmay@schnader.com SCHNADER HARRISON SEGAL & LEWIS LLP 650 California Street, 19th Floor San Francisco, California 94108-2736 Telephone: (415) 364-6700 Facsimile: (415) 364-6785 Attorneys for Defendant FORD MOTOR COMPANY SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA - UNLIMITED JURISDICTION RUTH PHILLIPS, Plaintiff, vs. FORD MOTOR COMPANY; HILLTOP FORD KIA; and DOES 1 through 10, inclusive, Defendants. Case No. 19CV342579 DEFENDANT FORD MOTOR COMPANY’S ANSWER TO PLAINTIFF’S COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS DEMAND FOR JURY TRIAL Action Filed: February 5, 2019 Trial Date: None assigned Defendant FORD MOTOR COMPANY (“Ford”), for itself alone and for no other parties, hereby answers the Complaint of Plaintiff RUTH PHILLIPS (“Plaintiff”) as follows: GENERAL DENIAL Under the provisions of § 431.30(d) of the California Code of Civil Procedure, Ford denies each and every allegation, both specifically and generally, of each cause of action contained in Plaintiff’s Complaint on file herein and the whole thereof, and denies that Plaintiff was damaged in any sum or sums, or at all. S C H N A D E R H A R R IS O N S E G A L & L E W IS L L P 6 50 C A L IF O R N IA S T R E E T ,1 9 T H F L O O R S A N F R A N C IS C O ,C A 94 10 8 -2 7 36 T E L E P H O N E :( 4 15 ) 36 4 -6 7 00 F A X :( 41 5 ) 36 4 -6 7 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 DEFENDANT FORD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS AFFIRMATIVE DEFENSES Ford alleges on information and belief, and where information is not available but the failure to allege would result in waiver of the defense, the following affirmative defenses: FIRST AFFIRMATIVE DEFENSE (Failure to State Facts) Plaintiff’s Complaint fails to state facts sufficient to constitute a cause of action against Ford. SECOND AFFIRMATIVE DEFENSE (No Breach of Warranty) There was no breach of warranty to the extent that Plaintiff’s concerns were resolved under the warranty or occurred after the expiration of the original express warranty. THIRD AFFIRMATIVE DEFENSE (Estoppel) Plaintiff is estopped from obtaining the relief sought, or pursing any of the claims raised or causes of actions contained in the Complaint, by virtue of her acts, failures to act, conduct, representations, admission, and the like. FOURTH AFFIRMATIVE DEFENSE (Waiver) Plaintiff has waived her rights to the claims, causes of action and relief sought in this Complaint against Ford, by virtue of her acts, failures to act, conduct, representations, admissions, and the like. FIFTH AFFIRMATIVE DEFENSE (Laches) Plaintiff has unreasonably delayed the commencement of this action to the prejudice of Ford. Therefore, the Complaint, and each and every cause of action alleged therein is barred, in whole or in part, by the doctrine of laches. / / / / / / S C H N A D E R H A R R IS O N S E G A L & L E W IS L L P 6 50 C A L IF O R N IA S T R E E T ,1 9 T H F L O O R S A N F R A N C IS C O ,C A 94 10 8 -2 7 36 T E L E P H O N E :( 4 15 ) 36 4 -6 7 00 F A X :( 41 5 ) 36 4 -6 7 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 DEFENDANT FORD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SIXTH AFFIRMATIVE DEFENSE (Economic Loss Rule) Plaintiff’s causes of action have not accrued because Plaintiff cannot establish that she suffered injury directly from the subject vehicle or products and, therefore, Plaintiff’s contention that the subject vehicle or products failed to adequately perform their functions are barred by the economic loss rule. SEVENTH AFFIRMATIVE DEFENSE (Performance) Prior to the commencement of this action, Ford fully performed, satisfied and discharged all duties and obligations it may have owed to Plaintiff arising out of any and all agreements, representations or contracts made by it or on its behalf and this action is therefore barred by the provisions of Civil Code § 1473. EIGHTH AFFIRMATIVE DEFENSE (Abuse, Misuse, Alteration and Improper Care) Plaintiff and/or others misused, abused, altered and improperly cared for and maintained the subject vehicle contrary to Ford’s approval or consent and Plaintiff’s damages, if any, were proximately caused by such misuse, alteration, abuse and neglect of the product. NINTH AFFIRMATIVE DEFENSE (No Defect in Materials or Workmanship) The damages asserted in Plaintiff’s Complaint were not the result of any defect in material or workmanship in any vehicle manufactured by Ford. Specifically, Ford alleges that after appropriate discovery, one or more of the stated specific warranty exclusions may be applicable. TENTH AFFIRMATIVE DEFENSE (No Timely Revocation of Acceptance) Plaintiff has no restitution remedy under breach of implied warranty because there was no timely revocation of acceptance before a substantial change in the condition of the goods. / / / S C H N A D E R H A R R IS O N S E G A L & L E W IS L L P 6 50 C A L IF O R N IA S T R E E T ,1 9 T H F L O O R S A N F R A N C IS C O ,C A 94 10 8 -2 7 36 T E L E P H O N E :( 4 15 ) 36 4 -6 7 00 F A X :( 41 5 ) 36 4 -6 7 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 DEFENDANT FORD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS ELEVENTH AFFIRMATIVE DEFENSE (Failure to Maintain Vehicle) Ford alleges that Plaintiff is precluded from recovery due to failure to maintain and service the subject vehicle in conformance with the requirements and recommendations of the owner’s manual and/or warranty booklet. TWELFTH AFFIRMATIVE DEFENSE (Disclaimer of Incidental and Consequential Damages and Limitation of Damages) The limited warranty for the subject vehicle at issue limits the damages that may be obtained by Plaintiff for any alleged breach of warranty such that some, if not all, of the damages sought, including those for incidental or consequential damages, are not recoverable. THIRTEENTH AFFIRMATIVE DEFENSE (Vehicle Fit for Intended Purpose) The subject vehicle was fit for providing transportation at all relevant times hereto. Accordingly, Plaintiff is not entitled to relief for breach of the implied warranty of merchantability. American Suzuki Motor Corp. v. Superior Court, 37 Cal. App. 4th 1291 (1995). FOURTEENTH AFFIRMATIVE DEFENSE (Duration of Implied Warranty) The alleged nonconformities did not arise until after the implied warranty expired. Accordingly, Plaintiff is not entitled to relief for breach of the implied warranty of merchantability. California Civil Code § 1791.1(c). FIFTEENTH AFFIRMATIVE DEFENSE (No Impairment of Use, Value or Safety) The subject vehicle has not been subject to repair for any nonconformity or condition that substantially impaired the use, value or safety of the vehicle. / / / / / / / / / S C H N A D E R H A R R IS O N S E G A L & L E W IS L L P 6 50 C A L IF O R N IA S T R E E T ,1 9 T H F L O O R S A N F R A N C IS C O ,C A 94 10 8 -2 7 36 T E L E P H O N E :( 4 15 ) 36 4 -6 7 00 F A X :( 41 5 ) 36 4 -6 7 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 DEFENDANT FORD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SIXTEENTH AFFIRMATIVE DEFENSE (Unreasonable Use of Vehicle) Plaintiff’s claims may be barred by waiver due to Plaintiff’s unreasonable use of the vehicle after the nonconformity or nonconformities allegedly could not be repaired. SEVENTEENTH AFFIRMATIVE DEFENSE (Failure to Use Dispute Resolution Process) Plaintiff and/or the owner(s) of the subject vehicle received timely notice of the availability of a third party dispute resolution process, and that no effort was made to use such process. EIGHTEENTH AFFIRMATIVE DEFENSE (Failure to Provide Reasonable Opportunity to Cure) Plaintiff failed to provide it with a reasonable opportunity to cure any alleged defect as required by 15 U.S.C. § 2310(e) and Civil Code § 1790, et seq. NINETEENTH AFFIRMATIVE DEFENSE (No Prejudgment Interest) Plaintiff’s Complaint fails to state facts sufficient to constitute a basis for recovery of prejudgment interest. TWENTIETH AFFIRMATIVE DEFENSE (Business Use) The subject vehicle was not purchased or used primarily for personal, family, or household purposes and that the business use was by a person, including a partnership, limited liability company, corporation, association, or any other legal entity, to which more than five motor vehicles were registered in this state. TWENTY-FIRST AFFIRMATIVE DEFENSE (Failure to Mitigate) Plaintiff failed and neglected to use reasonable care to protect herself and to minimize her losses and damages, if any. / / / S C H N A D E R H A R R IS O N S E G A L & L E W IS L L P 6 50 C A L IF O R N IA S T R E E T ,1 9 T H F L O O R S A N F R A N C IS C O ,C A 94 10 8 -2 7 36 T E L E P H O N E :( 4 15 ) 36 4 -6 7 00 F A X :( 41 5 ) 36 4 -6 7 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 DEFENDANT FORD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS TWENTY-SECOND AFFIRMATIVE DEFENSE (No Agency Relationship) Ford denies any allegations of agency contained in Plaintiff’s Complaint. TWENTY-THIRD AFFIRMATIVE DEFENSE (Assumption of Risk) Plaintiff knew about matters giving rise to the Complaint and assumed the risk created thereby. TWENTY-FOURTH AFFIRMATIVE DEFENSE (Good Faith Conduct) Ford has acted in good faith and reasonably with respect to the matters alleged in Plaintiff’s Complaint. TWENTY-FIFTH AFFIRMATIVE DEFENSE (Doctrine of Consent) Plaintiff is barred from recovering the relief sought by reason of the doctrine of consent. TWENTY-SIXTH AFFIRMATIVE DEFENSE (Statute of Limitations) Plaintiff’s Complaint and each cause of action contained therein does not state facts sufficient to constitute a cause of action in that the Complaint and each cause of action is barred by the applicable statute of limitations, including, but not limited to, those stated in Part II, Title 2, Chapter 3 of the California Code of Civil Procedure, §§ 335 through 346.4, California Civil Code, §§ 1783, 1791.1, 1793.2, and 1793.22, California Commercial Code, § 2725, and Business and Professions Code, § 17208. TWENTY-SEVENTH AFFIRMATIVE DEFENSE (Warranty Exclusions) Plaintiff’s action for breach of warranty is barred by the terms, conditions, disclaimers and exclusions of the warranty, if any. Moreover, Plaintiff has failed to comply with all obligations under the warranty, if any, to include, but not limited to, timely notice, proper maintenance and appropriate use. S C H N A D E R H A R R IS O N S E G A L & L E W IS L L P 6 50 C A L IF O R N IA S T R E E T ,1 9 T H F L O O R S A N F R A N C IS C O ,C A 94 10 8 -2 7 36 T E L E P H O N E :( 4 15 ) 36 4 -6 7 00 F A X :( 41 5 ) 36 4 -6 7 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 DEFENDANT FORD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS TWENTY-EIGHTH AFFIRMATIVE DEFENSE (Civil Penalty Barred) Any prayer made by Plaintiff for a civil penalty pursuant to Civil Code § 1794(e) is barred because Ford maintains a qualified third party dispute resolution process, which substantially complies with subdivision (d) of § 1793.22 of the Civil Code. Further, Plaintiff failed to serve the notice required for recovery of a civil penalty under this provision. TWENTY-NINTH AFFIRMATIVE DEFENSE (Spoliation of Evidence) This action is barred or limited because of the altering, spoiling, damaging, destruction, or losing of evidence by Plaintiff, which thereby has reduced the likelihood that this action will result in a reliable adjudication of facts, and impairs Ford’s right to a fair opportunity to adjudicate its alleged liability. THIRTIETH AFFIRMATIVE DEFENSE (Failure to Properly Notify) Plaintiff has failed to properly provide timely notice, within a reasonable period of time after discovery of her claims and alleged defects. Consequently, Ford has been damaged and prejudiced, barring the Complaint, and each cause of action therein, as a matter of law. THIRTY-FIRST AFFIRMATIVE DEFENSE (No Breach) Defendant performed all duties owed under the warranty other than any duties that were prevented or excused. Accordingly, there has been no breach of warranty. THIRTY-SECOND AFFIRMATIVE DEFENSE (Statute of Frauds) To the extent Plaintiff is suing for breach of an oral representation or contract, such an oral representation or contract would be unenforceable pursuant to Civil Code § 1624(a)(1-7). / / / / / / S C H N A D E R H A R R IS O N S E G A L & L E W IS L L P 6 50 C A L IF O R N IA S T R E E T ,1 9 T H F L O O R S A N F R A N C IS C O ,C A 94 10 8 -2 7 36 T E L E P H O N E :( 4 15 ) 36 4 -6 7 00 F A X :( 41 5 ) 36 4 -6 7 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 DEFENDANT FORD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS THIRTY-THIRD AFFIRMATIVE DEFENSE (Qualified Third Party Dispute Resolution Process) Defendant maintained a qualified third party dispute resolution process at the time the subject vehicle was purchased that substantially complied with § 1793.2 of the California Civil Code. Defendant is informed and believes and thereon alleges Plaintiff received timely and appropriate notification, in writing, of the availability of the third party resolution process. Accordingly, since Plaintiff did not avail herself of the third party dispute resolution process prior to filing this litigation, § 1794(e)(2) of the California Civil Code may bar Plaintiff from recovering damages for (i) attorney fees, (ii) costs, and (iii) treble damages (as provided under California Civil Code § 1794(e)), and Plaintiff may not avail herself of the rebuttable presumption pursuant to California Civil Code § 1793.2(e)(1). THIRTY-FOURTH AFFIRMATIVE DEFENSE (Constitutionality of Punitive Damages) Plaintiff’s claims are in contravention of Ford’s rights under applicable clauses of the United States and California Constitutions, including without limitation the following provisions: (a) said claims constitute an impermissible burden on interstate commerce in contravention of Article I, Section 8 of the United States Constitution; (b) said claims contravene the Excessive Fines Clause of the Eighth Amendment of the United States Constitution; (c) said claims violate Ford’s right to Due Process under the Fourteenth Amendment of the United States Constitution; (d) said claims contravene the constitutional prohibition against vague and overbroad laws; and (e) said claims contravene the Due Process Clause of the California Constitution. THIRTY-FIFTH AFFIRMATIVE DEFENSE (Punitive Damages Improperly Pled/Not Recoverable) Plaintiff has not properly pled a claim for punitive damages and these damages are not recoverable based on the facts contained in Plaintiff’s Complaint, or are otherwise barred by the provisions of California Civil Code §§ 3294, 3295, and 3296, or such conduct was adopted, ratified or authorized by Ford under California Civil Code § 3294(b). S C H N A D E R H A R R IS O N S E G A L & L E W IS L L P 6 50 C A L IF O R N IA S T R E E T ,1 9 T H F L O O R S A N F R A N C IS C O ,C A 94 10 8 -2 7 36 T E L E P H O N E :( 4 15 ) 36 4 -6 7 00 F A X :( 41 5 ) 36 4 -6 7 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 DEFENDANT FORD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS THIRTY-SIXTH AFFIRMATIVE DEFENSE (Punitive Damages Impermissible For Extra-Territorial Conduct) Any award of punitive damages based on anything other than Ford’s conduct in connection with the design, manufacture, and sale of the subject vehicle or products that are the subject of this lawsuit would violate the due process clause of the Fourteenth Amendment to the United States Constitution because any other judgment for punitive damages in this case cannot protect Ford against impermissible multiple punishment for the same wrong and against punishment for extra-territorial conduct. THIRTY-SEVENTH AFFIRMATIVE DEFENSE (Punitive Damages Unconstitutional) An award of punitive or exemplary damages to Plaintiff would violate Ford’s constitutional rights under the provisions of the United States and California Constitutions, including but not limited to the Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 7 of the California Constitution because, among other things, (1) any award of punitive or exemplary damages would be grossly out of proportion to the alleged wrongful conduct and purported injury at issue here; (2) there is no legitimate state interest in punishing the alleged wrongful conduct at issue here, or in deterring its possible repetition; (3) the alleged wrongful conduct at issue here is lawful in other jurisdictions; (4) the alleged wrongful conduct at issue here is not sufficiently reprehensible to warrant the imposition of any punitive or exemplary damages; and (5) the criteria for the imposition of punitive or exemplary damage are unconstitutionally vague and uncertain and fail to provide fair notice of what conduct will result in the imposition of such damages. THIRTY-EIGHTH AFFIRMATIVE DEFENSE (Clear and Convincing Standard for Punitive Damages) Ford alleges that any predicate liability finding for the imposition of punitive damages or a finding of the amount of any punitive damage award based upon a burden of proof of less than clear and convincing evidence violates due process and is unconstitutional. / / / S C H N A D E R H A R R IS O N S E G A L & L E W IS L L P 6 50 C A L IF O R N IA S T R E E T ,1 9 T H F L O O R S A N F R A N C IS C O ,C A 94 10 8 -2 7 36 T E L E P H O N E :( 4 15 ) 36 4 -6 7 00 F A X :( 41 5 ) 36 4 -6 7 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 DEFENDANT FORD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS THIRTY-NINTH AFFIRMATIVE DEFENSE (Punitive Damages - Financial Status of Defendant) To the extent that California law permits punishment to be measured by the net worth or financial status of Ford and allows the fact finder to impose greater punishment on defendants with larger net worth, such an award would be unconstitutional because it permits arbitrary, capricious and fundamentally unfair punishments, allows bias and prejudice to infect verdicts imposing punishment, allows punishment to be imposed based on lawful profits and conduct of Ford in other States, and allows dissimilar treatment of similarly situated defendants, in violation of the due process and equal protection provisions of the Fourteenth Amendment to the United States Constitution, the Commerce Clause of the United States Constitution, and the California Constitution. FORTIETH AFFIRMATIVE DEFENSE (Arbitration Clause in Purchase Agreement) The purchase or lease agreement for the subject vehicle, signed by Plaintiff, includes an agreement to arbitrate. Plaintiff has thus agreed to resolve this dispute by neutral, binding arbitration and not by court action. FORTY-FIRST AFFIRMATIVE DEFENSE (Set Off) Defendant alleges that if it is established that it is in any manner legally responsible for any of the damages claimed by Plaintiff, which is denied, Defendant is entitled to a set off of those damages, if any, that resulted from the wrongful acts of Plaintiff and/or others. FORTY-SECOND AFFIRMATIVE DEFENSE (Fees and Costs) Defendant is informed and believes, and on that basis alleges, that the Complaint was brought without reasonable cause and without a good faith belief that there was a justifiable controversy under the facts or the law which warranted the filing of the Complaint against Defendant. Plaintiff should therefore be responsible for all of Defendant’s necessary and reasonable attorney’s fees and defense costs as permitted by California law. S C H N A D E R H A R R IS O N S E G A L & L E W IS L L P 6 50 C A L IF O R N IA S T R E E T ,1 9 T H F L O O R S A N F R A N C IS C O ,C A 94 10 8 -2 7 36 T E L E P H O N E :( 4 15 ) 36 4 -6 7 00 F A X :( 41 5 ) 36 4 -6 7 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 DEFENDANT FORD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS FORTY-THIRD AFFIRMATIVE DEFENSE (Additional Defenses) Ford alleges that it may have additional affirmative defenses available to it of which it is not now fully aware. Ford reserves the right to assert affirmative defenses after the same shall have been ascertained. PRAYER WHEREFORE, Ford prays as follows: 1. For dismissal of Plaintiff’s Complaint with prejudice; 2. For judgment in favor of Ford against Plaintiff; 3. For Ford’s fees and costs of suit herein; and 4. For such other and further relief as the Court may deem just and proper. DEMAND FOR JURY TRIAL Ford hereby demands a jury trial on all claims asserted by Plaintiff. Dated: March 15, 2019 SCHNADER HARRISON SEGAL & LEWIS LLP By: RICHARD J. MAY Attorneys for Defendant FORD MOTOR COMPANY D. _: ‘5 U)~92thoLULLNO .JE o'ohlnqoo9o¢ __]~;