Removal to Federal Court

Cal. Super. - 6th Dist.June 11, 2019

SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET, 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 QCV349624 Santa Clara - Civil 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 SILVA AUTO GROUP, INC. d/b/a MADERA FORD IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA - UNLIMITED JURISDICTION JULIA MAGANA and TONY MAGANA, Plaintiffs, vs. FORD MOTOR COMPANY; SILVA FORD MADERA; and DOES 1 through 10, inclusive, Defendants. Patricia Herna Electronically Filed by Superior Court of CA, County of Santa Clara, on 7/31/2019 12:17 PM Reviewed By: Patricia Hernande Case #1 9CV349624 Envelope: 3202528 Case No. 19CV349624 DEFENDANTS FORD MOTOR COMPANY AND SILVA AUTO GROUP, INC. D/B/A MADERA FORD’S NOTICE OF REMOVAL OF STATE COURT ACTION TO THE UNITED STATES DISTRICT COURT Action Filed: June 11, 2019 Trial Date: None assigned DEFENDANTS’ NOTICE OF REMOVAL OF STATE COURT ACTION TO THE UNITED STATES DISTRICT COURT ndez 32 SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (415) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO PLAINTIFFS, THEIR COUNSEL OF RECORD, AND THE CLERK OF THE SANTA CLARA COUNTY SUPERIOR COURT: PLEASE TAKE NOTICE that Defendants FORD MOTOR COMPANY and SILVA AUTO GROUP, INC., erroneously sued as SILVA FORD MADERA (“Defendants”) have filed in the United States District Court for the NORTHERN District of California a Notice 0f Removal 0f the above-captioned case pursuant t0 United States Code, Title 28, Section 1441(b). A copy 0fDefendants’ Notice ofRemoval is attached hereto as Exhibit “A. ” PLEASE TAKE FURTHER NOTICE that, pursuant to 28 U.S.C. section 1446(d), the filing 0f the Notice 0fRemoval, together With this Notice, effects the removal of the action, and the above-captioned State court is requested to proceed n0 further unless and until the case is remanded. Dated: July 31, 2019 SCHNADER HARRISON SEGAL & LEWIS LLP By: RI HARD J. MAY Attorneys for Defendants FORD MOTOR COMPANY and SILVA AUTO GROUP, INC. d/b/a MADERA FORD 1 DEFENDANTS’ NOTICE OF REMOVAL OF STATE COURT ACTION TO THE UNITED STATES DISTRICT COURT EXHIBIT A SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET, 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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, Suite 1900 San Francisco, California 94108-2736 Telephone: (415) 364-6700 Facsimile: (415) 364-6785 Attorneys for Defendants FORD MOTOR COMPANY and SILVA AUTO GROUP, INC. d/b/a MADERA FORD IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT 0F CALIFORNIA (SAN JOSE DIVISION) JULIA MAGANA and TONY MAGANA, Case N0. Plaintiffs, NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. SECTION vs. 1441(b) (Diversity Jurisdiction) FORD MOTOR COMPANY; SILVA FORD MADERA; and DOES 1 through 10, inclusive, Action Filed: June 11, 2019 Defendants. Trial Date: None assigned TO THE CLERK OF THE ABOVE-ENTITLED COURT: PLEASE TAKE NOTICE that Defendants Ford Motor Company (“Ford”) and Silva Auto Group, Inc. d/b/a Madera Ford (“Silva”), by their counsel, hereby remove to this Court, pursuant to 28 U.S.C. §§ 1332, 1441 and 1446, based on diversity 0f citizenship, the claims pending as Case N0. 19CV349624 in the Superior Court of California, County 0f Santa Clara. Ford has agreed t0 defend and indemnify Silva Auto Group, Inc. Plaintiffs assert claims arising under California’s Song-Beverly Consumer Warranty Act. (Cal. CiV. Code § 1790 ez‘ seq.) 1 NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. SECTION 1441(b) SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET, 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In support of this removal, Defendants state: I. THE REMOVED CASE 1. The removed case is a civil action commenced in the Superior Court 0f California, County 0f Santa Clara, by Plaintiffs (“Plaintiffs”) against Ford and Silva, entitled Julia Magana and Tony Magana v. Ford Motor Company, et al., Case N0. 19CV349624 (“State Action”). The two named defendants are Ford and Silva. 2. Plaintiffs filed the State Action on June 11, 2019, asserting claims against Ford for breach 0f the express and implied warranties under the Song-Beverly Consumer Warranty Act (Cal. Civ. Code § 1790 et seq.) (“Song-Beverly”) and fraud by omission. (See Complaint, attached as Exhibit B.) Ford and Silva believes the only claims Plaintiffs intend t0 assert against Silva is for negligent repair. II. PROCEDURAL REQUIREMENTS 3. This notice of removal is timely because Ford and Silva were served With a copy of the Complaint on 0r about June 28, 2019. See 28 U.S.C. § 1446(b). A true and accurate copy of the Notice 0f Service of Process for the Complaint 0n Ford is attached hereto as Exhibit A. 4. Pursuant t0 28 U.S.C. § 1446(a), copies of all process, pleadings, and orders for the State Action that have been served 0n Ford 0r are in Ford’s possession are contained in Exhibit C filed herewith. 5. Pursuant t0 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 t0 28 U.S.C. § 1446(d), a true and correct copy 0f this Notice 0f Removal Will be filed With the Superior Court of California, County of Santa Clara, promptly after filing 0f same in this Court. 7. Pursuant t0 28 U.S.C. § 1446(d), written notice 0f filing 0f this Notice of Removal Will be given t0 all adverse parties promptly after the filing 0f same in this Court. 8. Consistent With Congress’s intent that parties may amend allegations of 2 NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. SECTION 1441(b) SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 has noted that sua sponte dismissals Without prior notice 0r 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 0f this removal, Ford and Silva request the opportunity t0 amend this Notice of Removal following any necessary discovery, briefing, and oral argument. 9. Nothing in this Notice 0f Removal shall be interpreted as a waiver 0r relinquishment of Ford and Silva’s right t0 assert defenses including, Without limitation, the defenses of (i) lack 0f personal jurisdiction, (ii) improper venue and/orforum non conveniens, (iii) insufficiency of process, (iv) insufficiency of service of process, (V) improper joinder of claims and/or parties, (Vi) failure t0 state a claim, (Vii) failure t0 join indispensable party(ies), or (viii) the right t0 arbitrate this controversy, 0r (ix) any other procedural 0r substantive defense available under state 0r 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 t0 a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal.” St. Paul Mercury Indem. C0. v. Red Cab Ca, 303 U.S. 283, 288-89 (1938). 12. Ford and Silva dispute that they are liable t0 Plaintiffs 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 t0 “file a notice of removal that includes “a plausible allegation that the amount in controversy exceeds the jurisdictional threshold.” Ibarra v. Manheim Invs., Ina, 775 F.3d 1193, 1195 (9th Cir. 2015) (quoting Dart Cherokee Basin Operating C0,, 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 3 NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. SECTION 1441(b) SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET, 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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. 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. C0,, 443 F.3d 676, 690 (9th Cir. 2006) (internal citation omitted). But a defendant may remove a suit t0 federal court notwithstanding the failure 0f the plaintiff to plead the required amount. Absent the facial showing from the complaint, the court may consider facts averted 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 0f the evidence, Whether the amount-in-controversy requirement has been satisfied.” Ibarra, 775 F.3d at 1195. At that time, “it may be appropriate t0 allow discovery relevant t0 [the] jurisdictional amount prior t0 remanding.” Abrego, 443 F.3d at 691 (internal citation omitted). 14. In this case, Plaintiffs expressly seeks damages in an “amount that is not less than $25,001” plus a civil penalty of two times actual damages. (Complaint 1H 13-16, 21, 24, 28, and Prayer.) He 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 0r exceed $50,000. Thus, the Complaint 0n its face seeks recovery ofmore than $75,000. (Declaration of Richard J. May (“May Decl.”), 1] 5.) 15. The Court may include civil penalties potentially recoverable under Song- Beverly in calculating the amount in controversy. See Romo v. FFG Ins. C0., 397 F. Supp. 2d 1237, 1240 (C.D. Cal. 2005); Brady v. Mercedes-Benz USA, Ina, 243 F. Supp. 2d 1004, 1009 (ND. 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’s fees. Brady, 243 F. Supp. 2d at 101 1; Guglielmino v. McKee Foods Corp, 506 F.2d 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. C0. 0fAriz., LLC, 899 F.3d 785, 788, 794-95 (9th Cir. 2018) (holding attorney fees are included in amount in controversy in cases remove under Class Action 4 NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. SECTION 1441(b) SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET, 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Fairness Act). 16. If Plaintiffs were t0 prevail 0n their Song-Beverly claims, they could be awarded damages 0f $75,000 0r more if awarded statutory civil penalties. Even before taking punitive damages into account, the amount in controversy already exceeds $75,000.00, Which includes attorney’s fees and the retail price of $29,460.00 plus $58,920.00 as a 2X civil penalty pursuant to Song-Beverly.1 17. Plaintiffs also pray for punitive damages. (Complaint at Prayer.) The amount in controversy also includes punitive damages. Gibson v. Chrysler Corp, 261 F.3d 927, 945 (9th Cir. 2001). When Plaintiffs” claims for restitution 0f the purchase price plus prejudgment interest, punitive damages, attorney fees, and civil penalties 0f two times actual damages are considered, the amount in controversy far exceeds $75,000. IV. DIVERSITY OF CITIZENSHIP EXISTS 18. Plaintiffs are, and were at the time 0f filing 0f the Complaint, citizens 0f Fresno, County, California. 19. Ford is, and was at the time Plaintiffs commenced this action, a corporation incorporated in and organized under the laws of the State 0f Delaware with its principal place of business in Michigan. This Court can take judicial notice 0f these facts. (See Exhibit D, Excerpt from Ford’s 2017 Form lO-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 Silva and Fraudulent Joinder 20. “There are two ways to establish fraudulent joinder: “(1) actual fraud in the pleading ofjurisdictional facts, or (2) inability 0f the plaintiff to establish a cause 0f 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. 1 Ford has not located the sales contract for the Subj ect Vehicle, but its Manufacturer Suggested Retail Price is $29,460.00. 5 NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. SECTION 1441(b) SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET, 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “Fraudulent joinder is established the second way if a defendant shows that an ‘individual[ ] joined in the action cannot be liable 0n any theory.”’ Id. (citation omitted). In other words, removing parties must show “an ‘obVious’ failure t0 state a claim” against them. Id. at 549. 21. Ford contends that Plaintiffs fraudulently joined Silva in this case for n0 reason other than to defeat diversity jurisdiction and prevent removal 0f the action t0 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 0r colorable ground supporting the claim against the joined defendant, 0r no real intention in good faith to prosecute the action against the defendants or seek a joint judgment”). 22. The Complaint asserts seven Causes of Action. 23. The First through Fifth and Seventh Causes of Action are expressly asserted against Ford only. 24. Plaintiff s First Cause 0f Action is asserted against “Defendant FMC” and claims “Defendant failed and refused to promptly replace the Vehicle 0r make restitution” to Plaintiffs as required by Civil Code section 1793.2, subdivision (d) and Civil Code section 1793.1, subdivision (a)(2). (Complaint 1] 11.) The obligation to repurchase a vehicle or make restitution under Civil Code § 1793.2(d) expressly applies only to manufacturers. Silva is not a manufacturer. Civil Code §1793.1 applies only t0 manufacturers 0r retailers who make express warranties. The warranty alleged by Plaintiffs was issued only by Ford, not Silva. 25. Plaintiff s Second Cause 0f Action is asserted against “Defendant FMC” and purports t0 be based on “Defendant’s failure t0 comply With its obligations pursuant to Civil Code §1793.2(b).” (Complaint 1] 21.) Civil Code §1793.2(b) requires manufacturers 0r their representatives in this state t0 commence repairs within a reasonable time and to complete them Within 30 days. Plaintiffs d0 not allege that Silva failed to accomplish repairs Within 30 days. 26. Plaintiffs’ Third Cause of Action is asserted against “Defendant FMC” and is based 0n “Defendant’s failure to comply with its obligations under Civil Code § 1793.2, subdivision (a)(3).” (Complaint 1] 24.) Civil Code § 1793.2(a)(3) applies only to manufacturers of consumer goods. Silva is not a manufacturer 0f consumer goods. 6 NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. SECTION 1441(b) SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET, 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 27. Plaintiffs’ Fourth Cause of Action is asserted against “Defendant FMC” and alleges breach 0f Ford’s express written warranty, not breach of any warranty issued by Silva. (Complaint 1H 26-28.) 28. Plaintiffs’ Fifth Cause of Action is asserted against “Defendant FMC” and alleges breach of the implied warranty 0f merchantability. Plaintiffs allege that the implied warranty at issue “is coextensive in duration with the duration of the express warranty provided by Defendant.” (Complaint fl 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 vehicle was sold new. Plaintiffs do not allege a breach 0f any implied warranty that might (or might not) have arisen in connection With Plaintiffs’ purchase 0f the vehicle from the selling dealership. 29. Plaintiffs’ Seventh Cause of Action is asserted against “Defendant FMC” and claims Ford “concealed and failed to disclose the defective nature 0f the Vehicle and its door latch system t0 Plaintiffs” when the vehicle was sold. (Complaint 11 44.) Plaintiffs d0 not allege any fraudulent conduct by Silva. 30. Plaintiff’s Sixth Cause of Action is asserted against “Defendant SFM,” i.e. Silva, and claims the dealership breached a duty “t0 use ordinary care and skill in storage, preparation and repair” 0f the vehicle. (Complaint 1] 36.) 3 1. Ford believes that Plaintiffs have no intention of pursuing any claim against Silva, and that Silva was only named t0 defeat the claim of diversity and removal t0 Federal Court. B. Plaintiffs Cannot Establish Claims Against Silva Based On Negligent Repair 32. Plaintiffs will not be able to establish a valid claim against Silva based on a breach 0f the implied warranty because any such claim is barred by the statute of limitations, and n0 tolling doctrine applies. Plaintiffs’ Sixth Cause 0f Action vaguely alleges a claim of negligent repair against Silva for breach of a duty “t0 use ordinary care and skill in storage, preparation and repair of the Subj ect Vehicle in accordance with industry standards” without any further detail. (Complaint fl 36.) Plaintiffs d0 not allege how, if at all, Silva failed t0 properly store, prepare 0r repair the vehicle 0r when they discovered Silva’s breach. Silva’s last encounter With the Subj ect 7 NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. SECTION 1441(b) SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET, 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Vehicle during Plaintiffs’ ownership period was a repair completed 0n 0r about May 15, 2015, according t0 the available repair records and the Subj ect Vehicle’s Carfax Vehicle History Report. (May Decl. fl 8) Silva’s breach, if any, must have occurred n0 later than the completion of this repair on or about May 15, 2015. Plaintiffs sold 0r traded the vehicle on 0r about November 25, 2015, according t0 a recent Carfax Vehicle History Report for the Subj ect Vehicle. (May Decl. 9.) 33. The California Code of Civil Procedure establishes a three-year statute 0f limitations to initiate an “action for. .. injuring goods,” such as Plaintiff s claim for negligent repair. CCP § 338 (c)(l). Thus, Plaintiffs are required t0 have brought an action for negligent repair Within three years 0f Silva’s repair 0n May 15, 2015, in order for their claim to be timely. Plaintiffs filed their Complaint on June 11, 2019, more than four years after both this repair and three years after their sale of the vehicle thereby barring their claim for negligent repair against Silvas. 34. The economic loss rule also bars any claim by Plaintiffs for negligent repair unless those losses are accompanied by personal injury 0r physical damage to property. (See Seely v. White Motor C0., 63 Cal.2d 9 (I965); Ruiz v. BMWofN. Am., LLC 2017 U.S. Dist. LEXIS 6983, at 4-5 (C.D. Cal. Jan. 18, 2017) [“The economic loss rule precludes tort claims for purely economic damages”]; (UMG Recordings, Inc. v. Global Eagle Entm't, Ina, 117 F. Supp. 3d 1092, 1103 (C.D. Cal. 2015).) Further, a plaintiff cannot recover in tort for damages t0 a defective product itself- the defective product must cause damage t0 a person 0r other property in order t0 give rise t0 a tort remedy. (See Jimenenz v. Superior Court, 29 Ca1.4th 473, 481-83 (2002); Sea-Land Serv. v. GE, 134 F.3d 149, 156 (3d Cir. 1998) [“. . .Where damage is only t0 the product itself and where the only loss is economic, there is no basis for tort recovery.”]; Bedgood v. Nissan N. Am., Ina, 2016 U.S. Dist. LEXIS 82716, at *12-13 (W.D. TeX. June 23, 2016 [“Plaintiffs seek to recover economic losses from Nissan, but have not claimed the allegedly defective Pathfinder caused personal injury 0r damage to property other than the Pathfinder itself. Accordingly, Plaintiffs’ negligence, negligent misrepresentation, and negligent repair claims are dismissed.”]; Wren Indus. v. Verson Allsteel Press, 84 F. Supp.2d 91 1, 915 8 NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. SECTION 1441(b) SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET, 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (S.D. Ohio 1999) [“. . .When the only harm claimed is economic loss and damage to the product itself, courts in other jurisdictions, which follow principles similar to those set forth in Chemtrol, have held that such an action cannot be maintained. . .This Court finds the result reached and the rationale employed in those decisions t0 be persuasive.”].) 35. Plaintiffs allege that Silva’s unspecified negligence was a “proximate cause 0f Plaintiffs’ damages.” (Complaint 1] 38.) Plaintiffs’ alleged damages are limited t0 damage t0 the vehicle itself. (ComplaintW 35-38.) The remedies sought by Plaintiffs are solely for economic losses such as payments made and diminution in value 0f the vehicle. (Complaint 11 20.) Plaintiffs also d0 not allege any personal injury 0r property damages. Accordingly, the economic loss rule applies to bar Plaintiffs’ claim against Silva. 36. The joinder 0f Silva is fraudulent because the Complaint does not and cannot state a cause of action against Silva. (Gasumyan v. Travelers Cas. Ins. C0. 0fAm., 2017 U.S. Dist. LEXIS 73013, at *4 (C.D.Ca1.May 11, 2017). 37. Accordingly, Ford believes that Plaintiffs have n0 intention 0f pursuing any claim against Silva, and that Silva was named in the Complaint only t0 defeat diversity and thus prevent removal to this Court. C. Silva Ford Is A “Dispensable Party” Pursuant T0 FRCP 21 And May Be Severed From This Action 38. Alternatively, under Fed. R. CiV. P. 21, “the court may, at any time, 0n just terms, add 0r 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 t0 allow a dispensable nondiverse party t0 be dropped at any time, . . .”). 39. Silva is not a necessary party. Plaintiffs can secure full relief from Ford alone because the gravamen of Plaintiffs’ claims is that his Ford vehicle allegedly had an irreparable defect. (Complaint 1N 8-16.) Plaintiffs’ only claim against Silva is barred by the applicable 9 NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. SECTION 1441(b) SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET, 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 statute of limitations and the economic loss rule. Complete relief is afforded Without the dealership, s0 there is n0 prejudice t0 Plaintiffs. Keledjian v. Jabil Circuit, Ina, 17 CV0332- MMA, 2017 U.S.Dist. LEXIS 127384, at *18 (S.D. Cal. Aug. 10, 2017). 40. For the reasons stated above, there is diversity of citizenship between Plaintiffs, who are California citizens, and Ford, a citizen 0f Michigan and Delaware. Though Silva is a California citizen, the Court still has subj ect matter jurisdiction over this dispute under 28 U.S.C. § 1332, as Silva was fraudulently joined by Plaintiffs. Alternatively, this Court may sever Silva and any claims against it (although there are none that are valid), as a dispensable and nondiverse party pursuant to FRCP 2 1. V. CONCLUSION 41. For the reasons stated above, the State Action may be removed t0 this Court by Ford and Silva in accordance with the provisions 0f 28 U.S.C. §§ 1332, 1441 and 1446 because: (i) this action is a civil action pending within the jurisdiction 0f the United States District Court for the Northern District 0f 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 0f different states. WHEREFORE, Defendants Ford and Silva hereby notify Plaintiffs and their attorneys that this action, formerly pending in Santa Clara County Superior Court, has been removed from that court t0 this Court. Dated: July 29, 2019 SCHNADER HARRISON SEGAL & LEWIS LLP By: /s/ Richard J. May STEPHEN H. DYE RICHARD J. MAY Attorneys for Defendants FORD MOTOR COMPANY and SILVA AUTO GROUP, INC. d/b/a MADERA FORD 10 NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. SECTION 1441(b) EXHIBIT A Service of Process Transmittal 06/28/2019 CT Log Number 535771508 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 / PS 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: Julia Magana and Tony Magana, Pltfs. vs. Ford Motor Company, et al., Dfts. DOCUMENT(S) SERVED: Summons, Complaint, Notice(s), Sheet(s), Instructions COURT/AGENCY: Santa Clara County - Superior Court - San Jose, CA Case # 19CV349624 NATURE OF ACTION: Product Liability Litigation - Lemon Law - 2011 Ford Edge, VIN: 2FMDK3GC4BBB68380 ON WHOM PROCESS WAS SERVED: C T Corporation System, Los Angeles, CA DATE AND HOUR OF SERVICE: By Process Server on 06/28/2019 at 15:40 JURISDICTION SERVED : California APPEARANCE OR ANSWER DUE: Within 30 days after service (Document(s) may contain additional answer dates) ATTORNEY(S) / SENDER(S): Tionna Dolin Strategic Legal Practices, A Professional Corporation 1840 Century Park East, Suite 430 Los Angeles, CA 90067 310-929-4900 ACTION ITEMS: CT has retained the current log, Retain Date: 06/28/2019, Expected Purge Date: 07/03/2019 Image SOP Email Notification, Chris Dzbanski cdzbansk@ford.com SIGNED: C T Corporation System ADDRESS: 818 West Seventh Street Los Angeles, CA 90017 TELEPHONE: 213-337-4615 SUMMONS FOP COURT USE ONL V (SOLO PAPA USO OS LA CORTE) (CITACION JUDICIAL) E-FILED NOTICE TO DEFENDANT: 6/11/2019 5:57 PM (AVISO AL DEMANDADO): FORD MOTOR COMPANY; SILVA FORD MADERA; and DOES I Clerk of Court through 10, inclusive, Superior Court of CA, County of Santa Clara YOU ARE BEING SUED BY PLAINTIFF: 19CV349624 (LO ESTA DEMANDANDO EL DEMANDANTE): Reviewed By: M Vu JULIA MAGANA and TONY MAGANA Envelope: 2996461 against you without your being heard unless you below. You have 30 CALENDAR DAYS after this summons and legal papers are served on you to tile 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 (www.couninfo.ca.gov/selfnetp), your county law library, or the courthouse nearest you. If you cannot pay the tiling 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 property 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.lawhelpcaliibmia.oig), the California Courts Online Self-Help Center (wwivcoudinfo.ca.gov/selfhelp), 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. 1A V/SO! Lo han dernandado. Si no responde denim de 30 dias, la curie puede decidir en su contra sin escuchar su version. Lea /a infomiaciOn a continuaciOn. liens 30 OIAS DE CALENDARIO despuOs do quo (a entreguen esta citadon y palliates legates pare presen far una respuest a pot escillo an esla carte y hacer qua Se entregue una copia at demandanle. Una carla o una llamada tetefonica no to pmtegen. Si, rospuesta pot osthto tiene quo ester on formato legal correcto Si doses qua procosen su case on to cone. Es posible QUO haya an forn,ulaflo quo usfed pueda user pare su respuesla. Puede encontrar estos forrnularios de /a cotta y mas information an at Centre de Ayuda do las Cones do California (www.sucorte.ca.gov), on to biblioteca do (eyes de su condado o an to cotta quo Is quede mas cerca. Si no puede pager to cuota de presentacion, pida at secretario do to cone qua Ia dO an formularlo do exen don do pago do cuotas. Si no presenta su respuasia a liempo, puede pettIer at caso por incumplimiento y to code Ic podré quitar su sue/do, dinero y biones sin mOs advedonda. Hay oltos req uisitos le gales. Es recomendable quo liame a on abogedo inmediatamente. Si no conoce a on abogado. puede (lamar a an setvicio do remisiAn a abogados. Si no puede pager a an abogado, as posible quo cumpla con los requisilos pars obtener servicios lassies graf altos do an pro g,ama de soMdos legatee sin fines do lucre. Puede encont'ar estos grupos sin fines do lucre an all sit io web de California Legal Services, (www.lawhetpcalifomia.org), an 0/ Centre do Ayuda dales Codas do California, (www.sucorte.ca.gov) 0 poniOndose an contacto con to cone o at colegio do abogados locales. A VISO: Pot lay, to cone lions deracho a reclamar (as cuotas y/os costos oxen los por imponor an gravamen wore cue/quiet recuperadOn do $10,000 6 mas de valor nodbida medianlo Lin acuerdo 0 una concesiOn do arbitraje an un case de derecho civil, liens quo pager ci gravamen de to code antes do qua to cede pueda desechar at caso. The name and address of the court is: CASE MJMOER: (El nombro y direcciOn do la code as): Downtown Superior Court (M)maoct/Caso): 19CV349624 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, Is dire cciOn y of nômero do told fono del abogado del demandanto, o del demandante qua no (lane abogado, es): Tionna Dolin; 1840 Century Park East, Suite 430, Los Angeles, CA 90067; Tel: (310) 929-4900 DATE: 6/11/2019 5:57 PM Clerk of Court Clerk, by (Fec/ia) (Socretai MVu Deputy (Adjunfo) (For proof or service oil/i/s summons, use Proof or servIce or summons (loan PUS-Q7U).) (Pars prueba do enfreps do oslo citation use of (orrnulario Proof of Service of Summons, (POS-010)). NOTICE TO THE PERSON SERVED: You are served trT: 1. E:J as an individual defendant. 2. C as the person sued under the fictitious name of (specify): 3 on bphalf of (specify): 1Y tr Lm y - under CCP 41610 (corporation) CCP 416.60 (minor) % CCP 41620 (defunct corporation) C CCP416.70(conservatee) CCP 416.40 (association or partnership) CCP 416.90 (authorized person) CJ other (specify): by personal delivery on (date): C(t& it FcanAdopiedIMandatoiyUse t SUMMONS coaeot CAW pmcs&rescll2.*465 Judidal Coundi of caMona aw,ufliNo.cagov suM.loo Rev. My 1. zocsj EXHIBIT B 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 C-) (0.5 U - C- - C -c E-FILED 6/11/2019 5:57 PM Tionna Dolin (SBN 299010) Clerk of Court Email: tdolin@slpattorney.com Superior Court of CA, STRATEGIC LEGAL PRACTICES County of Santa Clara A PROFESSIONAL CORPORATION 19CV349624 1840 Century Park East, Suite 430 Reviewed By: M Vu Los Angeles, CA 90067 Telephone: (310) 929-4900 Facsimile: (310) 943-3838 Attorneys for Plaintiffs JULIA MAGANA and TONY MAGANA - SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA JULIA MAGANA and TONY MAGANA, Case Nos.: 19CV349624 Plaintiffs, Hon. Dept.: vs. COMPLAINT FOR VIOLATION OF FORD MOTOR COMPANY; SILVA FORD STATUTORY OBLIGATIONS MADERA; and DOES I through 10, inclusive, Defendants. JURY TRIAL DEMANDED 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 Cl) 0 U -C 0 C C- -C I U) Plaintiffs allege as follows: PARTIES As used in this Complaint, the word "Plaintiff" shall refer to Plaintiffs JULIA I MAGANA and TONY MAGANA. Plaintiffs are residents of Fresno 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. S. Defendant SILVA FORD MADERA ("Defendant SFM") is an unknown business entity conducting business in the State of California. At all times relevant herein, Defendant DFS was engaged in the business of selling automobiles in Madera County, California. Plaintiffs are ignorant of the true names and capacities of the Defendants sued under the fictitious names DOES I to 10. They are sued pursuant to Code of Civil Procedure section 474. When Plaintiffs becomes aware of the true names and capacities of the 1 Defendants sued as DOES I to 10, Plaintiffs will amend this Complaint to state their true names and capacities. To the extent there are any statutes of limitation applicable to Plaintiffs' I 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 (N.D. Cal. No. 3:17-cv-03580), the discovery rule, fraudulent concealment rule, equitable estoppel, equitable tolling and/or repair rule. COMPLAINT; JURY TRIAL DEMANDED 2 3 4 5 6 7 8 9 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C-, I- F-i (ID FIRST CAUSE OF ACTION BY PLAINTIFFS AGAINST DEFENDANT FMC VIOLATION OF SUBDIVISION (B) OF CIVIL CODE SECTION 1793.2 8. In or about August 2011, Plaintiffs purchased a 2011 Ford Edge, vehicle identification number 2FMTDK3GC4BBB68380 (hereinafter "Vehicle"), from Defendant SFM, which was manufactured and or distributed by Defendant FMC. The Vehicle was purchased or used primarily for personal, family, or household purposes. Plaintiffs purchased the Vehicle from a person or entity engaged in the business of manufacturing, distributing, or selling consumer goods at retail. - In connection with the purchase, Plaintiff received an express written warranty, including, a 3-year/36,000 mile express bumper to bumper warranty, a 5-year/60,000 mile powertrain warranty which, inter alia, covers the engine and transmission. Defendant undertook to preserve or maintain the utility or performance of the Subject Vehicle or to provide compensation if there is a failure in utility or performance for a specified period of time. The warranty provided, in relevant part, that in the event a defect developed with the Subject Vehicle during the warranty period, Plaintiff could deliver the Vehicle for repair services to Defendant's representative and the Subject Vehicle would be repaired. During the warranty period, the Vehicle contained or developed defects, including but not limited to, defects causing the illumination of the left front door ajar light even when doors are closed; defects requiring performance of Technical Service Bulletin ("TSB") 14-0083; defects causing the high beams to stay on at all times; defects causing the failure and/or replacement of the pass switch; defects causing the illumination of the check engine light ("CEL"); defects causing the Vehicle to stall; defects causing the brakes to feel spongy; defecis requiring the brakes to be pushed hard to stop the Vehicle; defects causing the failure and/or replacement of the brake booster; electrical defects; defects causing the storage of Diagnostic Trouble Codes ("DTC") P2195 and/or P2197; defects requiring performance of Recall 13NO2; defects causing the door ajar warning light to stay on; defects causing the warning chime to stay on; defects causing the drivers door switch to be inoperable; defects COMPLAINT; JURY TRIAL DEMANDED requiring the driver's door switch to be cleaned; defects causing the failure and/or replacement of the left front latch assembly; and/or any other defects described in the Vehicle's repair history. Said defects substantially impair the use, value, or safety of the 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 Plaintiffs as required by Civil Code section 1793.2, subdivision (d) and Civil Code section 1793.1, subdivision (a)(2). 12. Plaintiffs have 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. Plaintiffs 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, Plaintiffs are entitled to a civil penalty of two times Plaintiffs' 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. Acèordingly, Plaintiffs are entitled to a civil penalty of two times Plaintiffs' actual damages pursuant to Civil Code section 1794, subdivision (e). 3 COMPLAINT; JURY TRIAL DEMANDED 2 3 4 5 6 7 8 9 10 C-, 12 13 fi 14 16 17 I! 18 Cl) 19 20 21 22 23 24 25 26 27 28 I Vehicle. II. Defendant and its representatives in this state have been unable to service or 16. Plaintiffs seek civil penalties pursuant to section 1794, subdivisions (c), and (e) 2 in the alternative and does not seek to cumulate civil penalties, as provided in Civil Code 3 section 1794, subdivision (f). 4 SECOND CAUSE OF ACTION 5 BY PLAINTIFFS AGAINST DEFENDANT FMC 6 VIOLATION OF SUBDIVISION (B) OF CIVIL CODE SECTION I7912 7 17. Plaintiffs incorporate by reference the allegations contained in the paragraphs 8 I set forth above. 9 18. Although Plaintiffs presented the Vehicle to Defendant's representative in this 10 state, Defendant and its representative failed to commence the service or repairs within a C-) 11 reasonable time and failed to service or repair the Vehicle so as to conform to the applicable 12 warranties within 30 days, in violation of Civil Code section 1793.2, subdivision (b). ° 13 Plaintiffs did not extend the time for completion of repairs beyond the 30-day requirement. U • 14 19. Plaintiffs have been damaged by Defendant's failure to comply with its jfl is obligations pursuant to Civil Code section 1793.2(b), and therefore bring this Cause of Action - 16 pursuant to Civil Code section 1794. cb 17 20. Plaintiffs have rightfully rejected and/or justifiably revoked acceptance of the (I) 18 Vehicle, and have exercised a right to cancel the purchase. By serving this Complaint, 19 Plaintiffs do so again. Accordingly, Plaintiffs seek the remedies provided in California Civil 20 Code section 1794(b)(1), including the entire contract price. In the alternative, Plaintiffs seek 21 the remedies set forth in California Civil Code section 1794(b)(2), including the diminution in 22 value of the Vehicle resulting from its defects. Plaintiffs believes that, at the present time, the 23 Vehicle's value is de minimis. 24 21. Defendant's failure to comply with its obligations under Civil Code section 25 1-793.2(b) was willful, in that Defendant and its representative were aware that they were 26 obligated to service or repair the Vehicle to conform to the applicable express warranties 27 within 30 days, yet they failed to do so. Accordingly, Plaintiffs are entitled to a civil penalty 28 of two times Plaintiffs actual damages pursuant to Civil Code section 1794(c). 4 COMPLAINT; JURY TRIAL DEMANDED o I!; 12 : 14 15 - 16 - 0$ 17 18 (I) 19 THIRD CAUSE OF ACTION 2 BY PLAINTIFFS AGAINST DEFENDANT FMC 3 VIOLATION OF SUBDIVISION (A)(3) OF CIVIL CODE SECTION 1793.2 4 22. Plaintiffs incorporate 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. Plaintiffs have 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. 24. 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, Plaintiffs are 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 20 (CIV. CODE, § 1791.2, SURD. (a); § 1794) 21 25. Plaintiffs incorporate by reference the allegations contained in paragraphs set 22 I forth above. 23 26. In accordance with Defendant's warranty, Plaintiffs delivered the Vehicle to 24 Defendant's representative in this state to perform warranty repairs. Plaintiffs did so within a 25 reasonable time. Each time Plaintiffs delivered the Vehicle, Plaintiffs notified Defendant and 26 its representative of the characteristics of the Defects. However, the representative failed to 27 repair the Vehicle, breaching the terms of the written warranty on each occasion. 28 COMPLAINT; JURY TRIAL DEMANDED 2 3 4 5 6 7 8 9 10 C-) 12 13 z 14 15 16 L'. - 17 is Cl) 19 Plaintiffs have been damaged by Defendant's failure to comply with its obligations under the express warranty, and therefore bring .this Cause of Action pursuant to Civil Code section 1794. Defendant's failure to comply with its obligations under the express warranty was willful, in that Defendant and its authorized representative were aware that they were obligated to repair the Defects, but they intentionally refused to do so. Accordingly, Plaintiffs are entitled to a civil penalty of two times of Plaintiffs' actual damages pursuant to Civil Code section 1794(c). FIFTH CAUSE OF ACTION BY PLAINTIFFS AGAINST DEFENDANT FMC BREACH OF THE IMPLIED WARRANTY OF MERCHANTABILITY (CIV. CODE, § 1791.1; § 1794; § 1795.5) Plaintiffs incorporate 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 COMPLAINT; JURY TRIAL DEMANDED goods are used, (3) is not adequately contained, packaged, and labelled, and (4) does not 2 conform to the promises or affirmations of fact made on the container or label. 3 33. Plaintiffs have been damaged by Defendant's failure to comply with its 4 obligations under the implied warranty, and therefore bring this Cause of Action pursuant to 5 Civil Code section 1794. 6 SIXTH CAUSE OF ACTION 7 BY PLAINTIFF AGAINST DEFENDANT SFM 8 NEGLIGENT REPAIR 9 34. Plaintiffs incorporate by reference the allegations contained in the paragraphs 10 set forth above. C-) 35. Plaintiffs delivered the Subject Vehicle to Defendant SFM for substantial repair 12 on at least one occasion. CID U 1 36. Defendant SFM owed a duty to Plaintiffs to use ordinary care and skill in C-) 14 storage, preparation and repair of the Subject Vehicle in accordance with industry standards. 0 15 37. Defendant SFM breached its duty to Plaintiffs to use ordinary care and skill by C-) 16 failing to properly store, prepare and repair the Subject Vehicle in accordance with industry 0 17 standards. Cl) 18 38. Defendant SFM's negligent breach of its duties owed to Plaintiffs was a 19 proximate cause of Plaintiffs' damages. 20 SEVENTH CAUSE OF ACTION 2! BY PLAINTIFFS AGAINST DEFENDANT FMC 22 (Fraud by Omission) 23 39. Plaintiffs incorporate by reference the allegations contained in the paragraphs 24 I set forth above. 25 40. Defendant committed fraud by allowing the Vehicle to be sold to Plaintiffs 26 without disclosing that the Vehicle contain defects within the door latch assembly that can 27 cause unwarranted "door ajar" warnings which lead to the doors not locking and the battery 28 running down (the "Door Ajar Defect"). 7 COMPLAINT; JURY TRIAL DEMANDED 41. In particular, Plaintiffs are informed, believe, and thereon allege that prior to 2 Plaintiffs acquiring the Vehicle, Ford was well aware and knew of the Door Ajar Defect 3 within the Subject Vehicle but failed to disclose this fact to Plaintiffs at the time of sale and 4 thereafter.' 5 42. Specifically, Ford knew (or should have known) that 2011 to 2016 Ford Edges, 6 including the 2011 Ford Edge, 2012 to 2014 Ford Flexes, 2013 to 2014, Ford Explorers, 2011 7 to 2013 Lincoln MKXs, and 2013 Lincoln MKTs frequently, but intermittently, display a false 8 "door ajar" warning even when all of the doors are closed. The warning may remain active for 9 hours, including after the vehicle is turned off, and it does not deactivate when the doors are 10 opened and shut once again. When the warning is falsely activated, all of the doors unlock, C II and the driver is unable to relock them, permitting passengers or bystanders to open the doors 12 while the vehicle is in operation and allowing the doors to open in the event of an accident, 13 thereby increasing the risk of harm to the vehicle's occupants. These false warnings also cause 14 the interior dome lights to illuminate and remain on for an unspecified period of time, and an 15 audible alarm sounds repeatedly. The failure of the dome lights to extinguish makes it difficult 16 to see the road and other vehicles at night. And because the lights can remain on long after the 17 vehicle is turned off, the battery is at risk of draining. 18 43. Plaintiffs are informed, believe and thereon allege that Ford acquired its 19 knowledge of the Door Ajar Defect prior to Plaintiffs acquiring the Subject Vehicle, through 20 sources not available to consumers such as Plaintiffs, including but not limited to pre- 21 production and postproduction testing data, early consumer complaints about the Door Ajar 22 Defect made directly to Ford and its network of dealers, aggregate warranty data compiled 23 from Ford's network of dealers, testing conducted by Ford in response to these complaints, as 24 well as warranty repair and part replacements data received by Ford from Ford's network of 25 dealers, amongst other sources of internal information. 26 27 28 Indeed, Defendant has issued various technical bulletins to its dealers (not consumers) concerning the Door Ajar Defect. COMPLAINT; JURY TRIAL DEMANDED 0 12 13 14 15 U 16 17 18 En, 20 21 22 23 24 25 26 27 28 44. Plaintiffs are informed, believe, and thereon allege that while Defendant knew 2 about the Door Ajar Defect, and its safety risks since 2011: if not before, Defendant 3 nevertheless concealed and failed to disclose the defective nature of the Vehicle and its door 4 latch system to Plaintiffs at the time of sale and thereafter. Had Plaintiffs known that the 5 Subject Vehicle suffered from the Door Ajar Defect, they would not have purchased the 6 I Vehicle. 7 45. Indeed, PlaintiffS alleges that Defendant knew that the Vehicle and its door 8 latch system suffered from an inherent defect, was defective, would fail prematurely, and was 9 not suitable for its intended use. 10 46. Defendant was under a duty to Plaintiffs to disclose the defective nature of the Vehicle and its door latch system, its safety consequences and/or the associated repair costs because: Defendant acquired its knowledge of the Door Ajar Defect and its potential consequences prior to Plaintiffs acquiring the Vehicle, through sources not available to consumers such as Plaintiffs, including but not limited to pre-production testing data, early consumer complaints about the Door Ajar 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 door latch system; C. Plaintiffs could not reasonably have been expected to learn or discover of the Vehicle's Door Ajar Defect and its potential- consequences until well after Plaintiffs purchased the Vehicle. Plaintiffs discovered Defendant's wrongful conduct alleged herein at or around the time that they requested a buyback of the Vehicle from Defendant in or around April 2019; and 9 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 C-, "J o C" - -C U V d. The Door Ajar Defect is a safety concern. in failing to disclose the Vehicle's Door Ajar 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 Plaintiffs are material in that a reasonable person would have considered them to be important in deciding whether or not to purchase the Vehicle. Had Plaintiffs known that the Vehicle and its door latch system were defective at the time of sale, they would not have purchased the Vehicle. Additionally, the facts concealed are material in that they concern the safety of the Subject Vehicle. The Door Ajar Defect is a safety concern because warning lights and audible alerts in vehicles are an integral function of the vehicles' safety systems. They alert drivers to important vehicle conditions, including potential dangers and service issues that require operator response in order to prevent a hazard or an expensive repair. Similarly, studies show that door locks are crucial to the occupant protection systems in a vehicle. Door locks provide increased securement of the vehicle door, protecting occupants from ejection out of the vehicle during rollover crashes, saving hundreds of lives each year. Thus, the National Highway Traffic Safety Administration ("NHTSA") has urged that parents look for automated safety locks when purchasing a vehicle to reduce the risk of children being ejected. Studies also show that glare from interior vehicle lights activated during nighttime driving reduce driver visibility and increase driver distraction. 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 warnings and alarms will sound only if a vehicle door is open, and their customers expect the vehicles to perform as represented. Contrary to this promise and expectation, the door latch assembly of the Subject Vehicle was designed, manufactured, and sold with a defect that mistakenly recognizes the door as ajar when it is closed. As a result, the Subject Vehicle's doors remain COMPLAINT; JURY TRIAL DEMANDED unlocked and the internal door warning lights remain on, which render the Vehicle unsafe. 2 53. Plaintiffs are reasonable consumers who did not expect the door latch system to 3 fail and not work properly. Plaintiffs further expect and assume that Defendant will not sell or 4 lease vehicles with known material defects, including but not limited to the Door Ajar Defect 5 and will disclose any such defect to its consumers before selling such vehicles. 6 54. As a result of Defendant's misconduct, Plaintiffs have suffered and will 7 continue to suffer actual damages. 8 PRAYER 9 PLAINTIFFS PRAY for judgment against Defendant as follows: 10 a. 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); I 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 Plaintiffs hereby demand a jury trial on all causes of action asserted herein. I Dated: June 7, 2019 STRATEGIC LEGAL PRACTICES, BY Tionna Dolir Attorney for Plaintiffs JULIA MAGANA and TONY MAGANA U 12 fl '3 '4 15 16 '7 18 TI 20 21 22 23 24 25 26 27 28 COMPLAINT; JURY TRIAL DEMANDED EXHIBIT C ATTACHMENT CV-5012 CIVIL LAWSUIT NOTICE 19CV349624 Superior Court of California, County of Santa Clara CASE NUMBER: 191 North First St, San José, CA 95113 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 <_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 (408-882-2900 x-2926). • State Rules and Judicial Council Forms: www.courtinfo.ca.govlforms and www.courtinfo.ca.govlwles • Local Rules and Forms: http://.sccsuperiorcourt.org/civil/rule1toC.htm CASE MANAGEMENT CONFERENCE (CMC): 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 a Your Case Management Judge is: Arand, Mary E Department: 9 The To CMC is scheduled for: (Completed by Clerk of Court) • DateP9/241'2019 Time: 1:30 PM in Department: The next CMC is scheduled for: (Completed by party if the it CMC was continued or has passed) Date: Time: in Department:____________________ ALTERNATIVE DISPUTE RESOLUTION (AD!?): 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/ADR/ 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 8I0116 CIVIL LAWSUIT NOTICE Page 1 on CM-010 ATTORNEY OR QARIY VATHOLIT ATTORNEY INane. Stole Oar number. and adess): TIONNA DOLIN (S8N29901O) FOR COURT USE ONLY Strategic Legal Practices, APC 1840 Century Park East, Suite 430 Electronically Filed Los Angeles, California 90067 TELEPHONE NO.: (310) 929-4900 rMNo.: (310) 943-3838 by Superior Court of CA, ATTORNEY FOR (Nawwl Plaintiffs JULIA MAGANA and TONY MAGANA County of Santa Clara, on 6/11/2019 5:57 PM SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA STREET ADDRESS: 191 North First Street Same NAILING ADDRESS: Reviewed By: M Vu CITY AND ZIP CODE: San Jose, CA 95113 Case #19CV349624 B.NCHNMAE: Downtown Superior Court Envelope: 2996461 CASE NAME: MAGANA v. FORD MOTOR COMPANY, et al. CIVIL CASE COVER SHEET I Complex Case Designation CASE NUMSER: El Unlimited C Limited C Counter El Joinder 19CV349624 JUDGE: (Amount (Amount demanded demanded is I Filed with first appearance by defendant exceeds $25,000) $25,000 or less) (Cal. Rules of Court, rule 3.402) DEPT: Items 1-6 Check one box below for the case type Auto Tort C Auto (22) LIIII±J Uninsured motorist (46) Other PI/PDIWD (Personal Injury/Property Damage/Wrongful Death) Ton C Asbestos (04) C Product liability (24) C Medical malpractice (45) U Other PI/PD/WD(23) Non-PI/PDIWD (Other) Ton C Business tort/unfair business practice (07) C Civil rights (08) C Defamation (13) C Fraud (16) C Intellectual property (19) C Professional negligence (25) C Other non-Pl/PDIWO tort (35) Wrongful termination (36) est describes this case: Contnct El) Breath of contract/warranty (06) C Rule 3.740 collections (09) C Other collections (09) C Insurance coverage (IS) C Other contract (37) Real Property C Eminent domain/Inverse condemnation (14) C Wrongful eviction (33) C Other real property (26) Unlawful Oetalner C Commercial (31) C Residential (32) C Drugs (36) Judicial Review C Asset forfeiture (05) C Petition re: arbitration award (II) C writ of mandate (02) Provisionally Complex Civil Litigation (Cal. Rules of Court, rules 3.400-3.403) C Antitrustfrrade regulation (03) C Construction defect (10) C Mass tort (40) C Securities litigation (28) C 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 Li is LLJ is not complex under rule 3.400 of the California Rules of Court. lithe case is complex, mark 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 t C Substantial postjudgment judicial supervision 3. Remedies sought (check all that apply): a.1121 monetary b.0 nonnionetary: declaratory or injunctive relief C. punitive 4. Number of causes of action (specify): seven (7) 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/You may jgjc..JcmCM.315.) Date: 06/11/19 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 may 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 sheet 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 FolmAdopIadfMardaloUse CIVIL CASE COVER SHEET 4idaI cc.sucil ot coblorrio CMOlO Rev. Jdy I, 20071 CM-010 INSTRUCTIONS ON HOW TO COMPLETE THE COVER SHEET To Plintiffs and Others Filing First Papers. IF you are filing 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, lithe 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 Ton Contract Provisionally Complex Civil Litigation (Cal. Auto (22)-Personal Injury/Properly Breath of Contract/Warranty (06) Rules of court Rules 3.400-3.403) Damage/Wrongful Death Breath of Rental/Lease Antitrust/Trade Regulation (03) Uninsured Motorist (46) (1! the Contract (not unlawful detainer Construction Defect (10) case involves an uninsured or wrongful eviction) claims Involving Mass Tort (40) motorist claim subject to conlractarranty Breath-Seller Securities Litigation (28) arbitration, check this item Plaintiff (not fraud or negligence) Environmental/Toxic Tort (30) instead of Auto) Negligent Breach of Contract/ Insurance coverage Claims Other PIIPD!WD (Personal Injury/ Warranty (arising from provisionally complex Property Damage/Wrongful Death) Other Breach of ContractNVarranty case type listed above) (41) Tort Collections (e.g., money owed, open Enforcement of Judgment Asbestos (04) book accounts) (09) Enforcement of Judgment (20) Asbestos Property Damage Collection Case-Seller Plaintiff Abstract of Judgment (Out of Asbestos Personal injury/ Other Promissory NotefCollections county) Wrongful Death Case Confession of Judgment (non- Product Liability (not asbestos or Insurance Coverage (not provisionally domestic relations) toxic/environmental) (24) complex) (18) Sister State Judgment Medical Malpractice (45) Auto Subrogation Administrative Agency Award Medical Malpractice- Other Coverage (not unpaid taxes) Physicians & Surgeons Other Contract (37) Petition/Certification of Entry of Other Professional Health Care Contractual Fraud Judgment on Unpaid Taxes Malpractice Other Contract Dispute Other Enforcement of Judgment Case Other Pi/PD!WD (23) Real Property Miscellaneous Premises Liability (e.g.. slip Eminent Domain/Inverse Civil Complaint and fall) Condemnation (14) RICO (27) Intentional Bodily Injury/POrnO Wrongful Eviction (33) Other Complaint (not specified (e.g., assault, vandalism) Other Real Property (e.g., quiet title) (26) above) (42) Declaratory Relief Only Intentional Infliction Of Writ of Possession of Real Property Injunctive Relief Only (non- Emotional Distress Mortgage Foreclosure harassment) Negligent Infliction of Quiet Title Mechanics Lien Emotional Distress Other Real Property (not eminent Other Commercial Complaint Other P1/PD/V/fl domain, landlord/tenant, or Case (non-ton/non-complex) Non-Pl/PD/WD (Other) Tort foreclosure) Other Civil Complaint Business Tort/Unfair Business Unlawful Detainer (non-ton/non-complex) Practice (07) Commercial (31) Miscellaneous Civil Petition Civil Rights (e.g., discrimination, Residential (32) Partnership and Corporate false arrest) (not civil Drugs (38) (if the case involves illegal Governance (21) harassment) (08) drugs, check this item; otherwise, Other Petition (not specified Defamation (e.g., slander, libel) report as Commercial or Residential) above) (43) (13) Judicial Review civil Harassment Fraud (16) Asset Forfeiture (05) Workplace Violence Intellectual Property (19) Petition Re: Arbitration Award (11) Elder/Dependent Adult Professional Negligence (25) Writ of Mandate (02) Abuse Legal Malpractice Writ-Administrative Mandamus Election Contest Other Professional Malpractice Writ-Mandamus on Limited Court Petition for Name Change (not medical or legal) Case Matter Petition for Relief From Late Other Non-Pl/PDIWD Tort (35) Writ-Other Limited Court Case Claim Employment Review Other Civil Petition Wrongful Termination (36) Other Judicial Review (39) Other Employment (15) Review at Health Officer Order Notice of Appeal-Labor Commissioner Appeals CM.OIOIROV.JtAy 1.27) CIVIL CASE COVER SHEET 2012 SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET, 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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, Suite 1900 San Francisco, California 94108-2736 Telephone: (415) 364-6700 Facsimile: (415) 364-6785 Attorneys for Defendant FORD MOTOR COMPANY IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA - UNLIMITED JURISDICTION JULIA MAGANA and TONY MAGANA, Plaintiffs, vs. FORD MOTOR COMPANY; SILVA FORD MADERA; and DOES 1 through 10, inclusive, Defendants. Case No. 19CV349624 DEFENDANT FORD MOTOR COMPANY’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS DEMAND FOR JURY TRIAL Action Filed: June 11, 2019 Trial Date: None assigned Defendant FORD MOTOR COMPANY (“Ford”), for itself alone and for no other parties, hereby answers the Complaint of Plaintiffs JULIA MAGANA AND TONY MAGANA (“Plaintiffs”), as follows: GENERAL DENIAL Under the provisions of § 43 1 .30(d) 0f the California Code 0f Civil Procedure, Ford denies each and every allegation, both specifically and generally, 0f each cause 0f action contained in Plaintiffs’ Complaint 0n file herein and the Whole thereof, and denies that Plaintiffs were damaged in any sum 0r sums, 0r at all. 1 DEFENDANT FORD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AFFIRMATIVE DEFENSES Ford alleges on information and belief, and where information is not available but the failure t0 allege would result in waiver 0f the defense, the following affirmative defenses: FIRST AFFIRMATIVE DEFENSE (Failure to State Facts) Plaintiffs’ Complaint fails t0 state facts sufficient t0 constitute a cause 0f action against Ford. SECOND AFFIRMATIVE DEFENSE (No Breach of Warranty) There was n0 breach of warranty t0 the extent that Plaintiffs’ concerns were resolved under the warranty or occurred after the expiration 0f the original express warranty. THIRD AFFIRMATIVE DEFENSE (Estoppel) Plaintiffs are estopped from obtaining the relief sought, or pursing any of the claims raised or causes 0f actions contained in the Complaint, by Virtue 0f their acts, failure to act, conduct, representations, admission, and the like. FOURTH AFFIRMATIVE DEFENSE (Waiver) Plaintiffs have waived their rights to the claims, causes 0f action and relief sought in this Complaint against Ford, by Virtue of their acts, failure t0 act, conduct, representations, admissions, and the like. FIFTH AFFIRMATIVE DEFENSE (Laches) Plaintiffs have unreasonably delayed the commencement of this action t0 the prejudice of Ford. Therefore, the Complaint, and each and every cause 0f action alleged therein is barred, in whole or in part, by the doctrine of laches. / / / / / / 2 DEFENDANT FORD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SIXTH AFFIRMATIVE DEFENSE (Economic Loss Rule) Plaintiffs’ causes 0f action have not accrued because Plaintiffs cannot establish that they suffered injury directly from the subj ect vehicle 0r products and, therefore, Plaintiffs’ contention that the subj ect vehicle 0r products failed t0 adequately perform their functions are barred by the economic loss rule. SEVENTH AFFIRMATIVE DEFENSE (Performance) Prior t0 the commencement 0f this action, Ford fully performed, satisfied and discharged all duties and obligations it may have owed to Plaintiffs arising out 0f any and all agreements, representations 0r contracts made by it 0r 0n its behalf and this action is therefore barred by the provisions of Civil Code section 1473. EIGHTH AFFIRMATIVE DEFENSE (Abuse, Misuse, Alteration and Improper Care) Plaintiffs and/or others misused, abused, altered and improperly cared for and maintained the subj ect vehicle contrary to Ford’s approval 0r consent and Plaintiffs’ damages, if any, were proximately caused by such misuse, alteration, abuse and neglect of the product. NINTH AFFIRMATIVE DEFENSE (No Defect in Materials 0r Workmanship) The damages asserted in Plaintiffs’ Complaint were not the result 0f any defect in material 0r workmanship in any vehicle manufactured by Ford. Specifically, Ford alleges that after appropriate discovery, one or more 0f the stated specific warranty exclusions may be applicable. TENTH AFFIRMATIVE DEFENSE (No Timely Revocation of Acceptance) Plaintiffs have n0 restitution remedy under breach 0f implied warranty because there was n0 timely revocation 0f acceptance before a substantial change in the condition 0f the goods. 3 DEFENDANT FORD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ELEVENTHAFFIRMATIVE DEFENSE (Failure to Maintain Vehicle) Ford alleges that Plaintiffs are precluded from recovery due to failure t0 maintain and service the subj ect 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 subj ect vehicle at issue limits the damages that may be obtained by Plaintiffs for any alleged breach 0f warranty such that some, if not all, 0f the damages sought, including those for incidental 0r consequential damages, are not recoverable. THIRTEENTH AFFIRMATIVE DEFENSE (Vehicle Fit for Intended Purpose) The subj ect vehicle was fit for providing transportation at all relevant times hereto. Accordingly, Plaintiffs are not entitled to relief for breach of the implied warranty 0f merchantability. American Suzuki Motor Corp. v. Superior Court, 37 Cal. App. 4th 1291 (1 995). FOURTEENTH AFFIRMATIVE DEFENSE (Duration 0f Implied Warranty) The alleged nonconformities did not arise until after the implied warranty expired. Accordingly, Plaintiffs are not entitled to relief for breach of the implied warranty 0f merchantability. California Civil Code § 1791.1(0). FIFTEENTH AFFIRMATIVE DEFENSE (N0 Impairment 0f Use, Value or Safety) The subj ect vehicle has not been subj ect to repair for any nonconformity or condition that substantially impaired the use, value 0r safety of the vehicle. / / / / / / / / / 4 DEFENDANT FORD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SIXTEENTH AFFIRMATIVE DEFENSE (Failure to Abide by Terms 0f Warranty) Plaintiffs’ breach of warranty claims are barred because Plaintiffs” failure t0 give timely and appropriate notice of any claim 0f breach 0f warranty. SEVENTEENTH AFFIRMATIVE DEFENSE (Unreasonable Use 0f Vehicle) Plaintiffs’ claims may be barred by waiver due to Plaintiffs’ unreasonable use 0f the vehicle after the nonconformity 0r nonconformities allegedly could not be repaired. EIGHTEENTH AFFIRMATIVE DEFENSE (Failure t0 Use Dispute Resolution Process) Plaintiffs and/or the owner(s) 0f the subj ect vehicle received timely notice of the availability 0f a third party dispute resolution process, and that n0 effort was made t0 use such process. NINETEENTH AFFIRMATIVE DEFENSE (Failure t0 Provide Reasonable Opportunity t0 Cure) Plaintiffs failed t0 provide it with a reasonable opportunity t0 cure any alleged defect as required by 15 U.S.C. § 2310(6) and Civil Code § 1790, et seq. TWENTIETH AFFIRMATIVE DEFENSE (No Prejudgment Interest) Plaintiffs’ Complaint fails t0 state facts sufficient t0 constitute a basis for recovery 0f prejudgment interest. TWENTY-FIRST AFFIRMATIVE DEFENSE (Business Use) The subj ect vehicle was not purchased 0r used primarily for personal, family, 0r household purposes and that the business use was by a person, including a partnership, limited liability company, corporation, association, 0r any other legal entity, t0 which more than five motor vehicles were registered in this state. / / / 5 DEFENDANT FORD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TWENTY-SECOND AFFIRMATIVE DEFENSE (Failure to Mitigate) Plaintiffs failed and neglected to use reasonable care t0 protect themselves and t0 minimize their losses and damages, if any. TWENTY-THIRD AFFIRMATIVE DEFENSE (N0 Agency Relationship) Ford denies any allegations 0f agency contained in Plaintiffs’ Complaint. TWENTY-FOURTH AFFIRMATIVE DEFENSE (Assumption 0f Risk) Plaintiffs knew about matters giving rise to the Complaint and assumed the risk created thereby. TWENTY-FIFTH AFFIRMATIVE DEFENSE (Good Faith Conduct) Ford has acted in good faith and reasonably with respect to the matters alleged in Plaintiffs’ Complaint. TWENTY-SIXTH AFFIRMATIVE DEFENSE (Doctrine 0f Consent) Plaintiffs are barred from recovering the relief sought by reason 0f the doctrine of consent. TWENTY-SEVENTH AFFIRMATIVE DEFENSE (Statute of Limitations) Plaintiffs’ 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 t0, those stated in Part II, Title 2, Chapter 3 of the California Code 0f Civil Procedure, §§ 335 through 346.4, California Civil Code, §§ 1783, 1791.1, 1793.2, and 1793.22, California Commercial C0de,§ 2725, and Business and Professions Code, § 17208. / / / 6 DEFENDANT FORD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TWENTY-EIGHTH AFFIRMATIVE DEFENSE (Warranty Exclusions) Plaintiffs’ action for breach of warranty is barred by the terms, conditions, disclaimers and exclusions of the warranty, if any. Moreover, Plaintiffs have failed to comply with all obligations under the warranty, if any, t0 include, but not limited t0, timely notice, proper maintenance and appropriate use. TWENTY-NINTH AFFIRMATIVE DEFENSE (Civil Penalty Barred) Any prayer made by Plaintiffs for a civil penalty pursuant t0 Civil Code § 1794(6) is barred because Ford maintains a qualified third party dispute resolution process, which substantially complies with subdivision (d) 0f § 1793.22 0f the Civil Code. Further, Plaintiffs failed t0 serve the notice required for recovery of a civil penalty under this provision. THIRTIETH AFFIRMATIVE DEFENSE (Spoliation of Evidence) This action is barred 0r limited because of the altering, spoiling, damaging, destruction, or losing 0f evidence by Plaintiffs, which thereby has reduced the likelihood that this action will result in a reliable adjudication 0f facts, and impairs Ford’s right t0 a fair opportunity t0 adjudicate its alleged liability. THIRTY-FIRST AFFIRMATIVE DEFENSE (Failure to Properly Notify) Plaintiffs have failed t0 properly provide timely notice, Within a reasonable period 0f time after discovery 0f their claims and alleged defects. Consequently, Ford has been damaged and prejudiced, barring the Complaint, and each cause 0f action therein, as a matter 0f law. THIRTY-SECOND AFFIRMATIVE DEFENSE (No Breach) Defendant performed all duties owed under the warranty other than any duties that were prevented 0r excused. Accordingly, there has been no breach of warranty. / / / 7 DEFENDANT FORD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THIRTY-THIRD AFFIRMATIVE DEFENSE (Statute of Frauds) To the extent Plaintiffs are suing for breach of an oral representation 0r contract, such an oral representation 0r contract would be unenforceable pursuant t0 Civil Code section 1624(a)(1-7). THIRTY-FOURTH AFFIRMATIVE DEFENSE (Qualified Third Party Dispute Resolution Process) Defendant maintained a qualified third party dispute resolution process at the time the subj ect vehicle was purchased that substantially complied With Section 1793.2 of the California Civil Code. Defendant is informed and believes and thereon alleges Plaintiffs received timely and appropriate notification, in writing, of the availability 0f the third party resolution process. Accordingly, since Plaintiffs did not avail themselves of the third party dispute resolution process prior t0 filing this litigation, Section 1794(e)(2) of the California Civil Code may bar Plaintiffs from recovering damages for (i) attorney fees, (ii) costs, and (iii) treble damages (as provided under California Civil Code Section 1794(6)), and Plaintiffs may not avail themselves 0f the rebuttable presumption pursuant t0 California Civil Code Section 1793.2(e)(1). THIRTY-FIFTH AFFIRMATIVE DEFENSE (Preemption) The Complaint and each and every cause of action therein, in whole or in part, are preempted by the Federal National Traffic and Motor Vehicle Safety Act pursuant to 49 U.S.C. sections 301 18 et seq. THIRTY-SIXTH AFFIRMATIVE DEFENSE (Constitutionality 0f Punitive Damages) Plaintiffs’ claims are in contravention 0f 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 0n interstate commerce in contravention of Article I, Section 8 of the United States Constitution; (b) said claims 8 DEFENDANT FORD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 0f 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 0f the California Constitution. THIRTY-SEVENTH AFFIRMATIVE DEFENSE (Punitive Damages Improperly Pled/Not Recoverable) Plaintiffs have not properly pled a claim for punitive damages and these damages are not recoverable based 0n the facts contained in Plaintiffs’ Complaint, 0r are otherwise barred by the provisions 0f California Civil Code sections 3294, 3295, and 3296, 0r such conduct was adopted, ratified or authorized by Ford under California Civil Code section 3294(b). THIRTY-EIGHTH 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 0f the subj ect vehicle 0r products that are the subj ect 0f 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-NINTH AFFIRMATIVE DEFENSE (Punitive Damages Unconstitutional) An award 0f punitive 0r exemplary damages to Plaintiff would Violate Ford’s constitutional rights under the provisions of the United States and California Constitutions, including but not limited t0 the Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 7 0f the California Constitution because, among other things, (1) any award 0f punitive 0r exemplary damages would be grossly out of proportion t0 the alleged wrongfiJI conduct and purported injury at issue here; (2) there is n0 legitimate state interest in punishing the alleged wrongful conduct at issue here, or in deterring 9 DEFENDANT FORD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 0r exemplary damages; and (5) the criteria for the imposition of punitive or exemplary damage are unconstitutionally vague and uncertain and fail t0 provide fair notice of what conduct Will result in the imposition 0f such damages. FORTIETH AFFIRMATIVE DEFENSE (Clear and Convincing Standard for Punitive Damages) Ford alleges that any predicate liability finding for the imposition of punitive damages 0r a finding of the amount of any punitive damage award based upon a burden ofproof of less than clear and convincing evidence violates due process and is unconstitutional. FORTY-FIRST AFFIRMATIVE DEFENSE (Punitive Damages - Financial Status 0f Defendant) To the extent that California law permits punishment t0 be measured by the net worth 0r financial status 0f Ford and allows the fact finder to impose greater punishment 0n defendants With larger net worth, such an award would be unconstitutional because it permits arbitrary, capricious and fundamentally unfair punishments, allows bias and prejudice t0 infect verdicts imposing punishment, allows punishment to be imposed based 0n lawful profits and conduct 0f Ford in other States, and allows dissimilar treatment 0f 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 0f the United States Constitution, and the California Constitution. FORTY-SECOND AFFIRMATIVE DEFENSE (Arbitration Clause in Purchase Agreement) The purchase 0r lease agreement for the subj ect vehicle, signed by Plaintiff, includes an agreement to arbitrate. Plaintiffs have thus agreed t0 resolve this dispute by neutral, binding arbitration and not by court action. / / / / / / 10 DEFENDANT FORD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FORTY-THIRD 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 Plaintiffs, Which is denied, Defendant is entitled t0 a set off of those damages, if any, that resulted from the wrongful acts 0f Plaintiffs and/or others. FORTY-FOURTH 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 0r the law which warranted the filing of the Complaint against Defendant. Plaintiffs should therefore be responsible for all of Defendant’s necessary and reasonable attorney’s fees and defense costs as permitted by California law. FORTY-FIFTH AFFIRMATIVE DEFENSE (Additional Defenses) Ford alleges that it may have additional affirmative defenses available t0 it 0fWhich it is not now fully aware. Ford reserves the right t0 assert affirmative defenses after the same shall have been ascertained. PRAYER WHEREFORE, Ford prays as follows: 1. For dismissal 0f Plaintiffs’ Complaint with prejudice; 2. For judgment in favor of Ford against Plaintiffs; 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. / / / / / / / / / / / / / / / 1 1 DEFENDANT FORD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (415) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEMAND FOR JURY TRIAL Ford hereby demands a jury trial on all claims asserted by Plaintiffs. Dated: July 29, 2019 SCHNADER HARRISON SEGAL & LEWIS LLP By: RICHARD J. MAY Attorneys for Defendant FORD MOTOR COMPANY 12 DEFENDANT FORD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (415) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I declare under penalty 0f perjury under the laws 0f the State 0f California that the following is true and correct: I am employed in the City and County of San Francisco, State of California, in the office 0f a member of the bar 0f this court, at whose direction the service was made. I am a citizen 0f the United States, over the age 0f eighteen (18) years, and not a party t0 or interested in the within-entitled cause. My business address is SCHNADER HARRISON SEGAL & LEWIS LLP, 650 California Street, 19th Floor, San Francisco, California 94108-2736. I caused to be served the following document(s) and by the following means: DEFENDANT FORD MOTOR COMPANY’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR VIOLATION 0F STATUTORY OBLIGATIONS First-Class Mail: I enclosed a true and correct copy 0f said document in an envelope with postage fully prepaid, and placed it for collection and mailing with the United States Post Office on the date set forth below, following the ordinary business practice; addressed as follows: Tionna Dolin, Esq. Attorneysfor Plaintiffs Strategic Legal Practices, APC JULIA MAGANA and TONY 1840 Century Park East, Suite 430 MAGANA Los Angeles, CA 90067 T: (310) 929-4900 F: (310) 943-3838 Email: tdolin@slpattorney.com I am readily familiar with my firm’s practice for collection and processing of correspondence for delivery in the manner indicated above, to wit, that correspondence will be deposited for collection in the above-described manner this same day in the ordinary course 0f business. Executed on July 29, 2019, at San Francisco, California. /gi/i?‘ ,// ,, r ' f ’ .«:7 r [27f a CQ/ Tiana E. Reyes PROOF OF SERVICE SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET, 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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, Suite 1900 San Francisco, California 94108-2736 Telephone: (415) 364-6700 Facsimile: (415) 364-6785 Attorneys for Defendant SILVA AUTO GROUP, INC. dba MADERA FORD IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA - UNLIMITED JURISDICTION JULIA MAGANA and TONY MAGANA, Case N0. 19CV349624 Plaintiffs, DEFENDANT SILVA AUTO GROUP VS. INC.’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR VIOLATION OF FORD MOTOR COMPANY; SILVA FORD STATUTORY OBLIGATIONS MADERA; and DOES 1 through 10, inclusive, DEMAND FOR JURY TRIAL Defendants. Action Filed: June 11, 2019 Trial Date: None assigned Defendant SILVA AUTO GROUP, INC., dba MADERA FORD, incorrectly named in the Complaint as SILVA FORD MADERA, (“Dealership” or “Defendant”), for itself alone and for n0 other parties, hereby answers the Complaint of Plaintiffs JULIA MAGANA AND TONY MAGANA (“Plaintiffs”), as follows: GENERAL DENIAL Under the provisions of § 43 1 .30(d) 0f the California Code 0f Civil Procedure, Dealership denies each and every allegation, both specifically and generally, of each cause of action contained in Plaintiffs’ Complaint 0n file herein and the Whole thereof, and denies that Plaintiffs were damaged in any sum 0r sums, 0r at all. 1 DEF. SILVA AUTO GROUP, INC.’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AFFIRMATIVE DEFENSES Dealership alleges on information and belief, and Where information is not available but the failure t0 allege would result in waiver of the defense, the following affirmative defenses: FIRST AFFIRMATIVE DEFENSE (Failure to State Facts) Plaintiffs’ Complaint fails t0 state facts sufficient t0 constitute a cause 0f action against Dealership. SECOND AFFIRMATIVE DEFENSE (No Breach of Warranty) There was n0 breach of warranty t0 the extent that Plaintiffs’ concerns were resolved under the warranty or occurred after the expiration 0f the original express warranty. THIRD AFFIRMATIVE DEFENSE (Estoppel) Plaintiffs are estopped from obtaining the relief sought, or pursing any of the claims raised or causes 0f actions contained in the Complaint, by Virtue 0f their acts, failure to act, conduct, representations, admission, and the like. FOURTH AFFIRMATIVE DEFENSE (Waiver) Plaintiffs have waived their rights to the claims, causes 0f action and relief sought in this Complaint against Dealership, by Virtue of their acts, failure to act, conduct, representations, admissions, and the like. FIFTH AFFIRMATIVE DEFENSE (Laches) Plaintiffs have unreasonably delayed the commencement of this action t0 the prejudice of Dealership. Therefore, the Complaint, and each and every cause 0f action alleged therein is barred, in whole or in part, by the doctrine of laches. / / / /// 2 DEF. SILVA AUTO GROUP, INC.’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SIXTH AFFIRMATIVE DEFENSE (Economic Loss Rule) Plaintiffs’ causes 0f action have not accrued because Plaintiffs cannot establish that they suffered injury directly from the subj ect vehicle 0r products and, therefore, Plaintiffs’ contention that the subj ect vehicle 0r products failed t0 adequately perform their functions are barred by the economic loss rule. SEVENTH AFFIRMATIVE DEFENSE (Performance) Prior t0 the commencement 0f this action, Dealership fully performed, satisfied and discharged all duties and obligations it may have owed t0 Plaintiffs arising out of any and all agreements, representations or contracts made by it or 0n its behalf and this action is therefore barred by the provisions of Civil Code section 1473. EIGHTH AFFIRMATIVE DEFENSE (Abuse, Misuse, Alteration and Improper Care) Plaintiffs and/or others misused, abused, altered and improperly cared for and maintained the subj ect vehicle contrary to Dealership’s approval or consent and Plaintiffs’ damages, if any, were proximately caused by such misuse, alteration, abuse and neglect 0f the product. NINTH AFFIRMATIVE DEFENSE (N0 Defect in Materials or Workmanship) The damages asserted in Plaintiffs’ Complaint were not the result of any defect in material or workmanship in any vehicle manufactured by Dealership. Specifically, Dealership alleges that after appropriate discovery, one or more of the stated specific warranty exclusions may be applicable. TENTH AFFIRMATIVE DEFENSE (No Timely Revocation 0f Acceptance) Plaintiffs have n0 restitution remedy under breach 0f implied warranty because there /// 3 DEF. SILVA AUTO GROUP, INC.’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 was no timely revocation of acceptance before a substantial change in the condition of the goods. ELEVENTH AFFIRMATIVE DEFENSE (Failure to Maintain Vehicle) Dealership alleges that Plaintiffs are precluded from recovery due t0 failure to maintain and service the subj ect vehicle in conformance With the requirements and recommendations 0f the owner’s manual and/or warranty booklet. TWELFTH AFFIRMATIVE DEFENSE (Disclaimer 0f Incidental and Consequential Damages and Limitation of Damages) The limited warranty for the subj ect vehicle at issue limits the damages that may be obtained by Plaintiffs for any alleged breach of warranty such that some, if not all, 0f the damages sought, including those for incidental or consequential damages, are not recoverable. THIRTEENTH AFFIRMATIVE DEFENSE (Vehicle Fit for Intended Purpose) The subj ect vehicle was fit for providing transportation at all relevant times hereto. Accordingly, Plaintiffs are not entitled t0 relief for breach 0f the implied warranty 0f merchantability. American Suzuki Motor Corp. v. Superior Court, 37 Cal. App. 4th 1291 (1 995). FOURTEENTH AFFIRMATIVE DEFENSE (Duration of Implied Warranty) The alleged nonconformities did not arise until after the implied warranty expired. Accordingly, Plaintiffs are not entitled t0 relief for breach 0f the implied warranty 0f merchantability. California Civil Code § 1791.1(c). FIFTEENTH AFFIRMATIVE DEFENSE (No Impairment 0f Use, Value or Safety) The subj ect vehicle has not been subj ect to repair for any nonconformity or condition that substantially impaired the use, value or safety 0f the vehicle. /// 4 DEF. SILVA AUTO GROUP, INC.’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SIXTEENTHAFFIRMATIVE DEFENSE (Failure to Abide by Terms 0f Warranty) Plaintiffs’ breach of warranty claims are barred because Plaintiffs’ failure t0 give timely and appropriate notice of any claim of breach of warranty. SEVENTEENTH AFFIRMATIVE DEFENSE (Unreasonable Use 0f Vehicle) Plaintiffs’ claims may be barred by waiver due to Plaintiffs’ unreasonable use 0f the vehicle after the nonconformity 0r nonconformities allegedly could not be repaired. EIGHTEENTH AFFIRMATIVE DEFENSE (Failure t0 Use Dispute Resolution Process) Plaintiffs and/or the owner(s) 0f the subj ect vehicle received timely notice of the availability 0f a third party dispute resolution process, and that n0 effort was made t0 use such process. NINETEENTH AFFIRMATIVE DEFENSE (Failure t0 Provide Reasonable Opportunity t0 Cure) Plaintiffs failed t0 provide it with a reasonable opportunity t0 cure any alleged defect as required by 15 U.S.C. § 2310(6) and Civil Code § 1790, et seq. TWENTIETH AFFIRMATIVE DEFENSE (No Prejudgment Interest) Plaintiffs’ Complaint fails t0 state facts sufficient t0 constitute a basis for recovery 0f prejudgment interest. TWENTY-FIRST AFFIRMATIVE DEFENSE (Business Use) The subj ect vehicle was not purchased 0r used primarily for personal, family, 0r household purposes and that the business use was by a person, including a partnership, limited liability company, corporation, association, 0r any other legal entity, t0 which more than five motor vehicles were registered in this state. 5 DEF. SILVA AUTO GROUP, INC.’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TWENTY-SECOND AFFIRMATIVE DEFENSE (Failure to Mitigate) Plaintiffs failed and neglected to use reasonable care t0 protect themselves and t0 minimize their losses and damages, if any. TWENTY-THIRD AFFIRMATIVE DEFENSE (N0 Agency Relationship) Dealership denies any allegations of agency contained in Plaintiffs’ Complaint. TWENTY-FOURTH AFFIRMATIVE DEFENSE (Assumption 0f Risk) Plaintiffs knew about matters giving rise to the Complaint and assumed the risk created thereby. TWENTY-FIFTH AFFIRMATIVE DEFENSE (Good Faith Conduct) Dealership has acted in good faith and reasonably with respect t0 the matters alleged in Plaintiffs’ Complaint. TWENTY-SIXTH AFFIRMATIVE DEFENSE (Doctrine 0f Consent) Plaintiffs are barred from recovering the relief sought by reason 0f the doctrine of consent. TWENTY-SEVENTH AFFIRMATIVE DEFENSE (Statute of Limitations) Plaintiffs’ 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 t0, those stated in Part II, Title 2, Chapter 3 of the California Code 0f 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. /// 6 DEF. SILVA AUTO GROUP, INC.’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TWENTY-EIGHTH AFFIRMATIVE DEFENSE (Warranty Exclusions) Plaintiffs’ action for breach of warranty is barred by the terms, conditions, disclaimers and exclusions of the warranty, if any. Moreover, Plaintiffs have failed to comply with all obligations under the warranty, if any, t0 include, but not limited t0, timely notice, proper maintenance and appropriate use. TWENTY-NINTH AFFIRMATIVE DEFENSE (Civil Penalty Barred) Any prayer made by Plaintiffs for a civil penalty pursuant t0 Civil Code § 1794(6) is barred because Dealership maintains a qualified third party dispute resolution process, which substantially complies with subdivision (d) 0f § 1793.22 0f the Civil Code. Further, Plaintiffs failed t0 serve the notice required for recovery of a civil penalty under this provision. THIRTIETH AFFIRMATIVE DEFENSE (Spoliation of Evidence) This action is barred 0r limited because of the altering, spoiling, damaging, destruction, or losing 0f evidence by Plaintiffs, which thereby has reduced the likelihood that this action will result in a reliable adjudication 0f facts, and impairs Dealership’s right t0 a fair opportunity t0 adjudicate its alleged liability. THIRTY-FIRST AFFIRMATIVE DEFENSE (Failure to Properly Notify) Plaintiffs have failed t0 properly provide timely notice, Within a reasonable period 0f time after discovery 0f their claims and alleged defects. Consequently, Dealership has been damaged and prejudiced, barring the Complaint, and each cause of action therein, as a matter 0f law. THIRTY-SECOND AFFIRMATIVE DEFENSE (N0 Breach) Defendant performed all duties owed under the warranty other than any duties that were prevented or excused. Accordingly, there has been no breach 0f warranty. 7 DEF. SILVA AUTO GROUP, INC.’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THIRTY-THIRDAFFIRMATIVE DEFENSE (Statute of Frauds) To the extent Plaintiffs are suing for breach of an oral representation 0r contract, such an oral representation 0r contract would be unenforceable pursuant t0 Civil Code section 1624(a)(1-7). THIRTY-FOURTHAFFIRMATIVE DEFENSE (Qualified Third Party Dispute Resolution Process) Defendant maintained a qualified third party dispute resolution process at the time the subj ect vehicle was purchased that substantially complied With Section 1793.2 of the California Civil Code. Defendant is informed and believes and thereon alleges Plaintiffs received timely and appropriate notification, in writing, of the availability 0f the third party resolution process. Accordingly, since Plaintiffs did not avail themselves of the third party dispute resolution process prior t0 filing this litigation, Section 1794(e)(2) of the California Civil Code may bar Plaintiffs from recovering damages for (i) attorney fees, (ii) costs, and (iii) treble damages (as provided under California Civil Code Section 1794(6)), and Plaintiffs may not avail themselves 0f the rebuttable presumption pursuant t0 California Civil Code Section 1793.2(e)(1). THIRTY-FIFTHAFFIRMATIVE DEFENSE (Preemption) The Complaint and each and every cause of action therein, in whole or in part, are preempted by the Federal National Traffic and Motor Vehicle Safety Act pursuant to 49 U.S.C. sections 301 18 et seq. THIRTY-SIXTH AFFIRMATIVE DEFENSE (Constitutionality 0f Punitive Damages) Plaintiffs’ claims are in contravention 0f Dealership’s rights under applicable clauses 0f the United States and California Constitutions, including without limitation the following provisions: (a) said claims constitute an impermissible burden 0n interstate commerce in contravention of Article I, Section 8 of the United States Constitution; (b) said claims 8 DEF. SILVA AUTO GROUP, INC.’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 contravene the Excessive Fines Clause of the Eighth Amendment of the United States Constitution; (c) said claims Violate Dealership’s right t0 Due Process under the Fourteenth Amendment 0f 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 0f the California Constitution. THIRTY-SEVENTH AFFIRMATIVE DEFENSE (Punitive Damages Improperly Pled/Not Recoverable) Plaintiffs have not properly pled a claim for punitive damages and these damages are not recoverable based 0n the facts contained in Plaintiffs’ Complaint, 0r are otherwise barred by the provisions 0f California Civil Code sections 3294, 3295, and 3296, 0r such conduct was adopted, ratified or authorized by Dealership under California Civil Code section 3294(b). THIRTY-EIGHTH AFFIRMATIVE DEFENSE (Punitive Damages Impermissible For Extra-Territorial Conduct) Any award of punitive damages based on anything other than Dealership’s conduct in connection with the design, manufacture, and sale 0f the subj ect vehicle 0r products that are the subj ect 0f 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 Dealership against impermissible multiple punishment for the same wrong and against punishment for extra-territorial conduct. THIRTY-NINTH AFFIRMATIVE DEFENSE (Punitive Damages Unconstitutional) An award 0f punitive 0r exemplary damages to Plaintiffs would Violate Dealership’s constitutional rights under the provisions of the United States and California Constitutions, including but not limited t0 the Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 7 0f the California Constitution because, among other things, (1) any award 0f punitive 0r exemplary damages would be grossly out of proportion t0 the alleged wrongfiJI conduct and purported injury at issue here; (2) there is n0 legitimate state interest in punishing the alleged wrongful conduct at issue here, or in deterring 9 DEF. SILVA AUTO GROUP, INC.’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 0r exemplary damages; and (5) the criteria for the imposition of punitive or exemplary damage are unconstitutionally vague and uncertain and fail t0 provide fair notice of what conduct Will result in the imposition 0f such damages. FORTIETH AFFIRMATIVE DEFENSE (Clear and Convincing Standard for Punitive Damages) Dealership alleges that any predicate liability finding for the imposition of punitive damages or a finding 0f the amount 0f any punitive damage award based upon a burden ofproof of less than clear and convincing evidence violates due process and is unconstitutional. FORTY-FIRSTAFFIRMATIVE DEFENSE (Punitive Damages - Financial Status 0f Defendant) To the extent that California law permits punishment t0 be measured by the net worth 0r financial status 0f Dealership and allows the fact finder t0 impose greater punishment 0n defendants with larger net worth, such an award would be unconstitutional because it permits arbitrary, capricious and fundamentally unfair punishments, allows bias and prejudice t0 infect verdicts imposing punishment, allows punishment t0 be imposed based on lawful profits and conduct of Dealership in other States, and allows dissimilar treatment 0f 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 0f the United States Constitution, and the California Constitution. FORTY-SECOND AFFIRMATIVE DEFENSE (Arbitration Clause in Purchase Agreement) The purchase 0r lease agreement for the subj ect vehicle, signed by Plaintiffs, includes an agreement to arbitrate. Plaintiffs have thus agreed t0 resolve this dispute by neutral, binding arbitration and not by court action. / / / /// 10 DEF. SILVA AUTO GROUP, INC.’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FORTY-THIRD 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 Plaintiffs, Which is denied, Defendant is entitled t0 a set off of those damages, if any, that resulted from the wrongful acts 0f Plaintiffs and/or others. FORTY-FOURTH 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 0r the law which warranted the filing of the Complaint against Defendant. Plaintiffs should therefore be responsible for all of Defendant’s necessary and reasonable attorney’s fees and defense costs as permitted by California law. FORTY-FIFTH AFFIRMATIVE DEFENSE (Additional Defenses) Dealership alleges that it may have additional affirmative defenses available t0 it 0f which it is not now fully aware. Dealership reserves the right to assert affirmative defenses after the same shall have been ascertained. PRAYER WHEREFORE, Dealership prays as follows: 1. For dismissal 0f Plaintiffs’ Complaint with prejudice; 2. For judgment in favor of Dealership against Plaintiffs; 3. For Dealership’s fees and costs of suit herein; and 4. For such other and further relief as the Court may deem just and proper. / / / / / / / / / / / / / / / 1 1 DEF. SILVA AUTO GROUP, INC.’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (415) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEMAND FOR JURY TRIAL Dealership hereby demands a jury trial on all claims asserted by Plaintiffs. Dated: July 29, 2019 SCHNADER HARRISON SEGAL & LEWIS LLP RICHARD J. MAY” U U Attorneys for Defendant SILVA AUTO GROUP, INC. dba MADERA FORD 12 DEF. SILVA AUTO GROUP, INC.’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (415) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I declare under penalty 0f perjury under the laws 0f the State 0f California that the following is true and correct: I am employed in the City and County of San Francisco, State of California, in the office 0f a member of the bar 0f this court, at whose direction the service was made. I am a citizen 0f the United States, over the age 0f eighteen (18) years, and not a party t0 or interested in the within-entitled cause. My business address is SCHNADER HARRISON SEGAL & LEWIS LLP, 650 California Street, 19th Floor, San Francisco, California 94108-2736. I caused to be served the following document(s) and by the following means: DEFENDANT SILVA AUTO GROUP, INC.’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR VIOLATION 0F STATUTORY OBLIGATIONS First-Class Mail: I enclosed a true and correct copy 0f said document in an envelope with postage fully prepaid, and placed it for collection and mailing with the United States Post Office on the date set forth below, following the ordinary business practice; addressed as follows: Tionna Dolin, Esq. Attorneysfor Plaintiffs Strategic Legal Practices, APC JULIA MAGANA and TONY 1840 Century Park East, Suite 430 MAGANA Los Angeles, CA 90067 T: (310) 929-4900 F: (310) 943-3838 Email: tdolin@slpattorney.com I am readily familiar with my firm’s practice for collection and processing of correspondence for delivery in the manner indicated above, to wit, that correspondence will be deposited for collection in the above-described manner this same day in the ordinary course 0f business. Executed on July 29, 2019, at San Francisco, California. /gi/i?‘ ,// ,, r ' f ’ .«:7 r [27f a CQ/ Tiana E. Reyes PROOF OF SERVICE 7/29/201 9 Odyssey File & Serve - Envelope Receipt Case # 190V349624 - Julia Magana et al vs FORD MOTOR COMPAN Envelope Information Envelope Id 3190324 Case Information Location Santa Clara - Civil Case Initiation Date 6/1 1/201 9 Assigned to Judge Arand, Mary E Filings Filing Type EFiIe Filing Description DEFENDANT FORD MOTOR COMPANY’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS Client Reference Number 94086 Filing on Behalf of FORD MOTOR COMPANY Filing Status Submitting Lead Document File Name 201 9-07-29 Magana-Fords Answer to Sta Clara Ct.pdf httpszi/califomia.tylerhost.net/OfsWeb/FileAndServeModule/EnvelopeNiewPrintableEnveIope?ld=3190324 Submitted Date 7/29/2019 12:19 PM PST Category Civil - Unlimited Case # 1QCV349624 Filing Code Answer/Response/Denial/Demurrer - First Appearance Description Answer/Response/Deniall. .. Public - First Appearance Security Submitted User Name weefiIe@nationwideasap.com Case Type Breach of Contract/Warranty Download Original File 1/3 7/29/2019 Odyssey File & Serve - Envelope Receipt Filing Type Filing Code EFiIe Answer/Response/Denial/Demurrer - First Appearance Filing Description DEFENDANT SILVA AUTO GROUP |NC.’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS Client Reference Number 94086 Filing on Behalf of SILVA FORD MADERA Filing Status Submitting Lead Document File Name Description Security 2019-07-29 Magana-Silva Fords Answer/Response/Deniall... Public Answer to Sta Clara Ct.pdf - First Appearance Fees AnswerIResponse/DeniallDemurrer - First Appearance Description Amount Filing Fee $435.00 Filing Total: $435.00 AnswerIResponse/DeniallDemurrer - First Appearance Description Amount Filing Fee $435.00 Filing Total: $435.00 Total Filing Fee $870.00 Payment Service Fee $26.27 E-File Fee $3.50 Court E-File Fee $2.05 Envelope Total: $901 .82 https://ca|ifornia.tylerhost.net/OfsWeb/FileAndServeModu|e/EnvelopeNiewPrintableEnvelope?ld=31 90324 Download Original File 2/3 7/29/201 9 Party Responsible for Fees Payment Account Filing Attorney Transaction Response © 2019 Tyler Technologies Version: 2019.0.0.8600 Odyssey File & Serve - Envelope Receipt FORD MOTOR COMP... Transaction Amount Nationwide Transaction Id Richard May Order Id Authorized https://ca|ifornia.tylerhost.net/OfsWeb/FileAndServeModu|e/EnvelopeNiewPrintableEnvelope?ld=31 90324 $901 .82 5072828 0031 90324-0 3/3 EXHIBIT D UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, DC 20549 FORM 10-K (Mark One) M Annual report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 For the fiscal year ended December 31, 2017 or U Transition report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 For the transition period from to Commission file number 1-3950 Ford Motor Company (Exact name of Registrant as specified in its charter) Delaware 38-0549190 (State of incorporation) (I.R.S. Employer Identification No.) One American Road, Dearborn, Michigan 48126 (Address ofprincipa/ executive offices) (Zip Code) 31 3-322-3000 (Registrant’s telephone number, including area code) Securities registered pursuant to Section 12(b) of the Act: Title of each class Name of each exchange on which registered Common Stock, par value $.01 per share New York Stock Exchange Securities registered pursuant to Section 12(9) of the Act: None. Indicate by check mark if the registrant is a weII-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes M No D Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes D No E Indicate by check mark if the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes E No U Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes M No D Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§ 229.405 of this chapter) is not contained herein, and will not be contained, to the best of registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part Ill of this Form 10-K or any amendment to this Form 10-K. D Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or emerging growth company. See the definitions of “large accelerated filer," “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act. Large accelerated filer M Accelerated filer D Non-accelerated filer D Smaller reporting company D Emerging growth company D If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. D Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). Yes D No M As of June 30. 2017, Ford had outstanding 3,900,795,510 shares of Common Stock and 70,852,076 shares of Class B Stock. Based on the New York Stock Exchange Composite Transaction closing price of the Common Stock on that date ($11 .19 per share), the aggregate market value of such Common Stock was $43,649,901 ,757. Although there is no quoted market for our Class B Stock, shares of Class B Stock may be converted at any time into an equal number of shares of Common Stock for the purpose of effecting the sale or other disposition of such shares of Common Stock. The shares of Common Stock and Class B Stock outstanding at June 30, 2017 included shares owned by persons who may be deemed to be “affiliates" of Ford. We do not believe, however, that any such person should be considered to be an affiliate. For information concerning ownership of outstanding Common Stock and Class B Stock, see the Proxy Statement for Ford’s Annual Meeting of Stockholders currently scheduled to be held on May 10, 2018 (our “Proxy Statement”), which is incorporated by reference under various Items of this Report as indicated below. As of January 31, 2018, Ford had outstanding 3,902,499,580 shares of Common Stock and 70,852,076 shares of Class B Stock. Based on the New York Stock Exchange Composite Transaction closing price of the Common Stock on that date ($10.97 per share), the aggregate market value of such Common Stock was $42,810,420,393. DOCUMENTS INCORPORATED BY REFERENCE Document Where Incorporated Proxy Statement" Part Ill (Items 10, 11, 12, 13, and 14) * As stated under various Items of this Report, only certain specified portions of such document are incorporated by reference in this Report. Exhibit Index begins on page _9_9 PART I. ITEM 1. Business. Ford Motor Company was incorporated in Delaware in 1919. We acquired the business of a Michigan company, also known as Ford Motor Company, which had been incorporated in 1903 to produce and sell automobiles designed and engineered by Henry Ford. We are a global company based in Dearborn, Michigan. With about 202,000 employees worldwide, the Company designs, manufactures, markets, and services a full line of Ford cars, trucks, sport utility vehicles (“SUVs”), electrified vehicles, and Lincoln luxury vehicles, provides financial services through Ford Motor Credit Company LLC (“Ford Credit"), and is pursuing leadership positions in electrification, autonomous vehicles, and mobility solutions. In addition to the information about Ford and our subsidiaries contained in this Annual Report on Form 10-K for the year ended December 31, 2017 ("2017 Form 10-K Report" or “Report”), extensive information about our Company can be found at httg://corporate.ford.com, including information about our management team, our brands and products, and our corporate governance principles. The corporate governance information on our website includes our Corporate Governance Principles, Code of Ethics for Senior Financial Personnel, Code of Ethics for the Board of Directors, Code of Corporate Conduct for all employees, and the Charters for each of the Committees of our Board of Directors. In addition, any amendments to our Code of Ethics or waivers granted to our directors and executive officers will be posted on our corporate website. All of these documents may be accessed by going to our corporate website, or may be obtained free of charge by writing to our Shareholder Relations Department, Ford Motor Company, One American Road, P.O. Box 1899, Dearborn, Michigan 48126-1 899. Our recent periodic reports filed with the Securities and Exchange Commission (“SEC”) pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended, are available free of charge at httpzllshareholderford.com. This includes recent Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, and Current Reports on Form 8-K, as well as any amendments to those Reports. Recent Section 16 filings made with the SEC by the Company or any of our executive officers or directors with respect to our Common Stock also are made available free of charge through our website. We post each of these documents on our website as soon as reasonably practicable after it is electronically filed with the SEC. Our reports filed with the SEC also may be found on the SEC’s website at www.sec.gov. The foregoing information regarding our website and its content is for convenience only and not deemed to be incorporated by reference into this Report nor filed with the SEC. SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19“ FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (415) 364-6700 FAX: (415) 364-6785 \OOOQQ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I declare under penalty of perjury under the laws of the State of California that the following is true and correct: I am employed in the City and County 0f San Francisco, State of California, in the office 0f a member of the bar of this court, at whose direction the service was made. I am a citizen 0f the United States, over the age of eighteen (18) years, and not a party to 0r interested in the Within-entitled cause. My business address is SCHNADER HARRISON SEGAL & LEWIS LLP, 650 California Street, 19th Floor, San Francisco, California 94108-2736. I caused to be served the following document(s) and by the following means: DEFENDANTS FORD MOTOR COMPANY AND SILVA AUTO GROUP, INC. D/B/A MADERA FORD’S NOTICE OF REMOVAL OF STATE COURT ACTION TO THE UNITED STATES DISTRICT COURT First-Class Mail: I enclosed a true and correct copy of said document in an envelope and placed it for collection and mailing with the United States Post Office on the date set forth below, following the ordinary business practice; addressed as follows: Tionna Dolin, Esq, Attorneysfor Plaintiffs Daniel Tai, Esq, JULIA MAGANA and TONY Strategic Legal Practices, APC MAGANA 1840 Century Park East, Suite 430 Los Angeles, CA 90067 T: (3 10) 929-4900 F: (310) 943-3838 Email: tdolin@slpattomey£om dtai sl attome .com I am readily familiar with my firm’s practice for collection and processing 0f correspondence for delivery in the manner indicated above, to wit, that correspondence will be deposited for collection in the above-described manner this same day in the ordinary course of business. Executed 0n July 3 1, 2019, at San Francisco, California. " SUS'IE M. ARZAVE PROOF OF SERVICE