Removal to Federal Court

Cal. Super. - 6th Dist.July 12, 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 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 FUTURE FORD, INC. Electronically Filed by Superior Court of CA, County of Santa Clara, on 8/22/2019 9:04 AM Reviewed By: S. Crabtree Case #1 9CV351 1 56 Envelope: 3295816 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA - UNLIMITED JURISDICTION CHRISTOPHER J. SMITH, Case No. 19CV351156 Plaintiff, DEFENDANTS FORD MOTOR COMPANY AND FUTURE FORD, INC.’S VS. NOTICE OF REMOVAL OF STATE FORD MOTOR COMPANY; FUTURE FORD, INC.; and DOES 1 through 10, inclusive, COURT ACTION TO THE UNITED STATES DISTRICT COURT Action Filed: July 12, 2019 Defendants. Trial Date: None assigned DEFENDANTS’ NOTICE OF REMOVAL OF STATE COURT ACTION TO THE UNITED STATES DISTRICT COURT 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 PLAINTIFF, HIS COUNSEL OF RECORD, AND THE CLERK OF THE SANTA CLARA COUNTY SUPERIOR COURT: PLEASE TAKE NOTICE that Defendants FORD MOTOR COMPANY and FUTURE FORD, INC. (“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 to United States Code, Title 28, Section 1441(b). A copy ofDefendants’ 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: August 22, 2019 SCHNADER HARRISON SEGAL & LEWIS LLP By: RI HARD J. MAY Attorneys for Defendants FORD MOTOR COMPANY and FUTURE FORD, INC. 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, 19th Floor San Francisco, California 94108-2736 Telephone: (415) 364-6700 Facsimile: (415) 364-6785 Attorneys for Defendants FORD MOTOR COMPANY and FUTURE FORD, INC. IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA (SAN JOSE DIVISION) CHRISTOPHER J. SMITH, Case No. Plaintiff, NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. SECTION vs. 1441(b) (Diversity Jurisdiction) FORD MOTOR COMPANY; FUTURE FORD, INC.; and DOES 1 through 10, inclusive, Complaint Filed: July 12, 2019 Defendants. Trial Date: None Set TO THE CLERK OF THE ABOVE-ENTITLED COURT: PLEASE TAKE NOTICE that Defendants FORD MOTOR COMPANY (“Ford”) and FUTURE FORD, INC. (“Future” 0r “Dealership”), by their counsel, hereby remove to this Court, pursuant to 28 U.S.C. §§ 1332, 1441 and 1446, based on diversity of citizenship, the claims pending as Case No. 19CV351 156 in the Superior Court of California, County 0f Santa Clara. 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, Ford states: I. THE REMOVED CASE 1. The removed case is a civil action commenced in the Superior Court 0f California, County of Santa Clara, by Plaintiff Christopher J. Smith (“Plaintiff”) against the Defendants, entitled Christopher J. Smith v. Ford Motor Company, et al., Case N0. 19CV351 156 (the “State Action”). The two named Defendants are Ford and Future. 2. Plaintiff filed the State Action on July 12, 2019, asserting claims against Ford for breach of express and implied warranties under the Song-Beverly Consumer Warranty Act (Cal. CiV. Code § 1790 et seq.) (“Song-Beverly”) and for fraud. The only claim Plaintiff lodged against Future is for the breach 0f the implied warranty of merchantability, a claim that is barred by the statute of limitations. II. PROCEDURAL REQUIREMENTS 3. This notice of removal is timely because Ford was served With a copy of the complaint on June 19, 2019. See 28 U.S.C. § 1446(b) and Fed. R. CiV. P. 6(a)(1)(C). 4. Pursuant to 28 U.S.C. § 1446(a), copies of all process, pleadings, and orders for the State Action in Ford’s possession are contained in Exhibit “A” filed herewith. 5. Pursuant to 28 U.S.C. § 1446(a), venue is proper in the Northern District of California because this district embraces the place in Which the removed action has been pending. 6. Pursuant to 28 U.S.C. § 1446(d), a true and correct copy of this Notice of Removal will be filed with the Superior Court 0f California, County 0f Santa Clara promptly after filing 0f same in this Court. 7. Pursuant t0 28 U.S.C. § 1446(d), written notice 0f filing of 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 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 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 ‘hazardous’ . . . A dismissal under Rule 12(b)(1) Without notice 0r a hearing is similarly suspect”). Thus, if any question arises as to the propriety of this removal, Ford and Future request the opportunity to amend this notice 0fremoval following any necessary discovery, briefing, and oral argument. 9. Nothing in this Notice of Removal shall be interpreted as a waiver or relinquishment of Ford’s and Future’s rights to assert defenses including, without limitation, the defenses 0f (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 to join indispensable party(ies), (viii) the right to arbitrate this controversy, 0r (ix) any other procedural or substantive defense available under state or federal law. III. THE AMOUNT IN CONTROVERSY REQUIREMENT IS MET 10. The amount in controversy in this action exceeds $75,000, exclusive of interest and costs. See 28 U.S.C. § 1332. 11. It is well-established that “the sum claimed by the plaintiffs control 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 Future dispute that they are liable to Plaintiff for any damages whatsoever. But the amount in controversy is met. There is n0 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 1nvs., 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 0f removal “need not contain evidentiary submissions.” Id. at 1197. “By design, § 1446(a) tracks the general pleading requirement stated in Rule 8(a),” Which requires only that the grounds for removal be stated in a “short and plain statement.” Dart, 135 S. Ct. at 553. 13. Generally, a federal district court will first “consider Whether it is ‘facially 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 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 averred in the removal petition. Id. Next, if the defendant’s allegation(s) regarding the amount in controversy is challenged, then “both sides submit proof and the court decides, by a preponderance of the evidence, Whether the amount-in-controversy requirement has been satisfied.” Ibarra, 775 F.3d at 1195. At that time, “it may be appropriate to allow discovery relevant to [the] jurisdictional amount prior t0 remanding.” Abrego, 443 F.3d at 691 (internal citation omitted). 14. In this case, Plaintiff expressly seeks damages in an amount that exceeds $25,000 plus a civil penalty of two times actual damages. (Complaint 1m 11, 14-15, 21, 24, and 28.) Plaintiff 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 0f cases also often approach or exceed $50,000. (Declaration 0f Richard J. May, fl 5.) Thus, the Complaint on its face seeks recovery ofmore than $75,000. 15. The Court may include civil penalties potentially recoverable under California’s Song-Beverly Consumer Warranty Act in calculating the amount in controversy. See Romo v. FFG Ins. 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 fees. Brady, 243 F. Supp. 2d at 101 1; Guglielmino v. McKee Foods Corp, 506 F.3d 696, 700 (9th Cir. 2007); Galt G/S v. JSS Scandinavia, 142 F.3d 1150, 1156 (9th Cir. 1998); see also Fritsch v. Swift Transp. C0. 0fAriz., LLC, 899 F.3d 785, 788, 794-95 (9th Cir. 2018) (holding attorney fees are included in amount in controversy in cases removed under Class Action Fairness Act). 16. If Plaintiffwere to prevail on his Song-Beverly claims, he could be awarded damages of $75,000 or more if awarded statutory civil penalties. Even before taking attorneys’ 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 fees and punitive damages into account, the purchase price of $29,280 plus $58,560.00 as a 2X civil penalty pursuant to the Song-Beverly Act, totals $87,840.1 (May Decl. fl 7.) 17. Plaintiff also prays for punitive damages. (Complaint, p. 11:10.) The amount in controversy also includes punitive damages. Gibson v. Chrysler Corp, 261 F.3d 927, 945 (9th Cir. 2001. When Plaintiff s claim for restitution of 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. Plaintiff is, and was at the time of filing the Complaint, a citizen of California. 19. Ford is, and was at the time Plaintiff commenced this action, a corporation incorporated in and organized under the laws of the State of Delaware with its principal place 0f business in Michigan. This Court can take judicial notice of these facts. (See Exhibit “B,” 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 Future and Fraudulent Joinder 20. “There are two ways to establish fraudulent joinder: ‘(1) actual fraud in the pleading ofjurisdictional facts, 0r (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. “Fraudulent joinder is established the second way if a defendant shows that an ‘individua1[ ] joined in the action cannot be liable 0n any theory.’” Id. (Citation omitted). In other words, removing parties must show “an “obvious’ failure to state a claim” against them. Id. at 549. 21. Ford contends that Plaintiff fraudulently joined Future in this case for n0 reason 1 The Retail Installment Sales Contract for Plaintiff” s purchase of the subj ect vehicle has yet t0 be located. The invoice for the subj ect vehicle indicates that the manufacturer’s suggested retail price is $29,280.00 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 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, or no real intention in good faith to prosecute the action against the defendants 0r seek a joint judgment”). 22. The Complaint asserts six Causes of Action. Only the Fifth cause 0f action for breach of implied warranty of merchantability is asserted against Future. 23. The First, Second, Third, Fourth, and Sixth Causes 0f action, Which assert claims for breach 0f express and implied warranties under the Song-Beverly Consumer Warranty Act (Cal. CiV. Code § 1790 et seq.) and for fraud are expressly asserted against Ford only, and not against Future. 24. Plaintiff” s Fifth Cause of Action is the only cause 0f action asserted against Future and alleges breach 0f implied warranty 0f merchantability. Plaintiff alleges 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 subject vehicle was sold new. Plaintiff does not allege a breach 0f any implied warranty that might (or might not) have arisen in connection with Future’s sale 0f the subject vehicle. 25. Ford believes that Plaintiff has no intention 0f pursuing any claim against Future, and that Future was only named t0 defeat the claim 0f diversity and removal to Federal Court. B. PlaintiffCannot Establish Claims Against Future Based 0n Breach 0f Implied Warranty 26. Because the Song-Beverly Act does not establish a statute of limitations for implied warranty claims, the California Uniform Commercial Code’s four-year statute of limitations applies t0 such Claims. Krieger v. NickAlexander Imports, Ina, 234 Cal. App. 3d 205, 214-215 (1991); Carrau v. Marvin Lumber & Cedar C0., 93 Cal. App. 4th 281, 297 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 (2001); see Cal. U. Com. Code § 2725(1). 27. The accrual of a cause of action for breach of implied warranty under the Song- Beverly Act is also governed by the California Uniform Commercial Code, see Cal. CiV. Code § 1791.1(d), under Which “[a] cause 0f action accrues When the breach occurs, regardless of the aggrieved party’s lack of knowledge 0f the breach. A breach of warranty occurs when tender 0f delivery is made, except that where a warranty explicitly extends t0 future performance of the goods and discovery of the breach must await the time 0f such performance the cause 0f action accrues when the breach is 0r should have been discovered.” Cal. U. Com. Code § 2725(2). 28. The limitations trigger in California Uniform Commercial Code section 2725 for an implied warranty claim is not delayed by the discovery rule because the implied warranty is not a warranty that explicitly extends t0 the performance of future goods. (Cardinal Health 301, Inc. v. Tyco Electronics Corp, 169 Cal. App. 4th 116, 134 (2008); Carrau, 93 Cal. App. 4th at 292; Marvin Lumber and Cedar C0. v. PPG Industries, Inc. 223 F.3d 873, 879 (8th Cir. 2000). Thus, With respect to implied warranties, the “general limitations rule for a breach of warranty cause of action is four years from the date the goods are delivered (regardless 0f the date the buyer discovers the breach).” Cardinal Health, 169 Cal. App. 4th at 129; Cal. U. Com. Code § 2725(2). 29. Thus, the delayed discovery rule is not applicable t0 breach 0f implied warranty claims like Plaintiffs. Lucas v. Breg, Ina, 212 F. Supp. 3d 950, 961 (S.D.Cal. 2016); Gerstle v. Am. Honda Motor C0., N0. 16-CV-04384-JST, 2017 WL 2797810, at * 12 (N.D.Cal. June 28, 2017); Marcus v. Apple Ina, N0. C 14-03824 WHA, 2015 WL 151489, at *9 (N.D.Ca1. Jan. 8, 2015) (applying the discovery rule t0 implied warranty claims “would be nonsensical. If a warranty period on a product did not begin to run until the purchaser discovers a defect, the statutory time limit 0n the warranty would be useless. A product could break twelve years after it was purchased and under Plaintiffs’ theory, the warranty time period would begin then”). 30. In sum, no California authority holds that a purchaser Who does not discover a 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 product’s defect until after expiration 0f the one-year warranty period would be able t0 overlook the entire period from sale to discovery, so as to have a full four-year period to file suit after discovery-regardless 0fhow long after the sale Plaintiffs discovery occurred. 3 1. Plaintiff Will not be able t0 establish a valid claim against Future based 0n breach of implied warranty because any such claim is barred by the statute of limitations, and no tolling doctrine applies. Plaintiff alleges that he purchased the subj ect vehicle 0n “0r about May 0f 2012.” (Complaint fl 8.) Plaintiff claims the subject vehicle was defective “at the time of purchase.” (Complaint 1] 32.) Thus, Plaintiff was required to have brought an action for breach of implied warranty within four (4) years of purchase in order for the action to be timely. Plaintiff filed this action on July 12, 2019, more than seven (7) years after Plaintiff purchased the subject vehicle. 32. The joinder 0f Future is fraudulent because the Complaint does not and cannot state a cause 0f action against Future. Gasumyan v. Travelers Cas. Ins. C0. 0fAm., 2017 U.S. Dist. LEXIS 73013, at *4 (CD. Cal. May 11, 2017). 33. Accordingly, Ford believes that Plaintiff has no intention of pursuing any claim against Future, and that Future was named in the Complaint only t0 defeat diversity and thus prevent removal to this Court. C. Future is a “Dispensable Party” Pursuant t0 FRCP 21 andMay Be Severed From This Action 34. Alternatively, under Fed. R. CiV. P. 21, “the court may, at any time, on just terms, add 0r drop a party.” “Rule 21 grants a federal district 0r appellate court the discretionary power t0 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- Larraz'n, 490 U.S. 826, 832 (1989) (“it is well settled that Rule 21 invests district courts With authority to allow a dispensable nondiverse party to be dropped at any time, even after judgment has been rendered”). 35. Here, severance is particularly appropriate because Future has the right to 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 arbitrate Plaintiff’ s claims against it. Thus, if this case were t0 remain in state court, Plaintiff s claims against Future would be severed from the remainder of the case and proceed in arbitration in any event. (May Decl., fl 8 & Exh. A (materially similar case in Which state court ordered plaintiff’ s claims against dealer sent t0 arbitration and severed those claims).) There is thus no reason not t0 sever Future and the claim against it right now. Accordingly, this Court should drop Future as a party. 36. For the reasons stated above, there is diversity of citizenship between Plaintiff, a California citizen, and Ford, a citizen 0f Michigan and Delaware. Though Defendant Future is a California citizen, the Court still has subj ect matter jurisdiction over this dispute under 28 U.S.C. § 1332, as Future was fraudulently joined by Plaintiff. Alternatively, this Court may sever Future 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 For the reasons stated above, the State Action may be removed to this Court by Ford and Future in accordance with the provisions of 28 U.S.C. §§ 1332 and 1441 because: (i) this action is a civil action pending Within the jurisdiction 0f the United States District Court for the Northern District of California, (ii) the amount in controversy exceeds $75,000.00, exclusive of interest and costs, and (iii) the action is solely between properly joined citizens of different states. WHEREFORE, Defendants hereby notify Plaintiff and his attorneys that the above- entitled action, formerly pending in the Santa Clara County Superior Court, has been removed from that court to this Court. Dated: August 19, 2019 SCHNADER HARRISON SEGAL & LEWIS LLP By: /s/ Richard J. May STEPHEN H. DYE RICHARD J. MAY Attorneys for Defendants FORD MOTOR COMPANY and FUTURE FORD, INC. 9 NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. SECTION 1441(b) EXHIBIT A Service of Process Transmittal 07/19/2019 CT Log Number 535894047 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 / MD 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: Christopher J. Smith, Pltf. vs. Ford Motor Company, et al., Dfts. DOCUMENT(S) SERVED: Summons, Complaint, Notice(s), Cover Sheet, Instructions COURT/AGENCY: Santa Clara County - Superior Court - San Jose, CA Case # 19CV351156 NATURE OF ACTION: Product Liability Litigation - Lemon Law - 2011 Ford Fusion, VIN: 3FAHP0JG2BR155815 ON WHOM PROCESS WAS SERVED: C T Corporation System, Los Angeles, CA DATE AND HOUR OF SERVICE: By Process Server on 07/19/2019 at 11:03 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, APC 1840 Century Park East Suite 430 Los Angeles, CA 90067 310-929-4900 ACTION ITEMS: CT has retained the current log, Retain Date: 07/19/2019, Expected Purge Date: 07/24/2019 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 ?//q(Q CP 2fl3" SUMMONS (C/TA C/ON JUDICIAL) NOTICE TO DEFENDANT: (AVISO AL DEMANDADO): FORD MOTOR COMPANY; FUTURE FORD, INC.; and DOES I through 10 inclusive YOU ARE BEING SUED BY PLAINTIFF: (LO ESTA DEMANDANDO EL DEMANDANTE): CHRISTOPHER J. SMITH FOR COURT USE ONLY (SOLO PARR USO 05 LA tORTE) E-FILED 7/12/2019 12:53 PM Clerk of Court Superior Court of CA, County of Santa Clara 19CV351156 Reviewed By: L Del Mun Envelope: 3121664 NOTICE! You have been sued. The court may decide against you without your being heard unless you respond within 30 days. Read the information below. You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a written response at this court and have a copy served on the plaintiff. A teller 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.coudinfaca.gov/salmelp), your county law library, or the courthouse nearest you. IF you cannot pay the filing fee, ask the court cterk 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.lawhelpcahfomia.org), the California Courts Online Sell-Help Center (wicw,coudinfo.ca.gov/selmalp), 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 $10000 or more in a civil case. The courts lien must be paid before the court will dismiss the case. IA VISOI to han demandado. Si no responde denim tie 30 Was, la code puede dacidir an su contra sin escuchar su version. Lea Ia information a continuaciOn. Tiane 30 DIAS OE CALENDARIO despues de qua Is entreguen esta cilaciOn y papeles legates pare presenter ma respuest a per escdto an esta code y ha car qua Se enhregue una ccpia at demandante. Una carts o una llamada felefOnica no to prntegen. Su respuesta par escfito tiene qua estar an formalo legal correcto 51 desea que promsen so case an Ia code. Es posible qua hays un fom,ufario qua usted pueda user para su respuesta. Puede encontrarestos formularlas data today mas information on at Centro de Ayuda de las Codes do California (www.sucorte.ca.gov), an /a biblioteca de leyes de su contiatio o en ía code qua Is quede mas cerca. Si no puede pager la more de presentation, pida at secrelaria de la code qua to dO un form u/ado de exencion de p990 tie cuotas. Si no presents su respuesta a hiempo, puede perder el to so pot incumplimiento yla code Jo podia quitar su sue/do, tiinero y bienes sin mOs advertencia. Hay altos requisites IegaJes. Es recomendable quo flame a un abogado inmediatamente. Si no conoce a un abogado. puede Ilamar a un ser/icio de remisiOn a abogados. Si no puede pagar a un abogado, es posible qua cumpla con los requisites pare obtener servicios legates gratuitos tie on pro grama de servicios legates sin fines tie lucre. Puede enconlrar estos grupos sin fines tie luo'o an at sitio web tie California Legal Services, (www.iawhelpcalifornia.org), en el Centro tie Ayuda tie las Codes de California, (www.sucorte.ca.gov) a ponitindose an tornado con Ia code o at colegio de abogatios locales. A VISO: Per lay, la code hone dorecho a reciamar las codas ylos costos exentos pot imponer on gravamen sobre cualquier recuperation tie 310,0006 mAs tie valor recibida media me on acuerdo o una concesiOn tie arbihraje an on case tie derecho civil. Tiene qua pagar of gravamen de Is code antes do qua /a code pueda desechar at case. The name and address of the court is: CASE NUMBER: (El nombre y direction do Is code es): Downtown Superior Court 9CV351 156 191 North First Street San Jose, California 95113 The name, address, and telephone number of plaintiffs attorney, or plaintiff without an attorney, is: (El norn bye, ía direction y ci nUmero de lelofono dol abogado del demandante, o tiel demandante quo no liene abogado, es): Tionna Dolin; 1840 Century Park East, Suite 430, Los Angeles, CA 90067; Tel: (310) 929-4900 DATE' T/12/2019 12:53 PM Clerk of Court Clerk, by L Del Mundo (Fecha5 (Secmtado) (For proof of service of this summons, use Proof of Service of Summons (form P08-010).) (Pars piveba do entrega de esta citation use ci forrnulario Proof of Service of Summons, (P08-010)). NOTICE TO THE PERSON SERVED: You are served . as an individual defendant. I 2. as the person sued under the fictitious name of (specify): Deputy (Adjunlo) 3, on behalf of (specify): .11) v-ok under. , CCP 416.10 (corporation) CCP 416,60 (minor) CCP 416.20 (defunct corporation) CCP 416,70 (conservatee) CCP 416.40 (association or partnership) CCP 416.90 (authorized person) other (specify): 4. by personal delivery on (date); Manda4ory use SUMMONS coda ci OW Procedure 5 412 20,455 w,.vcoo,T,W0.tA,y 100 Rev. Aly 1, 20091 I 2 3 4 5 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C 0-I.- .cj 11 U :4 E. U) E-FILED 7/12/2019 12:53 PM Clerk of Court Superior Court of CA, County of Santa Clara 19CV351156 Reviewed By: L Del Mundo Tionna Dolin (SBN 299010) Email: tdolin@slpattorney.com Strategic Legal Practices, APC 1 840 Century Park East, Suite 430 Los Angeles, CA 90067 Telephone: (310) 929-4900 Facsimile: (310) 943-3838 Attorneys for Plaintiff CHRISTOPHER J. SMITH SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA CHRISTOPHER J. SMITH, Case No.: 19CV351156 Plaintiff, Hon. Dept. am FORD MOTOR COMPANY; FUTURE FORD, COMPLAINT FOR VIOLATION OF INC.; and DOES 1 through 10, inclusive, STATUTORY OBLIGATIONS Defendants. JURY TRIAL DEMANDED COMPLAINT; JURY TRIAL DEMANDED 1 2 3 4 5 6 - 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C-) C' - 1 0 (I) Plaintiff alleges as follows: PARTIES As used in this Complaint, the word "Plaintiff' shall refer to Plaintiff CHRISTOPHER J. SMITH. Plaintiff is a resident of California. As used in this Complaint, the word Defendant" shall refer to all Defendants named in this Complaint, unless otherwise specified. Defendant FORD MOTOR COMPANY ("Defendant FMC") is a corporation organized and in existence under the laws of the State of Delaware and registered with the California Department of Corporations to conduct business in California. At all times relevant herein, Defendant was engaged in the business of designing, manufacturing, constructing, assembling, marketing, distributing, and selling automobiles and other motor vehicles and motor vehicle components in Santa Clara County. Defendant FUTURE FORD, INC. ("Defendant Future") is a corporation organized and in existence under the laws of the State of California. At all times relevant herein, Defendant was engaged in the business of selling automobiles and automobile components, and servicing and repairing automobiles in Placer County. Plaintiff is 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 Plaintiff becomes aware of the true names and capacities of the Defendants sued as DOES I to 10, Plaintiff will amend this Complaint to state their true names and capacities. To the extent there are any statutes of limitation applicable to Plaintiffs claim-including, without limitation, their 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), the discovery rule, fraudulent concealment rule, equitable estoppel, equitable tolling and/or repair rule. HI COMPLAINT; JURY TRIAL DEMANDED FIRST CAUSE OF ACTION 2 BY PLAINTIFF AGAINST DEFENDANT FMC 3 VIOLATION OF SUBDIVISION (D) OF CIVIL CODE SECTION 1793.2 4 8. On or about May of 2012, Plaintiff purchased a 2011 Ford Fusion vehicle 5 identification number 3FAHPOJG2BRI558I5 (hereafter "Vehicle") which was manufactured 6 and or distributed by Defendant FMC. The Vehicle was purchased or used primarily for 7 personal, family, or household purposes. Plaintiff purchased the Vehicle from a person or 8 entity engaged in the business of manufacturing, distributing, or selling consumer goods at 9 retail. 10 9. In connection with the purchase, Plaintiff received an express written warranty, II including a 3 year/36,000 miles bumper to bumper warranty and a 5 year/60,000 miles 12 powertrain warranty, which covers the engine and transmission. Defendant undertook to 13 preserve or maintain the utility or performance of the Vehicle or to provide compensation if 14 there is a failure in utility or performance for a specified period of time. The warranty 15 provided, in relevant part, that in the event a defect developed with the Vehicle during the 16 warranty period, Plaintiff could deliver the Vehicle for repair services to Defendant's 17 representative and the Vehicle would be repaired. 18 10. During the warranty period, the Vehicle contained or developed defects, 19 including but not limited to, defects causing the brakes to squeak; defects causing the brakes 20 to vibrate; defects causing the center console to come apart; defects related to the engine; 21 defects causing a delayed response when accelerating; defects causing hesitation; defects 22 causing rough shifting; defects requiring performance of Recall 120612; defects requiring 23 performance of Technical Service Bulletin ("TSB") 12-6-12; defects requiring programming 24 of the powertrain control module ("PCM"); defects requiring resurfacing of front brake rotors; 25 defects causing a loss of power; defects causing the illumination of the wrench icon; defects 26 causing the failure and/or replacement of the throttle body; defects causing storage of 27 Diagnostic Trouble Code ("DTC") P2112; defects causing rough idle; defects causing the 28 failure and/or replacement of evap purge valve; defects causing sudden loss of acceleration; COMPLAINT; JURY TRIAL DEMANDED defects causing Vehicle to shudder at high speeds; defects causing a screeching poise when 2 turning steering wheel; defects causing the failure and/or replacement of the lower control 3 arms; defects causing the defroster to malfunction; defects requiring the failure and/or 4 replacement of the battery; defects causing the Bluetooth to be inoperable; defects requiring 5 the SYNC system to be updated; defects causing the failure and/or replacement of center 6 console rear seat arm rest and cupholder; defects requiring the performance of Recall 13B17; 7 defects causing the engine to shut off; defects requiring the performance of Recall I5S18; 8 defects requiring the updating of the power steering control module ("PSCM"); defects 9 causing the illumination of the battery indicator light; defects causing the failure and/or 10 replacement of the PCM; defects requiring the connector to be fastened into place; and/or any 11 other defects described in the Vehicle's repair history. Said defects substantially impair the 12 use, value, or safety of the Vehicle. 13 11. Plaintiff suffered damages in a sum to be proven at trial in an amount that is not 14 less than $25,001.00 15 12. Defendant and its representatives in this state have been unable to service or 16 repair the Vehicle to conform to the applicable express warranties after a reasonable number 17 of opportunities. Despite this fact, Defendant failed to promptly replace the Vehicle or make 18 restitution to Plaintiff as required by Civil Code section 1793.2, subdivision (d) and Civil 19 Code section 1793. 1, subdivision (a)(2). 20 13. Plaintiff has been damaged by Defendant's failure to comply with its 21 obligations pursuant to bivil Code section 1793.2, subdivision (d) and Civil Code section 22 1793. 1, subdivision (a)(2), and therefore brings this cause of action pursuant to Civil Code 23 section 1794. - 24 14. Defendant's failure to comply with its obligations under Civil Code section 25 1793.2, subdivision (d) was willful, in that Defendant and its representative were aware that 26 they were unable to service or repair the Vehicle to conform to the applicable express 27 warranties after a reasonable number of repair attempts, yet Defendant failed and refused to 28 promptly replace the Vehicle or make restitution. Accordingly, Plaintiff is entitled to a civil 3 COMPLAINT; JURY TRIAL DEMANDED penalty of two times Plaintiff's actual damages pursuant to Civil Code section 1794, 2 subdivision (c). 3 15. Defendant does not maintain a qualified third-party dispute resolution process 4 which substantially complies with Civil Code section 1793.22. Accordingly, Plaintiff is 5 entitled to a civil penalty of two times Plaintiff's actual damages pursuant to Civil Code 6 section 1794, subdivision (e). 7 16. Plaintiff seeks civil penalties pursuant to section 1794, subdivisions (c), and (e) 8 in the alternative and does not seek to cumulate civil penalties, as provided in Civil Code 9 section 1794, subdivision (f). 10 SECOND CAUSE OF ACTION o BY PLAINTIFF AGAINST DEFENDANT FMC 12 VIOLATION OF SUBDIVISION (B) OF CIVIL CODE SECTION 1793.2 13 17. Plaintiff incorporates by reference the allegations contained in the paragraphs 14 I set forth above. '5 18. Although Plaintiff presented the Vehicle to Defendant's representative in this - 16 state, Defendant and its representative failed to commence the service or repairs within a 17 reasonable time and failed to service or repair the Vehicle so as to conform to the applicable Cl) 18 warranties within 30 days, in violation of Civil Code section 1793.2, subdivision (b). Plaintiff 19 did not extend the time for completion of repairs beyond the 30-day requirement. 20 19. Plaintiff has been damaged by Defendant's failure to comply with its 21 obligations pursuant to Civil Code section 1793.2(b), and therefore brings this Cause of - 22 Action pursuant to Civil Code section 1794. 23 20. Plaintiff has rightfully rejected and/or justifiably revoked acceptance of the 24 Vehicle, and has exercised a right to cancel the purchase. By serving this Complaint, Plaintiff 25 does so again. Accordingly, Plaintiff seeks the remedies provided in California Civil Code 26 section 1794(b)(l), including the entire contract price. In the alternative, Plaintiff seeks the 27 remedies set forth in California Civil Code section 1794(b)(2), including the diminution in 28 4 COMPLAINT; JURY TRIAL DEMANDED value of the Vehicle resulting from its defects. Plaintiff believes that, at the present time, the Vehicle's value is de minimis. Defendant's failure to comply with its obligations under Civil Code section 1793.2(b) was willful, in that Defendant and its representative were aware that they were obligated to service or repair the Vehicle to conform to the applicable express warranties within 30 days, yet they failed to do so. Accordingly, Plaintiff is entitled to a civil penalty of two times Plaintiffs actual damages pursuant to Civil Code section 1794(c). THIRD CAUSE OF ACTION BY PLAINTIFF AGAINST DEFENDANT FMC VIOLATION OF SUBDIVISION (A)(3) OF CIVIL CODE SECTION 1793.2 Plaintiff incorporates by reference the allegations contained in paragraphs set I forth above. In violation of Civil Code section 1793.2, subdivision (a)(3), Defendant failed to make available to its authorized service and repair facilities sufficient service literature and replacement parts to effect repairs during the express warranty period. Plaintiff has been damaged by Defendant's failure to comply with its obligations pursuant to Civil Code section 1793.2(a)(3), and therefore brings this Cause of Action pursuant to Civil Code section 1794. Defendant's failure to comply with its obligations under Civil Code section I 2 3 4 5 6 7 8 9 10 C-) 12 tn '3 '4 15 I? (1) 1793.2, subdivision (a)(3) was wilful, in that Defendant knew of its obligation to provide literature and replacement parts sufficient to allow its repair facilities to effect repairs during the warranty period, yet Defendant failed to take any action to correct its failure to comply with the law. Accordingly, Plaintiff is entitled to a civil penalty of two times Plaintiffs actual damages; pursuant to Civil Code section 1794(c). I/I HI I/I I/I I/I S COMPLAINT; JURY TRIAL DEMANDED 19 20 21 22 23 24 25 26 27 28 FOURTH CAUSE OF ACTION 2 BY PLAINTIFF AGAINST DEFENDANT FMC 3 BREACH OF EXPRESS WRITTEN WARRANTY 4 (CIV. CODE, §1791.2, SUBD. (a); § 1794) .5 25. Plaintiff incorporates by reference the allegations contained in paragraphs set 6 forth above. 7 26. In accordance with Defendant's warranty, Plaintiff delivered the Vehicle to 8 Defendant's representative in this state to perform warranty repairs. Plaintiff did so within a 9 reasonable time. Each time Plaintiff delivered the Vehicle, Plaintiff notified Defendant and its 10 representative of the characteristics of the Defects. However, the representative failed to . 11 repair the Vehicle, breaching the terms of the written warranty on each occasion. (1)5 12 27. Plaintiff has been damaged by Defendant's failure to comply with its 13 obligations under the express warranty, and therefore brings this Cause of Action pursuant to 14 Civil Code section 1794. 15 28. Defendant's failure to comply with its obligations under the express warranty - 16 was willful, in that Defendant and its authorized representative were aware that they were 17 obligated to repair the Defects, but they intentionally refused to do so. Accordingly, Plaintiff U, 18 is entitled to a civil penalty of two times of Plaintiffs actual damages pursuant to Civil Code 19 section 1794(c). 20 FIFTH CAUSE OF ACTION 21 BY PLAINTIFF AGAINST DEFENDANTS 22 BREACH OF THE IMPLIED WARRANTY OF MERCHANTABILITY 23 (CIV. CODE, § 1791.1; § 1794; § 1795.5) 24 29. Plaintiff incorporates by reference the allegations contained in the paragraphs 25 I set forth above. 26 30. Pursuant to Civil Code section 1792, the sale of the Vehicle was accompanied 27 by Defendant's implied warranty of merchantability. Pursuant to Civil Code section 1791. 1, 28 COMPLAINT; JURY TRIAL DEMANDED the duration of the implied warranty is coextensive in duration with the duration of the express 2 written warranty provided by Defendant, except that the duration is not to exceed one-year. 3 31. Pursuant to Civil Code section 1791.1(a), the implied warranty of 4 merchantability means and includes that the Vehicle will comply with each of the following 5 requirements: (1) The Vehicle will pass without objection in the trade under the contract 6 description; (2) The Vehicle is fit for the ordinary purposes for which such goods are used; (3) 7 The Vehicle is adequately contained, packaged, and labelled; (4) The Vehicle will conform to 8 the promises or affirmations of fact made on the container or label. 9 32. At the time of purchase, or within one-year thereafter, the Vehicle contained or 10 developed the defects set forth above. The existence of each of these defects constitutes a II breach of the implied warranty because the Vehicle (1) does not pass without objection in the 12 trade under the contract description, (2) is not fit for the ordinary purposes for which such 13 goods are used, (3) is not adequately contained, packaged, and labelled, and (4) does not 14 conform to the promises or affirmations of fact made on the container or label. 15 33. Plaintiff has been damaged by Defendant's failure to comply with its 16 obligations under the implied warranty, and therefore brings this Cause of Action pursuant to 17 Civil Code section 1794. 18 SIXTH CAUSE OF ACTION 19 BY PLAINTIFF AGAINST DEFENDANT FMC 20 (Fraud by Omission) 2] 34. Plaintiffs incorporate by reference the allegations contained in the paragraphs 22 set forth above. 23 35. Defendant committed fraud by allowing the Vehicle to be sold to Plaintiffs 24 without disclosing that the Vehicle and its engine was defective and susceptible to sudden and 25 premature failure. 26 36. In particular, Plaintiffs are informed, believe, and thereon allege that prior to 27 Plaintiffs acquiring the Vehicle, FMC was well aware and knew that the engine installed in 28 7 COMPLAINT; JURY TRIAL DEMANDED 1 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-) (-3 -4 U- C_) . - U Li) -C CI) the Vehicle was defective but failed to disclose this fact to Plaintiffs at the time of sale and thereafter. On or about December 18, 2014, FMC issued TSB 14-0228 which describes a condition where the engine will overheat in cold temperatures. On or about October 23, 2015, FMC issued TSB 15-0162, for 2013-2014 Ford Fusion, 2013-2016 Ford Escape and 2014-2016 Ford Fiesta vehicles with 1.6L GTDJ engines which may exhibit a loss of power and storage of various fault codes. On or about March 27, 2017, the National Highway Traffic Safety issued a report concluding that 2013-2014 Ford Fusion vehicles suffer from an engine cooling system defect whereby coolant leaks from the engine cylinder head "increasing the risk of fire" but "remedy parts are currently unavailable." On or about January 19, 2018, FMC issued Recall* 17S09 to address engine overheating which may cause oil leaks that could result in an engine compartment fire. Specifically, FMC knew (or should have known) that the engine had one or more defects that can result in various problems, including, but not limited to, engine overheating; premature failure of the coolant pump; fluid leakage into engine parts; mixing of coolant with engine oil; and/or spreading of coolant-oil mixture throughout engine ("Engine Defect"). These conditions present a safety hazard and are unreasonably dangerous to consumers because they can suddenly and unexpectedly cause engine-related driveability issues (including lack of power, hesitation rough running, and no-start), sudden engine failure, and/or an engine fire while the Vehicle is in operation at any time. Such unexpected engine failure, thereby, exposes Plaintiff and passengers (along with other drivers who share the road with Plaintiff) to a serious risk of accident and injury. Plaintiff is informed, believes and thereon alleges that FMC acquired its knowledge of the Engine Defect prior to Plaintiff acquiring the Vehicle, through sources not available to consumers such as Plaintiff, including but not limited to pre-production testing, pre-production design failure mode analysis, production design failure mode analysis, early consumer complaints made to FMC's network of dealers, aggregate warranty data compiled 8 COMPLAINT; JURY TRIAL DEMANDED 2 3 4 5 6 7 8 9 10 II 12 13 14 Is 16 17 18 19 20 21 22 23 24 25 26 27 28 C-, I. C- - - U U) from FMC's network of dealers, repair orders and parts data received from FMC's dealers, consumer complaints to dealers and NHTSA and testing performed in response to consumer complaints, amongst other sources of internal information. Plaintiff is informed, believes, and thereon alleges that while Defendant knew about the Engine Defect, and its safety risks since 2012, if not before, Defendant nevertheless concealed and failed to disclose the defective nature of the Vehicle and its engine to Plaintiff at the time of sale and thereafter. Had Plaintiff known that the Subject Vehicle suffered from the Engine Defect, he would not have purchased the Vehicle. Indeed, Plaintiff alleges that Defendant knew that the Vehicle equipped with the engine suffered from an inherent defect, was defective, would fail prematurely, and was not suitable for its intended use. Defendant was under a duty to Plaintiff to disclose the defective nature of the Vehicle and its engine, its safety consequences and/or the associated repair costs because: Defendant acquired its knowledge of the Engine Defect and its potential consequences prior to Plaintiff acquiring the Vehicle, through sources not available to consumers such as Plaintiff, including but not limited to pre- production testing, pre-production design failure mode analysis, production design failure mode analysis, early consumer complaints made to FMC's network of dealers, aggregate warranty data compiled from FMC's network of dealers, repair orders and parts data received from FMC's dealers, consumer complaints to dealers and NHTSA and testing performed in response to consumer complaints, 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 engine; and C. Plaintiff could not reasonably have been expected to learn or discover of the Vehicle's Engine Defect and its potential consequences until well after Plaintiff purchased the Vehicle. Plaintiff discovered Defendant's wrongful conduct COMPLAINT; JURY TRIAL DEMANDED alleged herein at or around the time that they requested a buyback of the 2 Vehicle from Defendant in or around July 2019, after Defendant repeatedly 3 undertook to perform repairs for the Engine Defect which were ultimately 4 unsuccessful (Defendant denied Plaintiff's request). 5 46. In failing to disclose the Vehicle's Engine Defect, Defendant has knowingly 6 and intentionally concealed material facts and breached its duty not to do so. 7 47. The facts concealed or not disclosed by FMC (and its directors, officers, 8 employees, affiliates, and/or agents) to Plaintiff is material in that a reasonable person would 9 have considered them to be important in deciding whether or not to purchase the Vehicle. Had 10 Plaintiff known that the Vehicle equipped with the engine was defective at the time of sale, 0 11 she would not have purchased the Vehicle. 12 48. Plaintiff is a reasonable consumer who did not expect her Vehicle and its 13 engine to fail and not work properly. Plaintiff further expects and assumes that Defendant will 14 not sell or lease vehicles-with known material defects, including but not limited to those 15 involving the Vehicle's engine and will disclose any such defect to its consumers before 16 selling such vehicles. 0 17 49. As a result of Defendant's misconduct, Plaintiffs have suffered and will U 18 continue to suffer actual damages. 19 20 21 I/I 22 23 11/ 24 I/I 25 I/I 26 27 I/I 28 I/I - COMPLAINT; JURY TRIAL DEMANDED PRAYER 2 PLANTTFF PRAYS for judgment against Defendant as follows: 3 a. For Plaintiff's actual damages in an amount according to proof; 4 b. For restitution; 5 c. For a civil penalty in the amount of two times Plaintiff's actual damages 6 pursuant to Civil Code section 1794, subdivision (c) or (e); 7 d. For any consequential and incidental damages; 8 e. For costs of the suit and Plaintiffs reasonable attorneys' fees pursuant 9 to Civil Code section 1794, subdivision (d); 10 f. For punitive damages; C-, 11 g. For prejudgment interest at the legal rate; and 12 h. For such other relief as the Court may deem proper. 13 14 - DEMAND FOR JURY TRIAL 15 Plaintiff hereby demands a jury trial on all causes of action asserted herein. 16 17 Dated: July 12, 2019 STRATEGIC LEGAL PRACTICES, APC 18 19 20 BY: Tionna Dolin 21 Attorney for Plaintiff CHRISTOPHER J. SMITH 22 23 24 25 26 27 28 II COMPLAINT; JURY TRIAL DEMANDED ATTACHMENT CV-5012 CIVIL LAWSUIT NOTICE Superior Court of California, County of Santa Clara CASE NUMBER: 191 North First St, San José, CA 95113 19CV351156 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 Cleric'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 Plaintiff's 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.gov/forms and www.courtinfo,ca.pov/rutes • Local Rules and Forms: http:llwww.sccsuperiorcourt.org/civil/ruleltoc.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-11 10) at least 15 calendar days before the CMC. You or your attorney must appear at the CMC. You may ask to appear by telephone - see Local Civil Rule 8. Arand, Mary E Your Case Management Judge is: Department:____________________ The 11sl CMC is scheduled for: (Completed by Clerk of Court) Date:1 0-22-19 Time:1.30pm in Department:________________ The next CIVIC is scheduled for: (Completed by party if the 1St CMC was continued or has passed) Date: Time: in Department: ALTERNATIVE DISPUTE RESOLUTION (ADR): If all parties have appeared and filed a completed ADR Stipulation Form (local form CV-5008) at least 15 days before the CMC, the Court will cancel the CMC and mail notice of an ADR Status Conference. Visit the Court's website at w.sccsuperiorcourt.org/civil/ADl or call the ADR Administrator (408-882-2100 x-2530) for a list of ADR providers and their qualifications, services, and fees. WARNING: Sanctions may be imposed if you do not follow the California Rules of Court or the Local Rules of Court. CV-5012 REV 08/01/16 CIVIL LAWSUIT NOTICE Page 1 of ATT0EY OR PARTY WITHOUT ATIOreEY fwame. Slate Oar number, and adosess) "TIONNA DOLIN (SUN 299010) FOR COURT USE ONLY Strategic Legal Practices, APC Electronically Filed 1840 Century Park East, Suite 430 Los Angeles, Calilurnia 90067 by Superior Court of CA, TELEPHONE NO (310) 929-4900 FAX IIO1 (311) 943-3838 County of Santa Clara, ATTOIt4CY FOR (Nan) Plaintiff CHRISTOPHER J. SMITH on 7/12/2019 12:53 PM SUPERIOR COu FIT OF CALIFORNIA. COUNTY OF SANTA CLARA STREETADDRESS. 191 North First Street Reviewed By: L Del Mundo UAILiNGRE5S 191 North First Street Case #19CV351 156 CITY AW ZIP cE: San Jose, CA 95113 Downtown Superior Court Envelope: 3121664 BRANCH NAME CASE NAME: SMITH v. FORD MOTOR COMPANY; FUTURE FORD, INC.; and DOE 1 through 10 inclusive CIVIL CASE COVER SHEET I Complex Case Designation SE NUMBER 19CV351 156 EIZJ Unlimited C Limited Counter El Joinder JiJoGE: (Amount (Amount demanded demanded is I Filed.with first appearance by defendant - exceeds $25,000) $25,000 or less) I (Cal. Rules of Court, rule 3.402) DEPT Ifnms 1-6 hn/nw most be comoieted (see instructions on oaoe 2). Check one box below for the case type that best describes this case: Auto Tort . Contract C Auto (22) [I2J Breach of contract/warranty (06) EJ Uninsured moloslst (46) LU Rule 3.740 collections (09) Other PI!PDO (Personal Injury/Property L11 Other collections (09) Damage/Wrongful Death) Ton LIII] Insurance coverage (18) LIII) Asbestos (04) [•] Other contract (37) C Product liability (24) Real Property C Medical malpractice (45) [IIIIJ Eminent domain/Inverse C Other PIIPO(WD (23) condemnation (14) Nnn.PIIPflfl (Other) Ton LIWrongful eviction (33) Provisionally Complex Civil Litigation (Cal. Rules of Court, rules 3.400-3.403) LIII Antitrust/Trade regulation (03) C Construction defect (10) LII) Mass tort (40) [III Securities litigation (28) [111111) Environmental/Toxic tort (30) LII Insurance coverage claims arising from the above listed provisionally complex case types (41) [TIll) Business tortiunfair business practice (07) LIII Civil rights (08) C Defamation (13) LII Fraud (16) LIII Intellectual property (19) C Professional negligence (25) LIII Other non.PLIPDIWD ton (35) Wrongful termination (36) Enforcement of Judgment EI3 Entorcemenl of judgment (20) Miscellaneous Civil Complaint C RICO (27) LII] Other complaint (not specified above) (42) Judicial Review Miscellaneous Civil Petition CAsset forfeiture (05) LII Partnership and corporate go-vemance (21) C Petition re: arbitration award (11) LII] Other petition (not specified above) (43) Wilt of mandate (02) III] Other real property (26) Unlawful Detainer LII Commercial (31) LII) Residential (32) II Drugs (38) L.....J Other employment (IS) L.J Other judicial review (39) 2. This case LIII is LZJ is not complex under rule 3.400 of the California Rules or Court. lithe case is complex, mark the factors requiring exceptional judicial management: LIII Large number of separately represented parties d. C Large number of witnesses LII Extensive motion practice raising difficult or novel e. C Coordination with related actions pending in one or more courts issues that will be time-consuming to resolve in other counties, states, or countries, or in a federal court C Substantial amount of documentary evidence f. C Substantial postjudgment judicial supervision 3. Remedies sought (check all that apply): a.J monetary b.= nonmonetary: declaratory or injunctive relief C. LIII punitive 4. Number of causes of action (specify): Six (6) 5. This case C is LII) is not a class action suit. 6. If there are any known related cases, file and serve a notice of related case. (You may use form CM-015.) Date: 07/12/19 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 role 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. CIVIL CASE COVER SHEET CI flujesoicouri.,Lies Ca got, CM-010 INSTRUCTIONS ON HOW TO COMPLETE THE COVER SHEET To Plaintiffs 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. lithe case fits both a general and a more specific type of case listed in item 1, check the more specific one. If the case has multiple causes of action, check the box that best indicates the primary cause of action. To assist you in completing the sheet, examples of the cases that belong under each case type in item 1 are provided below. A cover sheet must be filed only with your initial paper. Failure to file a cover sheet with the first paper Filed in a civil case may subject a party, its counsel, or both to sanctions under rules 2.30 and 3.220 of the California Rules of Court. To Parties in Rule 3.740 Collections Cases. A 'collections case" under rule 3.740 is defined as an action for recovery of money owed in a sum stated to be certain that is not more than $25,000, exclusive of interest and attorney's fees, arising from a transaction in which property, services, or money was acquired on credit. A collections case does not include an action seeking the following: (1) tort damages, (2) punitive damages, (3) recovery of real property, (4) recovery of personal property, or (5) a prejudgment writ of attachment. The identification of a case as a rule 3.740 collections case on this form means that it will be exempt from the general time-for-service requirements and case management rules, unless a defendant rites a responsive pleading. A rule 3.740 collections case will be subject to the requirements for service and obtaining a judgment in rule 3.740. To Parties in Complex Cases. In complex cases only, parties must also use the Civil Case Cover Sheet to designate whether the case is complex. If a plaintiff believes the case is complex under rule 3.400 of the California Rules of Court, this must be indicated by completing the appropriate boxes in items 1 and 2. If a plaintiff designates a case as complex, the cover sheet must be served with the complaint on all parties to the action. A defendant may file and serve no later than the time of its first appearance a joinder in the plaintiffs designation, a counter-designation that the case is not complex, or, if the plaintiff has made no designation, a designation that the case is complex. CASE TYPES AND EXAMPLES Auto Tort Contract Provisionally Complex Civil Litigation (Cal, Auto (22)-Personal Injury/Property Breath of Contract/Warranty (06) Rules of Court Rules 3.400-3.403) Damage/Wrongful Death Breach of Rental/Lease AntitrusVl'rade Regulation (03) Uninsured Motorist (48) (if the Contract (not unlawful detainer Construction Defect (10) case involves an uninsured or wrongful eviction) claims Involving Mass Tort (40) motorist claim subject to ContractfWarranty Breath-Seller Securities Litigation (28) arMration, check this item Plaintiff (not fraud or negligence) Environmental/Toxic Tort (30) instead of Auto) Negligent Breath of Contract/ Insurance Coverage Claims Other PIIPDIWD (Personal Injury/ Warranty (arising from provisionally complex Property Damage/Wrongful Death) Other Breath of Contract/Warranty 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 Note/Collections 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) Petitio&Certification of Entry of Other Professional Health Care Contractual Fraud Judgment on Unpaid Taxes Malpractice Other Contract Dispute Other Enforcement of Judgment Case Other PIIPONVD (23) Real Property Premises Liability (e.g.. slip Eminent Domain/Inverse Miscellaneous Civil Complaint and fall) Condemnation (14) RICO (27) Intentional Bodily lnjuryIPDfWO 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 Relief Only (non- Emotional Distress Mortgage Foreclosure Negligent Infliction of Quiet Title Emotional Distress Other Real Property (not eminent Mechanics Lien Other Commercial Complaint Other PI/PD/WD domain, landlord,tenant, or Non-PIIPDMD (Other) Tort foreclosure) Case (non-tort/non-complex) Business Toruunfair Business Unlawful Detainer Other Civil Complaint (non-tort/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 Fraud (16) Asset Forfeiture (05) Civil Harassment Workplace Violence Intellectual Property (19) Petition Re: Arbitration Award if 1) 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 Other Non-PI/PD/WD Tort (35) Writ-Other Limited Court Case Petition for Relief From Late claim Employment Review Wrongful Termination (36) Other Judicial Review (39) Other Civil Petition Other Employment (15) Review of Health Officer Order Notice of Appeal-Labor Commissioner Appeals cMoloIRov. .ki ¶. 20071 - - CIVIL CASE COVER SHEET Page 2 of 2 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 CHRISTOPHER J. SMITH, Case No. 19CV351156 Plaintiff, DEFENDANT FORD MOTOR COMPANY’S ANSWER TO PLAINTIFF’S vs. COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS FORD MOTOR COMPANY; FUTURE FORD, INC.; and DOES 1 through 10, inclusive, DEMAND FOR JURY TRIAL Action Filed: July 12, 2019 Defendants. Trial Date: None assigned Defendant FORD MOTOR COMPANY (“Ford”), for itself alone and for no other parties, hereby answers the Complaint of PlaintiffCHRISTOPHER J. SMITH (“Plaintiff”), as follows: GENERAL DENIAL Under the provisions of §431.30(d) of the California Code 0f Civil Procedure, Ford denies each and every allegation, both specifically and generally, 0f each cause 0f action contained in Plaintiff’ s Complaint 0n file herein and the Whole thereof, and denies that Plaintiff was damaged in any sum or sums, or at all. 1 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) Plaintiff’ s 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 Plaintiff s concerns were resolved under the warranty or occurred after the expiration 0f the original express warranty. THIRD AFFIRMATIVE DEFENSE (Estoppel) Plaintiff is estopped from obtaining the relief sought, 0r pursing any 0f the claims raised 0r causes of actions contained in the Complaint, by Virtue 0f his acts, failure t0 act, conduct, representations, admission, and the like. FOURTH AFFIRMATIVE DEFENSE (Waiver) Plaintiff has waived his rights t0 the claims, causes 0f action and relief sought in this Complaint against Ford, by Virtue of his acts, failure to act, conduct, representations, admissions, and the like. FIFTH AFFIRMATIVE DEFENSE (Laches) Plaintiff has unreasonably delayed the commencement of this action t0 the prejudice 0f 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 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) Plaintiff’ s causes 0f action have not accrued because Plaintiff cannot establish that he suffered injury directly from the subj ect vehicle 0r products and, therefore, Plaintiff s 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 Plaintiff arising out of 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) Plaintiff and/or others misused, abused, altered and improperly cared for and maintained the subj ect vehicle contrary t0 Ford’s approval 0r consent and Plaintiff” s damages, if any, were proximately caused by such misuse, alteration, abuse and neglect 0f the product. NINTH AFFIRMATIVE DEFENSE (No Defect in Materials 0r Workmanship) The damages asserted in Plaintiff” s 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) Plaintiff has n0 restitution remedy under breach of implied warranty because there was no timely revocation 0f acceptance before a substantial change in the condition 0f the goods. /// 3 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 ELEVENTH AFFIRMATIVE DEFENSE (Failure to Maintain Vehicle) Ford alleges that Plaintiff is precluded from recovery due t0 failure to 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 Plaintiff for any alleged breach of warranty such that some, if not all, of 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, Plaintiff is not entitled to 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 0f Implied Warranty) The alleged nonconformities did not arise until after the implied warranty expired. Accordingly, Plaintiff is not entitled to relief for breach 0f the implied warranty 0f merchantability. California Civil Code § 1 79 1 . 1 (c). 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 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 (Unreasonable Use 0f Vehicle) Plaintiff’ s claims may be barred by waiver due t0 Plaintiff s unreasonable use 0f the vehicle after the nonconformity or nonconformities allegedly could not be repaired. SEVENTEENTH AFFIRMATIVE DEFENSE (Failure to Use Dispute Resolution Process) Plaintiff and/or the owner(s) of the subj ect vehicle received timely notice of the availability 0f a third party dispute resolution process, and that no effort was made t0 use such process. EIGHTEENTH AFFIRMATIVE DEFENSE (Failure t0 Provide Reasonable Opportunity to Cure) Plaintiff failed t0 provide it with a reasonable opportunity t0 cure any alleged defect as required by 15 U.S.C. §2310(e) and Civil Code §1790, et seq. NINETEENTH AFFIRMATIVE DEFENSE (N0 Prejudgment Interest) Plaintiff’s Complaint fails to state facts sufficient to constitute a basis for recovery 0f prejudgment interest. TWENTIETH AFFIRMATIVE DEFENSE (Business Use) The subj ect vehicle was not purchased or used primarily for personal, family, or household purposes and that the business use was by a person, including a partnership, limited liability company, corporation, association, or any other legal entity, to Which more than five motor vehicles were registered in this state. TWENTY-FIRST AFFIRMATIVE DEFENSE (Failure t0 Mitigate) Plaintiff failed and neglected to use reasonable care to protect himself and t0 minimize his losses and damages, if any. /// 5 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 (N0 Agency Relationship) Ford denies any allegations of agency contained in Plaintiff’ s Complaint. TWENTY-THIRD AFFIRMATIVE DEFENSE (Assumption 0f Risk) Plaintiffknew about matters giving rise t0 the Complaint and assumed the risk created thereby. TWENTY-FOURTH AFFIRMATIVE DEFENSE (Good Faith Conduct) Ford has acted in good faith and reasonably With respect to the matters alleged in Plaintiff s Complaint. TWENTY-FIFTH AFFIRMATIVE DEFENSE (Doctrine of Consent) Plaintiff is barred from recovering the relief sought by reason 0f the doctrine 0f consent. TWENTY-SIXTH AFFIRMATIVE DEFENSE (Statute 0f Limitations) Plaintiff s Complaint and each cause of action contained therein does not state facts sufficient t0 constitute a cause 0f action in that the Complaint and each cause 0f action is barred by the applicable statute 0f limitations, including, but not limited t0, those stated in Part II, Title 2, Chapter 3 of the California Code of Civil Procedure, §§335 through 346.4, California Civil Code, §§1783, 1791.1, 1793.2, and 1793.22, California Commercial Code, §2725, and Business and Professions Code, §17208. TWENTY-SEVENTH AFFIRMATIVE DEFENSE (Warranty Exclusions) Plaintiff s action for breach of warranty is barred by the terms, conditions, disclaimers and exclusions of the warranty, if any. Moreover, Plaintiff has failed to comply with all obligations under the warranty, if any, t0 include, but not limited t0, timely notice, proper maintenance and appropriate use. 6 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 (Civil Penalty Barred) Any prayer made by Plaintiff for a civil penalty pursuant t0 Civil Code §1794(e) 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, Plaintiff failed t0 serve the notice required for recovery of a civil penalty under this provision. TWENTY-NINTH AFFIRMATIVE DEFENSE (Spoliation of Evidence) This action is barred 0r limited because of the altering, spoiling, damaging, destruction, or losing 0f evidence by Plaintiff, 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. THIRTIETH AFFIRMATIVE DEFENSE (Failure to Properly Notify) Plaintiff has failed t0 properly provide timely notice, Within a reasonable period 0f time after discovery of his 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-FIRST 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. THIRTY-SECOND AFFIRMATIVE DEFENSE (Statute of Frauds) To the extent Plaintiff is suing for breach 0f an oral representation 0r contract, such an oral representation 0r contract would be unenforceable pursuant t0 Civil Code section 1624(a)(1-7). / / / / / / 7 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 (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 Plaintiff received timely and appropriate notification, in writing, 0f the availability 0f the third party resolution process. Accordingly, since Plaintiff did not avail himself 0f the third party dispute resolution process prior t0 filing this litigation, Section 1794(e)(2) of the California Civil Code may bar Plaintiff from recovering damages for (i) attorney fees, (ii) costs, and (iii) treble damages (as provided under California Civil Code Section 1794(6)), and Plaintiffmay not avail himself of the rebuttable presumption pursuant to California Civil Code Section 1793.2(e)(1). THIRTY-FOURTH AFFIRMATIVE DEFENSE (Constitutionality of Punitive Damages) Plaintiff s claims are in contravention 0f Ford’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 on interstate commerce in contravention of Article I, Section 8 of the United States Constitution; (b) said claims contravene the Excessive Fines Clause 0f the Eighth Amendment of the United States Constitution; (c) said claims Violate Ford’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-FIFTH AFFIRMATIVE DEFENSE (Punitive Damages Improperly Pled/Not Recoverable) Plaintiff has not properly pled a claim for punitive damages and these damages are not recoverable based on the facts contained in Plaintiff’ s Complaint, or are otherwise barred by the provisions of California Civil Code sections 3294, 3295, and 3296, 0r such conduct was adopted, ratified 0r authorized by Ford under California Civil Code section 3294(b). 8 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-SIXTH AFFIRMATIVE DEFENSE (Punitive Damages Impermissible For Extra-Territorial Conduct) Any award of punitive damages based 0n 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 of this lawsuit would Violate the due process clause of the Fourteenth Amendment t0 the United States Constitution because any other judgment for punitive damages in this case cannot protect Ford against impermissible multiple punishment for the same wrong and against punishment for extra-territorial conduct. THIRTY-SEVENTH AFFIRMATIVE DEFENSE (Punitive Damages Unconstitutional) An award of punitive 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 0f the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 7 of the California Constitution because, among other things, (1) any award of punitive 0r exemplary damages would be grossly out of proportion t0 the alleged wrongful conduct and purported injury at issue here; (2) there is no legitimate state interest in punishing the alleged wrongful conduct at issue here, 0r in deterring its possible repetition; (3) the alleged wrongful conduct at issue here is lawful in other jurisdictions; (4) the alleged wrongful conduct at issue here is not sufficiently reprehensible to warrant the imposition of any punitive 0r exemplary damages; and (5) the criteria for the imposition of punitive 0r exemplary damage are unconstitutionally vague and uncertain and fail to provide fair notice of what conduct Will result in the imposition of such damages. THIRTY-EIGHTH AFFIRMATIVE DEFENSE (Clear and Convincing Standard for Punitive Damages) Ford alleges that any predicate liability finding for the imposition 0f 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. /// 9 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-NINTH AFFIRMATIVE DEFENSE (Punitive Damages - Financial Status 0f Defendant) To the extent that California law permits punishment t0 be measured by the net worth or financial status 0f Ford 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 to be imposed based 0n lawful profits and conduct 0f Ford in other States, and allows dissimilar treatment 0f similarly situated defendants, in Violation 0f the due process and equal protection provisions 0f the Fourteenth Amendment t0 the United States Constitution, the Commerce Clause 0f the United States Constitution, and the California Constitution. FORTIETH AFFIRMATIVE DEFENSE (Arbitration Clause in Purchase Agreement) The purchase 0r lease agreement for the subject vehicle, signed by Plaintiff, includes an agreement t0 arbitrate. Plaintiff has thus agreed t0 resolve this dispute by neutral, binding arbitration and not by court action. FORTY-FIRST AFFIRMATIVE DEFENSE (Set Off) Defendant alleges that if it is established that it is in any manner legally responsible for any 0f the damages claimed by Plaintiff, Which is denied, Defendant is entitled to a set off 0f those damages, if any, that resulted from the wrongful acts 0f Plaintiff and/or others. FORTY-SECOND AFFIRMATIVE DEFENSE (Fees and Costs) Defendant is informed and believes, and 0n that basis alleges, that the Complaint was brought without reasonable cause and without a good faith belief that there was a justifiable controversy under the facts or the law which warranted the filing of the Complaint against Defendant. Plaintiff should therefore be responsible for all 0f Defendant’s necessary and reasonable attorney fees and defense costs as permitted by California law. 10 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 FORTY-THIRDAFFIRMATIVE DEFENSE (Failure to Abide by Terms of Warranty) Plaintiff s breach 0f warranty claims are barred because Plaintiff’s failure t0 give timely and appropriate notice of any claim 0f breach of warranty. FORTY-FOURTH AFFIRMATIVE DEFENSE (Additional Defenses) Ford alleges that it may have additional affirmative defenses available to it ofwhich it is not now fully aware. Ford reserves the right to assert affirmative defenses after the same shall have been ascertained. PRAYER WHEREFORE, Ford prays as follows: 1. For dismissal of Plaintiff’s Complaint with prejudice; 2. For judgment in favor of Ford against Plaintiff; 3. For Ford’s fees and costs 0f suit herein; and 4. For such other and further relief as the Court may deem just and proper. DEMAND FOR JURY TRIAL Ford hereby demands a jury trial 0n all claims asserted by Plaintiff. Dated: August 16, 2019 SCHNADER HARRISON SEGAL & LEWIS LLP yRICHARD J. MAYU Attorneys for DefendantU FORD MOTOR COMPANY 1 1 FORD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS 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: DEFENDANT FORD MOTOR COMPANY’S ANSWER TO PLAINTIFF’S COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS 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 Plaintifl Daniel c_ Tai, Esq. CHRISTOPHER J. SMITH Strategic Legal Practices, APC 1840 Century Park East, Suite 430 Los Angeles, CA 90067 T: (310) 929-4900 F: (310) 943-3838 Email: tdolin@slpattorney£0m dtai sl attorne .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 of business. Executed 0n August 16, 2019, at San Francisco, California. v SUS’IE M. ARZAVE 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 FUTURE FORD, INC. IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA - UNLIMITED JURISDICTION CHRISTOPHER J. SMITH, Plaintiff, vs. FORD MOTOR COMPANY; FUTURE FORD, INC.; and DOES 1 through 10, inclusive, Defendants. Case No. 19CV351156 DEFENDANT FUTURE FORD, INC.’S ANSWER TO PLAINTIFF’S COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS DEMAND FOR JURY TRIAL Action Filed: July 12, 2019 Trial Date: None assigned Defendant FUTURE FORD, INC. (“Dealership” 0r “Defendant”), for itself alone and for n0 other parties, hereby answers the Complaint of Plaintiff CHRISTOPHER J. SMITH (“Plaintiff’), as follows: GENERAL DENIAL Under the provisions of §431.30(d) of the California Code 0f Civil Procedure, Dealership denies each and every allegation, both specifically and generally, of each cause of action contained in Plaintiff’ s Complaint 0n file herein and the Whole thereof, and denies that Plaintiff was damaged in any sum 0r sums, 0r at all. 1 DEALERSHIP’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) Plaintiff’ s 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 Plaintiff s concerns were resolved under the warranty or occurred after the expiration 0f the original express warranty. THIRD AFFIRMATIVE DEFENSE (Estoppel) Plaintiff is estopped from obtaining the relief sought, 0r pursing any 0f the claims raised 0r causes of actions contained in the Complaint, by Virtue 0f his acts, failure t0 act, conduct, representations, admission, and the like. FOURTH AFFIRMATIVE DEFENSE (Waiver) Plaintiff has waived his rights t0 the claims, causes 0f action and relief sought in this Complaint against Dealership, by Virtue of his acts, failure to act, conduct, representations, admissions, and the like. FIFTH AFFIRMATIVE DEFENSE (Laches) Plaintiff has unreasonably delayed the commencement of this action t0 the prejudice 0f 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 DEALERSHIP’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) Plaintiff’ s causes 0f action have not accrued because Plaintiff cannot establish that he suffered injury directly from the subj ect vehicle 0r products and, therefore, Plaintiff s 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 Plaintiff arising out 0f 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) Plaintiff and/or others misused, abused, altered and improperly cared for and maintained the subj ect vehicle contrary t0 Dealership’s approval 0r consent and Plaintiff’ s damages, if any, were proximately caused by such misuse, alteration, abuse and neglect 0f the product. NINTH AFFIRMATIVE DEFENSE (No Defect in Materials 0r Workmanship) The damages asserted in Plaintiff” s Complaint were not the result 0f any defect in material 0r 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 of Acceptance) Plaintiff has n0 restitution remedy under breach of implied warranty because there was no timely revocation 0f acceptance before a substantial change in the condition 0f the goods. /// 3 DEALERSHIP’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 ELEVENTH AFFIRMATIVE DEFENSE (Failure to Maintain Vehicle) Dealership alleges that Plaintiff is precluded from recovery due t0 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 Plaintiff for any alleged breach of warranty such that some, if not all, of 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, Plaintiff is not entitled to 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 0f Implied Warranty) The alleged nonconformities did not arise until after the implied warranty expired. Accordingly, Plaintiff is not entitled to relief for breach 0f the implied warranty 0f merchantability. California Civil Code § 1 79 1 . 1 (c). 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 DEALERSHIP’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 (Unreasonable Use 0f Vehicle) Plaintiff’ s claims may be barred by waiver due t0 Plaintiff s unreasonable use 0f the vehicle after the nonconformity or nonconformities allegedly could not be repaired. SEVENTEENTH AFFIRMATIVE DEFENSE (Failure to Use Dispute Resolution Process) Plaintiff and/or the owner(s) of the subj ect vehicle received timely notice of the availability 0f a third party dispute resolution process, and that no effort was made t0 use such process. EIGHTEENTH AFFIRMATIVE DEFENSE (Failure t0 Provide Reasonable Opportunity to Cure) Plaintiff failed t0 provide it with a reasonable opportunity t0 cure any alleged defect as required by 15 U.S.C. §2310(e) and Civil Code §1790, et seq. NINETEENTH AFFIRMATIVE DEFENSE (N0 Prejudgment Interest) Plaintiff’s Complaint fails to state facts sufficient to constitute a basis for recovery 0f prejudgment interest. TWENTIETH AFFIRMATIVE DEFENSE (Business Use) The subj ect vehicle was not purchased or used primarily for personal, family, or household purposes and that the business use was by a person, including a partnership, limited liability company, corporation, association, or any other legal entity, to Which more than five motor vehicles were registered in this state. TWENTY-FIRST AFFIRMATIVE DEFENSE (Failure t0 Mitigate) Plaintiff failed and neglected to use reasonable care to protect himself and t0 minimize his losses and damages, if any. /// 5 DEALERSHIP’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 (N0 Agency Relationship) Dealership denies any allegations 0f agency contained in Plaintiff’ s Complaint. TWENTY-THIRD AFFIRMATIVE DEFENSE (Assumption 0f Risk) Plaintiffknew about matters giving rise t0 the Complaint and assumed the risk created thereby. TWENTY-FOURTH AFFIRMATIVE DEFENSE (Good Faith Conduct) Dealership has acted in good faith and reasonably with respect t0 the matters alleged in Plaintiff s Complaint. TWENTY-FIFTH AFFIRMATIVE DEFENSE (Doctrine of Consent) Plaintiff is barred from recovering the relief sought by reason 0f the doctrine 0f consent. TWENTY-SIXTH AFFIRMATIVE DEFENSE (Statute 0f Limitations) Plaintiff s Complaint and each cause of action contained therein does not state facts sufficient t0 constitute a cause 0f action in that the Complaint and each cause 0f action is barred by the applicable statute 0f limitations, including, but not limited t0, those stated in Part II, Title 2, Chapter 3 of the California Code of Civil Procedure, §§335 through 346.4, California Civil Code, §§1783, 1791.1, 1793.2, and 1793.22, California Commercial Code, §2725, and Business and Professions Code, §17208. TWENTY-SEVENTH AFFIRMATIVE DEFENSE (Warranty Exclusions) Plaintiff s action for breach of warranty is barred by the terms, conditions, disclaimers and exclusions of the warranty, if any. Moreover, Plaintiff has failed to comply with all obligations under the warranty, if any, t0 include, but not limited t0, timely notice, proper maintenance and appropriate use. 6 DEALERSHIP’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 (Civil Penalty Barred) Any prayer made by Plaintiff for a civil penalty pursuant t0 Civil Code §1794(e) 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, Plaintiff failed t0 serve the notice required for recovery of a civil penalty under this provision. TWENTY-NINTH AFFIRMATIVE DEFENSE (Spoliation of Evidence) This action is barred 0r limited because of the altering, spoiling, damaging, destruction, or losing 0f evidence by Plaintiff, 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. THIRTIETH AFFIRMATIVE DEFENSE (Failure to Properly Notify) Plaintiff has failed t0 properly provide timely notice, Within a reasonable period 0f time after discovery of his claims and alleged defects. Consequently, Dealership has been damaged and prejudiced, barring the Complaint, and each cause 0f action therein, as a matter 0f law. THIRTY-FIRST AFFIRMATIVE DEFENSE (No Breach) Defendant performed all duties owed to Plaintiff other than any duties that were prevented 0r excused. Accordingly, there has been no breach of warranty. THIRTY-SECOND AFFIRMATIVE DEFENSE (Statute of Frauds) To the extent Plaintiff is suing for breach 0f an oral representation 0r contract, such an oral representation 0r contract would be unenforceable pursuant t0 Civil Code section 1624(a)(1-7). / / / / / / 7 DEALERSHIP’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 (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 Plaintiff received timely and appropriate notification, in writing, 0f the availability 0f the third party resolution process. Accordingly, since Plaintiff did not avail himself 0f the third party dispute resolution process prior t0 filing this litigation, Section 1794(e)(2) of the California Civil Code may bar Plaintiff from recovering damages for (i) attorney fees, (ii) costs, and (iii) treble damages (as provided under California Civil Code Section 1794(6)), and Plaintiffmay not avail himself of the rebuttable presumption pursuant to California Civil Code Section 1793.2(e)(1). THIRTY-FOURTH AFFIRMATIVE DEFENSE (Constitutionality of Punitive Damages) Plaintiff s 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 on interstate commerce in contravention of Article I, Section 8 of the United States Constitution; (b) said claims contravene the Excessive Fines Clause 0f 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-FIFTH AFFIRMATIVE DEFENSE (Punitive Damages Improperly Pled/Not Recoverable) Plaintiff has not properly pled a claim for punitive damages and these damages are not recoverable based on the facts contained in Plaintiff’ s Complaint, or are otherwise barred by the provisions of California Civil Code sections 3294, 3295, and 3296, 0r such conduct was adopted, ratified 0r authorized by Dealership under California Civil Code section 3294(b). 8 DEALERSHIP’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-SIXTH AFFIRMATIVE DEFENSE (Punitive Damages Impermissible For Extra-Territorial Conduct) Any award of punitive damages based 0n 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 of this lawsuit would Violate the due process clause of the Fourteenth Amendment t0 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-SEVENTH AFFIRMATIVE DEFENSE (Punitive Damages Unconstitutional) An award of punitive 0r exemplary damages to Plaintiff 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 0f the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 7 of the California Constitution because, among other things, (1) any award of punitive 0r exemplary damages would be grossly out of proportion t0 the alleged wrongful conduct and purported injury at issue here; (2) there is no legitimate state interest in punishing the alleged wrongful conduct at issue here, 0r in deterring its possible repetition; (3) the alleged wrongful conduct at issue here is lawful in other jurisdictions; (4) the alleged wrongful conduct at issue here is not sufficiently reprehensible to warrant the imposition of any punitive 0r exemplary damages; and (5) the criteria for the imposition of punitive 0r exemplary damage are unconstitutionally vague and uncertain and fail to provide fair notice of what conduct Will result in the imposition of such damages. THIRTY-EIGHTH AFFIRMATIVE DEFENSE (Clear and Convincing Standard for Punitive Damages) Dealership alleges that any predicate liability finding for the imposition 0f punitive damages or a finding 0f the amount 0f any punitive damage award based upon a burden 0fproof 0f less than clear and convincing evidence violates due process and is unconstitutional. /// 9 DEALERSHIP’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-NINTH AFFIRMATIVE DEFENSE (Punitive Damages - Financial Status 0f Defendant) To the extent that California law permits punishment t0 be measured by the net worth or financial status 0f Dealership and allows the fact finder to impose greater punishment on defendants with larger net worth, such an award would be unconstitutional because it permits arbitrary, capricious and fundamentally unfair punishments, allows bias and prejudice t0 infect verdicts imposing punishment, allows punishment t0 be imposed based 0n lawful profits and conduct of Dealership in other States, and allows dissimilar treatment of similarly situated defendants, in Violation of the due process and equal protection provisions 0f the Fourteenth Amendment to the United States Constitution, the Commerce Clause 0f the United States Constitution, and the California Constitution. FORTIETH AFFIRMATIVE DEFENSE (Arbitration Clause in Purchase Agreement) The purchase 0r lease agreement for the subject vehicle, signed by Plaintiff, includes an agreement t0 arbitrate. Plaintiff has thus agreed t0 resolve this dispute by neutral, binding arbitration and not by court action. FORTY-FIRST AFFIRMATIVE DEFENSE (Set Off) Defendant alleges that if it is established that it is in any manner legally responsible for any 0f the damages claimed by Plaintiff, Which is denied, Defendant is entitled to a set off 0f those damages, if any, that resulted from the wrongful acts 0f Plaintiff and/or others. FORTY-SECOND AFFIRMATIVE DEFENSE (Fees and Costs) Defendant is informed and believes, and 0n that basis alleges, that the Complaint was brought without reasonable cause and without a good faith belief that there was a justifiable controversy under the facts or the law which warranted the filing of the Complaint against Defendant. Plaintiff should therefore be responsible for all 0f Defendant’s necessary and reasonable attorney fees and defense costs as permitted by California law. 10 DEALERSHIP’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 FORTY-THIRDAFFIRMATIVE DEFENSE (Failure to Abide by Terms of Warranty) Plaintiff s breach 0f warranty claims are barred because Plaintiff’s failure t0 give timely and appropriate notice of any claim 0f breach of warranty. FORTY-FOURTH 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 of Plaintiff’ s Complaint with prejudice; 2. For judgment in favor of Dealership against Plaintiff; 3. For Dealership’s fees and costs 0f suit herein; and 4. For such other and further relief as the Court may deem just and proper. DEMAND FOR JURY TRIAL Dealership hereby demands a jury trial on all claims asserted by Plaintiff. Dated: August 16, 2019 SCHNADER HARRISON SEGAL & LEWIS LLP yRICHARD J. MAYU Attorneys for DefendantU FUTURE FORD, INC. 11 DEALERSHIP’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS 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: DEFENDANT FUTURE FORD, INC.’S ANSWER TO PLAINTIFF’S COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS 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 Plaintifl Daniel c_ Tai, Esq. CHRISTOPHER J. SMITH Strategic Legal Practices, APC 1840 Century Park East, Suite 430 Los Angeles, CA 90067 T: (310) 929-4900 F: (310) 943-3838 Email: tdolin@slpattorney£0m dtai sl attorne .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 of business. Executed 0n August 16, 2019, at San Francisco, California. v SUS’IE M. ARZAVE PROOF OF SERVICE Odyssey File & Serve - Envelope Receipt Page 1 0f 3 Case # 19CV351156 - Christopher Smith vs FORD MOTOR Envelope Information Envelope Id Submitted Date Submitted User Name 3275372 8/16/2019 4:38 PM PST weefile@nationwideasap.com Case Information Location Category Case Type Santa Clara - Civil Civil - Unlimited Breach of Contract/Warranty Case Initiation Date Case # 7/12/2019 190V351 156 Assigned to Judge Arand, Mary E Flllngs Filing Type Filing Code EFiIe Answer/Response/Denial/Demurrer - First Appearance Filing Description DEFENDANT FORD MOTOR COMPANY'S ANSWER TO PLAINTIFF'S COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS Client Reference Number 96740 Filing on Behalf of FORD MOTOR COMPANY Filing Status Submitting Lead Document File Name Description Security Download 2019-08-16 - Smith, Christopher - Answer/Response/D... DEFAULT Original File Ford's Answer to State Court - First Appearance Complaintpdf https://calif0rnia.tylerhost.net/OfsWeb/FileAndServeModule/Envelope/ViewPrintableEnve. .. 8/ 1 6/20 1 9 Odyssey File & Serve - Envelope Receipt Page 2 0f 3 Filing Type Filing Code EFiIe Answer/Response/Denial/Demurrer - First Appearance Filing Description DEFENDANT FUTURE FORD, |NC.’S ANSWER TO PLAINTIFF'S COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS Client Reference Number 96740 Filing on Behalf of FUTURE FORD, INC. Filing Status Submitting Lead Document File Name Description Security Download 2019-08-16 - Smith, Christopher - Answer/Response/D... DEFAULT Original File Dealership's Answer to State - First Appearance Court Complaintpdf Fees AnswerlResponse/Denial/Demurrer - First Appearance Description Amount Filing Fee $435.00 Filing Total: $435.00 AnswerlResponse/Denial/Demurrer - 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://calif0rnia.tylerhost.net/OfsWeb/FileAndServeModule/Envelope/ViewPrintableEnve. .. 8/ 1 6/20 1 9 Odyssey File & Serve - Envelope Receipt Page 3 0f 3 Party Responsible FUTURE FORD, |... Transaction $901 .82 for Fees Amount Payment Account Nationwide Transaction Id 521 1045 Filing Attorney Stephen Dye Order Id 003275372-0 Transaction Authorized Response © 2019 Tyler Technologies Version: 201 9.0.1 .8574 https://calif0rnia.tylerhost.net/OfsWeb/FileAndServeModule/Envelope/ViewPrintableEnve. .. 8/ 1 6/20 1 9 EXHIBIT B 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 t0 be served the following document(s) and by the following means: DEFENDANTS FORD MOTOR COMPANY AND FUTURE FORD, INC.’S NOTICE OF REMOVAL OF STATE COURT ACTION TO THE UNITED STATES DISTRICT COURT U.S. 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 0n the date set forth below, following the ordinary business practice; addressed as follows: Tionna Dolin, Esq. Attorneysfor Plaintifi” Strategic Legal Practices, APC CHRISTOPHER J' SMITH 1840 Century Park East, Suite 430 Los Angeles, CA 90067 T: (310) 929-4900 F: (310) 943-3838 Email: tdolinnglpattomey£0m I am readily familiar with my firm’s practice for collection and processing of correspondence for delivery in the manner indicated above, t0 wit, that correspondence will be deposited for collection in the above-described manner this same day in the ordinary course of business. Executed 0n August 22, 2019, at San Francisco, California. V SUS'IE M. ARZAVE PROOF OF SERVICE