Removal to Federal Court

Cal. Super. - 6th Dist.July 15, 2019

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 1QCV351231 Santa Clara - Civil Y. Ch Electronically Filed STEPHEN H. DYE (SBN 104385) by Superior Court of CA e-mail: sdye@schnader.com c t f S t Cl ’ RICHARD J. MAY (SBN 234684) °”" Y ° a"_a a’a’ e-mail: rmay@schnader.com 0n 8/22/2019 7-41 PM SCHNADER HARRISON SEGAL & LEWIS LLP ReVIewed By: Y. Chavez 650 California Street, Suite 1900 Case #1 9CV351 231 San Francisco, California 94108-2736 Enve|ope; 3331 107 Telephone: (415) 364-6700 Facsimile: (415) 364-6785 Attorneys for Defendants FORD MOTOR COMPANY and PRICE-SIMMS FORD, LLC d/b/a FORD LINCOLN FAIRFIELD IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA - UNLIMITED JURISDICTION CHARLOTTE P. ARMLIN, Case N0. 19CV351231 Plaintiff, DEFENDANTS FORD MOTOR COMPANY AND PRICE-SIMMS FORD, vs. LLC D/B/A FORD LINCOLN FAIRFIELD’S NOTICE OF REMOVAL OF STATE COURT ACTION TO THE UNITED STATES DISTRICT COURT FORD MOTOR COMPANY; FORD LINCOLN FAIRFIELD; and DOES 1 through 10, inclusive, Action Filed: July 15, 20 1 9 Defendants. Trial Date: None assigned DEFENDANTS’ NOTICE OF REMOVAL OF STATE COURT ACTION TO THE UNITED aveZ STATES DISTRICT COURT SAN FRANCISCO, CA 94108-2736 FAX: (415) 364-6785 SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19‘“ FLOOR TELEPHONE: (415) 364-6700 OOQQ KO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 T0 PLAINTIFF, HER COUNSEL OF RECORD, AND THE CLERK OF THE SANTA CLARA COUNTY SUPERIOR COURT: PLEASE TAKE NOTICE that Defendants FORD MOTOR COMPANY and PRICE- SIMMS FORD, LLC, erroneously sued as FORD LINCOLN FAIRFIELD (“Defendants”) have filed in the United States District Court for the NORTHERN District of California a Notice of Removal of the above-captioned case pursuant to United States Code, Title 28, Section 1441(b). A copy 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 of the Notice of Removal, together With this Notice, effects the removal of the action, and the above-captioned State court is requested t0 proceed n0 further unless and until the case is remanded. Dated: August 23, 2019 SCHNADER HARRISON SEGAL & LEWIS LLP By: RI HARD J. MAY Attorneys for Defendants FORD MOTOR COMPANY and PRICE-SIMMS FORD, LLC d/b/a FORD LINCOLN FAIRFIELD 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: (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 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 PRICE-SIMMS FORD, LLC d/b/a FORD LINCOLN FAIRFIELD IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA (SAN JOSE DIVISION) CHARLOTTE P. ARMLIN, Case N0. Plaintiff, NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. SECTION VS. 1441(b) (Diversity Jurisdiction) FORD MOTOR COMPANY; FORD LINCOLN FAIRFIELD; and DOES 1 through 10, inclusive, Complaint Filed: July 15, 2019 Defendants. Trial Date: None Set TO THE CLERK OF THE ABOVE-ENTITLED COURT: PLEASE TAKE NOTICE that Defendants FORD MOTOR COMPANY (“Ford”) and PRICE-SIMMS FORD, LLC d/b/a FORD LINCOLN FAIRFIELD (“Price-Simms” or “Dealership”), by their counsel, hereby remove t0 this Court, pursuant t0 28 U.S.C. §§ 1332, 1441 and 1446, based on diversity 0f citizenship, the claims pending as Case N0. 19CV35 1231 in the Superior Court 0f California, County 0f Santa Clara. In support 0f this removal, Ford states: 1 NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. SECTION 1441(b) SAN FRANCISCO, CA 94108-2736 TELEPHONE: (415) 364-6700 FAX: (415) 364-6785 SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. THE REMOVED CASE 1. The removed case is a civil action commenced in the Superior Court 0f California, County 0f Santa Clara, by Plaintiff Charlotte Armlin (“Plaintiff”) against the Defendants, entitled Charlotte P. Armlin v. Ford Motor Company, et al. , Case N0. 19CV35 1231 (the “State Action”). The two named Defendants are Ford and Price-Simms. 2. Plaintiff filed the State Action 0n July 15, 2019, asserting claims against Ford for breach 0f express and implied warranties under the Song-Beverly Consumer Warranty Act (Cal. CiV. Code § 1790 et seq.) (“Song-Beverly”) and for fraud. The only claims Plaintiff lodged against Price-Simms are for the breach 0f the implied warranty 0f merchantability, a claim that is barred by the statute 0f limitations, and negligent repair, which is barred by the statute 0f limitations and the economic loss rule. II. PROCEDURAL REQUIREMENTS 3. This notice 0fremoval is timely because Ford was served with a copy 0f the complaint 0n June 23, 2019. See 28 U.S.C. § 1446(b) and Fed. R. CiV. P. 6(a)(1)(C). 4. Pursuant t0 28 U.S.C. § 1446(a), copies 0f all process, pleadings, and orders for the State Action in Ford’s possession are contained in Exhibit “A” filed herewith. 5. Pursuant t0 28 U.S.C. § 1446(a), venue is proper in the Northern District of California because this district embraces the place in which the removed action has been pending. 6. Pursuant t0 28 U.S.C. § 1446(d), a true and correct copy 0f this Notice 0f Removal will be filed with the Superior Court 0f California, County 0f Santa Clara promptly after filing of same in this Court. 7. Pursuant t0 28 U.S.C. § 1446(d), written notice 0f filing 0f this Notice 0f 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 0f 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 t0 be heard are 2 NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. SECTION 1441(b) SAN FRANCISCO, CA 94108-2736 TELEPHONE: (415) 364-6700 FAX: (415) 364-6785 SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR 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 or a hearing is similarly suspect”). Thus, if any question arises as t0 the propriety 0f this removal, Ford and Price- Simms request the opportunity t0 amend this notice 0f removal following any necessary discovery, briefing, and oral argument. 9. Nothing in this Notice 0f Removal shall be interpreted as a waiver 0r relinquishment of Ford’s and Price-Simms’s rights t0 assert defenses including, without limitation, the defenses 0f (i) lack 0f personal jurisdiction, (ii) improper venue and/orforum non conveniens, (iii) insufficiency 0f process, (iv) insufficiency 0f service 0f process, (V) improper joinder 0f claims and/or parties, (Vi) failure t0 state a claim, (Vii) failure t0 join indispensable party(ies), (viii) the right t0 arbitrate this controversy, 0r (ix) any other procedural 0r substantive defense available under state 0r federal law. III. THE AMOUNT IN CONTROVERSY REQUIREMENT IS MET 10. The amount in controversy in this action exceeds $75,000, exclusive 0f 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 t0 justify dismissal.” St. Paul Mercury Indem. C0. v. Red Cab C0., 303 U.S. 283, 288-89 (1938). 12. Ford and Price-Simms dispute that they are liable t0 Plaintiff for any damages whatsoever. But the amount in controversy is met. There is n0 burden t0 present supporting evidence at this point. A removing party’s initial burden is t0 “file a notice 0f removal that includes ‘a plausible allegation that the amount in controversy exceeds the jurisdictional threshold.’” Ibarra v. Manheim Invs., Ina, 775 F.3d 1193, 1195 (9th Cir. 2015) (quoting Dart Cherokee Basin Operating C0., LLC v. Owens, 135 S. Ct. 547, 554 (2014). The notice 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) SAN FRANCISCO, CA 94108-2736 TELEPHONE: (415) 364-6700 FAX: (415) 364-6785 SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR 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 t0 plead the required amount. Absent the facial showing from the complaint, the court may consider facts averted in the removal petition. Id. Next, if the defendant’s allegati0n(s) regarding the amount in controversy is challenged, then “both sides submit proof and the court decides, by a preponderance 0f the evidence, whether the amount-in-controversy requirement has been satisfied.” Ibarra, 775 F.3d at 1195. At that time, “it may be appropriate t0 allow discovery relevant t0 [the] jurisdictional amount prior t0 remanding.” Abrego, 443 F.3d at 691 (internal citation omitted). 14. In this case, Plaintiff expressly seeks damages in an amount that exceeds $25,000 plus a civil penalty 0f two times actual damages. (Complaint 1W 13-15, 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 0r exceed $50,000. (Declaration 0f Richard J. May (“May Decl.”), 11 5.) Thus, the Complaint 0n 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(0) (potential civil penalty up t0 two times actual damages). The amount in controversy also includes reasonable estimates 0f attorney fees. Brady, 243 F. Supp. 2d at 101 1; Guglielmino v. McKee Foods C0rp., 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 Tramp. 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 Plaintiff were to prevail 0n her Song-Beverly claims, she could be awarded damages 0f $75,000 0r more if awarded statutory civil penalties. 4 NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. SECTION 1441(b) SAN FRANCISCO, CA 94108-2736 TELEPHONE: (415) 364-6700 FAX: (415) 364-6785 SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17. Plaintiff also prays for punitive damages. (Complaint, p. 11:18.) The amount in controversy also includes punitive damages. Gibson v. Chrysler Corp, 261 F.3d 927, 945 (9th Cir. 200 1. When Plaintiff” s claim for restitution 0f the purchase price plus prejudgment interest, punitive damages, attorney fees, and civil penalties 0f two times actual damages are considered, the amount in controversy far exceeds $75,000. IV. DIVERSITY OF CITIZENSHIP EXISTS 18. Plaintiff is, and was at the time 0f 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 0f the State 0f Delaware with its principal place 0f business in Michigan. This Court can take judicial notice 0f 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 Price-Simms and Fraudulent Joinder 20. “There are two ways t0 establish fraudulent joinder: ‘(1) actual fraud in the pleading ofjurisdictional facts, 0r (2) inability 0f the plaintiff t0 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 ‘individual[ ] joined in the action cannot be liable 0n any theory.” Id. (citation omitted). In other words, removing parties must show “an ‘obvious’ failure t0 state a claim” against them. Id. at 549. 21. Ford contends that Plaintiff fraudulently joined Price-Simms in this case for n0 reason other than t0 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 n0 reasonable basis in fact 0r colorable ground supporting the claim against the joined defendant, 0r n0 real intention in good faith t0 prosecute the action against the defendants 0r seek a joint judgment”). 22. The Complaint asserts seven Causes 0f Action. Only the Fifth Seventh causes 0f 5 NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. SECTION 1441(b) SAN FRANCISCO, CA 94108-2736 TELEPHONE: (415) 364-6700 FAX: (415) 364-6785 SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 action for breach 0f implied warranty 0f merchantability and negligent repair, respectively, are asserted against Price-Simms. 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 Price-Simms. 24. Plaintiffs Fifth Cause 0f Action is asserted against “Defendants” and alleges breach of implied warranty 0f merchantability. Plaintiff alleges that the implied warranty at issue “is coextensive in duration with the duration 0f the express warranty provided by Defendant.” (Complaint 11 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 subj ect vehicle was sold new. Plaintiff does not allege a breach 0f any implied warranty that might (0r might not) have arisen in relation to Price- Simms. 25 . Ford believes that Plaintiff has n0 intention 0f pursuing any claim against Price- Simms, and that it was only named t0 defeat the claim 0f diversity and removal t0 Federal Court. B. PlaintiffCannot Establish Claims Against Price-Simms Based 0n Breach 0f Implied Warranty 26. Because the Song-Beverly Act does not establish a statute 0f limitations for implied warranty claims, the California Uniform Commercial Code’s four-year statute 0f 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 (2001); see Cal. U. Com. Code § 2725(1). 27. The accrual 0f a cause 0f action for breach 0f 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 0f the aggrieved party’s lack 0f knowledge 0f the breach. A breach 0f warranty occurs when tender 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: (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 0f delivery is made, except that where a warranty explicitly extends t0 future performance 0f the goods and discovery 0f 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 0f 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 t0 implied warranties, the “general limitations rule for a breach 0f warranty cause 0f 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 Plaintiff’s. 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.DCal. June 28, 2017); Marcus v. Apple Ina, N0. C 14-03824 WHA, 2015 WL 151489, at *9 (N.DCal. Jan. 8, 2015) (applying the discovery rule t0 implied warranty claims “would be nonsensical. If a warranty period 0n a product did not begin t0 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, n0 California authority holds that a purchaser who does not discover a product’s defect until after expiration 0f the one-year warranty period would be able t0 overlook the entire period from sale t0 discovery, so as t0 have a full four-year period t0 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 Price-Simms based 0n breach 0f implied warranty because any such claim is barred by the statute 0f limitations, and 7 NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. SECTION 1441(b) SAN FRANCISCO, CA 94108-2736 TELEPHONE: (415) 364-6700 FAX: (415) 364-6785 SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 no tolling doctrine applies. Plaintiff alleges that she purchased the subject vehicle 0n “0r about June 9, 2014.” (Complaint 11 8.) Plaintiff claims the subject vehicle was defective “at the time 0f purchase.” (Complaint 11 32.) Thus, Plaintiff was required t0 have brought an action for breach of implied warranty within four (4) years 0f purchase in order for the action t0 be timely. Plaintiff filed this action 0n July 15, 2019, more than five (5) years after Plaintiff alleges that she purchased the subj ect vehicle. 32. The joinder 0f Price-Simms is fraudulent because the Complaint does not and cannot state a cause 0f action against Price-Simms. Gasumyan v. Travelers Cas. Ins. C0. 0f Am., 2017 U.S. Dist. LEXIS 73013, at *4 (C.D. Cal. May 11, 2017). C. PlaintiffCannot Establish Claims Against Price-Simms Based 0n Negligent Repair. 33. Plaintiffs Seventh Cause 0fAction vaguely alleges a claim 0f negligent repair against Price-Simms for breach 0f a duty “t0 use ordinary care and skill in storage, preparation and repair 0f the Subject Vehicle in accordance with industry standards” without any further detail. (Complaint 11 57.) Plaintiff does not allege how, if at all, Price-Simms failed t0 properly store, prepare 0r repair the vehicle 0r when they discovered Price-Simms’s breach. Price-Simms’s last encounter with the Subject Vehicle was a repair completed 0n 0r about March 22, 2016, according t0 the subject vehicle’s warranty history and Carfax Vehicle History Report. (May Decl. 11 8) Price-Simm’s breach, if any, must have occurred n0 later than the completion 0f this repair 0n 0r about March 22, 2016. 34. The California Code 0f Civil Procedure establishes a three-year statute 0f limitations t0 initiate an “action for. .. injuring goods,” such as Plaintiffs claim for negligent repair. CCP § 338 (c)(l). Thus, Plaintiff is required t0 have brought an action for negligent repair within three years 0f Price-Simms’s repair 0n March 22, 2016, in order for her claim t0 be timely. Plaintiff filed her Complaint 0n June 15, 2019, more than three years after this repair, thereby barring her claim for negligent repair against Price-Simms. 35. The economic loss rule also bars any claim by Plaintiff for negligent repair unless those losses are accompanied by personal injury 0r physical damage t0 property. (See 8 NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. SECTION 1441(b) SAN FRANCISCO, CA 94108-2736 TELEPHONE: (415) 364-6700 FAX: (415) 364-6785 SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Seely v. White Motor C0., 63 Cal.2d 9 (I965); Ruiz v. BMW 0fN. Am., LLC 2017 U.S. Dist. LEXIS 6983, at 4-5 (C.D. Cal. Jan. 18, 2017) [“The economic loss rule precludes tort claims for purely economic damages”]; (UMG Recordings, Inc. v. Global Eagle Entm’t, Ina, 117 F. Supp. 3d 1092, 1103 (C.D. Cal. 2015).) Further, a plaintiff cannot recover in tort for damages t0 a defective product itself- the defective product must cause damage t0 a person 0r other property in order t0 give rise t0 a tort remedy. (See Jimenenz v. Superior Court, 29 Cal.4th 473, 481-83 (2002); Sea-Land Serv. v. GE, 134 F.3d 149, 156 (3d Cir. 1998) [“. . .where damage is only t0 the product itself and where the only loss is economic, there is n0 basis for tort recovery.”]; Bedgood v. Nissan N. Am., Ina, 2016 U.S. Dist. LEXIS 82716, at *12-13 (W.D. Tex. June 23, 2016 [“Plaintiffs seek t0 recover economic losses from Nissan, but have not claimed the allegedly defective Pathfinder caused personal injury 0r damage t0 property other than the Pathfinder itself. Accordingly, Plaintiffs’ negligence, negligent misrepresentation, and negligent repair claims are dismissed.”]; Wren Indus. v. Verson Allsteel Press, 84 F. Supp.2d 91 1, 915 (SD. Ohio 1999) [“. . .when the only harm claimed is economic loss and damage t0 the product itself, courts in other jurisdictions, which follow principles similar t0 those set forth in Chemtrol, have held that such an action cannot be maintained. . .This Court finds the result reached and the rationale employed in those decisions t0 be persuasive.”].) 36. Plaintiff alleges that Price-Simms’s unspecified negligence was a “proximate cause 0f Plaintiffs damages.” (Complaint 11 54.) Plaintiffs alleged damages are limited t0 damage t0 the vehicle itself. (Complaint 1W 3 1-32.) The remedies sought by Plaintiff are solely for economic losses such as payments made and diminution in value 0f the vehicle. (Complaint 11 20.) Plaintiff also does not allege any personal injury 0r property damages. As a result, the economic loss rule applies t0 bar Plaintiffs claim against Price-Simms. 37. Accordingly, Ford believes that Plaintiff has no intention of pursuing any claim against Price-Simms, and that Price-Simms was named in the Complaint only t0 defeat diversity and thus prevent removal t0 this Court. 9 NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. SECTION 1441(b) SAN FRANCISCO, CA 94108-2736 TELEPHONE: (415) 364-6700 FAX: (415) 364-6785 SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D. Price-Simms is a “Dispensable Party” Pursuant t0 FRCP 21 andMay Be Severed From This Action 38. Alternatively, under Fed. R. CiV. P. 21, “the court may, at any time, 0n just terms, add 0r drop a party.” “Rule 21 grants a federal district 0r appellate court the discretionary power t0 perfect its diversity jurisdiction by dropping a nondiverse party provided the nondiverse party is not indispensable t0 the action under Rule 19.” Sams v. Beech Aircraft Corp, 625 F.2d 273, 277 (9th Cir. 1980); see also Newman-Green, Inc. v. Alfonzo- Larrain, 490 U.S. 826, 832 (1989) (“it is well settled that Rule 21 invests district courts with authority t0 allow a dispensable nondiverse party t0 be dropped at any time, even after judgment has been rendered”). 39. Here, severance is particularly appropriate because Price-Simms has the right t0 arbitrate Plaintiff’s claims against it. Thus, if this case were t0 remain in state court, Plaintiffs claims against Price-Simms would be severed from the remainder 0f the case and proceed in arbitration in any event. (May Decl., 11 9 & Exh. A (materially similar case in which state court ordered plaintiffs claims against dealer sent t0 arbitration and severed those claims).) There is thus n0 reason not t0 sever Price-Simms and the claim against it right now. Accordingly, this Court should drop Price-Simms as a party. 40. For the reasons stated above, there is diversity 0f citizenship between Plaintiff, a California citizen, and Ford, a citizen of Michigan and Delaware. Though Defendant Price- Simms is a California citizen, the Court still has subj ect matter jurisdiction over this dispute under 28 U.S.C. § 1332, as Price-Simms was fraudulently joined by Plaintiff. Alternatively, this Court may sever Price-Simms and any claims against it (although there are none that are valid), as a dispensable and nondiverse party pursuant t0 FRCP 21. V. CONCLUSION For the reasons stated above, the State Action may be removed t0 this Court by Ford and Price-Simms in accordance with the provisions 0f 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 0f California, (ii) the amount in controversy exceeds $75,000.00, exclusive 0f 10 NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. SECTION 1441(b) SAN FRANCISCO, CA 94108-2736 TELEPHONE: (415) 364-6700 FAX: (415) 364-6785 SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 interest and costs, and (iii) the action is solely between properly joined citizens 0f different states. WHEREFORE, Defendants hereby notify Plaintiff and her attorneys that the above- entitled action, formerly pending in the Santa Clara County Superior Court, has been removed from that court t0 this Court. Dated: August 22, 2019 SCHNADER HARRISON SEGAL & LEWIS LLP By: /s/ Richard J. May STEPHEN H. DYE RICHARD J. MAY Attorneys for Defendants FORD MOTOR COMPANY and PRICE-SIMMS FORD, LLC d/b/a FORD LINCOLN FAIRFIELD 11 NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. SECTION 1441(b) EXHIBIT A a CT Corporation TO: Chris Dzbanski FORD MOTOR COMPANY 1 American Rd th 421-E6 Dearborn, MI 48126-2701 Service of Process Transmittal 07/23/2019 CT Log Number 535918907 RE: Process Served in California FOR: Ford Motor Company (Domestic State: DE) ENCLOSED ARE COPIES OF LEGAL PROCESS RECEIVED BY THE STATUTORY AGENT OF THE ABOVE COMPANY AS FOLLOWS: TITLE 0F ACTION: DOCUMENT(S) SERVED: COURT/AGENCY: NATURE OF ACTION: ON WHOM PROCESS WAS SERVED: DATE AND HOUR OF SERVICE: JURISDICTION SERVED : APPEARANCE OR ANSWER DUE: ATTORNEY(5) / SENDER(S): ACTION ITEMS: SIGNED: ADDRESS: TELEPHONE: Charlotte P. Armlin, Pltf. vs. Ford Motor Company, et al., ths. Summons, Complaint, Cover Sheet(s), Instructions, Form(s) Santa Clara County - Superior Court - San Jose, CA Case # 19CV351231 Product Liability Litigation - Lemon Law - 2013 Ford Flex, VIN: 2FMHK6C87DBD19073 C T Corporation System, Los Angeles, CA By Process Server on 07/23/2019 at 14:37 California Within 3O days after service (Document(s) may contain additional answer dates) Tionna Dolin Strategic Legal Practices 1840 Century Park East, Suite 430 Los Angeles, CA 90067 310-929-4900 CT has retained the current log, Retain Date: 07/24/2019, Expected Purge Date: 07/29/2019 Image SOP Email Notification, Chris Dzbanski cdzbansk@ford.com C T Corporation System 818 West Seventh Street Los Angeles, CA 9001 7 213-337-461 5 Page 1 of 1 /PK 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. num- ?/23/‘€ c. L60 SUM-100 SUMMONS soncom useom(SOLO PARA USO DE LA CORTE] (CITACION JUDICIAL) NOTICE To DEFENDANT: . E-FILED . (Avrso AL DEMANDADO); 7/1 5/2019 3.50 PM FORD MOTOR COMPANY; FORD LINCOLN FAIRFIELD.; and C'erk 9f Court fCADOES I through 10 inclusive Superior Court o , Y ARE BE: SUED BY PLAINTIFF county 0f santa C'ara 0U NG ' 1QCV351 231 Lo ESTA DEMANDANDO EL DEMANDANTE :( P ) Reviewed By: L Del Mundo CHARLOTTE . ARMLIN Envelope: 31 29182 NOTICE! You have been sued. The court may decide againsl you wilhout your being heard unless you respond wilhin 30 days. Read the information below. You have 30 CALENDAR DAYS after this summons and Iega! papers are served on you lo file a written response al this court and have a copy served on lhe plaintiff. A letter or phone cal! will not protect you. Your written response must be in proper legal form if you want [he 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 iniormation al lhe California Courts Online Self-Help Center (m.courfinfo.m.gov/seImefp). your county law library. or the courthouse nearest you. If you cannot pay the filing fee. ask the coun clerk for a fee waiver form. ll 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 coun. There are other legaI requirements. You may want to call an attorney righl away. If you do nol know an attorney. you may want to call an attorney reierral sewice. If you cannot afford an attorney. you may be eligible for free iegal servlces from a nonprofit Iegai services program. You can locale these nonprofit groups at the California Legal Services Web site (www.lawherpcafifomfaprg). the California Couns Online Self-Help Center _{m.couninfoca.gov/seffhefp}. or by coniaciing your local mun or county bar association. NOTE: The court has a statutory lien for waived lees and costs on any settlement or arbitration award of 310.000 or more in a civil case. The court's lien must be paid before the court will dismiss the case. {A W30! Lo han demandado. Si no responds denrm de 30 dias, fa code puede deddir en su contra sin escuchar su versidn. Lea {a informacidn a conn'nuacfén. Tiene 30 DIAS DE CALENDARIO después d9 que re entreguen esla citadén y papefes Iegafes para presentar una respuesra por escn'ro en esra code y hacer que se enfregue una copfa a! demandante. Una cada o una flamada teleIOnica no Io pmregen. Su respuesta por escn'to Hene que estar en formato legal correcfo sf desea que prooesen su case en Ia code. Es posible qua haya un Iarmurario qua usieo' pueda user para su respuesra. Puede encontrar esros formutan‘os de Ia code y mas informacfdn en e! Centre de Ayuda de Ias Cones d9 California (www.sucorte.ca.gov), en Ia bfbh'ofeca d9 leyes d9 su aondado o en la code que Ie quea‘e mas cerca. SJ no puede pager fa cuola o‘e presenracfdn, pfda a! secreranb d5 fa cone que re dé un fonnufan'o de exencfén d9 page de cuolas. Si no presents su respuesra a Hempo, puedp perder e! caso par fncumpflmr'emo y la code :e padre guitar su sueldo, dinero y bienes sin mas advertencia. Hay otros requisites regales. Es recomendabIe que flame a un abogado fnmedfaramenre. Si no canoce a un abogado, puede flamar a un servicio de- remisién a abogados. Si no puede pagar a un abogado. es posible que cumpra con fos requisites para obrener servicios fegafes grammes de un programs de semidos Iegafes sin fines de fucro. Pueda encontrar eslos grupos sin fines de fucro en e! sirio web de Cafifomia Legal Sem’ces. [www.lawhelpca1i[omia.org). en e1 Centre de Ayuda de ras Cones de California, Mwwsucoflacagov} o pom'éndose an contado con Ia code o e! cofegfo o'e abogao'os locates. A W80: Por fey, fa corte tfene derecho a recfamar fas cuoras y fos castes exenros par imponer un gravamen sabre cuaiquier recuperaa'dn d6 $10,000 é mas d9 valor recibida mediante un acuero'o o una mcesidn de arbitraje en un case de derecho duff. Tiene que pager e! gravamen de Ia oon‘e antes d9 que fa cone pueda desechar e! case. The name and address of the caurt is: . ' use NUMBER: _ (E! nombre y direccfén d9 Ia code es): Downtown Superior Court ("mm mca‘fii'gcvss 1 23 1 l9} North First Street San Jose, California 951 l3 The name, address. and telephone number of plaintiff's attorney. or plaintiff without an attorney, is: (E! nombre, Ia direccién y e! namero de Ieiéfono def abogado def demandanle, o de! demandanle qua no liene abogado. es): Tionna Dolin; 1840 Century Park East, Suite 430, Los Angeles, CA 90067; Tel: (310) 929-4900 DATE: CI k. b . Daputy (FechaJ7/1 5/2019 3250 PM Clerk of Court (sigmrgdo) ‘- De' Mundo (Augunro) (For proof of service of this summons, use Proof of Service of Summons (form POS-OfOJJ (Para prueba de entrega de esia cifan'én use e! formulario Proof of Service of Summons. (POS-010)). NOTICE T0 THE PERSON SERVED: You are served 1. E as an individual defendant. 2. D as the person sued under the fictitious name of (specify): 3, fiat: behalfor(speciry).-E)Vd MOW V. WPOU/l under:g CCP 415.10 (corporation) D CCP 415.50 (minor)CCP 416.20 (defunct corporation) D CCP 416.70 (conservaleU CCP 416.40 (association or partnership)D CCP 415.90 (authorized person) E: other (specify): 4. by personal delivery on (date): 9/2‘369 Page 1 o! 1 Form Adopted for Mandatory Use Cece o: cm Procedure §§ 412 20. 455 JUIJICIEMI Oi Caliifll‘ia SUMMONS Mvmcomnnlo 63.901; SUMJM [Rem Jay 1. 2009] -....___..4.--m-. ... . .. APC 1340 CW? Pm: FAST. m 430. Los ANGELB. CA m7 STRATEGic LEGAL PRAC'MCES, \DW‘JON L Tionna Dolin (SBN 2990 1 0) Email: tdolin@slpattomey.com STRATEGIC LEGAL PRACTICES A PROFESSIONAL CORPORATION 1840 Century Park East, Suite 430 Los Angeles, CA 90067 Telephone: (3 1 0) 929-4900 Facsimile: (310) 943-3838 Attorneys for Plaintiff CHARLOTTE P. ARMLIN E-FILED 7/1 5/201 9 3:50 PM Clerk 0f Court Superior Court of CA, County of Santa Clara 190V351 231 Reviewed By: L Del Mundo SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA ' CHARLOTTE P. ARMLIN, Plaintiff, vs. FORD MOTOR COMPANY; FORD LINCOLN FAIRFIELD; and DOES I through 10, inclusive, Defendants. Case Nos.: 19CV351 231 Hon. Dept: CONIPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS JURY TRIAL DEMANDED COM PLAINT; JURY TRIAL DEMANDED STRATEGIC LEGAL PRACTICES, APC Immvl’mu‘m m-Isumswmam? \OOOHJ@ 10 11 12 13 14 15 16 17 13 I9 20 21 22 23 24 25 26 27 28 Plaintiff alleges as follows: PARTIES 1. As used in this Complaint, the word "Plaintiff" shall refer to Plaintiff CHARLOTTE P. ARMLIN. 2. Plaintiff is a resident of California. 3. As used in this Complaint, the word "Defendant" shall refer t0 all Defendants named in this Complaint, unless otherwise specified. 4. 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. 5. Defendant FORD LINCOLN FALRFIELD (“Defendant FLF”) is an unknown business entity conducting business in the State of California. At all times relevant herein, Defendant DFS was engaged in the business of selling automobiles in Solano. County, California. 6. Plaintiff is ignorant of the true names and capacities 0f the Defendants sued under the fictitious names DOES 1 to 10. They are sued pursuant to Code of Civil Procedure section 474. When Plaintiff becomes aware of the true names and capacities of the Defendants sued as DOES 1 to 10, Plaintiff will amend this Complaint to state their true names and capacities: 7. To the extent there are any statutes oflimitation applicable to Plaintiff’s claim-including, without limitation, his express warranty, implied warranty, a_nd fraudulent omission claims-the running of the limitation periods have been tolled by equitable tolling, class action tolling (e.g. American Pipe rule) arising from the pendency ofthe Baranco v. Ford Motor Company matter (ND. Cél. No. 3: I 7-cv-03580), the discovery rule, fraudulent concealment rule, equitable estOppel, equitable tolling and/or repair rule. l COMPLAINT; JURY TRIAL DEMANDED GAL PRACTICES: APC IB-lOCFN‘I'URY PAR}: EkW.SU1TE4JO. Lm M02150 9W6? 1 J STRATEGIC Lb flthwm 10 11 12 l3 l4 15 l6 l7 18 19 20 21 22 23 24 25 26 27 28 FIRST CAUSE 0F ACTION BY PLAINTIFF AGAINST DEFENDANT FMC VIOLATION OF SUBDIVISION (D) OF CIVIL CO_DE SECTION 1793.2 8. 0n or about June 9, 2014, Plaintiff purchased a 2013 Ford Flex, vehicle identification number 2FMHK6C87DBD19073 (hereinafter "Vehicle"), which was manufactured and or distributed by Defendant FMC. The Vehicle was purchased or used primarily for personal, family, or household purposes. Plaintiffpurchased the Vehicle from a person or entity engaged in the business of manufacturing, distributing, 0r selling consumer goods at retail. 9. In connection with the purchase, Plaintiff received an express written warranty, including, a 3-year/36,000 mile express bumper to bumper warranty, a 5-year/60,000 mile powertrain warranty which, inter alia, covers the engine and trénsmission. Defendant undertook to preserve or maintain the utility or performance of the Subject Vehicle or to provide compensation ifthere is a failure in utility or performance for a specified period oftime. The warranty provided, in relevant part, that in the event a defect developed with the Subject Vehicle during the warranty period, Plaingiff could deliver the Vehicle for repair services to Defendant's representative and the Subject Vehicle would be repaired. 10. During the warranty period, the Vehicle contained or developed defects, including but not limited t0, defects causing a grinding noise while driving; defects causing the failure and/or replacement of the left front wheel bearing; defects causing the failure and/or replacement of the back up camera; defects causing the storage of Diagnostic Trouble Co'de (“DTC”) C1001, P0171, P0430 and/or P0174; defects ca'using a rattle noise; defects causing the failure and/or replacement of the right front sway bar links; defects causing the illumination of the door ajar light; defects causing the_dome light to stay on; defects requiring performance of Technical Service Bulletin (“TSB”) 15-0013; defects causing the failure and/or replacement of the door latches; defects causing the steering t0 squeak; defects requiring the lubing of the boot between steering shaft and firewall; defects causing the overheating of the engine; defects causing the failure and/or replacement of the water pump; 2 COMPLAINT; JURY TRIAL. DEMANDED STRATEGIC LEGAL PRACTlCES, APC Imumvrm lum- 5um'430 Losmwmaamw O‘COOHJON ll 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 defects requiring the replacement of phaser bolts, crank pulley seal, bolts, oil filter, gaskets, and/or spark plugs; defects causing the illumination of the check engine light (“CEL”); defects causing the Vehicle to fail to accelerate; defects causing the failure and/or replacement ofthe fuel pump, evap purge valve, seals, and/or driveshaft bolts; defects causing the failure and/or replacement of a mass airflow sensor; and/or any other defects described in the Vehicle’s repair history. Said defects substantially impair the use, value, or safety of the Vehicle. H. Defendant and its representatives in this state have been unable to service or repair the Vehicle to conform to the applicable express warranties after a reasonable number of Opportunities. DeSpite this fact, Defendant failed to promptly replace the Vehicle or make restitution t0 Plaintiff as required by Civil Code section 1793.2, subdivision (d) and Civil Code section 1793.1 , subdivision (a)(2). 12. Plaintiff has been damaged by Defendant's failure to comply with its obligations pursuant to Civil Code section 1793.2, subdivision (d) and Civil Code section 1793.1, subdivision (a)(2), and therefore bring this cause of action pursuant to Civil Code section 1794. l3. Plaintiff suffered damages in a sum to be proven at trial in an amount not less than $25,001.00. l4. Defendant's failure to comply with its obligations under Civil Code section 1793.2, subdivision (d) was willful, in that Defendant and its representative wére aware that they were unable to service or repair the Vehicle to conform to the applicable express warranties after a reasonable number of repair attempts, yet Defendant failed and refused to promptly replace the Vehicle or make restitution. Accordingly, Plaintiff is entitled to a civil penalty of two times Plaintiff’s actual damages pursuant to Civil Code section 1794, subdivision (c). IS. Defendant does not maintain a qualified third-party dispute resolution process which substantially complies with Civil Code section 1793.22. Accordingly, Plaintiff is entitled to a civil penalty of two times Plaintiff’s actual damages pursuant t0 Civil Code section 1794, subdivision (e). '1 J coiw PLAINT; JURY TRIAL DEMANDED IB-tflCmTURY PM}: mnam-IJO. L06 ANGELS. CA 9006? S'rRA'rEGlc LEGAL PRACTJCES, APC OOOOHJON 11 12 13 '14 15 16 17 18 19 20 21 22 23 24 25 26 27 23 16. Plaintiff seeks civil penalties pursuant to section 1794, subdivisions (c), and (e) in the alternative and does not seek to cumulate civil penalties, as provided in Civil Code- section 1794, subdivision (f). SECOND CAUSE OF ACTION BY PLAINTIFF AGAINST DEFENDANT FMC VIOLATION OF SUBDIVISION (B) OF CIVIL CODE SECTION 1793.2 17. Plaintiff incorporates by reference the allegations contained in the paragraphs set forth above. 18. Although Plaintiff presented the Vehicle to Defendant's representative in this state, Defendant and its representative failed to commence the service or repairs within a reasonable time and failed to service or repair the Vehicle so as t0 conform to the applicable warranties within 30 days, in violation ofCivil Code section 1793.2, subdivision (b). Plaintiff did not extend the time for completion of repairs beyond the 30-day requirement. l9. Plaintiff has been damaged by Defendant's failure to comply with its obligations pursuant to Civil Code section 1793.2(b), and therefore bring this Cause of Action pursuant to Civil Code section 1794. 20. Plaintiff has rightfully rejected and/or justifiably revoked acceptance of the ‘Vehicle, and have exercised a right t0 cancel the purchase. By serving this Complaint, Plaintiff does so again. Accordingly, Plaintiff seeks the remedies provided in California Civil Code section l794(b)(1), including the entire contract price. 1n the alternative, Plaintiff seeks the remedies set forth in California Civil Code section 1794(b)(2), including the diminution in value 0f the Vehicle resulting from its defects. Plaintiff believes that, at the present time, the Vehicle’s value is de mfnimis. 2]. 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 Plaintiff‘s actual damages pursuant to Civil Code section 1794(0). 4 COMPLAINT; JURY TRIAL DEMANDED STRATEGJC LEGAL PRACTICES, APC Immvl‘ml Em mam ImmLaaLAm? hm OWOOHJGN 11 12 13 14 15 l6 l7 18 l9 20 21 22 23 24 25 26 27 28 THIRD CAUSE OF ACTION BY PLAINTIFF AGAINST DEFENDANT FMC VIOLATION OF SUBDIVISION (A)(3) OF CIVIL CODE SECTION 1793.2 22. Plaintiff incorporates by reference the allegations contained in the paragraphs set forth above. 23. 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 t0 effect. repairs during the express warranty period. Plaintiff has been damaged by Defendant's failure t0 comply with its obligations pursuant to Civil Code section 1793.2(a)(3), and therefore bring this Cause ofAction pursuant to Civil Code section 1794. 24. Defendant's failure to comply with its obligations under Civil Code section 1793.2, subdivision (a)(3) was willful, in that Defendant knew of its obligation to provide literature and replacement parts sufficient to allow its repair facilities to effect repairs during the warranty period, yet Defendant failed to take any action to correct its failure to comply with the law. Accordingly, Plaintiff is entitled to a civil penalty of two times Plaintiff‘s actual damages pursuant to Civil Code section 1794(0). FOURTH CAUSE OF ACTION BY PLAINTIFF AGAINST DEFENDANT FMC BREACH OF EXPRESS WRITTEN WARRANTY (CIV. CODE, § 1791.2, SUBD. (a); § 1794) 25. Plaintiff incorporates by reference the allegations contained in paragraphs set forth above. 26. 1n accordance with Defendant's warranty, Plaintiff delivered the Vehicle to Defendant's representative in this state_to perform warranty repairs. Plaintiff did so within a reasonable time. Each time Plaintiff delivered the Vehicle, Plaintiff notified Defendant and its representative of the characteristics of the Defects. However, the representative failed to repair the Vehicle, breaching the terms ofthe written warranty on each occasion. 5 COM PLAINT; JURY TRIAL DEMANDED STRATEGIC LEGAL PRACTlCES.‘ APC IB-IOLWY PHIL WT SUIT! 4m LOGML-ELERLAM? 10 11 12 13 I4 15 16 17 18 19 20 2| 22 23 24 25 26 27 28 27. Plaintiff has been damaged by Defendant's failure to comply with its obligations under-the express warranty, and therefore bring this Cause of Action pursuant t0 Civil Code section 1794. 28. Defendant's failure to comply with its obligations under the express warranty was willful, in that Defendant and its authorized representative were aware that they were obligated to repair the Defects, but they intentionally refused to do so. Accordingly, Plaintiff is entitled to a civil penalty of two times of Plaintiff‘s actual damages pursuant to Civil Code section 1794(c). J FIFTH CAUSE OF ACTION BY PLAINTIFF AGAINST DEFENDANTS BREACH 0F THE IMPLIED WARRANTY 0F MERCHANTABILITY (CIV. CODE, § 1791.1; § 1794; § 1795.5) 29. Plaintiff incorporates by reference the allegations contained in the paragraphs set forth above. 30. Pursuant to Civil Code section I792, the sale of the Vehicle was accompanied by Defendant's implied warranty of merchantability. Pursuant to Civil Code section 1791.], the duration ofthe implied warranty is coextensive in duration with the duration ofthe express written warranty provided by Defendant, except that the duration is not to exceed one-year. 31. Pursuant to Civil Code section 1791.1 (a), the implied warranty of merchantability means and includes that the Vehicle will comply with each of the following requirements: (1) The Vehicle will pass without objection in the trade under the contract description; (2) The Vehicle is fit for the ordinary purposes for which such goods are used; (3) The Vehicle is adequately contained, packaged, and labelled; (4) The Vehicle will conform to the promises or affi’nnations of fact made on the container or label. 32. At the time of purchase, 0r within one-year thereafter, the Vehicle contained or deveIOped the defects set forth above. The existence of each of these defects constitutes a breach of the implied warranty because the Vehicle (l) does not pass without objection in the trade under the contract description, (2) is not fit for the ordinary purposes for which such ' 6 COM PLAINT; JURY TRIAL DEMANDED STRATEGIC LEGAL PHACTJCES, APC IB-IOCENTle PM} MST mm 4m LOG ANGELELAM? hm \OW‘JO‘ 10 11 12 13 14 15 16 17 13 19 20 21 22 23 24 25 26 27 23 goods are used, (3) is not adequately contained, packaged, and labelled, and (4) does not co‘nform to the promises or affirmations of fact made on the container or label. 33. Plaintiff has been damaged by Defendant's failure to comply with its obligations under the implied warranty, and therefore bring this Cause of Action pursuant to Civil Code section I794. SIXTH CAUSE OF ACTION BY PLAINTIFF AGAINST DEFENDANT FMC (Fraud by Omission) 34. i’laintiff incorporates by reference the allegations contained in the paragraphs set forth above. 35. Defendant committed fraud by allowing the Vehicle to be sold to Plaintiff without disclosing that the Vehicle contain defects within the door latch assembly that can cause unwarranted “door ajar” warnings which lead to the doors not locking and the battery running down (the “Door Ajar Defect”). 36. In particular, Plaintiff is informed, believes, and thereon alleges that prior to Plaintiff acquiring the Vehicle, Ford was well aware and knew of the Door Ajar Defect within the Subject Vehicle but failed to disclose this fact to Plaintiff at the time of sale and thereafter.‘ i 37. Specifically, Ford knew (or should have known) that 201 I to 2016 Ford Edges (including the 2013 Ford Flex), 2012 to 2014 Ford Flexes, 20] 3 to 2014, Ford Explorers, 2011 t0 2013 Lincoln MKXS, and 2013 Lincoln MKTs frequently, but intermittently, display a false “door ajar” warning even when all ofthe doors are closed. The warning Ifiay remain active for hours, including after the vehicle is turned off, and it does not deactivate when the doors are opened a_nd shut once again. When the warning is falsely activated, all of the doors unlock, - ‘F and the driver is unable to relock them, permitting passengers or bystanders to open the doors while the vehicle is in operation and allowing the doors to Open in the event of an accident, ' Indeed, Defendant has issued various technical bulletins to its dealers (not consumers) concerning the Door Ajar Defect. 7 COM PLAINT; JURY TRIAL DEMANDED 01c LEGAL PRACTICES, APC IWCBJMYPARKEGT.m-ISO.L$ANGELFSCAM7 1 .1 STEAM ONU'I 11 12 .13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 thereby increasing the risk of harm to the vehicle’s occupants. These false warnings also cause the interior dome lights to illuminate and remain on for an unSpecified period of time, and an audible alarm sounds repeatedly. The failure ofthe dome lights to extinguish makes it difficult to see the road and other vehicles at night. And because the lights can remain on long after the vehicle is turned off, the battery is at risk of draining. 38. Plaintiff is informed, believes and thereon alleges that Ford acquired its knowledge of the Door Ajar Defect prior to Plaintiff acquiring the Subject Vehicle, through sources not available to consumers such as Plaintiff, including but not limited to pre- production and postproduction testing data, early consumer complaints about the Door Ajar Defect made directly to Ford and its network of dealers, aggregate warranty data compiled from Ford’s network of dealers, testing conducted by Ford in reSponse to these complaints, as well as warranty repair and part replacements data received by Ford from Ford’s network of dealers, amongst other sources of internal infon'nation. 39. Plaintiff is informed, believes, and thereon alleges that while Defendant knew about the Door Ajar Defect, and its safety risks since 201 l, if not before, Defendant nevertheless concealed and failed to disclose the defective nature of the Vehicle and its door latch system to Plaintiff at the time 0f sale and thereafter. Had Plaintiffknown that the Subject Vehicle suffered from the Door Ajar Defect, he would not have purchased the Vehicle. 40. Indeed, Plaintiffalleges that Defendant knew that the Vehicle and its door latch system suffered from an inherent defect, was defective, would fail prematurely, and was not suitable for its intended use. 41. Defendant was under a duty to Plaintiff to disclose the defective nature 0f the Vehicle and its door latch system, its safety consequences and/or the associated repair costs because: a. _Defendant acquired its knowledge of the Door Ajar Defect and its potential consequences prior to Plaintiff acquiring the Vehicle, through sources not available to consumers such as Plaintiff, including but not limited tb pre-production testing data, early consumer complaints about the Door Ajar Defect made directly to 8 COMPLAINT; JURY TRIAL DEMANDED STRATEGIC LEGAL PRACTICES, APC 1340me Putnam“ W430 LosmwsMM? ' \O OO Ml C\ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Ford and its network of dealers, aggregate warranty data compiled from Ford’s network of dealers, testing conducted by Ford in response to these complaints, as well as warranty repair and part replacements data received by Ford from Ford’s network of dealers, amongst other sources of internal information; b. Defendant was in a superior position from various internal sources to know (or should have known) the true state of facts about the material defects contained in vehicles equipped with the defective door latch system; c. Plaintiff could not reasonably have been expected to learn or discover of the Vehicle’s Door Ajar Defect and its potential consequences until well after Plaintiff purchased the Vehicle. Plaintiff discovered Defendant’s wrongful conduct alleged herein at or around the time that he requested a buyback of the Vehicle from Defendant in or around March 20] 9; and d. The Door Ajar Defect is a safety concern. 42. In failing to disclose the Vehicle’s Door Ajar Defect, Defendant has knowingly and intentionally concealed material facts and breached its duty not to do so. 43. The facts concealed or not disclosed by Defendant to Plaintiff are material in that a reasonable person would have considered them to be important in deciding whether or not t0 purchase the Vehicle. Had Plaintiff known that the Vehicle and its door latch system were defective at the time of sale, she would not have purchased the Vehicle. 44. Additionally, the facts concealed are material in that they concern the safety of the Subject Vehicle. The Door Ajar Defect is a safety concern because warning lights and audible alerts in vehicles are an integral function of the vehicles” safety systems. They alert drivers to important vehicle conditions, including potential dangers and service issues that require operator response in order to prevent a hazard or an expensive repair. 45. Similarly, studies show that door locks are crucial to the occupant protection systems in a vehicle. Door locks provide increased securement of the vehicle door, protecting occupants from ejection out of the vehicle during rollover crashes, saving hundreds of lives 9 COMPLAINT; JURY TRIAL DEMANDED S'I‘R ATEGIC LEGAL PRACTIC ES, APC IB-IOLFNI‘UR? PmEAST QmE-IJO LCEANGELmCA‘me? Io 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 23 each year. Thus, the National Highway Traffic Safety Administration (“NHTSA”) has urged that parents look for automated safety'locks when purchasing a vehicle to reduce the risk of children being ejected. Studies also show that glare from interior vehicle lights activated during nighttime driving reduce driver visibility and increase driver distraction. 46. Consumers rely on automakers, such as Ford, to promptly inform them and initiate a remedy or countermeasure when they discover a vehicle model contains a defect, especially one that is present in multiple models and model years and that puts the séfety of themselves and their passehgers at risk. 47. Defendants have represented that their vehicles are safe and that the warnings and alarms will sound only if a vehicle door-is Open, and their customers expect the vehicles to perform as represented. Contrary to this promise and expectation, the door latch assembly ofthe Subject Vehicle was designed, manufactured, and sold with a defect that mistakenly recognizes the door as ajar when it is closed. As a result, the Subject Vehicle’s doors remain unlocked and the internal door warning lights remain on, which render the Vehicle unsafe. 48. Plaintiff is a reasonable consumer who did not expect the door latch system to fail and not work properly. Plaintiff further expects and assumes that Defendant will not sell 0r lease vehicles with known material defects, including but not limited to the Door Ajar Defect and will disclose any such defect to its consumers before selling such vehicles. 49. As a result of Defendant’s misconduct, Plaintiff has suffered and wiil continue t0 suffer actual damages. ' SEVENTH CAUSE 0F ACTION BY PLAINTIFF AGAINST DEFENDANT FLF NEGLIGENT REPAIR 50. Plaintiff incorporates by reference the allegations contained in the parggraph§ s-et forth abbve. n 4 fl ' - - 51. Plaintiff deiivered the Subject Vehicle to Defendant FLF for substantial repair on at least one occasion. IO COMPLAINT; JURY TRIAL DEMANDED APE IB-FOLWY PARK an-IIJO. LE5 M(EIJSCA 9W6? STRATEGIC LEGAL P RAC'HCES, \OOOHJON 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 52. Defendant FLF owed a duty to Plaintiffto use ordinary care and skill in storage, preparation and repair ofthe Subject Vehicle in accordance with industry standards. 53. Defendant FLF breached its duty to Plaintiffto use ordinary care and skill by failing to properly store, prepare and repair the Subject Vehicle in accordance with industry standards. S4. Defendant FLF’s negligent breaCh of its duties owed to Plaintiff was a proximate cause ofPlaintiff’s damages. PRAYER PLAINTIFF PRAYS forjudgment against Defendant as follows: 1+ - b. C. afFfi‘f'Plfiifit'i'ff‘s actual damages in an amount according to proof; For restitution; For a civil penalty in the amount of two times Plaintiff’s actual damages pursuant t0 Civil Code section 1794, subdivision (c) 0r (e); For any consequential and incidental damages; For costs ofthe suit and Plaintiff‘s reasonable attorneys’ fees pursuant to Civil Code section 1794, subdivision (d); For punitive damages; For prejudgment interest at the legal rate; and For such other relief as the Court may deem proper. DEMAND FOR JURY TRIAL Plaintiff hereby demands a jury trial on all causes of action asserted herein. Dated: July 15, 2018 STRATEGIC LEGAL PRACTICES, BY: I<: Tionna Dolin Attorney for Plaintiff CHARLOTTE P. ARMLIN ll COMPLAINT; JURY TRIAL DEMANDED ---. -.._. -u CM-O‘IO JIFIOSNNEYNO’E FBRbTEiMfiI-(gulig mTTzogflgNfi'i 83m. Stale Ba! number, and aims”: FOR COWT USE ONLY Slrulcgic Legal Practices, APC 1840 Ccnlur Park East, Suite 430 - ' Los Angclcs?Califomiu 9006? EIeCtron'Fally Flled 1ELepHo~e~o.: 310) 929-4900 mm: 910) 943-3838 by Superior Court of.CA, ATTORNEY Fonmamel; lamtlff CHARLOTTE P. ARM IN county of Santa CIara SUPERIOR COURT OF CALIFORmA. COUNTY 0F SANTA CLARA . I svneewmesa 191 North First Street °" 7/15’2019 3°50 PM mummess: same Revuewed By: L Del Mundo OTY ANDzIPwDE: San 1056, CA 9S 1.] 3 case #1 QCV351 231 mama Downtown Superior Court Envelope: 31 291 82 CASE NAME: ARMLIN v. FORD MOTOR COMPANY; FORD LINCOLN FAIRFIELD; and DOES I through 10 inclusive CIVIL CASE COVER SHEET Complex Case Designation USE NUBBER: Unlimited D Limited E D I 19CV351231 (Amount (Amoum Counter Jounder UDGE- demanded demanded is Filed with first appearance by defendant J exceeds $25,000] $25.000 or less) (Cal. Rules of Coun. ru1e 3.402) DEF": Items 1-6 below mus! be completed (see instructions on page 2). 1. Check one box below for the case type that best describes this case: Auto Ton Contract Pravisionally Complex Civil Litigation Au‘o (22) Breach of mntfamananly (06) (Cal. Rules of Court, rules 1400-1403] Uninsured motorist (46) D Rule 3.740 collections (09) D AnlilmsUTrade regulation (03) Other PUPDIWD (Personal lnju ryiProperty a Other coilections (09] Dflstgglioldelgcljjg) _.__.____--.-unamagcnflmngfulDeathj-Tofi a Insurance coverage (1a) D Mass torl (40) Asbestos (04) D omer comm. (37} D Securities litigation (28) Product liability (24) Rea: property D EnvironmentauToxic ton (30} Madica' ma'pmmice (45) D Eminem domainflnveme D Insurance coverage claims arising from lheD Other PIIPDIWD (23] wmemnation (14) above lisled provisionally complex case Non-Pupnmo {Other} Ton B Wrong“ eVidiO" (33} ”pas {41)E Business lomunfair business practice (07) D Other res} proneny {26} Emamemem Of Judgment E: Civn n'gms (03) Unlawful Datalner ' D Enforcement otjudgmem (20}D Defamation (13) Commercial (31) Misceilaneous Civil ComplaintD Fraud (15) D Residenlial (32) D RICO (27)E Intellectual propeny (1 9} D Drugs (33) D Other complaint (no! spedfied above) (42)D Professional negligence (25) JUdir-ial RBVie‘” Miscellaneous Civil Petition E] Other non-PUPDNVD t0“ (35) D Asset {onenure (05) D Partnership and corporale governance (21) EWPIOWBM D Pemio" re: arbi‘rafi‘m award (1 1) a Other petition (nor specified above) (43)D Wrongtunerminanon (36) C] Writ otmandale (02)D Olher employmenlfi 5) D Olherjudidal review (39) 2. This case LJ is is not complex under rule 3.400 of the Ca1iiornia Rules of Coun. If the case is complex. mark the factors requiring exceptional judiciai management: a.D Large number of separately represented parties d.D Large number of witnesses b.D ExtenSive melion practice raising difficult 0r novel e.D Coordination with related actions pending in one or more couds issues that will be time-consuming to resolve in other counties. states. or countries, or in a federal court c.D Substantial amount of documentary evidence f. D Substantial postjudgment judicial supervision 3 Remedies sought (check aflrhat apply): a.E monetary um nonmonetary; declaratory or injunctive relief c. .punitive 4. Number of causes of action (specify). seven (7) 5 This case D is 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 Date: 07“ 5/] 9 TIONNA DOLIN p w, - m-PE 0R mum mus) {SiSMTURE or PART? onmfiffisv Fora 9mm NOTICE Plaintiff mus! 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 Coun. rule 3.220.) Failure lo file may result in sanctions. FiIe this cover sheet in addition to any cover sheet required by local court rule. If this case is complex under rute 3.400 et seq. of the California Rules oi Court, you must serve a copy of this cover sheet on all other parties lo the action or proceeding. o Unless this is a collections case under rule 3.740 or a complex case, this cover sheet will be used for statistical purposes onlarab CM-O‘IS.) E1012 Form Adopted Ior usualory Use Cat. Raes 01 Com. rum 2.30. 3.220. 3400-3403. 3.740; Jmifim Council dcaifania CIVIL CASE COVER SHEET Cal. Stamina: ol Jufidat Adninisnalim. std. 3.10 CM-motRev. July 1. 2007] wmv.coum'nro.ca.gov .. .gm-... . CM-01O INSTRUCTIONS ON HOW TO COMPLETE THE COVER SHEET To Plaintiffs and Others Filing First Papers. lf 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 compiie statistics about the types and numbers of cases filed. You must complete items 1 through 6 on Ihe sheet. In item 1. you must check one box for the case type that best describes the case. If the case fits both a general and a more specific type of case listed in item 1, check the more specific one. If the case has multiple causes of action. check the b0x that best indicates lhe 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 musi be filed only with your initial paper. Failure to fiie a cover sheet with the first paper filed in a civil case may subject a party, its munsel, 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 properly, (4) recovery of personal property. or (5) a prejudgmem writ of attachment. The identification of a case as a rule 3.740 collections case on lhis form means that it will be exempt from the general time-for-servioe requirements and case management rules. unless a defendant files a responsive pleading. A rule 3.?40 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 Sheer to designate whether the case is compiex. If a plaintiff believes the case is complex under rule 3.400 oi the California Rules of Court. this must be indicated by completing the appropriaie boxes in items 1 and 2. If a plaintiff designates a case as compIex, the cover sheet must be served with the complaint on all parties to the action. A defendant may file and serve no tater than the time of ils first appearance a joinder in the plaintiffs designation. a counter-designalion that the case is not complex, or, if the piaintiff has made no designation, a designation that the case '3 mmp'ex' CASE TYPES AND EXAMPLES Auto Tort Contract Auto (22}-Personal InjurylProperly Breach of ContractIWarranty (06) Rules of Court Rules 3.400-3.403) DamageIWrongful Death Breach of RentaULease AntitrusUTrade Regulation (03) _ _ Uninsured Mmoris‘ (45) (mm __ _ .L - _ _ Contrad (no! unfandu! delafner -' - ' ' Construcfion Detect (10) Provisionaily Complex Civil Litigation (Cal. case involves an uninsured motorist daim subject lo arbitration, check this item instead o! Auto) Other PIIPDIWD (Personal Injury} Property DamageIWronqul Death} Ton Asbeslos (04) Asbestos Property Damage Asbestos Personal injury! Wrongful Death Product Liability (no! asbestos or toxidenvironmenta!) (24) Medical Malpractice (45) Medical Malpractice- Physicians 8. Surgeons Other Professional Healih Care MaIpractice Olher PIIPDIWD (23) Premises Liabilily (e.g., slip and fall) Intentional Bodily InjuryIPDIWD (e.g., assault, vandalism) Intentional Infliclion of Emotional Distress Negligent lnfliclion of Emotional Distress Other PIIPDIWD Non-PIIPDIWD (Other) Tort Business Torthnfair Business Practice (07) Civil Rights (e.g.. discrimination, false arresl) (nor civfl harassment) (08) Defamation {e.g.. slander. libel) (13) Fraud (16) Intellectual Property (1 9) Professional Negligence (25) Legai Malpractice Other Professional Malpractice (no: medical or laga!) Other Non-PIIPDNVD Tori (35) Employmen: Wrongful Termination (35) Olher Employmenl (15) CM-mo [Rem Jay 1. 2007] Or wrongful eviction) ContracUWarranly Breach-Seller Plainiifi (nor fraud or negh‘gence) Negligent Breach of Contract! Warranty Olher Breach of ContracUWarranly Collections (e.g.. money owed. open book accounts) (09) Collection Cas+Seller Ptaintiff Other Promissory NozefColIeclions Case Insurance Coverage (no! provisionafiy complex) (1B) Aulo Subrogation Other Coverage Other Contract (37) Cantraclual Fraud Other Contract Dispule Real Property Eminent Domainnnverse Condemnation (14) Wrongful Evicfion {33) Other Real Property (2.9.. quiet title) (26) Writ of Possession of Real Properly Morlgage Foreclosure Ouiel Titie Other Rea! Properly (no: eminent domain, landformenant, or foreclosure) Unlawiul Detainer Commercial (31) Residential (32) Drugs (38) {if the case invofves mega! drugs, check this item: otherwise. report as Commerciaf or Residentia!) Judicial Review Asset Forfeiture (05} Petition Re: Arbitration Award (1 1} Writ of Mandate (02) Writ-Adminislralive Mandamus Writ-Mandamus on Limited Cour: Case Matter Writ-Olher Limiaed Court Case Review Other Judicial Review (39) Review of Heallh Officer Order Nolice oprpeal-Labor Commissioner Appears CIVIL CASE COVER SHEET Claims Involving Mass Tort (40) Securities Litigation (28} Environmentalfl'oxic Torl {30) Inauranoe Coverage Claims {arising from pmvisionafly complex case type listed above} (4 1) Enforcement of Judgment Enforcemenl of Judgment (20) Abstract of Judgment (Out of County) Confession of Judgment (non- domesn'c referions} Sister State Judgment Administrative Agency Award (not unpaid taxes) PetitionJCertificalion of Entry of Judgmeni on Unpaid Taxes Other Enforcement of Judgment ase Miscellaneous Civil Complaint RICO (27) Other Complaint (no: specified above) (42) Declaratory Relief Only lnjunclive Reliei Only (nan- harassment) Mechanics Lien Other Commercial Complaint Case {non-todhon-oompfex) Other Civil Camplaint (non-ton/non-compfex) Miscellaneous Civil Petition Partnership and Corporate Governance (21) Olher Petition (nor specified above} {43) Civil HaraSSment Workplace Violence EIderflJependenl Adul1 Abuse Erection Contest Petilion for Name Change Pelilion fer Relief From Late Claim Other Civil Petiiion Page 2 ot 2 ..u- _.¢4-.-‘..4... .um-u-mu. u ATTACHMENT cv-501 2 CIVIL LAWSUIT NOTICE Superior Court of California, County of Santa Clara CASE NUMBER: 191 North First St, San José, CA 95113 1QCV351 231 PLEASE READ THIS ENTIRE FORM PLAINTIFF (the person suing): Within 60 days after filing the lawsuit, you must serve each Defendant wilh the Complaint, Summons, an Altemative Dispute Resolution (ADR) Information Sheet, and a copy of this Civil Lawsuit Notice, and you must file writien proof of such service. - DEFENDANT(The person sued): You must do each of the following to protect your rights: 1. You must file a written response to the Complaint, using the properlegal form or format, in the Clerk's Office of the Court, within 30 days of the date you were sewed with the Summons and Complaint; 2. You must serve by mail a copy of your written response on the Plaintiff’s attomey 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 3. You must attend the first Case Management Conference. Warning: If you, as the Defendant, do not followthese instructions, you may automatically lose this case. RULES AND FORMS: You must follow the California Rules of Court and the Superior Conn 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 SeIf-Help Center at 201 Nodh First Street. San José (408-882-2900 x-2926). - Stale Rules and Judicial Council Forms: www.courlinfo.ca.qovlforms and www.courlinfo.ca.qovlrules - Local Rules and Forms: htth/ww.sccsuperiorcourt.orqlcivillrule1toc.hlm CASE MANAGEMENT CONFERENCE (CMCL You must meet with the other parties and discuss the case, in person 0r 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-110) 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 15* CMC is scheduled for: (Completed by Clerk of Coun) 9 Date: 10-294 9 Time: 1‘30pm in Department: The next CMC is scheduled for: (Completed by party if the 15‘ CMC was continued or has passed) Date: Time: in Department: ALTERNATIVE DISPUTE RESOLUTION (ADR): if all parties have appeared and filed a completed ADR Stipulation Form (local form CV-5008) at least 15 days before the CMC. the Court will cancel the CMC and mail notice of an ADR Status Conference. Visit the Court’s website at www.sccsuperiorcoun.0rqlcivillADRl or call the ADR Administrator (408-882-2100 x-2530) for a list of ADR providers and iheir qualifications, services. and fees. ' ' WARNING: Sanctions may be imposed if you do nol follow the California Rules of Court or the Local Rules of Court. cv-smz REV 03:01:15 CIVIL LAWSUIT NOTICE Page1 on 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 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 CHARLOTTE P. ARMLIN, Case N0. 19CV351231 Plaintiff, DEFENDANT FORD MOTOR COMPANY’S ANSWER TO PLAINTIFF’S vs. COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS FORD MOTOR COMPANY; FORD LINCOLN FAIRFIELD; and DOES 1 through 10, inclusive, DEMAND FOR JURY TRIAL Action Filed: July 15, 2019 Defendants. Trial Date: None assigned Defendant FORD MOTOR COMPANY (“Ford”), for itself alone and for n0 other parties, hereby answers the Complaint of PlaintiffCHARLOTTE P. ARMLIN (“Plaintiff”), as follows: GENERAL DENIAL Under the provisions 0f § 43 1 .30(d) 0f the California Code 0f Civil Procedure, Ford denies each and every allegation, both specifically and generally, 0f each cause 0f action contained in 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 DEFENDANT FORD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SAN FRANCISCO, CA 94108-2736 TELEPHONE: (415) 364-6700 FAX: (415) 364-6785 SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR 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 t0 State Facts) Plaintiff” s Complaint fails t0 state facts sufficient t0 constitute a cause 0f action against Ford. SECOND AFFIRMATIVE DEFENSE (No Breach 0f Warranty) There was n0 breach 0f warranty t0 the extent that Plaintiff” s concerns were resolved under the warranty 0r 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 0f actions contained in the Complaint, by Virtue 0f her acts, failure t0 act, conduct, representations, admission, and the like. FOURTH AFFIRMATIVE DEFENSE (Waiver) Plaintiff has waived her rights t0 the claims, causes 0f action and relief sought in this Complaint against Ford, by Virtue 0f her acts, failure t0 act, conduct, representations, admissions, and the like. FIFTH AFFIRMATIVE DEFENSE (Laches) Plaintiff has unreasonably delayed the commencement 0f this action t0 the prejudice 0f Ford. Therefore, the Complaint, and each and every cause 0f action alleged therein is barred, in whole 0r in part, by the doctrine 0f laches. / / / / / / 2 DEFENDANT FORD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SAN FRANCISCO, CA 94108-2736 TELEPHONE: (415) 364-6700 FAX: (415) 364-6785 SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR 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 she suffered injury directly from the subject vehicle 0r products and, therefore, Plaintiffs contention that the subject 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 t0 Plaintiff arising out 0f any and all agreements, representations 0r contracts made by it 0r 0n its behalf and this action is therefore barred by the provisions 0f 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 Plaintiffs damages, if any, were proximately caused by such misuse, alteration, abuse and neglect 0f the product. NINTH AFFIRMATIVE DEFENSE (No Defect in Materials or Workmanship) The damages asserted in Plaintiff s Complaint were not the result 0f any defect in material or workmanship in any vehicle manufactured by Ford. Specifically, Ford alleges that after appropriate discovery, one 0r more 0f the stated specific warranty exclusions may be applicable. TENTH AFFIRMATIVE DEFENSE (No Timely Revocation 0f Acceptance) Plaintiff has no restitution remedy under breach 0f implied warranty because there was n0 timely revocation 0f acceptance before a substantial change in the condition 0f the goods. / / / 3 DEFENDANT FORD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SAN FRANCISCO, CA 94108-2736 TELEPHONE: (415) 364-6700 FAX: (415) 364-6785 SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR 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 t0 maintain and service the subject vehicle in conformance with the requirements and recommendations 0f the owner’ s manual and/or warranty booklet. TWELFTH AFFIRMATIVE DEFENSE (Disclaimer of Incidental and Consequential Damages and Limitation 0f Damages) The limited warranty for the subject vehicle at issue limits the damages that may be obtained by Plaintiff for any alleged breach 0f warranty such that some, if not all, 0f the damages sought, including those for incidental 0r consequential damages, are not recoverable. THIRTEENTH AFFIRMATIVE DEFENSE (Vehicle Fit for Intended Purpose) The subject 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 of 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 § 1791.1(0). FIFTEENTH AFFIRMATIVE DEFENSE (No Impairment 0f Use, Value 0r Safety) The subject vehicle has not been subject t0 repair for any nonconformity 0r condition that substantially impaired the use, value 0r safety 0f the vehicle. / / / / / / / / / 4 DEFENDANT FORD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SAN FRANCISCO, CA 94108-2736 TELEPHONE: (415) 364-6700 FAX: (415) 364-6785 SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SIXTEENTH AFFIRMATIVE DEFENSE (Failure t0 Abide by Terms 0f Warranty) Plaintiff” s breach 0f warranty claims are barred because Plaintiff” s failure t0 give timely and appropriate notice 0f any claim 0f breach 0f warranty. SEVENTEENTH 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 0r nonconformities allegedly could not be repaired. EIGHTEENTH AFFIRMATIVE DEFENSE (Failure t0 Use Dispute Resolution Process) Plaintiff and/or the owner(s) 0f the subj ect vehicle received timely notice 0f the availability 0f a third party dispute resolution process, and that n0 effort was made t0 use such process. NINETEENTH AFFIRMATIVE DEFENSE (Failure t0 Provide Reasonable Opportunity t0 Cure) Plaintiff failed to provide it with a reasonable opportunity t0 cure any alleged defect as required by 15 U.S.C. § 23 10(6) and Civil Code § 1790, et seq. TWENTIETH AFFIRMATIVE DEFENSE (No Prejudgment Interest) Plaintiff” s Complaint fails t0 state facts sufficient t0 constitute a basis for recovery 0f prejudgment interest. TWENTY-FIRST AFFIRMATIVE DEFENSE (Business Use) The subject vehicle was not purchased 0r 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, 0r any other legal entity, t0 which more than five motor vehicles were registered in this state. / / / 5 DEFENDANT FORD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SAN FRANCISCO, CA 94108-2736 TELEPHONE: (415) 364-6700 FAX: (415) 364-6785 SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TWENTY-SECOND AFFIRMATIVE DEFENSE (Failure t0 Mitigate) Plaintiff failed and neglected t0 use reasonable care t0 protect himself and t0 minimize her losses and damages, if any. TWENTY-THIRD AFFIRMATIVE DEFENSE (No Agency Relationship) Ford denies any allegations 0f agency contained in Plaintiffs Complaint. TWENTY-FOURTH AFFIRMATIVE DEFENSE (Assumption of Risk) Plaintiffknew about matters giving rise t0 the Complaint and assumed the risk created thereby. TWENTY-FIFTH AFFIRMATIVE DEFENSE (Good Faith Conduct) Ford has acted in good faith and reasonably with respect t0 the matters alleged in Plaintiff” s Complaint. TWENTY-SIXTH AFFIRMATIVE DEFENSE (Doctrine 0f Consent) Plaintiff is barred from recovering the relief sought by reason 0f the doctrine 0f consent. TWENTY-SEVENTH AFFIRMATIVE DEFENSE (Statute 0f Limitations) Plaintiff” s Complaint and each cause 0f 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 0f the California Code 0f Civil Procedure, §§ 335 through 346.4, California Civil Code, §§ 1783, 1791.1, 1793.2, and 1793.22, California Commercial C0de,§ 2725, and Business and Professions Code, § 17208. / / / / / / 6 DEFENDANT FORD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SAN FRANCISCO, CA 94108-2736 TELEPHONE: (415) 364-6700 FAX: (415) 364-6785 SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TWENTY-EIGHTH AFFIRMATIVE DEFENSE (Warranty Exclusions) Plaintiff” s action for breach 0f warranty is barred by the terms, conditions, disclaimers and exclusions 0f 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. TWENTY-NINTH AFFIRMATIVE DEFENSE (Civil Penalty Barred) Any prayer made by Plaintiff for a civil penalty pursuant t0 Civil Code § 1794(6) is barred because Ford maintains a qualified third party dispute resolution process, which substantially complies with subdivision (d) 0f § 1793.22 0f the Civil Code. Further, Plaintiff failed t0 serve the notice required for recovery 0f a civil penalty under this provision. THIRTIETH AFFIRMATIVE DEFENSE (Spoliation 0f Evidence) This action is barred 0r limited because 0f the altering, spoiling, damaging, destruction, 0r 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. THIRTY-FIRST AFFIRMATIVE DEFENSE (Failure t0 Properly Notify) Plaintiff has failed to properly provide timely notice, within a reasonable period 0f time after discovery 0f her claims and alleged defects. Consequently, Ford has been damaged and prejudiced, barring the Complaint, and each cause 0f action therein, as a matter 0f law. THIRTY-SECOND AFFIRMATIVE DEFENSE (No Breach) Defendant performed all duties owed under the warranty other than any duties that were prevented 0r excused. Accordingly, there has been n0 breach 0f warranty. / / / 7 DEFENDANT FORD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SAN FRANCISCO, CA 94108-2736 TELEPHONE: (415) 364-6700 FAX: (415) 364-6785 SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THIRTY-THIRD AFFIRMATIVE DEFENSE (Statute 0f 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). THIRTY-FOURTH AFFIRMATIVE DEFENSE (Qualified Third Party Dispute Resolution Process) Defendant maintained a qualified third party dispute resolution process at the time the subj ect vehicle was purchased that substantially complied with Section 1793.2 0f 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) 0f 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 t0 California Civil Code Section 1793.2(e)(1). THIRTY-FIFTH AFFIRMATIVE DEFENSE (Preemption) The Complaint and each and every cause 0f action therein, in whole 0r in part, are preempted by the Federal National Traffic and Motor Vehicle Safety Act pursuant t0 49 U.S.C. sections 301 18 et seq. THIRTY-SIXTH AFFIRMATIVE DEFENSE (Constitutionality 0f 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 0n interstate commerce in contravention 0f Article I, Section 8 0f the United States Constitution; (b) said claims contravene the Excessive Fines Clause 0f the Eighth Amendment 0f the United States 8 DEFENDANT FORD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SAN FRANCISCO, CA 94108-2736 TELEPHONE: (415) 364-6700 FAX: (415) 364-6785 SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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-SEVENTH 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 0n the facts contained in Plaintiffs Complaint, 0r are otherwise barred by the provisions 0f California Civil Code sections 3294, 3295, and 3296, 0r such conduct was adopted, ratified 0r authorized by Ford under California Civil Code section 3294(b). THIRTY-EIGHTH AFFIRMATIVE DEFENSE (Punitive Damages Impermissible For Extra-Territorial Conduct) Any award 0f 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 0f this lawsuit would Violate the due process clause 0f 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-NINTH AFFIRMATIVE DEFENSE (Punitive Damages Unconstitutional) An award 0f punitive 0r exemplary damages t0 Plaintiffwould Violate Ford’s constitutional rights under the provisions 0f the United States and California Constitutions, including but not limited t0 the Due Process Clause 0f the Fifth and Fourteenth Amendments t0 the United States Constitution and Article I, Section 7 0f the California Constitution because, among other things, (1) any award 0f punitive 0r exemplary damages would be grossly out 0f proportion t0 the alleged wrongful conduct and purported injury at issue here; (2) there is n0 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 9 DEFENDANT FORD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SAN FRANCISCO, CA 94108-2736 TELEPHONE: (415) 364-6700 FAX: (415) 364-6785 SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 jurisdictions; (4) the alleged wrongful conduct at issue here is not sufficiently reprehensible t0 warrant the imposition 0f any punitive 0r exemplary damages; and (5) the criteria for the imposition 0f punitive 0r exemplary damage are unconstitutionally vague and uncertain and fail t0 provide fair notice 0f what conduct will result in the imposition 0f such damages. FORTIETH AFFIRMATIVE DEFENSE (Clear and Convincing Standard for Punitive Damages) Ford alleges that any predicate liability finding for the imposition 0f punitive damages 0r 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. FORTY-FIRST AFFIRMATIVE DEFENSE (Punitive Damages - Financial Status 0f Defendant) T0 the extent that California law permits punishment t0 be measured by the net worth 0r 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 t0 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. FORTY-SECOND AFFIRMATIVE DEFENSE (Arbitration Clause in Purchase Agreement) The purchase 0r lease agreement for the subj ect vehicle, signed by Plaintiff, includes an agreement t0 arbitrate. Plaintiff has thus agreed t0 resolve this dispute by neutral, binding arbitration and not by court action. / / / / / / / / / 10 DEFENDANT FORD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SAN FRANCISCO, CA 94108-2736 TELEPHONE: (415) 364-6700 FAX: (415) 364-6785 SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FORTY-THIRD AFFIRMATIVE DEFENSE (Set Off) Defendant alleges that if it is established that it is in any manner legally responsible for any 0f the damages claimed by Plaintiff, which is denied, Defendant is entitled t0 a set off 0f those damages, if any, that resulted from the wrongful acts 0f Plaintiff and/or others. FORTY-FOURTH 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 0r the law which warranted the filing 0f the Complaint against Defendant. Plaintiff should therefore be responsible for all 0f Defendant’s necessary and reasonable attorneys’ fees and defense costs as permitted by California law. FORTY-FIFTH AFFIRMATIVE DEFENSE (Additional Defenses) Ford alleges that it may have additional affirmative defenses available t0 it 0f which it is not now fully aware. Ford reserves the right t0 assert affirmative defenses after the same shall have been ascertained. PRAYER WHEREFORE, Ford prays as follows: 1. For dismissal of Plaintiff” s Complaint with prejudice; 2. For judgment in favor 0f 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. / / / / / / / / / / / / / / / 1 1 DEFENDANT FORD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SAN FRANCISCO, CA 94108-2736 TELEPHONE: (415) 364-6700 FAX: (415) 364-6785 SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19‘“ FLOOR 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEMAND FOR JURY TRIAL Ford hereby demands a jury trial on all claims asserted by Plaintiff. Dated: August 22, 2019 SCHNADER HARRISON SEGAL & LEWIS LLPWWW yRICHARD J. MAYU Attorneys for DefendantU FORD MOTOR COMPANY 12 DEFENDANT 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: (41 5) 364-6785 NONUl-b 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 of San Francisco, State of California, in the office of a member of the bar of this court, at whose direction the service was made. I am a citizen of the United States, over the age 0f eighteen (1 8) years, and not a party t0 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: 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 with postage fully prepaid, 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 Plaintiff STRATEGIC LEGAL PRACTICES, APC CHARLOTTE P- ARMLIN 1840 Century Park East, Suite 430 Los Angeles, CA 90067 T: (3 10) 929-4900 F: (310) 943-3838 Email: tdolin@slpattorney.com I am readily familiar with my firm’s practice for collection and processing of correspondence for delivery in the manner indicated above, to wit, that correspondence Will be deposited for collection in the above-described manner this same day in the ordinary course of business. Executed 0n August 22, 2019, at San Francisco, California. SUSIE M. ARZAVE PROOF OF SERVICE 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 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 PRICE-SIMMS FORD, LLC d/b/a FORD LINCOLN FAIRFIELD IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA - UNLIMITED JURISDICTION CHARLOTTE P. ARMLIN, Case N0. 19CV351231 Plaintiff, DEFENDANT PRICE-SIMMS FORD, LLC D/B/A FORD LINCOLN FAIRFIELD’S vs. ANSWER TO PLAINTIFF’S COMPLAINT FOR VIOLATION OF STATUTORY FORD MOTOR COMPANY; FORD OBLIGATIONS LINCOLN FAIRFIELD; and DOES 1 through 10, inclusive, DEMAND FOR JURY TRIAL Defendants. Action Filed: July 15, 2019 Trial Date: None assigned Defendant PRICE-SIMMS FORD, LLC d/b/a FORD LINCOLN FAIRFIELD (“Dealership” or “Defendant”), for itself alone and for n0 other parties, hereby answers the Complaint 0f PlaintiffCHARLOTTE P. ARMLIN (“Plaintiff”), as follows: GENERAL DENIAL Under the provisions 0f § 43 1 .30(d) 0f the California Code 0f Civil Procedure, Dealership denies each and every allegation, both specifically and generally, 0f each cause 0f action contained in Plaintiffs Complaint 0n file herein and the whole thereof, and denies that Plaintiff was damaged in any sum 0r sums, 0r at all. 1 DEFENDANT PRICE-SIMMS FORD, LLC D/B/A FORD LINCOLN FAIRFIELD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SAN FRANCISCO, CA 94108-2736 TELEPHONE: (415) 364-6700 FAX: (415) 364-6785 SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR 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 0f the defense, the following affirmative defenses: FIRST AFFIRMATIVE DEFENSE (Failure t0 State Facts) Plaintiff” s Complaint fails t0 state facts sufficient t0 constitute a cause 0f action against Dealership. SECOND AFFIRMATIVE DEFENSE (No Breach 0f Warranty) There was n0 breach 0f warranty t0 the extent that Plaintiff” s concerns were resolved under the warranty 0r 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 0f actions contained in the Complaint, by Virtue 0f her acts, failure t0 act, conduct, representations, admission, and the like. FOURTH AFFIRMATIVE DEFENSE (Waiver) Plaintiff has waived her rights t0 the claims, causes 0f action and relief sought in this Complaint against Dealership, by Virtue 0f her acts, failure t0 act, conduct, representations, admissions, and the like. FIFTH AFFIRMATIVE DEFENSE (Laches) Plaintiff has unreasonably delayed the commencement 0f this action t0 the prejudice 0f Dealership. Therefore, the Complaint, and each and every cause 0f action alleged therein is barred, in whole 0r in part, by the doctrine 0f laches. / / / /// 2 DEFENDANT PRICE-SIMMS FORD, LLC D/B/A FORD LINCOLN FAIRFIELD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SAN FRANCISCO, CA 94108-2736 TELEPHONE: (415) 364-6700 FAX: (415) 364-6785 SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR 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 she suffered injury directly from the subject vehicle 0r products and, therefore, Plaintiffs contention that the subject 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 0r contracts made by it 0r 0n its behalf and this action is therefore barred by the provisions 0f 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 Plaintiffs damages, if any, were proximately caused by such misuse, alteration, abuse and neglect 0f the product. NINTH AFFIRMATIVE DEFENSE (No Defect in Materials or 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 0r more 0f the stated specific warranty exclusions may be applicable. TENTH AFFIRMATIVE DEFENSE (No Timely Revocation 0f Acceptance) Plaintiff has no restitution remedy under breach 0f implied warranty because there was n0 timely revocation 0f acceptance before a substantial change in the condition 0f the goods. /// 3 DEFENDANT PRICE-SIMMS FORD, LLC D/B/A FORD LINCOLN FAIRFIELD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SAN FRANCISCO, CA 94108-2736 TELEPHONE: (415) 364-6700 FAX: (415) 364-6785 SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR 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 subject vehicle in conformance with the requirements and recommendations 0f the owner’s manual and/or warranty booklet. TWELFTH AFFIRMATIVE DEFENSE (Disclaimer of Incidental and Consequential Damages and Limitation 0f Damages) The limited warranty for the subject vehicle at issue limits the damages that may be obtained by Plaintiff for any alleged breach 0f warranty such that some, if not all, 0f the damages sought, including those for incidental 0r consequential damages, are not recoverable. THIRTEENTH AFFIRMATIVE DEFENSE (Vehicle Fit for Intended Purpose) The subject 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 of 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 § 1791 .1(c). FIFTEENTH AFFIRMATIVE DEFENSE (No Impairment 0f Use, Value 0r Safety) The subject vehicle has not been subject t0 repair for any nonconformity 0r condition that substantially impaired the use, value 0r safety 0f the vehicle. / / / / / / /// 4 DEFENDANT PRICE-SIMMS FORD, LLC D/B/A FORD LINCOLN FAIRFIELD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SAN FRANCISCO, CA 94108-2736 TELEPHONE: (415) 364-6700 FAX: (415) 364-6785 SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SIXTEENTH AFFIRMATIVE DEFENSE (Failure t0 Abide by Terms 0f Warranty) Plaintiff” s breach 0f warranty claims are barred because Plaintiff” s failure t0 give timely and appropriate notice 0f any claim 0f breach 0f warranty. SEVENTEENTH 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 0r nonconformities allegedly could not be repaired. EIGHTEENTH AFFIRMATIVE DEFENSE (Failure t0 Use Dispute Resolution Process) Plaintiff and/or the owner(s) 0f the subj ect vehicle received timely notice 0f the availability 0f a third party dispute resolution process, and that n0 effort was made t0 use such process. NINETEENTH AFFIRMATIVE DEFENSE (Failure t0 Provide Reasonable Opportunity t0 Cure) Plaintiff failed to provide it with a reasonable opportunity t0 cure any alleged defect as required by 15 U.S.C. § 23 10(6) and Civil Code § 1790, et seq. TWENTIETH AFFIRMATIVE DEFENSE (No Prejudgment Interest) Plaintiff” s Complaint fails t0 state facts sufficient t0 constitute a basis for recovery 0f prejudgment interest. TWENTY-FIRST AFFIRMATIVE DEFENSE (Business Use) The subject vehicle was not purchased 0r 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, 0r any other legal entity, t0 which more than five motor vehicles were registered in this state. /// 5 DEFENDANT PRICE-SIMMS FORD, LLC D/B/A FORD LINCOLN FAIRFIELD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SAN FRANCISCO, CA 94108-2736 TELEPHONE: (415) 364-6700 FAX: (415) 364-6785 SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TWENTY-SECOND AFFIRMATIVE DEFENSE (Failure t0 Mitigate) Plaintiff failed and neglected t0 use reasonable care t0 protect himself and t0 minimize her losses and damages, if any. TWENTY-THIRD AFFIRMATIVE DEFENSE (No Agency Relationship) Dealership denies any allegations 0f agency contained in Plaintiffs Complaint. TWENTY-FOURTH AFFIRMATIVE DEFENSE (Assumption of Risk) Plaintiffknew about matters giving rise t0 the Complaint and assumed the risk created thereby. TWENTY-FIFTH AFFIRMATIVE DEFENSE (Good Faith Conduct) Dealership has acted in good faith and reasonably with respect t0 the matters alleged in Plaintiff” s Complaint. TWENTY-SIXTH AFFIRMATIVE DEFENSE (Doctrine 0f Consent) Plaintiff is barred from recovering the relief sought by reason 0f the doctrine 0f consent. TWENTY-SEVENTH AFFIRMATIVE DEFENSE (Statute 0f Limitations) Plaintiff” s Complaint and each cause 0f 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 0f the California Code 0f Civil Procedure, §§ 335 through 346.4, California Civil Code, §§ 1783, 1791.1, 1793.2, and 1793.22, California Commercial Code, § 2725, and Business and Professions Code, § 17208. / / / /// 6 DEFENDANT PRICE-SIMMS FORD, LLC D/B/A FORD LINCOLN FAIRFIELD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SAN FRANCISCO, CA 94108-2736 TELEPHONE: (415) 364-6700 FAX: (415) 364-6785 SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TWENTY-EIGHTH AFFIRMATIVE DEFENSE (Warranty Exclusions) Plaintiff” s action for breach 0f warranty is barred by the terms, conditions, disclaimers and exclusions 0f 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. TWENTY-NINTH AFFIRMATIVE DEFENSE (Civil Penalty Barred) Any prayer made by Plaintiff for a civil penalty pursuant t0 Civil Code § 1794(6) is barred because Dealership maintains a qualified third party dispute resolution process, which substantially complies with subdivision (d) 0f § 1793.22 0f the Civil Code. Further, Plaintiff failed t0 serve the notice required for recovery 0f a civil penalty under this provision. THIRTIETH AFFIRMATIVE DEFENSE (Spoliation 0f Evidence) This action is barred 0r limited because 0f the altering, spoiling, damaging, destruction, 0r 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. THIRTY-FIRST AFFIRMATIVE DEFENSE (Failure t0 Properly Notify) Plaintiff has failed to properly provide timely notice, within a reasonable period 0f time after discovery 0f her 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-SECOND AFFIRMATIVE DEFENSE (No Breach) Defendant performed all duties owed under the warranty other than any duties that were prevented 0r excused. Accordingly, there has been n0 breach 0f warranty. /// 7 DEFENDANT PRICE-SIMMS FORD, LLC D/B/A FORD LINCOLN FAIRFIELD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SAN FRANCISCO, CA 94108-2736 TELEPHONE: (415) 364-6700 FAX: (415) 364-6785 SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THIRTY-THIRD AFFIRMATIVE DEFENSE (Statute 0f 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). THIRTY-FOURTH AFFIRMATIVE DEFENSE (Qualified Third Party Dispute Resolution Process) Defendant maintained a qualified third party dispute resolution process at the time the subj ect vehicle was purchased that substantially complied with Section 1793.2 0f 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) 0f 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 t0 California Civil Code Section 1793.2(e)(1). THIRTY-FIFTH AFFIRMATIVE DEFENSE (Preemption) The Complaint and each and every cause 0f action therein, in whole 0r in part, are preempted by the Federal National Traffic and Motor Vehicle Safety Act pursuant t0 49 U.S.C. sections 301 18 et seq. THIRTY-SIXTH AFFIRMATIVE DEFENSE (Constitutionality 0f 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 0n interstate commerce in contravention 0f Article I, Section 8 0f the United States Constitution; (b) said claims contravene the Excessive Fines Clause 0f the Eighth Amendment 0f the United States 8 DEFENDANT PRICE-SIMMS FORD, LLC D/B/A FORD LINCOLN FAIRFIELD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SAN FRANCISCO, CA 94108-2736 TELEPHONE: (415) 364-6700 FAX: (415) 364-6785 SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Constitution; (c) said claims Violate Dealership’s right t0 Due Process under the Fourteenth Amendment 0f the United States Constitution; (d) said claims contravene the constitutional prohibition against vague and overbroad laws; and (e) said claims contravene the Due Process Clause 0f the California Constitution. THIRTY-SEVENTH AFFIRMATIVE DEFENSE (Punitive Damages Improperly Pled/Not Recoverable) Plaintiff has not properly pled a claim for punitive damages and these damages are not recoverable based 0n the facts contained in Plaintiffs Complaint, 0r are otherwise barred by the provisions 0f California Civil Code sections 3294, 3295, and 3296, 0r such conduct was adopted, ratified 0r authorized by Dealership under California Civil Code section 3294(b). THIRTY-EIGHTH AFFIRMATIVE DEFENSE (Punitive Damages Impermissible For Extra-Territorial Conduct) Any award 0f 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 0f this lawsuit would Violate the due process clause 0f 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-NINTH AFFIRMATIVE DEFENSE (Punitive Damages Unconstitutional) An award 0f punitive 0r exemplary damages t0 Plaintiffwould Violate Dealership’s constitutional rights under the provisions 0f the United States and California Constitutions, including but not limited t0 the Due Process Clause 0f the Fifth and Fourteenth Amendments t0 the United States Constitution and Article I, Section 7 0f the California Constitution because, among other things, (1) any award 0f punitive 0r exemplary damages would be grossly out 0f proportion t0 the alleged wrongful conduct and purported injury at issue here; (2) there is n0 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 9 DEFENDANT PRICE-SIMMS FORD, LLC D/B/A FORD LINCOLN FAIRFIELD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SAN FRANCISCO, CA 94108-2736 TELEPHONE: (415) 364-6700 FAX: (415) 364-6785 SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 jurisdictions; (4) the alleged wrongful conduct at issue here is not sufficiently reprehensible t0 warrant the imposition 0f any punitive 0r exemplary damages; and (5) the criteria for the imposition 0f punitive 0r exemplary damage are unconstitutionally vague and uncertain and fail t0 provide fair notice 0f what conduct will result in the imposition 0f such damages. FORTIETH AFFIRMATIVE DEFENSE (Clear and Convincing Standard for Punitive Damages) Dealership alleges that any predicate liability finding for the imposition of punitive damages 0r a finding 0f the amount 0f any punitive damage award based upon a burden 0f proof 0f less than clear and convincing evidence violates due process and is unconstitutional. FORTY-FIRST AFFIRMATIVE DEFENSE (Punitive Damages - Financial Status 0f Defendant) T0 the extent that California law permits punishment t0 be measured by the net worth 0r financial status 0f Dealership and allows the fact finder t0 impose greater punishment 0n defendants with larger net worth, such an award would be unconstitutional because it permits arbitrary, capricious and fundamentally unfair punishments, allows bias and prejudice t0 infect verdicts imposing punishment, allows punishment t0 be imposed based 0n lawful profits and conduct 0f Dealership 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. FORTY-SECOND AFFIRMATIVE DEFENSE (Arbitration Clause in Purchase Agreement) The purchase 0r lease agreement for the subj ect vehicle, signed by Plaintiff, includes an agreement t0 arbitrate. Plaintiff has thus agreed t0 resolve this dispute by neutral, binding arbitration and not by court action. / / / / / / /// 10 DEFENDANT PRICE-SIMMS FORD, LLC D/B/A FORD LINCOLN FAIRFIELD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SAN FRANCISCO, CA 94108-2736 TELEPHONE: (415) 364-6700 FAX: (415) 364-6785 SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FORTY-THIRD AFFIRMATIVE DEFENSE (Set Off) Defendant alleges that if it is established that it is in any manner legally responsible for any 0f the damages claimed by Plaintiff, which is denied, Defendant is entitled t0 a set off 0f those damages, if any, that resulted from the wrongful acts 0f Plaintiff and/or others. FORTY-FOURTH 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 0r the law which warranted the filing 0f the Complaint against Defendant. Plaintiff should therefore be responsible for all 0f Defendant’s necessary and reasonable attorney’s fees and defense costs as permitted by California law. FORTY-FIFTH AFFIRMATIVE DEFENSE (Additional Defenses) Dealership alleges that it may have additional affirmative defenses available t0 it 0f which it is not now fully aware. Dealership reserves the right t0 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 0f 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. / / / / / / / / / / / / / / / 1 1 DEFENDANT PRICE-SIMMS FORD, LLC D/B/A FORD LINCOLN FAIRFIELD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SAN FRANCISCO, CA 94108-2736 TELEPHONE: (415) 364-6700 FAX: (415) 364-6785 SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19‘“ FLOOR 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEMAND FOR JURY TRIAL Dealership hereby demands a jury trial 0n all claims asserted by Plaintiff. Dated: August 22, 2019 SCHNADER HARRISON SEGAL & LEWIS LLPWWW yRICHARD J. MAYU Attorneys for Defendant PRICE-SIMMS FORD, LLC d/b/a FORD LINCOLN FAIRFIELD 12 DEFENDANT PRICE-SIMMS FORD, LLC D/B/A FORD LINCOLN FAIRFIELD’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: (41 5) 364-6785 NONUl-b 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 of San Francisco, State of California, in the office of a member of the bar of this court, at whose direction the service was made. I am a citizen of the United States, over the age 0f eighteen (1 8) years, and not a party t0 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: DEFENDANT PRICE-SIMMS FORD, LLC D/B/A FORD LINCOLN FAIRFIELD’S ANSWER T0 PLAINTIFF’S COMPLAINT FOR VIOLATION 0F STATUTORY OBLIGATIONS First-Class Mail: I enclosed a true and correct copy of said document in an envelope with postage fully prepaid, 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 Plaintiff STRATEGIC LEGAL PRACTICES, APC CHARLOTTE P- ARMLIN 1840 Century Park East, Suite 430 Los Angeles, CA 90067 T: (3 10) 929-4900 F: (310) 943-3838 Email: tdolin@slpattorney.com I am readily familiar with my firm’s practice for collection and processing of correspondence for delivery in the manner indicated above, to wit, that correspondence Will be deposited for collection in the above-described manner this same day in the ordinary course of business. Executed 0n August 22, 2019, at San Francisco, California. SUSIE M. ARZAVE PROOF OF SERVICE Odyssey File & Serve - Envelope Receipt Page 1 0f 3 Case # 19CV351 231 - Charlotte Armlin vs FORD MOTOR C Envelope Information Envelope Id Submitted Date Submitted User Name 3296420 8/22/2019 10:23 AM PST weefiIe@nationwideasap.com Case Information Location Category Case Type Santa Clara - Civil Civil - Unlimited Breach of Contract/Warranty Case Initiation Date Case # 7/1 5/201 9 19CV351 231 Assigned to Judge Arand, Mary E FIIIngs Filing Type Filing Code EFiIe Answer/Response/DeniallDemurrer - First Appearance Filing Description Defendant Ford Motor Company‘s Answer to Plaintiff's Complaint for Violation of Statutory Obligations Client Reference Number 97323 Filing on Behalf of FORD MOTOR COMPANY Filing Status Submitting Lead Document File Name Description Security Download 2019-08-22 - Armlin - Ford's Answer/Response/D... Public Original File Answer to Complaintpdf - First Appearance Filing Type Filing Code https://calif0rnia.tylerhost.net/OfsWeb/FileAndServeModule/Envelope/ViewPrintableEnve. .. 8/22/20 1 9 Odyssey File & Serve - Envelope Receipt Page 2 of 3 EFiIe Answer/Response/Denial/Demurrer - First Appearance Filing Description Defendant Price-Simms Ford LLC d/b/a Ford Lincoln Fairfiled's Answer to Plaintiff's Complaint for Violations of Statutory Obligations Client Reference Number 97323 Filing on Behalf of FORD LINCOLN FAIRFIELD Filing Status Submitting Lead Document File Name Description Security Download 2019-08-22 - Armlin - Answer/Response/D... Public Origina| File Dealership's Answer to - First Appearance Complaintpdf Fees AnswerIResponse/DeniallDemurrer - First Appearance Description Amount Filing Fee $435.00 Filing Total: $435.00 AnswerIResponse/DeniallDemurrer - First Appearance Description Amount Filing Fee $435.00 Filing Total: $435.00 Total Filing Fee $870.00 Payment Service Fee $26.27 E-File Fee $3.50 Court E-File Fee $2.05 Envelope Total: $901 .82 FORD MOTOR C... $901.82 https://ca1if0rnia.tylerh0st.net/OfsWeb/FileAndServeModule/Envelope/ViewPrintableEnve. .. 8/22/20 1 9 Odyssey File & Serve - Envelope Receipt Page 3 of 3 Party Responsible Transaction for Fees Amount Payment Account Nationwide Transaction Id 5244250 Filing Attorney Stephen Dye Order Id 003296420-0 Transaction Authorized Response © 2019 Tyler Technologies Version: 2019.0.1 .8574 https://ca1if0rnia.tylerh0st.net/OfsWeb/FileAndServeModule/Envelope/ViewPrintableEnve. .. 8/22/20 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 D 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, Deatborn, Michigan 48126 (Address ofprincipal executive offices) , (Zip Code) 313-322-3000 (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 E 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 [J No M 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 M No D 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 E 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 III 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 smaIIer 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 U Non-accelerated filer E] 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 heid 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 pagefl 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 (“201 7 Form 10-K Report" or “Report"), extensive information about our Company can be found at http://corgorate.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 Sharehotder Relations Department, Ford Motor Company, One American Road, P.O. Box 1899, Dearborn, Michigan 481 26-1 899. 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 recentAnnual Reports on Form 10-K, Quarteriy 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: (41 5) 364-6785 ONUI-b fl 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 of San Francisco, State of California, in the office of a member of the bar of this court, at whose direction the service was made. I am a citizen of the United States, over the age 0f eighteen (1 8) years, and not a party t0 0r interested in the within-entitled cause. My business address is SCHNADER HARRISON SEGAL & LEWIS LLP, 650 California Street, 19th Floor, San Francisco, California 94108-2736. I caused to be served the following document(s) and by the following means: DEFENDANTS FORD MOTOR COMPANY AND PRICE-SIMMS FORD, LLC D/B/A FORD LINCOLN FAIRFIELD’S NOTICE OF REMOVAL OF STATE COURT ACTION TO THE UNITED STATES DISTRICT COURT First-Class Mail: I enclosed a true and correct copy 0f said document in an envelope with postage fully prepaid, and placed it for collection and mailing with the United States Post Office on the date set forth below, following the ordinary business practice; addressed as follows: Tionna Dolin, Esq. Attorneysfor Plaintiff Strategic Legal Practices, APC CHARLOTTE P' ARMLIN 1840 Century Park East, Suite 430 Los Angeles, CA 90067 T: (3 10) 929-4900 F: (310) 943-3838 Email:MW I am readily familiar with my firm’s practice for collection and processing 0f 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 on August 23, 2019, at San Francisco, California. " SUs‘IE M. ARZAVE PROOF OF SERVICE