Removal to Federal Court

Cal. Super. - 6th Dist.September 26, 2019

SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET, 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STEPHEN H. DYE (SBN 104385) e-mail: sdye@schnader.com RICHARD J. MAY (SBN 234684) e-mail: rmay@schnader.com SCHNADER HARRISON SEGAL & LEWIS LLP 650 California Street, Suite 1900 San Francisco, California 94108-2736 Telephone: (415) 364-6700 Facsimile: (415) 364-6785 Attorneys for Defendant FORD MOTOR COMPANY Electronically Filed by Superior Court of CA, County of Santa Clara, on 11/7/2019 5:45 PM Reviewed By: Yuet Lai Case #1 9CV355727 Envelope: 3625765 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA - UNLIMITED JURISDICTION ROBERT A. MILLER, JR., Plaintiff, VS. FORD MOTOR COMPANY; FORD OF ESCONDIDO; and DOES 1 through 10, inclusive, Defendants. Case N0. 19CV355727 DEFENDANT FORD MOTOR COMPANY’S NOTICE OF REMOVAL OF STATE COURT ACTION TO THE UNITED STATES DISTRICT COURT Action Filed: September 26, 2019 Trial Date: None assigned DEFENDANT’S NOTICE OF REMOVAL OF STATE COURT ACTION TO THE UNITED STATES DISTRICT COURT SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (415) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO PLAINTIFF, HIS COUNSEL OF RECORD, AND THE CLERK OF THE SANTA CLARA COUNTY SUPERIOR COURT: PLEASE TAKE NOTICE that Defendant FORD MOTOR COMPANY has filed in the United States District Court for the NORTHERN District of California a Notice of Removal of the above-captioned case pursuant to United States Code, Title 28, Section 1441(b). A copy of Defendant’s Notice ofRemoval is attached hereto as Exhibit “A. ” PLEASE TAKE FURTHER NOTICE that, pursuant t0 28 U.S.C. section 1446(d), the filing of the Notice 0fRemoval, together with this Notice, effects the removal of the action, and the above-captioned State Court is requested t0 proceed no further unless and until the case is remanded. Dated: November 7, 201 9 SCHNADER HARRISON SEGAL & LEWIS LLP Attorneys for Defendant FORD MOTOR COMPANY 1 DEFENDANT’S NOTICE OF REMOVAL OF STATE COURT ACTION TO THE UNITED STATES DISTRICT COURT EXHIBIT A SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET, 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STEPHEN H. DYE (SBN 104385) e-mail: sdye@schnader.com RICHARD J. MAY (SBN 234684) e-mail: rmay@schnader.com SCHNADER HARRISON SEGAL & LEWIS LLP 650 California Street, 19th Floor San Francisco, California 94108-2736 Telephone: (415) 364-6700 Facsimile: (415) 364-6785 Attorneys for Defendant FORD MOTOR COMPANY IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNLA (SAN JOSE DIVISION) ROBERT A. MILLER, JR., Case No. Plaintiff, NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. SECTION 1331 vs. (Federal Question) AND 1441(b) (Diversity Jurisdiction) FORD MOTOR COMPANY; FORD OF ESCONDIDO; and DOES 1 through 10, inclusive, Complaint Filed: September 26, 2019 Defendants. Trial Date: None Set TO THE CLERK OF THE ABOVE-ENTITLED COURT: PLEASE TAKE NOTICE that Defendant FORD MOTOR COMPANY (“Ford”), by its counsel, hereby removes to this Court, pursuant t0 15 U.S.C. § 2310(d)(1)(B) and 28 U.S.C. § 1331, based 0n federal question jurisdiction, 28 U.S.C. § 1367(a), based on supplemental jurisdiction, and 28 U.S.C. §§ 1332, 1441 and 1446, based on diversity of citizenship, the claims pending as Case No. 19CV355727 in the Superior Court of California, County of Santa Clara. Plaintiff asserts a claim arising under the federal Magnusson-Moss statute (15 U.S.C. § 2301 et seq., Magnuson-Moss Warranty-Federal Trade Commission Improvement Act) 1 NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. SECTION 1441(b) SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET, 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (“Magnuson-Moss”). In support 0f this removal, Ford states: 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 Robert A. Miller, Jr. (“Plaintiff”) against Ford and Ford 0f Escondido, entitled Robert A. Miller, Jr, v. Ford Motor Company, et al., Case No. 19CV355727 (“State Action”). The two named defendants are Ford and Ford 0f Escondido. 2. Plaintiff filed the State Action on September 26, 2019, asserting claims against Ford for breach 0f the express and implied warranties under the Song-Beverly Consumer Warranty Act (Cal. CiV. Code § 1790 et seq.) (“Song-Beverly”) and breach 0f express and implied warranties under Magnuson-Moss. The only claim Plaintiff lodged against Ford 0f Escondido is for negligent repair, Which is barred by the economic loss rule. II. PROCEDURAL REQUIREMENTS 3. This notice 0f removal is timely because Ford was served with a copy 0f the Complaint 0n October 8, 2019, and this Notice 0f Removal is being filed within 30 days 0f that date. See 28 U.S.C. § 1446(b). Ford of Escondido has not been served With the Complaint. 4. Pursuant t0 28 U.S.C. § 1446(a), copies of all process, pleadings, and orders for the State Action that have been served 0n Ford 0r are in Ford’s possession are contained in Exhibit 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 of California, County of Santa Clara, promptly after filing 0f same in this Court. 7. Pursuant t0 28 U.S.C. § 1446(d), written notice 0f filing 0f this Notice of Removal Will be given t0 all adverse parties promptly after the filing 0f same in this Court. /// 2 NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. SECTION 1441(b) SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8. Consistent With Congress’s intent that parties may amend allegations of jurisdiction if they are questioned, see 28 U.S.C. § 1653, this Court should not sua sponte remand this action, see Shockley v. Jones, 823 F.2d 1068, 1072-73 (7th Cir. 1987) (“This court has noted that sua sponte dismissals without prior notice or opportunity to be heard are ‘hazardous’ . . . A dismissal under Rule 12(b)(1) without notice or a hearing is similarly suspect”). Thus, if any question arises as t0 the propriety 0f this removal, Ford requests the opportunity to amend this Notice 0fRemoval following any necessary discovery, briefing, and oral argument. 9. Nothing in this Notice of Removal shall be interpreted as a waiver 0r relinquishment of Ford’s right to assert defenses including, Without limitation, the defenses 0f (i) lack of personal jurisdiction, (ii) improper venue and/orfomm non conveniens, (iii) insufficiency of process, (iv) insufficiency of service of process, (V) improper joinder 0f claims and/or parties, (Vi) failure to state a claim, (Vii) failure t0 join indispensable party(ies), 0r (viii) the right to arbitrate this controversy, or (ix) any other procedural 0r substantive defense available under state 0r federal law. III. THE AMOUNT IN CONTROVERSY REQUIREMENT IS MET 10. The amount in controversy in this action exceeds $75,000, exclusive of interest and costs. See 28 U.S.C. § 1332. 11. It is well-established that “the sum claimed by the plaintiff controls if the claim is apparently made in good faith,” and that “[i]t must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal.” St. Paul Mercury Indem. C0. v. Red Cab Ca, 303 U.S. 283, 288-89 (1938). 12. Ford disputes that it is liable to Plaintiff for any damages whatsoever. But the amount in controversy is met. There is no burden t0 present supporting evidence at this point. A removing party’s initial burden is to “file a notice of removal that includes “a plausible 9” 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 3 NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. SECTION 1441(b) SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET, 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 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 to federal court notwithstanding the failure of the plaintiff to plead the required amount. Absent the facial showing from the complaint, the court may consider facts 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 to remanding.” Abrego, 443 F.3d at 691 (internal citation omitted). 14. In this case, Plaintiff expressly seeks damages in an “amount that is not less than $25,001 .00” plus a civil penalty of two times actual damages. (Complaintfl 11, 17-18, 24, 27, 53, and Prayer.) He also seeks attorney fees, prejudgment interest, incidental damages, punitive damages, and other Claims for relief. (See Prayer in Complaint.) Claims for attorney fees in these types of cases also often exceed $50,000. Thus, the Complaint 0n its face seeks recovery ofmore than $75,000. (Declaration of Richard J. May (“May Decl.”), 1] 5.) 15. The Court may include civil penalties potentially recoverable under Song- Beverly in calculating the amount in controversy. See Roma 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’s fees. Brady, 243 F. Supp. 2d at 101 1; Guglielmino v. McKee Foods Corp, 506 F.2d 696, 700 (9th Cir. 2007); Galt G/S v. JSS Scandinavia, 142 F.3d 1150, 1156 (9th Cir. 1998); see also Fritsch v. Swift Transp. C0. 0fAriz., LLC, 899 F.3d 785, 788, 794-95 (9th Cir. 2018) (holding 4 NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. SECTION 1441(b) SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET, 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 attorney fees are included in amount in controversy in cases remove under Class Action Fairness Act). 16. If Plaintiff was t0 prevail on his Song-Beverly claims, he could be awarded damages 0f $75,000 or more if awarded statutory civil penalties. Even before taking punitive damages and attorney’s fees into account, the amount in controversy already exceeds $1 16,819.28, Which includes the total amount of the sales contract of $38,939.76 plus $77,879.52 as a 2x civil penalty pursuant to Song-Beverly. (May Decl. 11 7.) 17. Plaintiff also prays for punitive damages. (Complaint at Prayer.) The amount in controversy also includes punitive damages. Gibson v. Chrysler Corp, 261 F.3d 927, 945 (9th Cir. 2001). When Plaintiff s claims for restitution of the purchase price plus prejudgment interest, punitive damages, attorney fees, and civil penalties 0f two times actual damages are considered, the amount in controversy far exceeds $75,000. IV. THIS COURT HAS FEDERAL QUESTION AND SUPPLEMENTAL JURISDICTION 18. Pursuant t0 15 U.S.C. § 2310(d)(1)(B) and 28 U.S.C. § 133 1, this Court has federal question jurisdiction of the claim for relief being asserted by Plaintiff under Magnuson- Moss. Pursuant to 28 U.S.C. § 1367, this Court also has supplemental jurisdiction 0f Plaintiffs additional state-law claims. 19. As stated, Plaintiff seeks reliefunder Magnuson-Moss. 20. Jurisdiction over a claim under Magnuson-Moss requires an amount in controversy 0f at least $50,000 (exclusive 0f interest and costs) “computed 0n the basis of all claims t0 be determined” in the suit. See 15 U.S.C. § 23 10(d)(3)(B). The amount of damages in controversy may be established in the same manner as for diversity jurisdiction. (See Roma v. FFG Ins. C0,, 397 F. Supp. 2d 1237, 1240 (C.D. Cal. 2005).) The Court may include punitive damages and civil penalties potentially recoverable under California’s Song-Beverly Consumer Warranty Act in calculating the amount in controversy. (See Id. at 1239-40; see also Cal. CiV. Code § 1794(0) (potential civil penalty up t0 two times actual damages).) Romo noted that Whether attorney fees should be included was an open question in the Ninth Circuit, as some 5 NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. SECTION 1441(b) SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 courts in other circuits did not include them given the exclusion 0f “interest and costs.” But more recently, the Ninth Circuit found that future attorney fees may be included for the amount in controversy under another jurisdictional statute (CAFA) that also excludes “interest and costs.” (Fritsch v. Swift Transportation Company ofArizona, LLC, 899 F.3d 785, 788, 794-95 (9th Cir. 2018).) 21. Here, the amount in controversy in fact exceeds $50,000. Plaintiff expressly seeks more than $25,000 in damages plus a civil penalty 0f two times actual damages. (Complaint 1N 11, 17-18, 24, 27, 53, and Prayer.) Thus, the Complaint 0n its face seeks recovery ofmore than $75,000. Claims for attorney fees in these types of cases regularly exceed $50,000. 22. Ford disputes that it is liable to Plaintiff for any damages whatsoever. But the amount in controversy is met. A removing party’s initial burden is t0 “file a notice of removal that includes ‘a plausible allegation that the amount in controversy exceeds the jurisdictional threshold.” (Ibarra v. Manheim Invs., Ina, 775 F.3d 1193, 1195 (9th Cir. 2015) (quoting Dart Cherokee Basin Operating C0,, LLC v. Owens, 135 S. Ct. 547, 554 (2014)).) Besides actual damages, Plaintiff seeks a civil penalty in an amount that is two times his actual damages. And he seeks attorney fees and other claims for relief as well. (See Complaint fl 53 and Prayer.) 23. Pursuant t0 28 U.S.C. § 1367(a), where the Court has original federal-question jurisdiction in a civil action, as it does here, it shall have supplemental jurisdiction over all other claims that are s0 related t0 the claims in the action that are within such original jurisdiction that together they form part 0f the same case 0r controversy under Article III 0f the United States Constitution. The other bases for relief asserted by Plaintiff in this case all arise out 0f the same set of alleged facts and are part of the same case or controversy. As such, this Court has supplemental jurisdiction over Plaintiff s state-law claims pursuant t0 28 U.S.C. § 1367(a). V. DIVERSITY OF CITIZENSHIP EXISTS 24. Plaintiff is, and was at the time of filing 0f the Complaint, a citizen 0f Texas. (Complaint fl 2.) 25. Ford is, and was at the time Plaintiff commenced this action, a corporation 6 NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. SECTION 1441(b) SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 incorporated in and organized under the laws of the State 0f Delaware with its principal place of business in Michigan. This Court can take judicial notice 0f these facts. (See Exhibit 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.”).) 26. Ford of Escondido has not been served in this case. A. Defendant Ford 0f Escondido and Fraudulent Joinder 27. “There are two ways to establish fraudulent joinder: ‘(1) actual fraud in the pleading ofjurisdictional facts, 0r (2) inability of the plaintiff to establish a cause 0f action against the non-diverse party in state court.” Grancare, LLC v. Thrower ex rel. Mills, 889 F.3d 543, 548 (9th Cir. 2018) (citations omitted). This case involves the second situation. “Fraudulent joinder is established the second way if a defendant shows that an ‘individua1[ ] joined in the action cannot be liable 0n any theory.” Id. (citation omitted). In other words, removing parties must show “an ‘obvious’ failure t0 state a claim” against them. Id. at 549. 28. Ford contends that Plaintiff fraudulently joined Ford of Escondido in this case for n0 reason other than t0 defeat diversity jurisdiction and prevent removal of 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 or colorable ground supporting the claim against the joined defendant, or n0 real intention in good faith t0 prosecute the action against the defendants or seek a joint judgment”). 29. The Complaint asserts seven Causes 0f Action.1 Only one, negligent repair, is asserted against Ford of Escondido. 30. The First through Fifth and Eighth Causes 0f Action are expressly asserted against Ford only. 1 The Complaint does not include a Sixth Cause of Action, instead skipping from Fifth to Seventh causes. 7 NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. SECTION 1441(b) SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET, 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 1. Plaintiff s Seventh Cause of Action is asserted against “Defendant Ford Escondido” and alleges negligent repair. However, Plaintiff alleges only economic losses Without any injury to person 0r property. Under these circumstances, the economic loss rule bars any claim by Plaintiff for negligent repair. (See Ruiz v. BMW ofN. 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. (In re Mesa Bus. Equip, Ina, 931 F.2d 60 (9th Cir. 1991).) In order for a plaintiff to successfully bring a claim for negligence, it must demonstrate that the negligence caused harm t0 person or property. (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 to a person 0r other property in order t0 give rise to a tort remedy. (See Jimenez v. Superior Court (2002) 29 Cal. 4th 473, 481-83; Sea-Land Serv. v. GE, 134 F.3d 149, 156 (3d Cir. 1998) (“...Where damage is only to 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 (S.D. Ohio 1999) (“. . .When the only harm claimed is economic loss and damage to the product itself, courts in other jurisdictions, which follow principles similar to those set forth in Chemtrol, have held that such an action cannot be maintained. .. This Court finds the result reached and the rationale employed in those decisions t0 be persuasive.”).) 32. Plaintiff alleges that Ford 0f Escondido’s unspecified negligence was a “proximate cause of Plaintiff’ s damages.” (Complaint fl 41 .) Plaintiff” s alleged damages are limited t0 damage to the vehicle itself. (Complaint 1110.) The remedies sought by Plaintiff are solely for economic losses such as payments made, and diminution in value 0f the subj ect vehicle. (See Complaint 1] 23.) Plaintiff does not allege any personal injury 0r property damages. Accordingly, the economic loss rule applies to bar Plaintiff s claim against Ford 0f 8 NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. SECTION 1441(b) SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Escondido. 33. In addition, Plaintiff s Complaint vaguely alleges that Ford of Escondido “fail[ed] to properly store, prepare and repair the Subj ect Vehicle in accordance With industry standards.” (Complaint 11 39.) Plaintiff does not allege how, if at all, Ford of Escondido failed t0 properly store, prepare or repair the vehicle. Further, Ford of Escondido did not sell or service Plaintiff s vehicle. 34. While Plaintiff alleges that Defendant “Ford of Escondido” is “organized and in existence under the laws 0f the State 0f California, GPI CA-F, Inc. d/b/a Ford 0f Escondido is actually incorporated under the laws 0f the state 0fNevada. (Complaint fl 5) Further, GPI CA-F, Inc. d/b/a Ford 0f Escondido has not been served with the Complaint. 35. The joinder 0f Ford of Escondido is thus fraudulent because the Complaint does not and cannot state a cause of action against Ford 0f Escondido. (Gasumyan v. Travelers Cas. Ins. C0. 0fAm., 2017 U.S. Dist. LEXIS 73013, at *4 (C.D. Cal. May 11, 2017).) 36. Accordingly, Ford believes that Plaintiff has no intention 0f pursuing any claim against Ford of Escondido, and that Ford of Escondido was only named to defeat the claim of diversity and removal t0 Federal Court. B. Ford Of Escondido Is A “Dispensable Party” Pursuant T0 FRCP 21 And May Be Severed From This Action 37. Alternatively, under Fed. R. CiV. P. 21, “the court may, at any time, 0n just terms, add 0r drop a party.” “Rule 21 grants a federal district or appellate court the discretionary power to perfect its diversity jurisdiction by dropping a nondiverse party provided the nondiverse party is not indispensable to the action under Rule 19.” Sams v. Beech Aircraft Corp, 625 F.2d 273, 277 (9th Cir. 1980); see also Newman-Green, Inc. v. AlfonZO-Larrain, 490 U.S. 826, 832 (1989) (“it is well settled that Rule 21 invests district courts With authority t0 allow a dispensable nondiverse party t0 be dropped at any time, even after judgment has been rendered”). 38. For the reasons stated above, there is diversity of citizenship between Plaintiff, a Texas citizen, and Ford, a citizen of Michigan and Delaware. The Court has subject matter 9 NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. SECTION 1441(b) SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET, 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 jurisdiction over this dispute under 28 U.S.C. § 1332, as Ford of Escondido was fraudulently joined by Plaintiff. Alternatively, this Court may sever Ford of Escondido and whatever claims against it (although there are none that are valid), as a dispensable and nondiverse party pursuant to FRCP 2 1. VI. CONCLUSION 39. For the reasons stated above, the State Action may be removed t0 this Court by Ford in accordance With the provisions of 15 U.S.C. § 2310(d)(1)(B) and 28 U.S.C. §§ 1332, 1441 and 1446 because: (i) this action is a civil action pending within the jurisdiction 0f the United States District Court for the Northern District of California, (ii) the amount in controversy exceeds $75,000.00, exclusive 0f interest and costs, (iii) there is a federal question, and (iv) the action is solely between properly joined citizens of different states. 40. WHEREFORE, Defendant Ford Motor Company hereby notifies Plaintiff and his attorneys that this action, formerly pending in the Santa Clara County Superior Court, has been removed from that court to this Court. Dated: November 7, 2019 SCHNADER HARRISON SEGAL & LEWIS LLP By: /s/2C6W Ag m RICHARD J. MKY Attorneys for Defendant FORD MOTOR COMPANY 10 NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. SECTION 1441(b) EXHIBIT A SUMMONS FOR COURT USE ONLY (SOLO PAPA USO DE LA tORTE) (CITA CION JUDICIAL) NOTICE TO DEFENDANT: E-FILED (Al/iSO AL DEMANDADO): 9/26/20194:20 PM FORD MOTOR COMPANY; FORD OF ESCONDIDO; and DOES 1 Clerk of Court through 10 inclusive, Superior Court of CA, YOU ARE BEING SUED BY PLAINTIFF: County of Santa Clara (LO ESTA DEMANDANDO EL DEMANDANTE): 19CV355727 ROBERT A. MILLER, JR. Reviewed By: Vuet Lai Envelope: 3445711 NOTICE! You have been sued. The court may decide against you without your being heard unless you respond within 30 days. Read the information below. You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a written response at this court and have a copy served on the plaintiff. A letter or phone call will not protect you. Your written response must be in proper legal form if you want the court to hear your case. There may be a court form that you can use for your response. You can find these court forms and more information at the California Courts Online Self-Help center (www.cowtinfo.ca.gov/selThelp), your county law library, or the courthouse nearest you. If you cannot pay the filing fee, ask the court derk for a fee waiver form. If you do not file your response on time, you may lose the case by default, and your wages, money, and property may be taken without further warning from the court. There are other legal requirements. You may want to call an attorney right away. If you do not know an attorney, you may want to call an attorney referral service. If you cannot afford an attorney, you may be eligible for free legal services from a nonprofit legal services program. You can locate these nonprofit groups at the California Legal Services Web site (www.lawhelpcalifomia.org), the California Courts Online Self-Help center (www.courtinfo.ca.gov/selThelp), or by contacting your local court or county bar association. NOTE: The court has a statutory lien for waived fees and costs on any settlement or arbitration award of $10,000 or more in a civil case. The court's lien must be paid before the court will dismiss the case. jAVISOl La han demandado. Si no responde dentro de 30 dlas, la torte puede decidir en su contra sin escuchar su version. Lea Is informatiOn a continuaciOn. - liene 30 0/AS DE CALENDARIO despues de que le entreguen esta citatiOn y papeles legales pare presenter "na respuesta pot escrito en esta torte y hater qua se entregue Una copia at demandante. Una carts 0 Una Ilamada telefonica no to protegen. Su respuesta par escrito tiene que ester en ftnnato legal conrcto si desea que pmcesen su caso en /a co,te. Es posible que haya un fomiulario que usted pUeda user pare su respuesta. Puede encontrarestos formula dos de Is torte y nuts information en el Centro de Ayuda de las Cortes de California (wAv.sucorte.ca.gov). en Is bibliotec,a de Ieyes de su condado o an la torte que Fe quede mas cerca. Si no puede pagar la cuota tie presentation, pida at secmtario de Is cone que le dé un form U/aria de exenciOn tie pago de cuotas.. Si no presenta su respuesta a tiOmpo, puede pettier el caso par incumplimiento y Ia corte le podra flutter su sue/do, dinem y bienes sin més advertencia. Hay otms requisitos legales. Es recomendable que flame a un abogado inmediatamente. Si no conoce a un abogado, puede Ramer a un servicio de rem isiOn a abogados. Si no puede pagar a un abogado, es posible qua cumpla con los requisrtos pare obtener servicios legales gratuitos de un programa de servicios legales sin fines de lucm. Puede encontrar estos grupos sin fines de lucro en el si/ia web de California Legal Services, wi.lawIielpcalifomia.org), en el Centrr, tie Ayuda de las Cones tie California, (\w.sucorte.ca.gov) 0 poniEndose en con/ac/a con Ia torte a el colegio de abogados locales. AV/SO: Pot Icy, Is torte tiene derecho a reclamar las too/as ylos cost as exentos pot imponer un gravamen sabre cUalquier recuperatiOn tie $10,000 0 mOs de valor recibida mediante un acuerdo 0 una concesiOn tie art itraje en un caso de derecho civil. Tiene que pagar el gravamen de la torte an/es de que la torte pueda desechar el caso. The name and address of the court is: (Elnombre ydirecciOn de Ia torte es): Superior Court of California NUMBER: 19CV355727 191 North First Street San Jose, CA 95113 The name, address, and telephone number of plaintiffs attorney, or plaintiff without an attorney, is: (El norn öre, fa direction y el nUmero de teléfono del abogado del demandante, a del demandante que no tiene abogado, es): Tionna Dolin; 1840 Century Park East, Suite 430, Los Angeles, CA 90067; Tel: (310) 929-4900 DATE: September 13, 2019 Clerk, by Yuet Lai . Deputy (Fecha) Clerk of Court (Secretario) (Adjunto) (For proof of service of this summons, use Proof of Service of Summons (form POS-010).) (Pam prueba de entrega de esta citatiOn use el formulario Proof of Service of Summons, (POS-010)). NOTICE TO THE PERSON SERVED: You are served C as an individual defendant as the person sued under the fictitious name of (specify): S a on behalf of(sPeci& 01 .k ): o-t-o ( cov'uiP"ft under. CCP 416.10 (corporation) CCP 416.60 (minor) / £ZJ CCP 416.20 (defunct corporation) CCP 416.70 (conservatee) - CCP 416.40 (association or partnership) CCP 416.90 (authorized person) - other (specify): 4. by personal delivery on (date): t6 (2 (a - - - - Form Adopted for Marcalay use SUMMONS code of OI Proceduse ½ 41120. 485 Juda1 cw,df of california W.ncav SUM-100 [Rev. Ji4y 1, 291 I 2 3 4 5 6 7 8 9 10 II 12 13 14 15 16 17 is 19 20 21 22 23 24 25 26 27 28 0 C 0• o - >- U -c C') E-FILED 9/26/2019 4:20 PM Tionna Dolin (SBN 299010) Clerk of Court Email: tdolin@slpattomey.com Superior Court of CA, Strategic Legal Practices, APC County of Santa Clara 1840 Century Park East, Suite 430 19CV355727 Los Angeles, CA 90067 Reviewed By: Yuet Lai Telephone: (310) 929-4900 Facsimile: (310) 943-3838 Attorneys for Plaintiff, ROBERT A. MILLER, JR., SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA ROBERT A. MILLER, JR., I Case No.: 19CV355727 Plaintiff, Hon. Dept. VS. FORD MOTOR COMPANY; FORD OF COMPLAINT FOR VIOLATION OF ESCONDLDO; and DOES 1 through 10, STATUTORY OBLIGATIONS inclusive, Defendants. JURY TRIAL DEMANDED COMPLAINT; JURY TRIAL DEMANDED 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C-, F Plaintiff alleges as follows: PARTIES As used in this Complaint, the word "Plaintiff' ROBERT A. MILLER, JR., Plaintiff is a resident of Dallas, Texas. As used in this Complaint, the word "Defendant" shall refer to all Defendants named in this Complaint, unless otherwise specified. Defendant FORD MOTOR COMPANY ("Defendant FMC") is a limited liability company organized and in existence under the laws of the State of Delaware and registered with the California Department of Corporations to conduct business in California. At all times relevant herein, Defendant was engaged in the business of designing, manufacturing, constructing, assembling, marketing, distributing, and selling automobiles and other motor vehicles and motor vehicle components in Santa Clara County. Defendant FORD OF ESCONDIDO ("Defendant Ford Escondido") is an unknown business entity organized and in existence under the laws of the State of California. At all times relevant herein, Defendant was engaged in the business of selling automobiles and automobile components, and servicing and repairing automobiles in San Diego County. Plaintiff is ignorant of the true names and capacities of the Defendants sued under the fictitious names DOES I to 10. They are sued pursuant to Code of Civil Procedure section 474. When Plaintiff become aware of the true names and capacities of the Defendants sued as DOES I to 10, Plaintiffs will amend this Complaint to state their true names and capacities. To the extent there are any statutes of limitation applicable to Plaintiffs claim-including, without limitation, their express warranty, implied warranty, and fraudulent omission claims-the running of the limitation periods have been tolled by equitable tolling, class action tolling (e.g. American Pipe rule) by the filing of Velasco et al v. Chrysler Group LLC, United States District Court, Central District of California No. 2;13-cv-08080-DDP- VBK on November 1, 2013, the discovery rule, fraudulent concealment rule, equitable estoppel, equitable tolling and/or repair rule. COMPLAINT; JURY TRIAL DEMANDED 2 3 4 5 6 7 8 9 10 I' 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C U -4 C . C (I) FACTUAL BACKGROUND On or about June 4, 2016, Plaintiff purchased a 2016 Ford Fusion vehicle identification number 3FA6P0T96GR404050 (hereafter Vehicle" or "Subject Vehicle"), which was manufactured and or distributed by Defendant FMC. The Vehicle was purchased or used primarily for personal, family, or household purposes. Plaintiff purchased the Vehicle from a person or entity engaged in the business of manufacturing, distributing, or selling consumer goods at retail. In connection with the purchase, Plaintiff received an express written warranty, including, a 3-year/36,000 mile express, bumper to bumper warranty and a 5-year/60,000, mile powertrain warranty which, inter alia, covers the engine and transmission. Defendant undertook to preserve or maintain the utility or performance of the Vehicle or to provide compensation if there is a failure in utility or performance for a specified period of time. The warranty provided, in relevant part, that in the event a defect developed with the Vehicle during' the warranty period, Plaintiff could deliver the Vehicle for repair services to Defendant's representative and the Vehicle would be repaired. During the warranty period, the Vehicle contained, or developed defects, including but not limited to, defects related to the transmission; defects related to the reprogramming of the Power Control Module (PCM); defects causing the gears to become hung up; defects causing the RPMS to rev high; defects causing harsh shifts; defects requiring the issuance of TSB 16-20-37; defects causing the transmission to clunk at slow speeds; defects causing harsh shifts into second and third gears; defects relating toa burnt smell in the transmission; defects causing metal -contamination of transmission fluid; defects requiring replacement of the transmission; defects related to the wear on overdrive/direct drum cylinder; defects related to the clutch tower support; defects requiring the replacement of the center support; defects requiring the replacement of the solenoid body; defects relating to the throttle; defects requiring an Electronic Engine Control (EEC) test; defects causing wear on the overdrive/direct drum cylinder and/or clutch tower support; defects found on the bypassing seal on direct piston and/or center support; defects causing the replacement of the COMPLAINT; JURY TRIAL DEMANDED 2 3 4 5 6 7 S 9 10 (2 11 12 13 14 - •c 15 - 16 o 17 18 Cr 19 20 21 22 23 24 25 26 27 28 center support; defects related to the engine; defects requiring the replacement to the clutch tower support and OD/Direct drum; defects requiring the valve body be overhauled; defects requiring the replacement to the solenoid body; defects causing contamination of the solenoid body; defects related to the steering system; defects requiring the replacement of the Steering Wheel Bolt; defects resulting in the issuance of Recall 14508; defects related to the throttle body; defects causing illumination of the Check Engine Light; defects requiring the replacement of the Catalytic Converter; defects causing storage of Fault Code P0420; and/or any other defects described in the Vehicle's repair history. Said defects substantially impair the use, value, or safety of the Vehicle. Plaintiff suffered damages in a sum to be proven at trial in an amount that is not less than $25,001.00. All acts of corporate employees as alleged, were authorized or ratified by an officer, director or managing agent of the corporate employer. Each Defendant whether actually or fictitiously named herein, was the principal, agent (actual or ostensible), or employee of each other Defendant and in acting as such principal or within the course and scope of such employment or agency, took some part in the acts and omissions hereinafter set forth by reason of which each Defendant is liable to Plaintiffs for the relief prayed for herein. FIRST CAUSE OF ACTION BY PLAINTIFF AGAINST DEFENDANT FMC VIOLATION OF SUBDIVISION (D) OF CIVIL CODE SECTION 1793.2 Plaintiff incorporates by reference the allegations contained in the paragraphs set forth above. Defendant and its representatives in this state have been unable to service or repair the Vehicle to conform to the applicable express warranties after a reasonable number of opportunities. Despite this fact, Defendant failed to promptly replace the Vehicle or make restitution to Plaintiffs as required by Civil Code section 1793.2, subdivision (d) and Civil Code section 1793.1, subdivision (a)(2). COMPLAINT; JURY TRIAL DEMANDED 16. Plaintiff has been damaged by Defendant's failure to comply with its 2 obligations pursuant to Civil Code section 1793.2, subdivision (d) and Civil Code section 3 1793. 1, subdivision (a)(2), and therefore brings this cause of action pursuant to Civil Code 4 section 1794. 5 17. Defendant's failure to comply with its obligations under Civil Code section 6 1793.2, subdivision (d) was willful, in that Defendant and its representative were aware that 7 they were unable to service or repair the Vehicle to conform to the applicable express 8 warranties after a reasonable number of repair attempts, yet Defendant failed and refused to 9 promptly replace the Vehicle or make restitution. Accordingly, Plaintiff is entitled to a civil 10 penalty of two times Plaintiff's actual damages pursuant to Civil Code section 1794, 11 subdivision (c). 12 18. Defendant does not maintain a qualified third-party dispute resolution process 13 which substantially complies with Civil Code section 1793.22. Accordingly, Plaintiff is 14 entitled to a civil penalty of two times Plaintiffs' actual damages pursuant to Civil Code 15 section 1794, subdivision (e). 16 19. Plaintiff seeks civil penalties pursuant to section 1794, subdivisions (c), and (e) 17 in the alternative and does not seek to cumulate civil penalties, as provided in Civil Code 18 section 1794, subdivision (f). 19 SECOND CAUSE OF ACTION 20 BY PLAINTIFF AGAINST DEFENDANT FMC 21 VIOLATION OF SUBDIVISION (B) OF CIVIL CODE SECTION 1793.2 22 20. Plaintiff incorporates by reference the allegations contained in the paragraphs 23 I set forth above. 24 21. Although Plaintiff presented the Vehicle to Defendant's representative in this 25 state, Defendant and its representative failed to commence the service or repairs within a 26 reasonable time and failed to service or repair the Vehicle so as to conform to the applicable 27 warranties within 30 days, in violation of Civil Code section 1793.2, subdivision (b). Plaintiff 28 did not extend the time for completion of repairs beyond the 30-day requirement. 4 COMPLAINT; JURY TRIAL DEMANDED 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C-, 11 Plaintiff has been damaged by Defendant's failure to comply with its obligations pursuant to Civil Code section 1793.2(b), and therefore brings this Cause of Action pursuant to Civil Code section 1794. Plaintiff has rightfully rejected and/or justifiably revoked acceptance of the Vehicle and has exercised a right to cancel the purchase. By serving this Complaint, Plaintiff does so again. Accordingly, Plaintiff seeks the remedies provided in California Civil Code section 1794(b)(1), including the entire contract price. In the alternative, Plaintiff seeks the remedies set forth in California Civil Code section 1794(b)(2), including the diminution in value of the Vehicle resulting from its defects. Plaintiff believes that, at the present time, the Vehicle's value is de mm/mis. 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(c). THIRD CAUSE OF ACTION BY PLAINTIFF AGAINST DEFENDANT FMC VIOLATION OF SUBDIVISION (A)(3) OF CIVIL CODE SECTION 1793.2 Plaintiff incorporates by reference the allegations contained in paragraphs set forth above. 26: In violation of Civil Code section 1793.2, subdivision (a)(3), Defendant failed to make available to its authorized service and repair facilities sufficient service literature and replacement parts to effect repairs during the express warranty period. Plaintiffs have been damaged by Defendant's failure to comply with its obligations pursuant to Civil Code section 1793:2(a)(3), and therefore brings this Cause of Action pursuant to Civil Code section 1794. 27. Defendant's failure to comply with its obligations under Civil Code section 1793.2, subdivision (a)(3) was wilful, in that Defendant knew of its obligation to provide literature and replacement parts sufficient to allow its repair facilities to effect repairs during COMPLAINT; JURY TRIAL DEMANDED 1) 11 12 1 13 14 15 16 C; - E' 17 V 18 19 20 21 22 23 24 25 26 27 28 the warranty period, yet Defendant failed to take any action to correct its failure to comply 2 with the law. Accordingly, Plaintiff is entitled to a civil penalty of two times Plaintiff's actual 3 damages pursuant to Civil Code section 1794(c). 4 FOURTH CAUSE OF ACTION 5 BY PLAINTIFFS AGAINST DEFENDANT FMC 6 BREACH OF EXPRESS WRITTEN WARRANTY 7 (CIV. CODE, § 1791.2, 5USD. (a); § 1794) 8 28. Plaintiff incorporates by reference the allegations contained in paragraphs set 9 I forth above. 10 29. In accordance with Defendant's warranty, Plaintiff delivered the Vehicle to Defendant's representative in this state to perform warranty repairs. Plaintiff did so within a reasonable time. Each time Plaintiff delivered the Vehicle, Plaintiff notified Defendant and its representative of the characteristics of the Defects. However, the representative failed to repair the Vehicle, breaching the terms of the written warranty on each -occasion. Plaintiff has been damaged by Defendant's failure to comply with its obligations under the express warranty, and therefore brings this Cause of Action pursuant to Civil Code section 1794. Defendants failure to comply with its obligations under the express warranty was willful, in that Defendant and its authorized representative were aware that they were obligated to repair the Defects, but they intentionally refused to do so. Accordingly, Plaintiffs are entitled to a civil penalty of two times of Plaintiff's actual damages pursuant to Civil Code section 1794(c). FIFTH CAUSE OF ACTION BY PLAINTIFFS AGAINST DEFENDANT FMC BREACH OF THE IMPLIED WARRANTY OF MERCHANTABILITY (CIV. CODE, § 1791.1; § 1794; § 1795.5) Plaintiff incorporates by reference the allegations contained in the paragraphs set forth above. 6 COMPLAINT; JURY TRIAL DEMANDED 33. Pursuant to Civil Code section 1792, the sale of the Vehicle was accompanied 2 by Defendant's implied warranty of merchantability. Pursuant to Civil Code section 1791.1, 3 the duration of the implied warranty is coextensive in duration with the duration of the express 4 written warranty provided by Defendant, except that the duration is not to exceed one-year. 5 34. Pursuant to Civil Code section 1791.1 (a), the implied warranty of 6 merchantability means and includes that the Vehicle will comply with each of the following 7 requirements: (1) The Vehicle will pass without objection in the trade under the contract S description; (2) The Vehicle is fit for the ordinary purposes for which such goods are used; (3) 9 The Vehicle is adequately contained, packaged, and labelled; (4) The Vehicle will conform to 10 the promises or affirmations of fact made on the container or label. 0 11 35. At the time of purchase, or within one-year thereafter, the Vehicle contained or 12 developed the defects set forth above. The existence of each of these defects constitutes a 13 breach of the implied warranty because the Vehicle (1) does not pass without objection in the 14 trade under the contract description, (2) is not fit for the ordinary purposes for which such 15 goods are used, (3) is not adequately contained, packaged, and labelled, and (4) does not 16 conform to the promises or affirmations of fact made on the container or label. 17 36. Plaintiff has been damaged by Defendants failure to comply with its 18 obligations under the implied warranty, and therefore brings this Cause of Action pursuant to 19 Civil Code section 1794. 20 SEVENTH CAUSE OF ACTION 21 BY PLAINTIFF AGAINST DEFENDANT FORD ESCONDIDO 22 NEGLIGENT REPAIR 23 37. Plaintiff incorporates by reference the allegations contained in the paragraphs 24 set forth above. 25 38. Plaintiff delivered the Subject Vehicle to Defendant Ford Escondido for 26 substantial repair on at least one occasion. 27 28 COMPLAINT; JURY TRIAL DEMANDED 1 39. Defendant Ford Escondido owed a duty to Plaintiff to use ordinary care and 2 skill in storage, preparation and repair of the Subject Vehicle in accordance with industry 3 standards. 4 40. Defendant Ford Escondido breached its duty to Plaintiff to use ordinary care 5 and skill by failing to properly store, prepare and repair the Subject Vehicle in accordance 6 with industry standards. 7 41. Defendant Ford Escondido's breach of its duties owed to Plaintiff was a 8 proximate cause of Plaintiff's damages. 9 EIGHTH CAUSE OF ACTION 10 BY PLAINTIFFS AGAINST DEFENDANT FMC C-, 11 VIOLATION OF THE MAGNUSON-MOSS WARRANTY ACT 12 42. Plaintiff incorporates by reference the allegations contained in the paragraphs cn 13 I set forth above. • 14 43. Plaintiff is a "consumer" as defined in the Magnuson-Moss Warranty Act 15 -C (referred to as "Mag-Moss"), 15 U.S.C. § 2301(3). - 16 44. Defendant FMC is a "supplier" and "warrantor" as defined in the Mag-Moss -I 0 17 Act, is U.S.C. § 2301(4), 15 U.S.C. § 2301(5). Cl) 18 45. The Subject Vehicle, is a "consumer product" as defined in the Mag-Moss Act, 19 15 U.S.C. § 2301(1). 20 46. In addition to the express warranty, in connection with the sale of the Subject 21 Vehicle to Plaintiff, an implied warranty of merchantability was created under California law. 22 The Vehicle's implied warranties were not disclaimed using a Buyer's Guide displayed on the 23 Vehicle, thus any purported disclaimers were ineffective pursuant to is U.S.C. § 2308(c). 24 47. Defendant FMC violated the Mag-Moss Act when it breached the express 25 warranty and implied warranties by failing to repair the defects and nonconformities, or to 26 replace the Vehicle. 27 48. Plaintiff has also met all of Plaintiffs obligations and preconditions to bring 28 this claim, or alternatively it would have been futile for Plaintiff to do so. COMPLAINT; JURY TRIAL DEMANDED 2 3 4 5 6 7 8 9 10 C-) 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In addition, Plaintiff has met all of Plaintiff's obligations for bringing this claim as provided in the written warranties, or alternatively, Defendant FMC does not maintain an informal dispute resolution process for the purpose of resolving claims for breach of the implied warranty of merchantability, and does not maintain an informal dispute resolution process for resolving express warranty claims that complies with the requirements of 15 U.S.C. § 2310(a) and the rules and regulations adopted pursuant thereto by the Federal Trade Commission. As a direct and proximate result of the acts and omissions of Defendant FMC, Plaintiff has been damaged in the form of general, special and actual damages in an amount within the jurisdiction of this Court, according to proof at trial. Under the Act, Plaintiff is entitled to reimbursement of the entire amount paid or payable. Plaintiff is entitled to all incidental, consequential, penalties, and general damages resulting from Defendant FMC's failure to comply with their obligations under the Mag-Moss Act. Plaintiff has been damaged by Defendant FMC's failure to comply with its obligations under the express warranty, implied warranty, as well as any other violations alleged here, and therefore brings this claim pursuant to is U.S.C. §2310(d) and seeks remedies available pursuant to Magnuson-Moss Act under California law, including California Civil Code Section 1794 and/or California Commercial Code Sections 2711-2715, and/or other remedies that the Court may deem proper. Plaintiff is entitled under the Mag-Moss Act to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney's fees, reasonably incurred in connection with the commencement and prosecution of this action pursuant to 15 U.S.C: § 2310(d)(2). COMPLAINT; JURY TRIAL DEMANDED 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 U C -I U U . - U (ID PRAYER PLAINTIFFS PRAYS for judgment against Defendant as follows: For Plaintiffs actual damages in an amount according to proof, For restitution; For a civil penalty in the amount of two times Plaintiffs actual damages pursuant to Civil Code section 1794, subdivision (c) or (e); For any consequential and incidental damages; For costs of the suit and Plaintiffs reasonable attorneys' fees pursuant to Civil Code section 1794, subdivision (d); For any remedies pursuant to the Magnuson-Moss Act, including but not limited to those remedies provided under the Song-Beverly Act, the California Uniform Commercial Code and/or any other remedy that the Court deems proper. for prejudgment interest at the legal rate; and For such other relief as the Court may deem proper. DEMAND FOR JURY TRIAL Plaintiffs hereby demand a jury trial on all causes of action asserted herein. Dated: September 26, 2019 STRATEGIC LEGAL PRACTICES, APC BY: Tionna Dolin Attorney for Plaintiff ROBERT MILER COMPLAINT; JURY TRIAL DEMANDED CM-fm ATTORNEY OR PARTY WITHOUT ATTORNEY 'Name, State Bar number. and aXmss) TIONNA DOLIN (SBN 29901t1) FOR COURT USE ONLY Strategic Legal Practices, APC 1840 Century Park East, Suite 430 Los Angeles, California 90067 Electronically Filed TELEPHONE NO.: (310) 929-4900 FAX No.: (310) 943-3838 Plaintiff, JR. y Superior Court of CA, ATTORNEY FOR (Name): ROBERT A. MILLER, SUPERIOR COURT OFCALJFORNIA, COUNTY OF SANTA CLARA County of Santa Clara, STREET ADDRESS: 191 N. First Street on 9126/2019 4:20 PM MAILING ADDRESS: Same Reviewed By: Yuet Lai city ANozspcooE: San Jose, California 95113 Case #19CV355727 BRANCH NAME: Downtown Superior Court Envelope 3445711 CASE NAME: ROBERT A. MILLER, JR. v. FORD MOTOR COMPANY, et al. CIVIL CASE COVER SHEET I Complex Case Designation CASE NUMBER:19CV355727 ED Unlimited C Limited I El Counter El Joinder JUDGE: (Amount (Amount I demanded demanded is Filed with first appearance by defendant exceeds $25,000) $25,000 or less) (Cal. Rules of Court, rule 3.402) DEPT: Check one box below for the case type Auto Tort El Auto (22) El Uninsured motorist (46) Other PI/PDD (Personal Injury/Property DamagelWrongful Death) Tort ElAsbestos (04) El Product liability (24) El Medical malpractice (45) El Other PI/PDNVD (23) Non-Pl(PDD (Other) Tort El Business tort/unfair business practice (07) El Civil rights (08) El Defamation (13) El Fraud (16) El Intellectual property (19) El Professional negligence (25) El Other non-Pl/PDNVt) tort (35) Wrongful termination (36) 'est describes this case: Contract [2J Breath of contract/warranty (06) Rule 3.740 collections (09) [C] Other collections (09) LJ Insurance coverage (18) [J Other contract (37) Real Property ECI Eminent domain/Inverse condemnation (14) Wrongful eviction (33) Other real property (26) Unlawful Detainer [] Commercial (31) Residential (32) Drugs (38) Judicial Review El forfeiture El Asset (05) Petition re: arbitration award (11) Writ of mandate (02) Provisionally Complex Civil Litigation (Cal. Rules of Court, rules 3.400-3.403) El Antitrust/Trade regulation (03) El Construction defect (10) [] Mass tort (40) EI Securities litigation (28) Environmental/Toxic tort (30) Insurance coverage claims arising from the above listed provisionally complex case types (41) Enforcement of Judgment El Enforcement of judgment (20) Miscellaneous Civil Complaint El RICO (27) El Other complaint (not specified above) (42) Miscellaneous Civil Petition El Partnership and corporate governance (21) El Other petition (not specified above) (43) L.....J Other employment (15) L_J Other judicial review (39) 2 This case I is [71 is not comolex under rule 3.400 of the California Rules of Court. If the case is complex. mark the factors requiring exceptional judicial management: El Large number of separately represented parties d. El Large number of witnesses El Extensive motion practice raising difficult or novel e. El Coordination with related actions pending in one or more courts issues that will be time-consuming to resolve in other counties, states, or countries, or in a federal court C. [C) Substantial amount of documentary evidence f. El Substantial postjudgment judicial supervision Remedies sought (check all that apply): a.[Zl monetary b. El nonmonetary; declaratory or injunctive relief C. =punitive Number of causes of action (specify): Eight (8) This case El is [2J is not a class action suit. If there are any known related cases, file and serve a notice of related case. (YOU may use form CM-015.) Date: 09/25/2019 TIONNADOLIN • Plaintiff must file this cover sheet with the first paper filed in the action or proceeding (except small claims cases or cases filed under the Probate Code, Family Code, or Welfare and Institutions Code). (Cal. Rules of Court, rule 3.220.) Failure to file may result in sanctions. • File this cover sheet in addition to any cover sheet required by local court rule. • If this case is complex under rule 3.400 et seq. of the California Rules of Court, you must serve a copy of this cover sheet on all other parties to the action or proceeding. • Unless this is a collections case under rule 3.740 or a complex case, this cover sheet will be used for statistical purposes only. CIVIL CASE COVER SHEET Cal. Standard, 0 - INSTRUCTIONS ON HOW TO COMPLETE THE COVER SHEET CM-010 To Plaintiffs and Others Filing First Papers. If you are filing a first paper (for example, a complaint) in a civil case, you must complete and file, along with your first paper, the Civil Case Cover Sheet contained on page 1. This information will be used to compile statistics about the types and numbers of cases filed. You must complete items 1 through 6 on the sheet. In item 1, you must check one box for the case type that best describes the case. If the case fits both a general and a more specific type of case listed in item 1, check the more specific one. If the case has multiple causes of action, check the box that best indicates the primary cause of action. To assist you in completing the sheet, examples of the cases that belong under each case type in item 1 are provided below. A cover sheet must be filed only with your initial paper. Failure to file a cover sheet with the first paper filed in a civil case may subject a party, its counsel, or both to sanctions under rules 2.30 and 3.220 of the California Rules of Court. To Parties in Rule 3.740 Collections Cases. A "collections case" under rule 3.740 is defined as an action for recovery of money owed in a sum stated to be certain that is not more than $25,000, exclusive of interest and attorney's fees, arising from a transaction in which property, services, or money was acquired on credit. A collections case does not include an action seeking the following: (1) tort damages, (2) punitive damages, (3) recovery of real property, (4) recovery of personal property, or (5) a prejudgment writ of attachment. The identification of a case as a rule 3.740 collections case on this form means that it will be exempt from the general time-for-service requirements and case management rules, unless a defendant files a responsive pleading. A rule 3.740 collections case will be subject to the requirements for service and obtaining a judgment in rule 3.740. To Parties in Complex Cases. In complex cases only, parties must also use the Civil Case Cover Sheet to designate whether the case is complex. If a plaintiff believes the case is complex under rule 3.400 of the California Rules of Court, this must be indicated by completing the appropriate boxes in items I and 2. If a plaintiff designates a case as complex, the cover sheet must be served with the complaint on all parties to the action. A defendant may file and serve no later than the time of its first appearance a joinder in the plaintiffs designation, a counter-designation that the case is not complex, or, if the plaintiff has made no designation, a designation that the case is complex. CASE TYPES AND EXAMPLES Auto Ton Auto (22)-Personal Injury/Property Damage/Wrongful Death Uninsured Motorist (46) (if the case involves an uninsured motorist claim subject to arbitration, check this item instead of Auto) Other PIIPDIWD (Personal injury? Property DamagelWrongful Death) Ton Asbestos (04) Asbestos Property Damage Asbestos Personal Injury/ Wrongful Death Product Liability (not asbestos or toxic/environmental) (24) Medical Malpractice (45) Medical Malpractice- Physicians & Surgeons Other Professional Health Care Malpractice Other PI/POD (23) Premises Liability (e.g., slip and fall) Intentional Bodily lnjuiylPDWVD (e.g., assault, vandalism) Intentional Infliction of Emotional Distress Negligent Infliction of Emotional Distress Other PIIPDAM) Non-PliPDD (Other) Tort Business Tort/Unfair Business Practice (07) Civil Rights (e.g., discrimination, false arrest) (not civil harassment) (08) Defamation (e.g., slander, libel) (13) Fraud (16) Intellectual Property (19) Professional Negligence (25) Legal Malpractice Other Professional Malpractice (not medical or legal) Other Non-PIIPDMID Tort (35) Employment Wrongful Termination (36) Other Employment (15) cM410lRev. July 1. Contract Breath of ContractNVarranty (06) Breath of Rental/Lease Contract (not unlawful detainer or wrongful eviction) ContractANarranty Breach-Seller Plaintiff (not fraud or negligence) Negligent Breath of Contractl Warranty Other Breath of Contractarranty Collections (e.g., money owed, open book accounts) (09) Collection Case-Seller Plaintiff Other Promissory Note/Collections Case Insurance Coverage (not provisionally complex) (18) Auto Subrogation Other Coverage Other Contract (37) Contractual Fraud Other Contract Dispute Real Property Eminent Domain/inverse Condemnation (14) Wrongful Eviction (33) Other Real Property (e.g., quiet title) (26) Wilt of Possession of Real Property Mortgage Foreclosure Quiet Title Other Real Property (not eminent domain, landlordl!enant, or foreclosure) Unlawful Detalner Commercial (31) Residential (32) Drugs (38) (If the case involves illegal drugs, check this item: otherwise, report as Commercial or Residential) Judicial Review Asset Forfeiture (05) Petition Re: Arbitration Award (11) Writ of Mandate (02) Writ-Administrative Mandamus Wilt-Mandamus on Limited Court Case Matter Wilt-Other Limited Court Case Review Other Judicial Review (39) Review of Health Officer Order Notice of Appeal-Labor CIVIL CASE COVER SHEET Provisionally Complex Civil Litigation (Cal, Rules of Court Rules 3.400-3.403) AntitrustlTrade Regulation (03) Construction Defect (10) Claims Involving Mass Tort (40) Securities Litigation (28) Environmental/Toxic Tort (30) Insurance Coverage Claims (arising from provisionally complex case type listed above) (41) Enforcement of Judgment Enforcement of Judgment (20) Abstract of Judgment (Out of County) Confession of Judgment (non- domestic relations) Sister State Judgment Administrative Agency Award (not unpaid taxes) Petition/Certification of Entry of Judgment on Unpaid Taxes Other Enforcement of Judgment Case Miscellaneous Civil Complaint RICO (27) Other Complaint (not specified above) (42) Dedaratory Relief Only Injunctive Relief Only (non- harassment) Mechanics Lien Other Commercial Complaint Case (non-tort/non-complex) Other Civil Complaint (non-tort/non-complex) Miscellaneous Civil Petition Partnership and Corporate Governance (21) Other Petition (not specified above) (43) Civil Harassment Workplace Violence Elder/Dependent Adult Abuse Election Contest Petition for Name Change Petition for Relief From Late Claim Other Civil Petition ATTACHMENT CV-5012 CIVIL LAWSUIT NOTICE Superior Court of California, County of Santa Clara CASE NUMBER: 191 North First St., San José, CA 95113 19CV355727 PLEASE READ THIS ENTIRE FORM PLAINTIFF (the person suing): Within 60 days after filing the lawsuit, you must serve each Defendant with the complaint, Summons, an Alternative Dispute Resolution (ADR) Information Sheet, and a copy of this Civil Lawsuit Notice, and you must file written proof of such service. DEFENDANT (The person sued): You must do each of the following to protect your rights: You must file a written response to the Complaint, using the proper legal form or format, in the Clerk's Office of the Court, within 30 days of the date you were served with the Summons and Complaint, You must serve by mail a copy of your written response on the Plaintiffs attorney or on the Plaintiff if Plaintiff has no attorney (to 'serve by mail" means to have an adult other than yourself mail a copy); and You must attend the first Case Management Conference. Warning: If you, as the Defendant, do not follow these instructions, you may automatically lose this case. RULES AND FORMS: You must follow the California Rules of Court and the Superior Court of California, County of c_CountyName_> Local Civil Rules and use proper forms. You can obtain legal information, view the rules and receive forms, free of charge, from the Self-Help Center at 201 North First Street, San José (408-882-2900 x-2926). • State Rules and Judicial Council Forms: wwwcourtinfo.ca.gov/forms and www.courlinfo.ca,govlrules • Local Rules and Forms: http:l/www.sccsuperiorcourt.orglcivil/ruleitoc.htm CASE MANAGEMENT CONFERENCE (CMC): You must meet with the other parties and discuss the case, in person or by telephone at least 30 calendar days before the CMC. You must also fill out, file and serve a Case Management Statement (Judicial Council form CM-1 10) at least 15 calendar days before the CMC. You or your attorney must appear at the CMC. You may ask to appear by telephone -see Local Civil Rule 8. Your Case Management Judge is: Pierce, Mark H Department: 2 The 19 CMC is scheduled for: (Completed by Clerk of Court) Date: 1/7/2020 Time: 3:45pm in Department: 2 The next CMC is scheduled for: (Completed by party if the 1 st 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 vv.sccsuperiorcourt.orcicivil/ADR/ or call the ADR Administrator (408-882-2100 x-2530) for a list of ADR providers and their qualifications, services, and fees. WARNING: Sanctions may be imposed if you do not follow the California Rules of Court or the Local Rules of Court. CV-5012 REV . CIVIL LAWSUIT NOTICE Page 1 of I SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET, 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STEPHEN H. DYE (SBN 104385) e-mail: sdye@schnader.com RICHARD J. MAY (SBN 234684) e-mail: rmay@schnader.com SCHNADER HARRISON SEGAL & LEWIS LLP 650 California Street, Suite 1900 San Francisco, California 94108-2736 Telephone: (415) 364-6700 Facsimile: (415) 364-6785 Attorneys for Defendant FORD MOTOR COMPANY IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA - UNLIMITED JURISDICTION ROBERT A. MILLER, JR., Case No. 19CV355727 Plaintiff, DEFENDANT FORD MOTOR COMPANY’S ANSWER TO PLAINTIFF’S VS. COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS FORD MOTOR COMPANY; FORD OF ESCONDIDO; and DOES 1 through 10, inclusive, DEMAND FOR JURY TRIAL Action Filed: September 26, 2019 Defendants. Trial Date: None assigned Defendant FORD MOTOR COMPANY (“Ford”), for itself alone and for no other parties, hereby answers the Complaint of PlaintiffROBERT A. MILLER, JR. (“Plaintiff’), as follows: GENERAL DENIAL Under the provisions of § 43 1 .30(d) 0f the California Code 0f Civil Procedure, Ford denies each and every allegation, both specifically and generally, 0f each cause 0f action contained in Plaintiff’ s Complaint 0n file herein and the Whole thereof, and denies that Plaintiff were damaged in any sum 0r sums, 0r at all. 1 DEFENDANT FORD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AFFIRMATIVE DEFENSES Ford alleges on information and belief, and where information is not available but the failure t0 allege would result in waiver 0f the defense, the following affirmative defenses: FIRST AFFIRMATIVE DEFENSE (Failure to State Facts) Plaintiff’ s Complaint fails t0 state facts sufficient t0 constitute a cause 0f action against Ford. SECOND AFFIRMATIVE DEFENSE (No Breach of Warranty) There was n0 breach of warranty t0 the extent that Plaintiff s concerns were resolved under the warranty or occurred after the expiration 0f the original express warranty. THIRD AFFIRMATIVE DEFENSE (Estoppel) Plaintiff is estopped from obtaining the relief sought, 0r pursing any 0f the claims raised 0r causes of actions contained in the Complaint, by Virtue 0f his acts, failure t0 act, conduct, representations, admission, and the like. FOURTH AFFIRMATIVE DEFENSE (Waiver) Plaintiff has waived his rights t0 the claims, causes 0f action and relief sought in this Complaint against Ford, by Virtue of his acts, failure to act, conduct, representations, admissions, and the like. FIFTH AFFIRMATIVE DEFENSE (Laches) Plaintiff has unreasonably delayed the commencement of this action t0 the prejudice 0f Ford. Therefore, the Complaint, and each and every cause 0f action alleged therein is barred, in whole or in part, by the doctrine of laches. / / / / / / 2 DEFENDANT FORD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SIXTH AFFIRMATIVE DEFENSE (Economic Loss Rule) Plaintiff’ s causes 0f action have not accrued because Plaintiff cannot establish that he suffered injury directly from the subj ect vehicle 0r products and, therefore, Plaintiff s contention that the subj ect vehicle 0r products failed t0 adequately perform their functions are barred by the economic loss rule. SEVENTH AFFIRMATIVE DEFENSE (Performance) Prior t0 the commencement 0f this action, Ford fully performed, satisfied and discharged all duties and obligations it may have owed to Plaintiff arising out of any and all agreements, representations 0r contracts made by it 0r 0n its behalf and this action is therefore barred by the provisions of Civil Code section 1473. EIGHTH AFFIRMATIVE DEFENSE (Abuse, Misuse, Alteration and Improper Care) Plaintiff and/or others misused, abused, altered and improperly cared for and maintained the subj ect vehicle contrary t0 Ford’s approval 0r consent and Plaintiff” s damages, if any, were proximately caused by such misuse, alteration, abuse and neglect 0f the product. NINTH AFFIRMATIVE DEFENSE (No Defect in Materials 0r Workmanship) The damages asserted in Plaintiff” s Complaint were not the result 0f any defect in material 0r workmanship in any vehicle manufactured by Ford. Specifically, Ford alleges that after appropriate discovery, one or more 0f the stated specific warranty exclusions may be applicable. TENTH AFFIRMATIVE DEFENSE (No Timely Revocation of Acceptance) Plaintiff has n0 restitution remedy under breach of implied warranty because there was no timely revocation 0f acceptance before a substantial change in the condition 0f the goods. / / / 3 DEFENDANT FORD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ELEVENTH AFFIRMATIVE DEFENSE (Failure to Maintain Vehicle) Ford alleges that Plaintiff is precluded from recovery due t0 failure to maintain and service the subj ect vehicle in conformance With the requirements and recommendations of the owner’s manual and/or warranty booklet. TWELFTH AFFIRMATIVE DEFENSE (Disclaimer of Incidental and Consequential Damages and Limitation of Damages) The limited warranty for the subj ect vehicle at issue limits the damages that may be obtained by Plaintiff for any alleged breach of warranty such that some, if not all, of the damages sought, including those for incidental 0r consequential damages, are not recoverable. THIRTEENTH AFFIRMATIVE DEFENSE (Vehicle Fit for Intended Purpose) The subj ect vehicle was fit for providing transportation at all relevant times hereto. Accordingly, Plaintiff is not entitled to relief for breach 0f the implied warranty 0f merchantability. American Suzuki Motor Corp. v. Superior Court, 37 Cal. App. 4th 1291 (1 995). FOURTEENTH AFFIRMATIVE DEFENSE (Duration 0f Implied Warranty) The alleged nonconformities did not arise until after the implied warranty expired. Accordingly, Plaintiff is not entitled to relief for breach 0f the implied warranty 0f merchantability. California Civil Code § 1791.1(0). FIFTEENTH AFFIRMATIVE DEFENSE (N0 Impairment 0f Use, Value or Safety) The subj ect vehicle has not been subj ect to repair for any nonconformity or condition that substantially impaired the use, value 0r safety of the vehicle. / / / / / / / / / 4 DEFENDANT FORD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SIXTEENTH AFFIRMATIVE DEFENSE (Failure to Abide by Terms 0f Warranty) Plaintiff’ s breach 0f warranty claims are barred because Plaintiff’ s failure to give timely and appropriate notice of any claim of breach of warranty. SEVENTEENTH AFFIRMATIVE DEFENSE (Unreasonable Use 0f Vehicle) Plaintiff s claims may be barred by waiver due to Plaintiff 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) of the subj ect vehicle received timely notice of the availability 0f a third party dispute resolution process, and that n0 effort was made t0 use such process. NINETEENTH AFFIRMATIVE DEFENSE (Failure t0 Provide Reasonable Opportunity t0 Cure) Plaintiff failed to provide it with a reasonable opportunity t0 cure any alleged defect as required by 15 U.S.C. § 2310(6) and Civil Code § 1790, et seq. TWENTIETH AFFIRMATIVE DEFENSE (No Prejudgment Interest) Plaintiff’s Complaint fails t0 state facts sufficient t0 constitute a basis for recovery 0f prejudgment interest. TWENTY-FIRST AFFIRMATIVE DEFENSE (Business Use) The subj ect vehicle was not purchased 0r used primarily for personal, family, 0r household purposes and that the business use was by a person, including a partnership, limited liability company, corporation, association, 0r any other legal entity, t0 which more than five motor vehicles were registered in this state. / / / 5 DEFENDANT FORD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TWENTY-SECOND AFFIRMATIVE DEFENSE (Failure to Mitigate) Plaintiff failed and neglected t0 use reasonable care to protect himself and t0 minimize his losses and damages, if any. TWENTY-THIRD AFFIRMATIVE DEFENSE (N0 Agency Relationship) Ford denies any allegations 0f agency contained in Plaintiff s Complaint. TWENTY-FOURTH AFFIRMATIVE DEFENSE (Assumption 0f Risk) Plaintiffknew about matters giving rise to the Complaint and assumed the risk created thereby. TWENTY-FIFTH AFFIRMATIVE DEFENSE (Good Faith Conduct) Ford has acted in good faith and reasonably with respect to the matters alleged in Plaintiff’ s Complaint. TWENTY-SIXTH AFFIRMATIVE DEFENSE (Doctrine 0f Consent) Plaintiff is barred from recovering the relief sought by reason 0f the doctrine of consent. TWENTY-SEVENTH AFFIRMATIVE DEFENSE (Statute of Limitations) Plaintiff’ s Complaint and each cause 0f action contained therein does not state facts sufficient to constitute a cause 0f action in that the Complaint and each cause 0f action is barred by the applicable statute of limitations, including, but not limited t0, those stated in Part II, Title 2, Chapter 3 of the California Code of Civil Procedure, §§ 335 through 346.4, California Civil Code, §§ 1783, 1791.1, 1793.2, and 1793.22, California Commercial Code,§ 2725, and Business and Professions Code, § 17208. / / / / / / 6 DEFENDANT FORD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TWENTY-EIGHTH AFFIRMATIVE DEFENSE (Warranty Exclusions) Plaintiff’ s action for breach 0f warranty is barred by the terms, conditions, disclaimers and exclusions of the warranty, if any. Moreover, Plaintiff has failed t0 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 of a civil penalty under this provision. THIRTIETH AFFIRMATIVE DEFENSE (Spoliation of Evidence) This action is barred 0r limited because of the altering, spoiling, damaging, destruction, or losing 0f evidence by 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 to Properly Notify) Plaintiff has failed t0 properly provide timely notice, Within a reasonable period 0f time after discovery of his claims and alleged defects. Consequently, Ford has been damaged and prejudiced, barring the Complaint, and each cause 0f action therein, as a matter 0f law. THIRTY-SECOND AFFIRMATIVE DEFENSE (No Breach) Defendant performed all duties owed under the warranty other than any duties that were prevented 0r excused. Accordingly, there has been no breach of warranty. / / / 7 DEFENDANT FORD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THIRTY-THIRD AFFIRMATIVE DEFENSE (Statute of Frauds) To the extent 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 of the California Civil Code. Defendant is informed and believes and thereon alleges Plaintiff received timely and appropriate notification, in writing, of the availability 0f the third party resolution process. Accordingly, since Plaintiff did not avail himself of 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 of action therein, in whole or in part, are preempted by the Federal National Traffic and Motor Vehicle Safety Act pursuant to 49 U.S.C. sections 301 18 et seq. THIRTY-SIXTH AFFIRMATIVE DEFENSE (Constitutionality 0f Punitive Damages) 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 of Article I, Section 8 0f the United States Constitution; (b) said claims contravene the Excessive Fines Clause of the Eighth Amendment of the United States 8 DEFENDANT FORD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 on the facts contained in Plaintiff’ s Complaint, or are otherwise barred by the provisions of California Civil Code sections 3294, 3295, and 3296, 0r such conduct was adopted, ratified 0r authorized by Ford under California Civil Code section 3294(b). 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 of the subj ect vehicle or 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 of punitive 0r exemplary damages t0 Plaintiff would Violate Ford’s constitutional rights under the provisions of the United States and California Constitutions, including but not limited t0 the Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 7 0f the California Constitution because, among other things, (1) any award 0f punitive 0r exemplary damages would be grossly out 0f proportion to 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 SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 jurisdictions; (4) the alleged wrongful conduct at issue here is not sufficiently reprehensible to warrant the imposition of any punitive 0r exemplary damages; and (5) the criteria for the imposition of punitive 0r exemplary damage are unconstitutionally vague and uncertain and fail to provide fair notice of what conduct Will result in the imposition of such damages. 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 of the amount of any punitive damage award based upon a burden ofproof of less than clear and convincing evidence violates due process and is unconstitutional. FORTY-FIRST AFFIRMATIVE DEFENSE (Punitive Damages - Financial Status 0f Defendant) To the extent that California law permits punishment t0 be measured by the net worth or financial status 0f Ford and allows the fact finder t0 impose greater punishment 0n defendants with larger net worth, such an award would be unconstitutional because it permits arbitrary, capricious and fundamentally unfair punishments, allows bias and prejudice t0 infect verdicts imposing punishment, allows punishment to be imposed based 0n lawful profits and conduct 0f Ford in other States, and allows dissimilar treatment 0f similarly situated defendants, in Violation 0f the due process and equal protection provisions 0f the Fourteenth Amendment t0 the United States Constitution, the Commerce Clause 0f the United States Constitution, and the California Constitution. FORTY-SECOND AFFIRMATIVE DEFENSE (Arbitration Clause in Purchase Agreement) The purchase 0r lease agreement for the subject vehicle, signed by Plaintiff, includes an agreement t0 arbitrate. Plaintiff has thus agreed to resolve this dispute by neutral, binding arbitration and not by court action. / / / / / / / / / 10 DEFENDANT FORD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FORTY-THIRD AFFIRMATIVE DEFENSE (Set Off) Defendant alleges that if it is established that it is in any manner legally responsible for any of the damages claimed by Plaintiff, which is denied, Defendant is entitled to a set off of 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 on that basis alleges, that the Complaint was brought without reasonable cause and without a good faith belief that there was a justifiable controversy under the facts 0r the law which warranted the filing of the Complaint against Defendant. Plaintiff should therefore be responsible for all of Defendant’s necessary and reasonable attorney’s fees and defense costs as permitted by California law. FORTY-FIFTH AFFIRMATIVE DEFENSE (Additional Defenses) Ford alleges that it may have additional affirmative defenses available t0 it 0fWhich it is not now fully aware. Ford reserves the right t0 assert affirmative defenses after the same shall have been ascertained. PRAYER WHEREFORE, Ford prays as follows: 1. For dismissal 0f Plaintiff s Complaint with prejudice; 2. For judgment in favor of Ford against Plaintiff; 3. For Ford’s fees and costs of suit herein; and 4. For such other and further relief as the Court may deem just and proper. / / / / / / / / / / / / / / / 1 1 DEFENDANT FORD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (415) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEMAND FOR JURY TRIAL Ford hereby demands a jury trial on all claims asserted by Plaintiff. Dated: November 7, 2019 SCHNADER HARRISON SEGAL & LEWIS LLP By: RICHARD J. MAY Attorneys for Defendant FORD MOTOR COMPANY 12 DEFENDANT FORD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19“ FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (415) 364-6700 FAX: (415) 364-6785 UI-hLQN \OOOQQ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I declare under penalty 0f 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 0f a member of the bar 0f this court, at whose direction the service was made. I am a citizen 0f the United States, over the age of eighteen (18) years, and not a party to or interested in the within-entitled cause. My business address is SCHNADER HARRISON SEGAL & LEWIS LLP, 650 California Street, 19th Floor, San Francisco, California 94108-2736. I caused to be served the following document(s) and by the following means: DEFENDANT FORD MOTOR COMPANY’S ANSWER TO 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 on the date set forth below, following the ordinary business practice; addressed as follows: Tionna Dolin, Esq. Attorneysfor Plaintifl Strategic Legal Practices, APC ROBERT A. MILLER, JR. 1840 Century Park East, Suite 430 Los Angeles, CA 90067 T: (3 10) 929-4900 F: (3 10) 943-3838 Email: tdolin@slpattorney.com I am readily familiar with my firm’s practice for collection and processing 0f correspondence for delivery in the manner indicated above, to wit, that correspondence will be deposited for collection in the above-described manner this same day in the ordinary course of business. Executed on November 7, 2019, at San Francisco, California. V 'SUSIE M. ARZAVE PROOF OF SERVICE 11/7/2019 Odyssey File & Serve - Envelope Receipt Case # 19CV355727 - ROBERT MILLER JR vs FORD MOTOR COMP Envelope Information Envelope Id 3623878 Case Information Location Santa Clara - Civil Case Initiation Date 9/26/201 9 Assigned to Judge Pierce, Mark H Filings Filing Type EFiIe Filing Description Defendant Ford Motor Company‘s Answer to Plaintiff's Complaint for Violation of Statutory Obligation Client Reference Number 106178 Filing on Behalf of FORD MOTOR COMPANY Filing Status Submitting Lead Document File Name 201 9-11-07 - Miller, Robert - Ford's Answer to Complaintpdf Fees https://california.tylerhost.net/OfsWeb/FileAndServeModu|e/EnvelopeNiewPrintableEnveIope?ld=3623878 Submitted Date 11/7/2019 2:06 PM PST Category Civil - Unlimited Case # 190V355727 Filing Code Answer/Response/Denial/Demurrer - First Appearance Description Answer/Response/Deniall... Public - First Appearance Secu rity Submitted User Name weefile@nationwideasap.com Case Type Breach of Contract/Warranty Download Original File 1/2 11/7/2019 Odyssey File & Serve - Envelope Receipt AnswerlResponse/Denial/Demurrer - First Appearance Descflpfion Filing Fee Total Filing Fee Payment Service Fee E-File Fee Court E-File Fee Party Responsible for FORD MOTOR COMP... Fees Payment Account Nationwide Filing Attorney Stephen Dye Transaction Response Authorized © 2019 Tyler Technologies Version: 201 9.0.3.8662 Amount $435.00 Filing Total: $435.00 $435.00 $1 3.22 $3.50 $2.05 Envelope Total: $453.77 Transaction Amount Transaction Id Order Id httpszllcalifornia.ty|erhost.net/OfsWeb/FileAndServeModuIe/Envelope/ViewPrintableEnveIope?ld=3623878 $453.77 5778053 003623878-0 2/2 EXHIBIT B UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, DC 20549 FORM 10-K (Mark One) M Annual report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 For the fiscal year ended December 31, 2017 or U Transition report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 For the transition period from to Commission file number 1-3950 Ford Motor Company (Exact name of Registrant as specified in its charter) Delaware 38-0549190 (State of incorporation) (I.R.S. Employer Identification No.) One American Road, Dearborn, Michigan 48126 (Address ofprincipa/ executive offices) (Zip Code) 31 3-322-3000 (Registrant’s telephone number, including area code) Securities registered pursuant to Section 12(b) of the Act: Title of each class Name of each exchange on which registered Common Stock, par value $.01 per share New York Stock Exchange Securities registered pursuant to Section 12(9) of the Act: None. Indicate by check mark if the registrant is a weII-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes M No D Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes D No E Indicate by check mark if the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes E No U Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes M No D Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§ 229.405 of this chapter) is not contained herein, and will not be contained, to the best of registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part Ill of this Form 10-K or any amendment to this Form 10-K. D Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or emerging growth company. See the definitions of “large accelerated filer," “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act. Large accelerated filer M Accelerated filer D Non-accelerated filer D Smaller reporting company D Emerging growth company D If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. D Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). Yes D No M As of June 30. 2017, Ford had outstanding 3,900,795,510 shares of Common Stock and 70,852,076 shares of Class B Stock. Based on the New York Stock Exchange Composite Transaction closing price of the Common Stock on that date ($11 .19 per share), the aggregate market value of such Common Stock was $43,649,901 ,757. Although there is no quoted market for our Class B Stock, shares of Class B Stock may be converted at any time into an equal number of shares of Common Stock for the purpose of effecting the sale or other disposition of such shares of Common Stock. The shares of Common Stock and Class B Stock outstanding at June 30, 2017 included shares owned by persons who may be deemed to be “affiliates" of Ford. We do not believe, however, that any such person should be considered to be an affiliate. For information concerning ownership of outstanding Common Stock and Class B Stock, see the Proxy Statement for Ford’s Annual Meeting of Stockholders currently scheduled to be held on May 10, 2018 (our “Proxy Statement”), which is incorporated by reference under various Items of this Report as indicated below. As of January 31, 2018, Ford had outstanding 3,902,499,580 shares of Common Stock and 70,852,076 shares of Class B Stock. Based on the New York Stock Exchange Composite Transaction closing price of the Common Stock on that date ($10.97 per share), the aggregate market value of such Common Stock was $42,810,420,393. DOCUMENTS INCORPORATED BY REFERENCE Document Where Incorporated Proxy Statement" Part Ill (Items 10, 11, 12, 13, and 14) * As stated under various Items of this Report, only certain specified portions of such document are incorporated by reference in this Report. Exhibit Index begins on page _9_9 PART I. ITEM 1. Business. Ford Motor Company was incorporated in Delaware in 1919. We acquired the business of a Michigan company, also known as Ford Motor Company, which had been incorporated in 1903 to produce and sell automobiles designed and engineered by Henry Ford. We are a global company based in Dearborn, Michigan. With about 202,000 employees worldwide, the Company designs, manufactures, markets, and services a full line of Ford cars, trucks, sport utility vehicles (“SUVs”), electrified vehicles, and Lincoln luxury vehicles, provides financial services through Ford Motor Credit Company LLC (“Ford Credit"), and is pursuing leadership positions in electrification, autonomous vehicles, and mobility solutions. In addition to the information about Ford and our subsidiaries contained in this Annual Report on Form 10-K for the year ended December 31, 2017 ("2017 Form 10-K Report" or “Report”), extensive information about our Company can be found at httg://corporate.ford.com, including information about our management team, our brands and products, and our corporate governance principles. The corporate governance information on our website includes our Corporate Governance Principles, Code of Ethics for Senior Financial Personnel, Code of Ethics for the Board of Directors, Code of Corporate Conduct for all employees, and the Charters for each of the Committees of our Board of Directors. In addition, any amendments to our Code of Ethics or waivers granted to our directors and executive officers will be posted on our corporate website. All of these documents may be accessed by going to our corporate website, or may be obtained free of charge by writing to our Shareholder Relations Department, Ford Motor Company, One American Road, P.O. Box 1899, Dearborn, Michigan 48126-1 899. Our recent periodic reports filed with the Securities and Exchange Commission (“SEC”) pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended, are available free of charge at httpzllshareholderford.com. This includes recent Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, and Current Reports on Form 8-K, as well as any amendments to those Reports. Recent Section 16 filings made with the SEC by the Company or any of our executive officers or directors with respect to our Common Stock also are made available free of charge through our website. We post each of these documents on our website as soon as reasonably practicable after it is electronically filed with the SEC. Our reports filed with the SEC also may be found on the SEC’s website at www.sec.gov. The foregoing information regarding our website and its content is for convenience only and not deemed to be incorporated by reference into this Report nor filed with the SEC. SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19“ FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (415) 364-6700 FAX: (415) 364-6785 \DOOQQ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I declare under penalty of perjury under the laws of the State of California that the following is true and correct: I am employed in the City and County 0f San Francisco, State of California, in the office 0f a member of the bar of this court, at whose direction the service was made. I am a citizen 0f the United States, over the age of eighteen (18) years, and not a party to 0r interested in the Within-entitled cause. My business address is SCHNADER HARRISON SEGAL & LEWIS LLP, 650 California Street, 19th Floor, San Francisco, California 94108-2736. I caused to be served the following document(s) and by the following means: DEFENDANT FORD MOTOR COMPANY’S NOTICE OF REMOVAL OF STATE COURT ACTION TO THE UNITED STATES DISTRICT COURT First-Class Mail: I enclosed a true and correct copy of said document in an envelope 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 ROBERT A- MILLER, JR' 1840 Century Park East, Suite 430 Los Angeles, CA 90067 T: (3 10) 929-4900 F: (3 10) 943-3838 Email: tdolin@slpattorney.com I am readily familiar With my firm’s practice for collection and processing 0f correspondence for delivery in the manner indicated above, to wit, that correspondence will be deposited for collection in the above-described manner this same day in the ordinary course of business. Executed on November 7, 2019, at San Francisco, California. "" SUS'IE M. ARZAVE PROOF OF SERVICE