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 1QCV355905 Santa Clara - Civil STEPHEN H. DYE (SBN 104385) e-mail: sdye@schnader.com RICHARD J. MAY (SBN 234684) e-mail: rmay@schnader.com SCHNADER HARRISON SEGAL & LEWIS LLP 650 California Street, 19th Floor San Francisco, California 94108-2736 Telephone: (415) 364-6700 Facsimile: (415) 364-6785 Attorneys for Defendants FORD MOTOR COMPANY and PERRY FORD OF NATIONAL CITY, LLC Electronically Filed by Superior Court of CA, County of Santa Clara, on 11/5/2019 4:44 PM Reviewed By: Y. Chavez Case #1 9CV355905 Envelope: 3613488 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA - UNLIMITED JURISDICTION TROY LAWRENCE and GINA-MARIE LAWRENCE, Case No. 19CV355905 DEFENDANTS FORD MOTOR Plaintiffs, COMPANY AND PERRY FORD OF Y. Ch VS. FORD MOTOR COMPANY; PERRY FORD; and DOES 1 through 10, inclusive, Defendants. NATIONAL CITY, LLC’S NOTICE OF REMOVAL OF STATE COURT ACTION TO THE UNITED STATES DISTRICT COURT Action Filed: September 30, 2019 Trial Date: None assigned DEFENDANTS’ NOTICE OF REMOVAL OF STATE COURT ACTION TO THE UNITED STATES DISTRICT COURT aveZ SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (415) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO PLAINTIFFS, THEIR COUNSEL OF RECORD, AND THE CLERK OF THE SANTA CLARA COUNTY SUPERIOR COURT: PLEASE TAKE NOTICE that Defendants FORD MOTOR COMPANY and PERRY FORD OF NATIONAL CITY, LLC (“Defendants”) have filed in the United States District Court for the NORTHERN District 0f California a Notice of Removal of the above-captioned case pursuant t0 United States Code, Title 28, Section 1441(b). A copy ofDefendants’ Notice ofRemoval is attached hereto as Exhibit “A. ” PLEASE TAKE FURTHER NOTICE that, pursuant to 28 U.S.C. section 1446(d), the filing 0f the Notice 0fRemoval, together With this Notice, effects the removal of the action, and the above-captioned State court is requested to proceed n0 further unless and until the case is remanded. Dated: November 5, 201 9 SCHNADER HARRISON SEGAL & LEWIS LLP By: RI HARD J. MAY Attorneys for Defendants FORD MOTOR COMPANY and PERRY FORD OF NATIONAL CITY, LLC 1 DEFENDANTS’ NOTICE OF REMOVAL OF STATE COURT ACTION TO THE UNITED STATES DISTRICT COURT EXHIBIT A SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET, 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STEPHEN H. DYE (SBN 104385) e-mail: sdye@schnader.com RICHARD J. MAY (SBN 234684) e-mail: rmay@schnader.com SCHNADER HARRISON SEGAL & LEWIS LLP 650 California Street, 19th Floor San Francisco, California 94108-2736 Telephone: (415) 364-6700 Facsimile: (415) 364-6785 Attorneys for Defendants FORD MOTOR COMPANY and PERRY FORD OF NATIONAL CITY, LLC IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA (SAN JOSE) TROY LAWRENCE and GINA-MARIE Case N0. LAWRENCE, NOTICE OF REMOVAL OF CIVIL Plaintiffs, ACTION UNDER 28 U.S.C. SECTION 1441(b) (Diversity Jurisdiction) vs. FORD MOTOR COMPANY; PERRY FORD; and DOES 1 through 10, inclusive, Complaint Filed: September 30, 2019 Defendants. Trial Date: None Set 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 TO THE CLERK OF THE ABOVE-ENTITLED COURT: PLEASE TAKE NOTICE that Defendants FORD MOTOR COMPANY (“Ford”) and PERRY FORD OF NATIONAL CITY, LLC (“Perry” or “Dealership”), by their counsel, hereby remove to this Court, pursuant to 28 U.S.C. §§ 1332, 1441, and 1446, based on diversity of citizenship, the claims pending as Case No. 19CV355905 of the Superior Court of California, County of Santa Clara. This case is related t0 numerous cases coordinated in a multidistrict litigation, In re: Ford Motor C0. DPS6 PowerShift Transmission Products Liability Litigation, MDL N0. 28 14, pending in the Central District of California before the Honorable André Birotte, Jr. This case and those in MDL N0. 2814, allege breach 0f warranty obligations and fraud causes 0f action pertaining to DPS6 PowerShift transmissions installed in Focus and Fiesta vehicles between 201 1-2016. Ford denies these allegations. Judge Birotte has already decided several jurisdictional issues, including some of the jurisdictional issues that might be raised in this case, and inclusion 0f this case in MDL No. 28 14 would allow for common and consistent adjudication 0f those issues. In support of this removal, Ford states: I. THE REMOVED CASE 1. The removed case is a civil action commenced in the Superior Court of California, County of Santa Clara, by Plaintiffs Troy Lawrence and Gina-Marie Lawrence (“Plaintiffs”) against Ford and Perry Ford of National City, LLC, (“Perry” or “Dealership”) entitled Troy Lawrence, et al. v. Ford Motor Company, et al., Case No. 19CV355905 (the “State Action”). The named Defendants are Ford and Perry. 2. Plaintiffs filed their Complaint in the State Action on September 30, 2019. Plaintiffs filed their First Amended Complaint (“FAC”) 0n October 10, 2019, asserting claims against Ford for breach of express and implied warranties under the Song-Beverly Consumer Warranty Act (Cal. CiV. Code § 1790 et seq), and fraud by omission. Plaintiffs allege a single cause 0f action against Perry for negligent repair, which is barred by the applicable statute of limitations and the economic loss rule. 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 II. PROCEDURAL REQUIREMENTS 3. This notice of removal is timely because Ford received Plaintiffs’ Complaint on October 3, 2019. 4. Pursuant to 28 U.S.C. § 1446(a), copies of all process, pleadings, and orders for the State Action in Ford’s possession are contained in Exhibit A filed herewith. 5. Pursuant 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 0f Removal Will be given t0 all adverse parties promptly after the filing 0f same in this Court. 8. If any question arises as to the propriety of the removal of this action, Ford requests the opportunity t0 conduct discovery, brief any disputed issues, and to present oral argument in favor of its position that this case is properly removable. 9. Nothing in this Notice 0f Removal shall be interpreted as a waiver or relinquishment of Ford’s right 0r Perry’s right t0 assert defenses including, without limitation, the defenses 0f (i) lack 0f personal jurisdiction, (ii) improper venue and/orfomm non conveniens, (iii) insufficiency 0f process, (iv) insufficiency of service of process, (V) improper joinder of claims and/or parties, (Vi) failure t0 state a claim, (Vii) failure t0 join indispensable party(ies), 0r (viii) any other procedural or substantive defense available under state 0r federal law. III. THE AMOUNT IN CONTROVERSY REQUIREMENT IS MET 10. The amount in controversy in this action exceeds $75,000, exclusive 0f interest and costs. See 28 U.S.C. § 1332. 11. Plaintiffs expressly state that the amount in controversy exceeds $25,000.00 in damages, exclusive 0f interest and costs, plus a civil penalty of two times actual damages. 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 Plaintiffs also seek incidental, consequential, punitive and actual damages, prejudgment interest, costs, and attorneys’ fees. (Complaint and FAC W 10, 13-15, 20, 23, 27, and Prayer.) Thus, both the Complaint and FAC on their face seek recovery ofmore than $75,000. 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 t0 justify dismissal.” St. Paul Mercury Indem. C0. v. Red Cab C0., 303 U.S. 283, 288-89 (1938). Judge Birotte rejected coordinated plaintiff counsel’s arguments t0 the contrary in his ruling on the initial remand motions in the MDL. (See Judge Birotte’s September 10, 2018 Order, attached hereto as Exhibit B at pages 4-6.) 12. Ford and Perry dispute that they are liable to Plaintiffs for any damages whatsoever. But the amount in controversy is met. There is n0 burden to present supporting evidence at this point. A removing party’s initial burden is t0 “file a notice of removal that includes ‘a plausible allegation that the amount in controversy exceeds the jurisdictional threshold.” Ibarra v. Manheim 1nvs., Ina, 775 F.3d 1193, 1195 (9th Cir. 2015) (quoting Dart Cherokee Basin Operating C0., LLC v. Owens, 135 S. Ct. 547, 554 (2014). The notice 0f removal “need not contain evidentiary submissions.” Id. at 1197. “By design, § 1446(a) tracks the general pleading requirement stated in Rule 8(a),” Which requires only that the grounds for removal be stated in a “short and plain statement.” Dart, 135 S. Ct. at 553. 13. Generally, a federal district court will first “consider Whether it is ‘facially apparent’ from the complaint that the jurisdictional amount is in controversy.” Abrego v. Dow Chem. C0,, 443 F.3d 676, 690 (9th Cir. 2006) (internal citation omitted). But a defendant may remove a suit t0 federal court notwithstanding the failure of the plaintiff to plead the required amount. Absent the facial showing from the complaint, the court may consider facts averred in the removal petition. Id. Next, if the defendant’s allegation(s) regarding the amount in controversy is challenged, then “both sides submit proof and the court decides, by a preponderance of the evidence, whether the amount-in-controversy requirement has been satisfied.” Ibarra, 775 F.3d at 1195. At that time, “it may be appropriate t0 allow discovery relevant t0 [the] jurisdictional amount prior t0 remanding.” Abrego, 443 F.3d at 691 (internal 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 citation omitted). 14. In this case, Plaintiffs expressly seek damages in an amount that exceeds $25,000 plus a civil penalty of two times actual damages. (Complaint and FAC 1W 10, 13-15, 20, 23, 27, and Prayer.) Plaintiffs also seek attorney fees, prejudgment interest, incidental damages, punitive damages, and other claims for relief. (See Prayer in Complaint.) Claims for attorney fees in these types 0f cases also often approach 0r exceed $50,000. (Declaration 0f Richard J. May (“May Decl.”), fl 5.) Thus, the Complaint on its face seeks recovery 0f more than $75,000. 15. The Court may include civil penalties potentially recoverable under California’s Song-Beverly Consumer Warranty Act in calculating the amount in controversy. See Romo v. FFG Ins. C0., 397 F. Supp. 2d 1237, 1240 (C.D. Cal. 2005); Brady v. Mercedes-Benz USA, Ina, 243 F. Supp. 2d 1004, 1009 (ND. Cal. 2002); see also Cal. Civ. Code § 1794(c) (potential civil penalty up to two times actual damages). The amount in controversy also includes reasonable estimates of attorney fees. Brady, 243 F. Supp. 2d at 101 1; Guglielmino v. McKee Foods Corp, 506 F.3d 696, 700 (9th Cir. 2007); Galt G/S v. JSS Scandinavia, 142 F.3d 1150, 1156 (9th Cir. 1998); see also Fritsch v. Swift Transp. C0. 0fAriz., LLC, 899 F.3d 785, 788, 794-95 (9th Cir. 2018) (holding attorney fees are included in amount in controversy in cases removed under Class Action Fairness Act). 16. If Plaintiffs were to prevail on their Song-Beverly claims alone, they could be awarded damages 0f $75,000 0r more if awarded statutory civil penalties. Even before taking attorneys” fees and punitive damages into account, the purchase price of $35,988.96, plus a 2X civil penalty 0f $71,977.92 pursuant to the Song-Beverly Act, totals 107,966.88. (May Decl. ‘H 8) 17. Plaintiffs also pray for punitive damages. (Complaint, p. 10:1 1.) The amount in controversy also includes punitive damages. Gibson v. Chrysler Corp, 261 F.3d 927, 945 (9th Cir. 2001. When Plaintiffs’ claim for restitution 0f the purchase price plus prejudgment interest, punitive damages, attorney fees, and civil penalties 0f two times actual damages are considered, the amount in controversy far exceeds $75,000. /// 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 IV. DIVERSITY OF CITIZENSHIP EXISTS 18. Plaintiffs are, and were at the time of filing the Complaint, citizens and residents of California. (See Complaint and FAC 11 2.)1 19. Ford is, and was at the time Plaintiffs commenced this action, a corporation organized under the laws of the State of Delaware With its principal place 0f business in Michigan. This Court can take judicial notice of these facts. See Exhibit C, Excerpt from Ford’s 2017 Form lO-K filing; see also Fed. R. EVid. 201(b)(2) (courts may judicially notice facts that “can be accurately and readily determined from sources Whose accuracy cannot reasonably be questioned”). A. Defendant Perry and Fraudulent Joinder 20. “There are two ways t0 establish fraudulent joinder: ‘(1) actual fraud in the pleading ofjurisdictional facts, 0r (2) inability 0f the plaintiff t0 establish a cause 0f action against the non-diverse party in state court.”’ Grancare, LLC v. Thrower ex rel. Mills, 889 F.3d 543, 548 (9th Cir. 2018) (citations omitted). This case involves the second situation. “Fraudulent joinder is established the second way if a defendant shows that an ‘individual[ ] joined in the action cannot be liable 0n any theory.”’ Id. (citation omitted). In other words, removing parties must show “an ‘obVious’ failure t0 state a claim” against them. Id. at 549. 21. Ford contends that Plaintiffs fraudulently joined Perry in this case for n0 reason other than to defeat diversity jurisdiction and prevent removal 0f the action t0 federal court. See In re Briscoe, 448 F. 3d 201, 217 (3d Cir. 2006) (“[fraudulent joinder exists Where] there is n0 reasonable basis in fact 0r colorable ground supporting the claim against the joined 1 Citizenship for diversity purposes is equivalent to domicile, and “[t]he place Where a person lives is taken to be his domicile until facts adduced establish the contrary.” Anderson v. Watt, 138 U.S. 694, 706 (1891); see also District ofColumbia v. Murphy, 314 U.S. 441, 455 (1941) (“The place where a man lives is properly taken t0 be his domicile until facts adduced establish the contrary”). Thus, “[p]roof of residence in a state is usually thoughtprimafacie evidence of domicile sufficient to shift the burden ofproof.” Bradley Min. C0. v. Boice, 194 F.2d 80, 84 (9th Cir. 1951). Numerous courts have s0 ruled in evaluating diversity jurisdiction. State Farm Mut. Auto Ins. C0. v. Dyer, 19 F.3d 514, 520 (10th Cir. 1994); Arellano v. Wal-Mart Stores, Ina, 2017 U.S. Dist. LEXIS 150368, at *9 (CD. Cal. Sep. 14, 2017); Ayala v. Cox Aura, Ina, 2016 U.S. Dist. LEXIS 153617, at *9 (CD. Cal. NOV. 4, 2016); Ervin v. Ballard Marine Caustic, Ina, , 2016 U.S. Dist. LEXIS 106507, at *8 (ND. Cal. Aug. 11, 2016). 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 defendant, or no real intention in good faith to prosecute the action against the defendants 0r seek a joint judgment”). 22. The Complaint asserts seven Causes of Action. Only the Seventh cause of action for negligent repair is asserted against Perry. 23. The First, Second, Third, Fourth, Fifth and Sixth Causes 0f action, Which assert claims for breach of express and implied warranties under the Song-Beverly Consumer Warranty Act (Cal. CiV. Code § 1790 et seq.) and for fraud are expressly asserted against Ford only, and not against Perry. 24. Ford believes that Plaintiffs have no intention of pursuing any claim against Perry, and that it was only named to defeat the claim 0f diversity and removal t0 Federal Court. B. Plaintiffs Cannot Establish Claims Against Perry Based 0n Negligent Repair 25. Plaintiffs’ Sixth Cause of Action vaguely alleges a claim 0f negligent repair against Perry for breach of a duty “t0 use ordinary care and skill in storage, preparation and repair of the Subj ect Vehicle in accordance With industry standards” without any further detail. (Complaint and FAC 1] 48.) Plaintiffs d0 not allege how, if at all, Perry failed to properly store, prepare 0r repair the vehicle 0r When they discovered Perry’s breach. Perry’s last repair 0n the Subj ect Vehicle was undertaken on or about June 10, 2016, according to the subj ect vehicle’s warranty history and available repair records. (May Decl. 1] 8) Perry’s breach, if any, must have occurred no later than the completion of this repair in June 2016. 26. The California Code of Civil Procedure establishes a three-year statute of limitations to initiate an “action for . . . injuring goods,” such as Plaintiffs’ claim for negligent repair. CCP § 338(c)(1). Thus, Plaintiffs are required t0 have brought an action for negligent repair Within three years 0f Perry’s repair in June 2016, in order for their claim to be timely. Plaintiffs filed their Complaint on September 30, 2019, more than three years after this repair, thereby barring their claim for negligent repair against Perry. 27. The economic loss rule also bars any claim by Plaintiffs for negligent repair unless those losses are accompanied by personal injury 0r physical damage t0 property. (See Seely v. White Motor C0,, 63 Cal.2d 9 (1965); Ruiz v. BMWofN. Am, LLC, 2017 U.S. Dist. 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 LEXIS 6983, at 4-5 (C.D. Cal. Jan. 18, 2017) [“The economic loss rule precludes tort claims for purely economic damages”]; (UMG Recordings, Inc. v. Global Eagle Entm't, Inc., 117 F. Supp. 3d 1092, 1103 (C.D. Cal. 2015).) Further, a plaintiff cannot recover in tort for damages to a defective product itself- the defective product must cause damage to a person or other property in order t0 give rise t0 a tort remedy. (See Jimenenz v. Superior Court, 29 Ca1.4th 473, 481-83 (2002); Sea-Land Serv. v. GE, 134 F.3d 149, 156 (3d Cir. 1998) [“ . . . where damage is only 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 or 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 to be persuasive.”].) 28. Plaintiffs allege that Perry’s unspecified negligence was a “proximate cause of Plaintiff’s damages.” (Complaint 11 50 and FAC 1] 50.) Plaintiffs’ alleged damages are limited to damage to the vehicle itself. (ComplaintW 30-31 and FAC 1W 30-3 1 .) The remedies sought by Plaintiffs are solely for economic losses such as payments made and diminution in value of the vehicle. (Complaint 11 19 and FAC 1] 19.) Plaintiffs also do not allege any personal injury or property damages. As a result, the economic loss rule applies to bar Plaintiffs’ claim against Perry. 29. Judge Birotte rejected coordinated plaintiffs’ counsel’s arguments to the contrary in his ruling 0n the initial remand motions in the MDL. (See Judge Birotte’s September 10, 2018 Order, attached hereto as Exhibit B at pages 10-16.) 30. Accordingly, Ford believes that Plaintiffs have n0 intention of pursuing any claim against Perry, and that Perry was named in the Complaint only t0 defeat diversity and 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 thus prevent removal t0 this Court. C. Perry is a “Dispensable Party” Pursuant t0 FRCP 21 andMay Be Severed From This Action 31. Alternatively, under Fed. R. CiV. P. 21, “the court may, at any time, on just terms, add or drop a party.” “Rule 21 grants a federal district 0r appellate court the discretionary power t0 perfect its diversity jurisdiction by dropping a nondiverse party provided the nondiverse party is not indispensable to the action under Rule 19.” Sams v. Beech Aircraft Corp, 625 F.2d 273, 277 (9th Cir. 1980); see also Newman-Green, Inc. v. Alfonzo- Larrain, 490 U.S. 826, 832 (1989) (“it is well settled that Rule 21 invests district courts With authority to allow a dispensable nondiverse party to be dropped at any time, even after judgment has been rendered”). 32. For the reasons stated above, there is diversity of citizenship between Plaintiffs, California citizens, and Ford, a citizen 0f Michigan and Delaware. Though Defendant Perry is a California citizen, the Court still has subj ect matter jurisdiction over this dispute under 28 U.S.C. § 1332, as Perry was fraudulently joined by Plaintiffs. Alternatively, this Court may sever Perry and any claims against it (although there are none that are valid), as a dispensable and nondiverse party pursuant to FRCP 2 1. V. CONCLUSION For the reasons stated above, the State Action may be removed to this Court by Ford in accordance With the provisions of 28 U.S.C. §§ 1332 and 1441 because: (i) this action is a civil action pending within the jurisdiction of the United States District Court for the Northern District of California, (ii) the amount in controversy exceeds $75,000.00, exclusive of interest and costs, and (iii) the action is between citizens of different states. / / / / / / / / / / / / / / / 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 WHEREFORE, Defendants hereby notify Plaintiffs and their attorneys that the above- entitled action, formerly pending in the Santa Clara County Superior Court, has been removed from that court t0 this Court. Dated: November 4, 2019 SCHNADER HARRISON SEGAL & LEWIS LLP By;M STEPHEN H. DY RICHARD J. MAY Attorneys for Defendant FORD MOTOR COMPANY 9 NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. SECTION 1441(b) EXHIBIT A c (f.2o SUM-100 SUMMONS (CITACION JUDICIAL) FOR COURT USE ONLY (SOLO PARA USO DE LA CORTQ NOTICE TO DEFENDANT: (AVISO AL DEMANDADO): E-FILED 9/30/2019 6:32 PM Clerk of Court Superior Court of CA, County of Santa Clara 19CV355905 Reviewed By: Patricia Hernandez Envelope: 3460907 FORD MOTOR COMPANY; PERRY FORD; and DOES 1 through 10, inclusive, YOU ARE BEING SUED BY PLAINTIFF: (LO ESTA DEMANDANDO EL DEMANDANTE): TROY LAWRENCE and GINA-MARIE LAWRENCE NOTICEI You have been sued. The court may decide against you wnthout 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 sen/ed 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.courtinfo.ca.gov/setfhelp), 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 w/ant 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.coui1info.ca.gov/selfhelp). or by contacting your local court or county bar assodation. NOTE; The court has a statutory lien for waived fees and costs on any settlement or arbitrafion award of $10,000 or more in a dvil case. The court’s lien must be paid before the court will dismiss the case. iAVISOI Lo han demandado. Si no responde dentro de 30 dlas, la code puede decidiren $u contra sin escucharsu versidn. Lea la intormacidn a continuacidn. Ttene 30 DIAS DE CALENDARIO despuds de que le entreguen esta citacidn y papeles legates para presentar una respuesta por escrito en esta code y hacer que se entregue ona copia al demandante. Una cada o una llamada telefdnica no lo protegen. Su respuesta por escrito tiene que estar en formato legal conecto si desea que procesen su caso en la code. Es posible que haya un formulario que usted pueda usar para su respuesta. Puede encontrar estos formularios de la code y mds informacidn en el Centro de Ayuda de las Codes de California fSvww.sucorte.ca.gov,), en la biblioteca de leyes de su condado o en la code que le quede mds cerca. Si no puede pagar la cuota de presentaddn. pida al secretario de la code que le dd un formulario de exencidn de pago de cuotas. Si no presenta su respuesta a tiempo, puede perder el caso por incumplimiento y la code le podrd quitar su sueldo, dinero y bienes sin mds advedencia. Hayotros requisites legates. Es recomendable que llame a un abogado inmediatamente. Si no conoce a un abogado, puede llamar a un servicio de remisidn a abogados. Si no puede pagar a un abogado, es posible que cumpla con los requisHos para obtener servicios legates gratuitos de un programa de servicios legates sin fines de lucro. Puede encontrar estos grupos sin fines de lucro en el sitio web de California Legal Services, (Www.l3whelpcalifomia.orgJ, en el Centro de Ayuda de las Codes de California, (Www.sucorte.ca.govJ o ponidndose en contacto con la code o el colegio de abogados locales. AVISO: Por ley, la code tiene derecho a reclamar las cuotas y los costos exentos por imponer un gravamen sobre cualquier recuperacidn de $10,000 6 m^sde valor recibida mediante un acuerdoouna concesidnde arbitraje en uncasode derecho civil. Tiene que pagar el gravamen de la code antes de que la code pueda desechar el caso. CASE NUMBER: (Ndmem Oel Caso):The name and address of the court is;(El nombre y direccidn de la code es): Downtown Superior Court 191 North First Street San Jose, CA 95113 The name, address, and telephone number of plaintiffs attorney, or plaintiff without an attorney, is: (El nombre, la direccidn y el numero de teldfono del abogado del demandante, o del demandante que no tiene abogado, es): Tionna Dolin; 1840 Century Park East, Suite 430, Los Angeles, CA 90067; Tel: (310) 929-4900 19CV355905 , Deputy (Adjunto) Clerk, by (Secretario) DATE; (Fecha) Patricia Hernandez9/30/2019 6:32 PM Clerk of Court (For proof of service of this summons, use Proof of Service of Summons (form POS-O10).) (Para prueba de entrega de esta citatidn use el formulario Proof of Service of Summons, (POS-CIO)). -------------------------------------- 1 NOTICE TO THE PERSON SERVED: You are served ] as an individual defendant ] as the person sued under the fictitious name of f^specr^^J: ^AoVD Y (SEAL] 1. [ 2 [ 3, on behalf of (specify): under I V I CCP 416.10 (corporation) Fj CCP 416.20 (defunct corporation) ] CCP 416.40 (association or partnership) ( ___^ I 1 other (specify): / / 4. I XI by personal delivery on I'cfafeJ: £ ] CCP 416.60 (minor) ] CCP 416.70 (conservatee) ] CCP 416.90 (authorized person) [ [ Pace 1 of 1 CodeofGvU Procedure §§412.20.465 wv/u/.coufUnto.ca.govSUMMONSForm Adopted for Mandatory Use Judidal Coundl of California SUM-100 [Rev. July 1. 2009] E-FILED 9/30/2019 6:32 PM Clerk of Court Superior Court of CA, County of Santa Clara 19CV355905 Reviewed By: Patricia Hernamiez Tionna Dolin (SBN 299010) Email: tdolin@sIpattomey.com Strategic Legal Practices, APC 1840 Century Park East, Suite 430 Los Angeles, CA 90067 Telephone: (310) 929-4933 Facsimile: (310)943-3838 Attorneys for Plaintiffs TROY LAWRENCE and GINA-MARIE LAWRENCE 1 2 3 4 5 6 SUPERIOR COURT OF THE STATE OF CALIFORNIA7 COUNTY OF SANTA CLARA8 9 Case No.:TROY LAWRENCE and GfNA-MARIE LAWRENCE, 10 19CV355905 11 Hon. Dept. o Plaintiffs,C 12 u 3 vs.13H COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS o pH ? FORD MOTOR COMPANY; PERRY FORD; and DOES 1 through 10, inclusive, 14 -3 15a I Defendants. JURY TRIAL demanded^ 'io f 16 c 17r- O < ? X 2 18CD 19 20 21 22 23 24 25 26 27 28 COMPLAINT; JURY TRIAL DEMANDED Plaintiffs allege as follows;1 PARTIES2 As used in this Complaint, the word "Plaintiffs” shall refer to Plaintiffs TROY1.3 LAWRENCE and GINA-MARIE LAWRENCE.4 Plaintiffs are residents of California. As used in this Complaint, the word "Defendant" shall refer to all Defendants named in this Complaint, unless otherwise specified. Defendant FORD MOTOR COMPANY (“Defendant FMC”) is a corporation organized and in existence under the laws of the State of Delaware and registered with the California Department of Corporations to conduct business in California. At all times relevant herein, Defendant was engaged in the business of designing, manufacturing, constructing, assembling, marketing, distributing, and selling automobiles and other motor vehicles and motor vehicle components in Santa Clara County. Defendant PERRY FORD (“Defendant Perry”) is a corporation organized and in existence under the laws of the State of California. At all times relevant herein. Defendant was engaged in the business of selling automobiles and automobile components, and servicing and repairing automobiles in San Diego County. Plaintiffs are ignorant of the true names and capacities of the Defendants sued under the fictitious names DOES 1 to 10. They are sued pursuant to Code of Civil Procedure When Plaintiffs becomes aware of the true names and capacities of the Defendants sued as DOES 1 to 10, Plaintiffs will amend this Complaint to state their true names and capacities. 2.5 3.6 7 4.8 9 10 IIu 12 o i^ ^ 13 14 5. -3 15 o ^ 16 o 17 Si H “ 6.18in 19 section 474.20 21 22 FIRST CAUSE OF ACTION.23 BY PLAINTIFF AGAINST DEFENDANT FMC24 VIOLATION OF SUBDIVISION (D) OF CIVIL CODE SECTION 1793.2 On or about February 2, 2013, Plaintiffs purchased a 2013 Ford Focus vehicle identification number 1FADP3K29DL235619 (hereafter "Vehicle") which was manufactured and or distributed by Defendant FMC. The Vehicle was purchased or used primarily for 25 26 7. 27 28 COMPLAINT; JURY TRIAL DEMANDED personal, family, or household purposes. Plaintiffs purchased the Vehicle from a person or entity engaged in the business of manufacturing, distributing, or selling consumer goods at retail. 1 2 3 In connection with the purchase. Plaintiffs received an express written warranty, including a 3 year/36,000 miles bumper to bumper warranty and a 5 year/60,000 miles powertrain warranty, which 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, Plaintiffs 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 causing the engine to shut off; defects causing the illumination of the service engine soon (“SES”) light; defects causing the Vehicle to shudder when accelerating; defects requiring performance of Technical Service Bulletin (“TSB”) 14- 0131 and 16-0044; defects causing the clutch to slip; defects requiring the reprogramming of the powertrain control module (“PCM”); defects requiring the reprogramming of the transmission control module (“TCM”); defects causing the failure and/or requiring replacement of the inner input shaft seals and/or clutch; defects causing the Vehicle to rattle; defects causing vibration from right front wheel bearing; defects causing the failure and/or requiring replacement of right front wheel bearing; defects requiring the resetting of the transmission adaptive learn procedure; defects requiring the performance of the clutch adaptive learning procedure; defects requiring the performance of Recall 15B22B; defects causing the illumination of TPMS light; defects causing the failure and/or replacement of the battery; defects causing the storage of Diagnostic Trouble Codes (“DTC”) P0460, P0606, UOlOl and/or U0073; defects causing the failure and/or requiring replacement of the TCM and/or any other defects described in the Vehicle’s repair history. Said defects substantially impair the use, value, or safety of the Vehicle. 8.4 5 6 7 8 9 10 11 9.12 a'3 Hi 13 14 Oh 5 15
o 17 SiH 18 in 119 20 37. 21 22 23 24 25 26 27 28 Indeed, Defendant has issued various technical bulletins to its dealers (not consumers) concerning the defective DSP6 transmissions. 1 7 COMPLAINT; JURY TRIAL DEMANDED suddenly and unexpectedly affect the driver’s ability to control the vehicle’s speed, acceleration, and deceleration. 38. Plaintiffs are informed, believe and thereon allege that FMC acquired its knowledge of the transmission defect prior to Plaintiffs acquiring the subject vehicle, though sources not available to consumers such as Plaintiffs, including but not limited to pre- production and post-production testing data, early consumer complaints about the transmission defect made directly to FMC and its network of dealers, aggregate warranty data compiled from FMC’s network of dealers, testing conducted by FMC in response to these complaints, as well as warranty repair and part replacements data received by FMC from FMC’s network of dealers, amongst other sources of internal information. 39. Plaintiffs are informed, believe, and thereon allege that while Defendant knew about the transmission defect, and its safety risks since 2011, if not before. Defendant nevertheless concealed and failed to disclose the defective nature of the Vehicle and its DPS6 transmission to Plaintiffs at the time of sale and thereafter. Had Plaintiffs known that the subject Vehicle suffered from the transmission defect, they would not have purchased the subject vehicle. 40. Indeed, Plaintiffs allege that Defendant knew that the Vehicle and its DPS6 transmission suffered from an inherent defect, was defective, would fail prematurely, and was not suitable for its intended use. 41. Defendant was under a duty to Plaintiffs to disclose the defective nature of the Vehicle and its DPS6 transmission, its safety consequences and/or the associated repair costs because: 1 2 3 4 5 6 7 8 9 10 11u 12 ei - 145:5 -3 15 O < 9 17 X ^ h" 18 CO 19 20 21 22 Defendant acquired its knowledge of the transmission defect and its potential consequences prior to Plaintiffs acquiring the subject vehicle, though • • sources not available to consumers such as Plaintiffs, including but not limited to pre-production testing data, early consumer complaints about the transmission defect made directly to FMC and its network of dealers, aggregate warranty data compiled from FMC’s network of dealers, testing conducted by FMC in response to these 23 a. 24 25 26 27 28 8 COMPLAINT; JURY TRIAL DEMANDED complaints, as well as warranty repair and part replacements data received by FMC from FMC’s network of dealers, amongst other sources of internal information; Defendant was in a superior position from various interna! sources to know (or should have known) the true state of facts about the material defects contained in vehicles equipped with DPS6 transmission; and Plaintiffs could not reasonably have been expected to learn or discover of the Vehicle’s transmission defect and its potential consequences until well after Plaintiffs purchased the Vehicle. In failing to disclose the defects in the Vehicle’s DPS6 transmission, Defendant has knowingly and intentionally concealed material facts and breached its duty not to do so. The facts concealed or not disclosed by Defendant to Plaintiffs are material in that a reasonable person would have considered them to be important in deciding whether or not to purchase/lease the Vehicle. Had Plaintiffs known that the Vehicle and its transmission defective at the time of sale, they would not have purchased the Vehicle. Plaintiffs are reasonable consumers who do not expect their transmission to fail and not work properly. Plaintiffs further expect and assume that Defendant will not sell or lease vehicles with known material defects, including but not limited to those involving the vehicle’s transmission and will disclose any such defect to its consumers before selling such vehicles. 1 2 b.3 4 5 6 c. 7 8 42.9 10 43.11cj 12 si Hi 1| 1.4 CLh ? were -4 44.15SI 16 ca 17H 0 a: i 18H CD 19 As a result of Defendant’s misconduct, Plaintiffs have suffered and will45.20 continue to suffer actual damages.21 SEVENTH CAUSE OF ACTION22 BY PLAINTIFF AGAINST DEFENDANT PERRY23 NEGLIGENT REPAIR24 Plaintiff incorporates by reference the allegations contained in the paragraphs- 46.25 set forth above.26 Plaintiff delivered the Subject Vehicle to Defendant Perry for substantial repair47.27 on at least one occasion.28 9 COMPLAINT; JURY TRIAL DEMANDED Defendant Perry owed a duty to Plaintiff to use ordinary care and skill in storage, preparation and repair of the Subject Vehicle in accordance with industry standards. Defendant Perry breached its duty to Plaintiff to use ordinary care and skill by failing to properly store, prepare and repair the Subject Vehicle in accordance with industry standards. 48.1 2 49.3 4 5 Defendant Perry’s negligent breach of its duties owed to Plaintiff was a proximate cause of Plaintiff s damages. 50.6 7 PRAYER8 PLAINTIFFS PRAY for judgment against Defendant as follows: a. For Plaintiffs’ actual damages in an amount according to f3roof; b. For restitution; c. For a civil penalty in the amount of two times Plaintiffs’ actual damages pursuant to Civil Code section 1794, subdivision (c) or (e); d. For any consequential and incidental damages; e. For costs of the suit and Plaintiffs’ reasonable attorneys’ fees pursuant to Civil Code section 1794, subdivision (d); f For punitive damages; g. For prejudgment interest at the legal rate; and h. For such other relief as the Court may deem proper. 9 10 11CJ 12 S3ds ,3 gi ,4 ^ § < i 15 ^ 'i 16Cj £ M > o 17rH 21 18r* 19 20 DEMAND FOR JURY TRIAL21 Plaintiffs hereby demands a jury trial on all causes of action asserted herein.22 23 STRATEGIC LEGAL PRACTICES, APCDated: September 30, 201924 25 26 BY: Tionna Dolin Attorney for Plaintiffs TROY LAWRENCE and GINA-MARIE LAWRENCE 27 28 10 COMPLAINT; JURY TRIAL DEMANDED 19CV355905 Santa Clara - Civil ATTACHMENTUJVagiOli^ceiiana CIVIL LAWSUIT NOTICE Superior Court of California, County of Santa Clara 191 North First St, San Jose, CA 95113 19CV355905 CASE NUMBER: 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: 1. 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 sen/ed with the Summons and Complaint, 2. 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 3. You must attend the first Case Management Conference. Warning: If you, as the Defendant, do not follow these instructions, you may automatically lose this case. RULES AND FORMS: You must follow the California Rules of Court and the Superior Court of California, County of <_CountyName_> Local Civil Rules and use proper forms. You can obtain legal information, view the rules and receive forms, free of charge, from the Seif-Help Center at 201 North First Street, San Jose (408-882-2900 x-2926). ■ State Rules and Judicial Council Forms: www.courtinfo.ca.aov/forms and www.courtinfo.ca.qov/rules ■ Local Rules and Forms; httD://www.sccsuDeriorcourt.orq/civil/rule11oc.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-110) at least 15 calendar days before the CMC. You or your attorney must appear at the CMC. You may ask to appear by telephone - see Local Civil Rule 8. 2Pierce, Mark H Department:.Your Case Management Judge is; The 1®* CMC is scheduled for: (Completed by Clerk of Court) 01/28/20 23:45pm in Department:.Time:, The next CMC is scheduled for: (Completed by party if the 1®' CMC was continued or has passed) in Department:_ Date: Time:Date: ALTERNATIVE DISPUTE RESOLUTION (ADR): If all parties have appeared and filed a completed ADR Stipulation Form (local form CV-5008) at least 15 days before the CMC, the Court will cancel the CMC and mail notice of an ADR Status Conference. Visit the Court's website at www.sccsuperiorcourt.ora/civil/ADR/ or call the ADR Administrator (408-882-2100 x-2530) for a list of ADR providers and their qualifications, services, and fees. WARNING: Sanctions may be imposed if you do not follow the California Rules of Court or the Local Rules of Court. CIVIL LAWSUIT NOTICE Page 1 of 1CV-5012 REV 08/01/16 CM-010 FORCOUKTUSE ONLYATTORNEY OR PARTY WTHOLTT ATTORNEY (Name. SWe Bar number, and address): “TIONNA DOLIN (SBN 299010) Strategic Legal Practices, APC 1840 Century Park East, Suite 430 Los Angeles, California 90067 TELEPHONE NO,: (310)929*4900 FAXNo.: (310)943*3838 Plaintiffs Troy Lawrence and Gina-Marie Lawrence E lectronically Filed t y Superior Court of CA, ounty of Santa Clara, cn 9/30/2019 6:32 PM F eviewed By: Patricia Hernand sz Case #19CV355905 1 nvelope: 3460907 ATTORNEY FOR (Name): SUPERIOR COURT OF CAUFORNIA, COUNTY OF SANT A CLARA STREET ADOREss: 191 Nofth FifSt Strcct MAILING ACMDRESS; SajnC aTYANoapcooE: San Jose, CA 95113 Downtown Superior CourtBRANCH NAME: CASE NAME: LAWRENCE v. FORD MOTOR COMPANY, et al. CASE NUMBER: 19CV355905CIVIL CASE COVER SHEET I / I Unlimited C (Amount demanded exceeds $25,000) Complex Case Designation I I Counter I I JoinderLimited (Amount demanded is $25,000 or less) JUDGE:Filed with first appearance by defendant (Cal. Rules of Court rule 3.402) DEPT: Items 1-6 below must be completed (see instructions on page 2). 1. Check one box below for the case type that best describes this case: Contract Provisionally Complex Civil Litigation (Cal. Rules of Court, rules 3.400-3.403) I I Anlitrust/Trade regulation (03) LJ Construction defect (10) I I Mass tort (40) LJ Securities litigation (28) I I Environmentairroxic tort (30) I I Insurance coverage claims arising from the above listed provisionally complex case types (41) Enforcement of Judgment I I Enforcement of judgment (20) Miscellaneous Civil Complaint IZH RICO (27) I I Other complaint (not specified above) (42) Auto Tort / Breach of contract/warranty (06) ] Rule 3.740 collections (09) ] Other collections (09) ] Insurance coverage (18) ] Other contract (37) ^eal Property I Eminent domain/inverse condemnation (14) Wrongful eviction (33) I Other real property (26) Jnlawful Detainer i Commercial (31) I___ I Auto (22) 1___ 1 Uninsured motorist (46) Other PI/PD/WD (Personal Injury/Property Damage/Wrongful Death) Tort LJ Asbestos (04) I I Product liability (24) I I Medical malpractice (45) [ZH Other PI/PD/WD (23) Non-PI/PD/WD (Other) Tort Business tort/unfair business practice (07) I Civil rights (08) ] Defamation (13) I Fraud (16) ] Intellectual property (19) ] Professional negligence (25) ] Other norvPI/PD/WD tort (35) I I___ I Residential (32) I ~1 Drugs (38) Judicial Review Miscellaneous Civil Petition p-j Asset forfeiture (05) I I Partnership and corporate governance (21) -----j Pef'lion re: arbitration award (11) | | other petition (not specified above) (43) I I Writ of mandate (02) I I Other judicial rewew (39) Employment I Wrongful termination (36) I Other employment (15) I ✓ I is not complex under rule 3.400 of the California Rules of Court. If the case is complex, mark the factors requiting exceptional judicial management a. I I Large number of separately represented parties ___ b. I I Extensive motion practice raising difficult or novel e. I J Coordination with related actions pending in one or more courts ___ in other counties, states, or countries, or in a federal court f. I 1 Substantial pos^udgment judicial supervision 2. This case I I is d. I I Large number of witnesses issues that will be time-consuming to resolve Substantial amount of documentary evidencec. c. I / I punitive3. Remedies sought (check all that apply): a.[22 monetary b. (ZD nonmonetary; declaratory or injunctive relief 4. Number of causes of action (specify): seven (7) • 5. This case I I is I / I is not a class action suit. 6. If there are any known related cases, file and serve a notice of related case. (You may use form CM-015.) Date: 09/23/19 TIONNA DOLIN ► (SIGNATURE OF P/U^TY OR ATTORNEY FOR PARTY)(TYPE OR PRINT NAME) NOTICE • 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 cx3ver 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 onl^^ Cd. Rules of Coun. rules 2.30. 3.220, 3.400-3.403, 3.740: Cal. Siarxlaitls of Judidal Administration, std. 3.10 www.couninlo.C3.gov CIVIL CASE COVER SHEETFom) Adopted for Mandatory Use Judidal Courtdl of Cafitomis CM-010 [Rev. July 1. 2007] CM-010 INSTRUCTIONS ON HOW TO COMPLETE THE COVER SHEET To Plaintiffs and Others Filing First Papers. If you are filing a first paper {for example, a complaint) in a civil case, you must complete and file, along v/ith 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 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 itenn 1, check the more specific one. If the case has multiple causes of action, check the box that best indicates the primary cause of action. To assist you in completing the sheet, examples of the cases that belong under each case type in item 1 are provided below. A cover sheet must be filed only with your initial paper. Failure to file a cover sheet with the first paper filed in a civil case may subject a party, its counsel, or both to sanctions under rules 2.30 and 3.220 of the California Rules of Court. To Parties in Rule 3.740 Collections Cases. A "collections case" under rule 3.740 is defined as an action for recovery of money owed in a sum stated to be certain that is not more than $25,000, exclusive of interest and attorney's fees, arising from a transaction in which property, services, or money was acquired on credit. A collections case does not include an action seeking the following; (1) tort damages. (2) punitive damages, (3) recovery of real property, (4) recovery of personal property, or (5) a prejudgment writ of attachment The identification of a case as a rule 3.740 collections case on this form means that it will be exempt from the general time-for-service requirements and case management rules, unless a defendant files a responsive pleading. A rule 3.740 collections case will be subject to the requirements for service and obtaining a judgment in rule 3.740. To Parties in Complex Cases. In complex cases only, parties must also use the Civil Case Cover Sheet to designate whether the case is complex. If a plaintiff believes the case is complex under rule 3.400 of the California Rules of Court, this must be indicated by completing the appropriate boxes in items 1 and 2. If a plaintiff designates a case as complex, the cover sheet must be served with the complaint on all parties to the action. A defendant may file and serve no later than the time of its first appearance a joinder in the plaintiffs designation, a counter-designation that the case is not complex, or, if the plaintiff has made no designation, a designation that the case is complex. one CASE TYPES AND EXAMPLES Provisionally Complex Civil Litigation (Cal. Rules of Court Rules 3.400-3.403) Antitrust/Trade Regulation (03) Construction Defect (10) Claims Involving Mass Tort (40) Securities Litigation (28) 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 (nor unpaid taxes) Petition/Certification of Entry of Judgment on Unpaid Taxes Other Enforcement of Judgment Case Miscellaneous Civil Complaint RICO (27) Other Complaint (not specified above) (42) Declaratory Relief Only Injunctive Relief Only (non- - harassment) Mechanics Lien Other Commercial Complaint Case (non-tort/non-complex) Other Civil Complaint (non-tort/non-complex) Miscellaneous Civil Petition Partnership arxl 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 Contract Breach of ContractAWarranty (06) Breach of Rental/Lease Contract (nor unlawful detainer or wrongful eviction) ContractAVarranty Breach-Seller Plaintiff (nor fraud or negligence) Negligenl Breach of Contract/ Warranty Other Breach of Contract/Warranty Collections (e.g., money owed, open book accounts) (09) Collection'Case-Seller Plaintiff Other Promissory Note/Collections Case Insurance Coverage (nor provisionally complex) (18) Auto Subrogation Other Coverage Auto Tort Auto (22)-Personal Injury/Property Damage/Wrongful Death Uninsured Motorist (46) (if the case involves an uninsured moronsr claim subject to arbitration, check this item instead of Auto) Other PI/PD/WD (Personal Injury/ Property Damage/Wrongful Death) Tort Asbestos (04) Asbestos Property Damage /Asbestos Personal Injury/ Wrongful Death Product Liability (nor asbestos or toxic/environmentaO (24) Medical Malpractice (45) Medical Malpractice- Physicians & Surgeons Other Professional Health Care Malpractice Other PI/PD/WD (23) Premises Liability (e.g., slip and fail) Intentional Bodily Injury/PDAA/D (e.g., assault, vandalism) Intentional Infliction of Emotional Distress Negligent Infliction of Emotional Distress Other PI/PD/WD Non-PI/PD/WD (Other) Tort Business Tort/Unfair Business Practice (07) Civil Rights (e.g., discrimination, false arrest) (nor civil harassment) (08) Defamation (e.g., slander, libel) Other Contract (37) Contractual Fraud Other Contract Dispute Real Property Eminent Domain/Inverse Condemnation (14) wrongful Eviction (33) Other Real Property (e.g.. quiet title) (26) Writ of Possession of Real Property Mortgage Foreclosure Quiet Title Other Real Property (nor eminent domain, landlordAenant, or foreclosure) Unlawful Detainer Commercial (31) Residential (32) Drugs (38) (if the case involves illegal drugs, check this item; othenvise, report as Commercial or Residential) (13) Judicial Review Asset Forfeiture (05) Petition Re; Arbitration Award (11) WHt of Mandate (02) Writ-Administrative Mandamus Writ-Mandamus on Limited Court Fraud (16) Intellectual Prope^ (19) Professional Negligence (25) Legal Malpractice Other Professional Malpractice (nor medical or legal) Other Non-Pl/PD/WD Tort (35) Employment Wrongful Termination (36) Other Employment (15) Case Matter Writ-Other Limited Court Case Review Other Judicial Review (39) Review of Health Officer Order Notice of Appeal-Labor Commissioner Appeals Page 2 of 2CM.O10 (Rev. July 1, 2007) . CIVIL CASE COVER SHEET 1840 CENruRY PARK EAsr, SUITE 430. Los ANGELa CA 90067 STRATEGIC LEGAL PRACTICES, APC 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Tionna Dolin (SBN 299010) Email: tdolin@slpattomey.com Strategic Legal Practices, APC 1840 Century Park East, Suite 430 Los Angeles, CA 90067 Telephone: (310) 929-4933 Facsimile: (310) 943-3838 Attorneys for Plaintiffs TROY LAWRENCE and GINA-MARIE LAWRENCE SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA TROY LAWRENCE and GINA-MARIE Case No.: 19CV355905 LAWRENCE, Hon. Mark H Pierce Plaintiffs, Dept. 2 VS. FIRST AMENDED COMPLAINT FOR FORD MOTOR COMPANY; PERRY FORD; VIOLATION OF STATUTORY and DOES 1 through 10, inclusive, OBLIGATIONS Defendants. JURY TRIAL DEMANDED FIRST AMENDED COMPLAINT; JURY TRIAL DEMANDED STRATEGIC LEGAL PRACTICES, APC I840 CENTURY PAM EASY SUITE 430 ms ANGELB CA 90067 Ix.) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs allege as follows: PARTIES 1. As used in this Complaint, the word "Plaintiffs” shall refer t0 Plaintiffs TROY LAWRENCE and GINA-MARIE LAWRENCE. 2. Plaintiffs are residents 0f California. 3. As used in this Complaint, the word ”Defendant" shall refer to all Defendants named in this Complaint, unless otherwise specified. 4. Defendant FORD MOTOR COMPANY (“Defendant FMC”) is a corporation organized and in existence under the laws 0f the State 0f Delaware and registered with the California Department of Corporations t0 conduct business in California. At all times relevant herein, Defendant was engaged in the business 0f designing, manufacturing, constructing, assembling, marketing, distributing, and selling automobiles and other motor vehicles and motor vehicle components in Santa Clara County. 5. Defendant PERRY FORD (“Defendant Perry”) is a corporation organized and in existence under the laws 0f the State of California. At all times relevant herein, Defendant was engaged in the business 0f selling automobiles and automobile components, and servicing and repairing automobiles in San Diego County. 6. Plaintiffs are ignorant of the true names and capacities of the Defendants sued under the fictitious names DOES 1 t0 10. They are sued pursuant t0 Code of Civil Procedure section 474. When Plaintiffs becomes aware of the true names and capacities 0f the Defendants sued as DOES 1 t0 10, Plaintiffs will amend this Complaint t0 state their true names and capacities. FIRST CAUSE OF ACTION BY PLAINTIFF AGAINST DEFENDANT FMC VIOLATION OF SUBDIVISION (D) OF CIVIL CODE SECTION 1793.2 7. On 0r about February 2, 2013, Plaintiffs purchased a 2013 Ford Focus vehicle identification number 1FADP3K29DL235519 (hereafter "Vehicle") which was manufactured and 0r distributed by Defendant FMC. The Vehicle was purchased 0r used primarily for 1 FIRST AMENDED COMPLAINT; JURY TRIAL DEMANDED STRATEGIC LEGAL PRACTICES, APC 18-10 CENTURY FARR EA5r surrE 430 Los ANGELEG CA 90067 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 personal, family, 01' household purposes. Plaintiffs purchased the Vehicle from a person 0r entity engaged in the business of manufacturing, distributing, or selling consumer goods at retail. 8. In connection with the purchase, Plaintiffs received an express written warranty, including a 3 year/36,000 miles bumper to bumper warranty and a 5 year/60,000 miles powertrain warranty, which covers the engine and transmission. Defendant undertook to preserve or maintain the utility or performance 0f the Vehicle 0r t0 provide compensation if there is a failure in utility or performance for a specified period 0f time. The warranty provided, in relevant part, that in the event a defect developed with the Vehicle during the warranty period, Plaintiffs could deliver the Vehicle for repair services to Defendant's representative and the Vehicle would be repaired. 9. During the warranty period, the Vehicle contained or developed defects, including but not limited t0, defects causing the engine to shut off; defects causing the illumination 0f the service engine soon (“SES”) light; defects causing the Vehicle t0 shudder when accelerating; defects requiring performance of Technical Service Bulletin (“TSB”) 14- 0131 and 16-0044; defects causing the clutch to slip; defects requiring the reprogramming 0f the powertrain control module (“PCM”); defects requiring the reprogramming 0f the transmission control module (“TCM”); defects causing the failure and/or requiring replacement of the inner input shaft seals and/or clutch; defects causing the Vehicle to rattle; defects causing vibration from right front wheel bearing; defects causing the failure and/or requiring replacement of right front wheel bearing; defects requiring the resetting 0f the transmission adaptive learn procedure; defects requiring the performance of the clutch adaptive learning procedure; defects requiring the performance of Recall 15B22B; defects causing the illumination 0f TPMS light; defects causing the failure and/or replacement 0f the battery; defects causing the storage of Diagnostic Trouble Codes (“DTC”) P0460, P0606, U0101 and/or U0073; defects causing the failure and/or requiring replacement of the TCM and/or any other defects described in the Vehicle’s repair history. Said defects substantially impair the use, value, 0r safety 0f the Vehicle. 2 FIRST AMENDED COMPLAINT; JURY TRIAL DEMANDED STRATEGIC LEGAL PRACTICES, APC 184-0 CENTURY PARK EASLSUITE 430, Los ANGELES. CA 90067 OONOUl-P O\O 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10. Plaintiffs suffered damages in a sum to be proven at trial in an amount that is not less than $25,001 .00. 11. Defendant and its representatives in this state have been unable to service 0r repair the Vehicle t0 conform to the applicable express warranties after a reasonable number of opportunities. Despite this fact, Defendant failed t0 promptly replace the Vehicle or make restitution t0 Plaintiffs as required by Civil Code section 1793.2, subdivision (d) and Civil Code section 1793.1, subdivision (a)(2). 12. Plaintiffs have been damaged by Defendant's failure to comply with its obligations pursuant to Civil Code section 1793.2, subdivision (d) and Civil Code section 1793.1, subdivision (a)(2), and therefore brings this cause of action pursuant to Civil Code section 1794. 13. Defendant's failure to comply with its obligations under Civil Code section 1793.2, subdivision (d) was willful, in that Defendant and its representative were aware that they were unable to service or repair the Vehicle to conform to the applicable express warranties after a reasonable number of repair attempts, yet Defendant failed and refused to promptly replace the Vehicle or make restitution. Accordingly, Plaintiffs are entitled t0 a civil penalty of two times Plaintiffs’ actual damages pursuant t0 Civil Code section 1794, subdivision (c). 14. Defendant does not maintain a qualified third-party dispute resolution process which substantially complies with Civil Code section 1793.22. Accordingly, Plaintiffs are entitled t0 a civil penalty of two times Plaintiffs’ actual damages pursuant t0 Civil Code section 1794, subdivision (e). 15. Plaintiffs seek civil penalties pursuant to section 1794, subdivisions (c), and (e) in the alternative and does not seek t0 cumulate civil penalties, as provided in Civil Code section 1794, subdivision (f). /// /// /// 3 FIRST AMENDED COMPLAINT; JURY TRIAL DEMANDED STRATEGIC LEGAL PRACTICES, APC [840 CENTURY PARREAST SUITE 410 Los ANGELS CA 90067 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SECOND CAUSE OF ACTION BY PLAINTIFF AGAINST DEFENDANT FMC VIOLATION OF SUBDIVISION (B) OF CIVIL CODE SECTION 1793.2 16. Plaintiffs incorporate by reference the allegations contained in the paragraphs set forth above. 17. Although Plaintiffs presented the Vehicle to Defendant's representative in this state, Defendant and its representative failed t0 commence the service or repairs within a reasonable time and failed to service 0r repair the Vehicle so as t0 conform to the applicable warranties Within 3O days, in Violation of Civil Code section 1793.2, subdivision (b). Plaintiffs did not extend the time for completion of repairs beyond the 30-day requirement. 18. Plaintiffs have been damaged by Defendant's failure to comply with its obligations pursuant t0 Civil Code section 1793.2(b), and therefore brings this Cause 0f Action pursuant to Civil Code section 1794. 19. Plaintiffs have rightfully rejected and/or justifiably revoked acceptance of the Vehicle, and has exercised a right t0 cancel the purchase. By serving this Complaint, Plaintiffs d0 so again. Accordingly, Plaintiffs seek the remedies provided in California Civil Code section 1794(b)(1), including the entire contract price. In the alternative, Plaintiffs seek the remedies set forth in California Civil Code section 1794(b)(2), including the diminution in value of the Vehicle resulting from its defects. Plaintiffs believe that, at the present time, the Vehicle’s value is de minimis. 20. 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 t0 conform to the applicable express warranties Within 30 days, yet they failed t0 do so. Accordingly, Plaintiffs are entitled t0 a civil penalty of two times Plaintiffs” actual damages pursuant to Civil Code section 1794(0). /// /// /// 4 FIRST AMENDED COMPLAINT; JURY TRIAL DEMANDED STRATEGIC LEGAL PRACTICES, APC 1840 CENTURY PARK EAsr, SUITE 430, L05 ANGELS CA 90067 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THIRD CAUSE OF ACTION BY PLAINTIFF AGAINST DEFENDANT FMC VIOLATION OF SUBDIVISION (A)(3) OF CIVIL CODE SECTION 1793.2 2 1. Plaintiffs incorporate by reference the allegations contained in paragraphs set forth above. 22. In Violation of Civil Code section 1793.2, subdivision (a)(3), Defendant failed to make available t0 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 0f Action pursuant to Civil Code section 1794. 23. Defendant's failure t0 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 t0 effect repairs during the warranty period, yet Defendant failed to take any action to correct its failure to comply With the law. Accordingly, Plaintiffs are entitled to a civil penalty of two times Plaintiffs’ actual damages; pursuant to Civil Code section 1794(0). FOURTH CAUSE OF ACTION BY PLAINTIFF AGAINST DEFENDANT FMC BREACH 0F EXPRESS WRITTEN WARRANTY (CIV. CODE, § 1791.2, SUBD. (a); § 1794) 24. Plaintiffs incorporate by reference the allegations contained in paragraphs set forth above. 25. In accordance with Defendant's warranty, Plaintiffs delivered the Vehicle to Defendant's representative in this state t0 perform warranty repairs. Plaintiffs did so within a reasonable time. Each time Plaintiffs delivered the Vehicle, Plaintiffs notified Defendant and its representative 0f the characteristics 0f the Defects. However, the representative failed t0 repair the Vehicle, breaching the terms of the written warranty on each occasion. 5 FIRST AMENDED COMPLAINT; JURY TRIAL DEMANDED STRATEGIC LEGAL PRACTICES, APC 1840 CENTURY PARK EAST, SUITE 430, LOS ANGELE§, CA 90067 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 26. Plaintiffs have been damaged by Defendant's failure to comply with its obligations under the express warranty, and therefore brings this Cause 0f Action pursuant t0 Civil Code section 1794. 27. Defendant's failure to comply with its obligations under the express warranty was willful, in that Defendant and its authorized representative were aware that they were obligated to repair the Defects, but they intentionally refused to d0 so. Accordingly, Plaintiffs are entitled to a civil penalty of two times 0f Plaintiffs’ actual damages pursuant to Civil Code section 1794(0). FIFTH CAUSE OF ACTION BY PLAINTIFF AGAINST DEFENDANT FMC BREACH OF THE IMPLIED WARRANTY OF MERCHANTABILITY (CIV. CODE, § 1791.1; § 1794; § 1795.5) 28. Plaintiffs incorporate by reference the allegations contained in the paragraphs set forth above. 29. Pursuant t0 Civil Code section 1792, the sale of the Vehicle was accompanied by Defendant's implied warranty of merchantability. Pursuant to Civil Code section 1791.1, the duration of the implied warranty is coextensive in duration With the duration 0f the express written warranty provided by Defendant, except that the duration is not to exceed one-year. 30. Pursuant t0 Civil Code section 1791.1 (a), the implied warranty 0f merchantability means and includes that the Vehicle will comply with each 0f the following requirements: (1) The Vehicle will pass without obj ection in the trade under the contract description; (2) The Vehicle is fit for the ordinary purposes for which such goods are used; (3) The Vehicle is adequately contained, packaged, and labelled; (4) The Vehicle will conform to the promises or affirmations 0f fact made on the container 0r label. 3 1. At the time 0f purchase, or Within one-year thereafter, the Vehicle contained 0r developed the defects set forth above. The existence 0f each of these defects constitutes a breach 0f the implied warranty because the Vehicle (1) does not pass without objection in the trade under the contract description, (2) is not fit for the ordinary purposes for which such 6 FIRST AMENDED COMPLAINT; JURY TRIAL DEMANDED STRATEGIC LEGAL PRACTICES, APC 1840 CENTURY PARK EASE SUITE 430, L03 ANGELFs. CA 90067 goods are used, (3) is not adequately contained, packaged, and labelled, and (4) does not conform to the promises or affirmations of fact made 0n the container 0r label. 32. Plaintiffs have been damaged by Defendant’s failure to comply with its obligations under the implied warranty, and therefore brings this Cause 0f Action pursuant to Civil Code section 1794. SIXTH CAUSE OF ACTION BY PLAINTIFF AGAINST DEFENDANT FMC (Fraud by Omission) 33. Plaintiffs hereby incorporate by reference the allegations contained in the preceding paragraphs of this Complaint. 34. Plaintiffs purchased the Vehicle as manufactured with Defendant’s dual clutch transmission (also known as “DPS6” 0r “Power Shift 6 Transmission”). 35. Defendant committed fraud by allowing to be sold t0 Plaintiffs the Vehicle without disclosing that the subject vehicle and its DPS6 transmission was defective and susceptible t0 sudden and premature failure. 36. In particular, Plaintiffs are informed, believe, and thereon allege that prior to Plaintiffs acquiring the subject vehicle, FMC was well aware and knew that the dual clutch transmission (“DPS6” 0r “Power Shift 6 Transmission”) installed on the subj ect vehicle was defective but failed to disclose this fact t0 Plaintiffs at the time 0f sale and thereafter. 1 37. Specifically, FMC knew (or should have known) that the Power Shift 6 Transmission had one or more defects that can result in various problems, including, but not limited t0, sudden acceleration, delayed acceleration, hesitation 0n acceleration, jerking, shuddering on acceleration, lack 0f power, delayed in downshifts, transmission fluid leaks, and/or premature wear of the internal components (“transmission defect”). These conditions present a safety hazard and are unreasonably dangerous to consumers because they can I Indeed, Defendant has issued various technical bulletins t0 its dealers (not consumers) concerning the defective DSP6 transmissions. 7 FIRST AMENDED COMPLAINT; JURY TRIAL DEMANDED STRATEGIC LEGAL PRACTICES, APC [840 CENTURY PARK Em. SUITE 430, Los ANGELS, CA 90067 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 suddenly and unexpectedly affect the driver’s ability t0 control the vehicle’s speed, acceleration, and deceleration. 38. Plaintiffs are informed, believe and thereon allege that FMC acquired its knowledge 0f the transmission defect prior t0 Plaintiffs acquiring the subj ect vehicle, though sources not available t0 consumers such as Plaintiffs, including but not limited to pre- production and post-production testing data, early consumer complaints about the transmission defect made directly to FMC and its network of dealers, aggregate warranty data compiled from FMC’s network 0f dealers, testing conducted by FMC in response to these complaints, as well as warranty repair and part replacements data received by FMC from FMC’S network of dealers, amongst other sources 0f internal information. 39. Plaintiffs are informed, believe, and thereon allege that While Defendant knew about the transmission defect, and its safety risks since 201 1, if not before, Defendant nevertheless concealed and failed to disclose the defective nature 0f the Vehicle and its DPS6 transmission to Plaintiffs at the time of sale and thereafter. Had Plaintiffs known that the subject Vehicle suffered from the transmission defect, they would not have purchased the subject vehicle. 40. Indeed, Plaintiffs allege that Defendant knew that the Vehicle and its DPS6 transmission suffered from an inherent defect, was defective, would fail prematurely, and was not suitable for its intended use. 41. Defendant was under a duty t0 Plaintiffs to disclose the defective nature of the Vehicle and its DPS6 transmission, its safety consequences and/or the associated repair costs because: a. Defendant acquired its knowledge of the transmission defect and its potential consequences prior to Plaintiffs acquiring the subject vehicle, though sources not available to consumers such as Plaintiffs, including but not limited t0 pre-production testing data, early consumer complaints about the transmission defect made directly t0 FMC and its network of dealers, aggregate warranty data compiled from FMC’S network 0f dealers, testing conducted by FMC in response to these 8 FIRST AMENDED COMPLAINT; JURY TRIAL DEMANDED STRATEGIC LEGAL PRACTICES, APC 1840 CENTURY PARK EMT. SUITE 430, Los ANGEIB. CA 90067 Ix.) complaints, as well as warranty repair and part replacements data received by FMC from FMC’s network of dealers, amongst other sources of internal information; b. Defendant was in a superior position from various internal sources to know (or should have known) the true state 0f facts about the material defects contained in vehicles equipped with DPS6 transmission; and c. Plaintiffs could not reasonably have been expected to learn or discover of the Vehicle’s transmission defect and its potential consequences until well after Plaintiffs purchased the Vehicle. 42. In failing to disclose the defects in the Vehicle’s DPS6 transmission, Defendant has knowingly and intentionally concealed material facts and breached its duty not to d0 so. 43. The facts concealed 0r not disclosed by Defendant to Plaintiffs are material in that a reasonable person would have considered them t0 be important in deciding whether or not t0 purchase/lease the Vehicle. Had Plaintiffs known that the Vehicle and its transmission were defective at the time 0f sale, they would not have purchased the Vehicle. 44. Plaintiffs are reasonable consumers who do not expect their transmission t0 fail and not work properly. Plaintiffs further expect and assume that Defendant will not sell or lease vehicles With known material defects, including but not limited to those involving the vehicle’s transmission and will disclose any such defect to its consumers before selling such vehicles. 45. As a result of Defendant’s misconduct, Plaintiffs have suffered and will continue t0 suffer actual damages. SEVENTH CAUSE OF ACTION BY PLAINTIFF AGAINST DEFENDANT PERRY NEGLIGENT REPAIR 46. Plaintiff incorporates by reference the allegations contained in the paragraphs set forth above. 47. Plaintiff delivered the Subject Vehicle to Defendant Perry for substantial repair 0n at least one occasion. 9 FIRST AMENDED COMPLAINT; JURY TRIAL DEMANDED STRATEGIC LEGAL PRACTICES, APC I 840 CENTURY PARK EA51',SU1‘1‘E 430. Los ANGELB. CA 90067 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 48. Defendant Perry owed a duty t0 Plaintiff to use ordinary care and skill in storage, preparation and repair of the Subject Vehicle in accordance with industry standards. 49. Defendant Perry breached its duty t0 Plaintiff to use ordinary care and skill by failing to properly store, prepare and repair the Subject Vehicle in accordance with industry standards. 50. Defendant Perry’s negligent breach of its duties owed to Plaintiff was a proximate cause 0f Plaintiff’s damages. PRAYER PLAINTIFFS PRAY for judgment against Defendant as follows: a. For Plaintiffs’ actual damages in an amount according t0 proof; b. For restitution; c. For a civil penalty in the amount 0f two times Plaintiffs’ actual damages pursuant t0 Civil Code section 1794, subdivision (c) or (e); d. For any consequential and incidental damages; e. For costs of the suit and Plaintiffs’ reasonable attorneys’ fees pursuant to Civil Code section 1794, subdivision (d); f. For punitive damages; g. For prejudgment interest at the legal rate; and h. For such other relief as the Court may deem proper. DEMAND FOR JURY TRIAL Plaintiffs hereby demands a jury trial on all causes of action asserted herein. Dated: October 07, 2019 STRATEGIC LEGAL PRACTICES, APC z BY: Tionna Dolin Attorney for Plaintiffs TROY LAWRENCE and GINA-MARIE LAWRENCE 10 FIRST AMENDED COMPLAINT; JURY TRIAL DEMANDED 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE 0F CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State 0f California. I am over the age 0f 18 and not a party t0 the within action. My business address is Strategic Legal Practices, 1840 Century Park East, Suite 430, Los Angeles, California 90067. On October 07, 2019, I served the document(s) described as: FIRST AMENDED COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS on the interested parties in this action by sending [ ] the original [0r] [V] a true copy thereof [/]to interested parties as follows [0r] [ ] as stated 0n the attached service list: Laurence Tiel Schnaider Harrison Segal & Lewis 650 California Street, 19th Floor San Francisco, CA 9108-2736 [X] BY MAIL (ENCLOSED IN A SEALED ENVELOPE): I deposited the envelope(s) for mailing in the ordinary course ofbusiness at Los Angeles, California. 1am “readily familiar” with this firm’s practice of collection and processing correspondence for mailing. Under that practice, sealed envelopes are deposited with the U.S. Postal Service that same day in the ordinary course of business with postage thereon fully prepaid at Los Angeles, California. [ ] BY E-MAIL: I hereby certify that this document was served from Los Angeles, California, by e-mail delivery 0n the parties listed herein at their most recent known e- mail address 0r e-mail of record in this action. [ ] BY FAX: Ihereby certify that this document was served from Los Angeles, California, by facsimile delivery 0n the parties listed herein at their most recent fax number of record in this action. [ ] BY PERSONAL SERVICE: I delivered the document, enclosed in a sealed envelope, by hand t0 the offices 0f the addressee(s) named herein. [ ] BY OVERNIGHT DELIVERY: I am “readily familiar” with this firm’s practice of collection and processing correspondence for overnight delivery. Under that practice, overnight packages are enclosed in a sealed envelope with a packing slip attached thereto fully prepaid. The packages are picked up by the carrier at our offices or delivered by our office t0 a designated collection site. I declare under penalty of perjury under the laws 0f the State of California that the foregoing is true and correct. Executed this October 07, 2019 at Los Angeles, California. Priscilla Bankhead flW/xZJ/d, BM/m/ Type or Print Name Signature Page 1 PROOF 0F SERVICE SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET, 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STEPHEN H. DYE (SBN 104385) e-mail: sdye@schnader.com RICHARD J. MAY (SBN 234684) e-mail: rmay@schnader.com SCHNADER HARRISON SEGAL & LEWIS LLP 650 California Street, Suite 1900 San Francisco, California 94108-2736 Telephone: (415) 364-6700 Facsimile: (415) 364-6785 Attorneys for Defendant FORD MOTOR COMPANY IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA - UNLIMITED JURISDICTION TROY LAWRENCE and GINA-MARIE LAWRENCE, Plaintiffs, VS. FORD MOTOR COMPANY; PERRY FORD; and DOES 1 through 10, inclusive, Defendants. Case No. 19CV355905 DEFENDANT FORD MOTOR COMPANY’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS DEMAND FOR JURY TRIAL Action Filed: September 30, 2019 Trial Date: None assigned Defendant FORD MOTOR COMPANY (“Ford”), for itself alone and for no other parties, hereby answers the Complaint of Plaintiffs TROY LAWRENCE and GINA-MARIE LAWRENCE (“Plaintiffs”), as follows: GENERAL DENIAL Under the provisions of § 43 1 .30(d) 0f the California Code 0f Civil Procedure, Ford denies each and every allegation, both specifically and generally, 0f each cause 0f action contained in Plaintiffs’ Complaint 0n file herein and the Whole thereof, and denies that Plaintiffs were damaged in any sum 0r sums, 0r at all. 1 DEFENDANT FORD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AFFIRMATIVE DEFENSES Ford alleges on information and belief, and where information is not available but the failure t0 allege would result in waiver 0f the defense, the following affirmative defenses: FIRST AFFIRMATIVE DEFENSE (Failure to State Facts) Plaintiffs’ Complaint fails t0 state facts sufficient t0 constitute a cause 0f action against Ford. SECOND AFFIRMATIVE DEFENSE (No Breach of Warranty) There was n0 breach of warranty t0 the extent that Plaintiffs’ concerns were resolved under the warranty or occurred after the expiration 0f the original express warranty. THIRD AFFIRMATIVE DEFENSE (Estoppel) Plaintiffs are estopped from obtaining the relief sought, or pursing any of the claims raised or causes 0f actions contained in the Complaint, by Virtue 0f their acts, failure to act, conduct, representations, admission, and the like. FOURTH AFFIRMATIVE DEFENSE (Waiver) Plaintiffs have waived their rights to the claims, causes 0f action and relief sought in this Complaint against Ford, by Virtue of their acts, failure t0 act, conduct, representations, admissions, and the like. FIFTH AFFIRMATIVE DEFENSE (Laches) Plaintiffs have unreasonably delayed the commencement of this action t0 the prejudice of Ford. Therefore, the Complaint, and each and every cause 0f action alleged therein is barred, in whole or in part, by the doctrine of laches. / / / / / / 2 DEFENDANT FORD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SIXTH AFFIRMATIVE DEFENSE (Economic Loss Rule) Plaintiffs’ causes 0f action have not accrued because Plaintiffs cannot establish that they suffered injury directly from the subj ect vehicle 0r products and, therefore, Plaintiffs’ contention that the subj ect vehicle 0r products failed t0 adequately perform their functions are barred by the economic loss rule. SEVENTH AFFIRMATIVE DEFENSE (Performance) Prior t0 the commencement 0f this action, Ford fully performed, satisfied and discharged all duties and obligations it may have owed to Plaintiffs arising out 0f any and all agreements, representations 0r contracts made by it 0r 0n its behalf and this action is therefore barred by the provisions of Civil Code section 1473. EIGHTH AFFIRMATIVE DEFENSE (Abuse, Misuse, Alteration and Improper Care) Plaintiffs and/or others misused, abused, altered and improperly cared for and maintained the subj ect vehicle contrary to Ford’s approval 0r consent and Plaintiffs’ damages, if any, were proximately caused by such misuse, alteration, abuse and neglect of the product. NINTH AFFIRMATIVE DEFENSE (No Defect in Materials 0r Workmanship) The damages asserted in Plaintiffs’ Complaint were not the result 0f any defect in material 0r workmanship in any vehicle manufactured by Ford. Specifically, Ford alleges that after appropriate discovery, one or more 0f the stated specific warranty exclusions may be applicable. TENTH AFFIRMATIVE DEFENSE (No Timely Revocation of Acceptance) Plaintiffs have n0 restitution remedy under breach 0f implied warranty because there was n0 timely revocation 0f acceptance before a substantial change in the condition 0f the goods. 3 DEFENDANT FORD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ELEVENTH AFFIRMATIVE DEFENSE (Failure to Maintain Vehicle) Ford alleges that Plaintiffs are precluded from recovery due to failure t0 maintain and service the subj ect vehicle in conformance With the requirements and recommendations of the owner’s manual and/or warranty booklet. TWELFTH AFFIRMATIVE DEFENSE (Disclaimer of Incidental and Consequential Damages and Limitation of Damages) The limited warranty for the subj ect vehicle at issue limits the damages that may be obtained by Plaintiffs for any alleged breach 0f warranty such that some, if not all, 0f the damages sought, including those for incidental 0r consequential damages, are not recoverable. THIRTEENTH AFFIRMATIVE DEFENSE (Vehicle Fit for Intended Purpose) The subj ect vehicle was fit for providing transportation at all relevant times hereto. Accordingly, Plaintiffs are not entitled to relief for breach of the implied warranty 0f merchantability. American Suzuki Motor Corp. v. Superior Court, 37 Cal. App. 4th 1291 (1 995). FOURTEENTH AFFIRMATIVE DEFENSE (Duration 0f Implied Warranty) The alleged nonconformities did not arise until after the implied warranty expired. Accordingly, Plaintiffs are not entitled to relief for breach of the implied warranty 0f merchantability. California Civil Code § 1791.1(0). FIFTEENTH AFFIRMATIVE DEFENSE (N0 Impairment 0f Use, Value or Safety) The subj ect vehicle has not been subj ect to repair for any nonconformity or condition that substantially impaired the use, value 0r safety of the vehicle. / / / / / / / / / 4 DEFENDANT FORD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SIXTEENTH AFFIRMATIVE DEFENSE (Failure to Abide by Terms 0f Warranty) Plaintiffs’ breach of warranty claims are barred because Plaintiffs’ failure t0 give timely and appropriate notice of any claim of breach of warranty. SEVENTEENTH AFFIRMATIVE DEFENSE (Unreasonable Use 0f Vehicle) Plaintiffs’ claims may be barred by waiver due to Plaintiffs unreasonable use 0f the vehicle after the nonconformity 0r nonconformities allegedly could not be repaired. EIGHTEENTH AFFIRMATIVE DEFENSE (Failure t0 Use Dispute Resolution Process) Plaintiffs and/or the owner(s) 0f the subj ect vehicle received timely notice of the availability 0f a third party dispute resolution process, and that n0 effort was made t0 use such process. NINETEENTH AFFIRMATIVE DEFENSE (Failure t0 Provide Reasonable Opportunity t0 Cure) Plaintiffs failed t0 provide it with a reasonable opportunity t0 cure any alleged defect as required by 15 U.S.C. § 2310(6) and Civil Code § 1790, et seq. TWENTIETH AFFIRMATIVE DEFENSE (No Prejudgment Interest) Plaintiffs’ Complaint fails t0 state facts sufficient t0 constitute a basis for recovery 0f prejudgment interest. TWENTY-FIRST AFFIRMATIVE DEFENSE (Business Use) The subj ect vehicle was not purchased 0r used primarily for personal, family, 0r household purposes and that the business use was by a person, including a partnership, limited liability company, corporation, association, 0r any other legal entity, t0 which more than five motor vehicles were registered in this state. / / / 5 DEFENDANT FORD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TWENTY-SECOND AFFIRMATIVE DEFENSE (Failure to Mitigate) Plaintiffs failed and neglected to use reasonable care t0 protect themselves and t0 minimize their losses and damages, if any. TWENTY-THIRD AFFIRMATIVE DEFENSE (N0 Agency Relationship) Ford denies any allegations 0f agency contained in Plaintiffs’ Complaint. TWENTY-FOURTH AFFIRMATIVE DEFENSE (Assumption 0f Risk) Plaintiffs knew about matters giving rise to the Complaint and assumed the risk created thereby. TWENTY-FIFTH AFFIRMATIVE DEFENSE (Good Faith Conduct) Ford has acted in good faith and reasonably with respect to the matters alleged in Plaintiffs’ Complaint. TWENTY-SIXTH AFFIRMATIVE DEFENSE (Doctrine 0f Consent) Plaintiffs are barred from recovering the relief sought by reason 0f the doctrine of consent. TWENTY-SEVENTH AFFIRMATIVE DEFENSE (Statute of Limitations) Plaintiffs’ Complaint and each cause of action contained therein does not state facts sufficient to constitute a cause of action in that the Complaint and each cause of action is barred by the applicable statute of limitations, including, but not limited t0, those stated in Part II, Title 2, Chapter 3 of the California Code 0f Civil Procedure, §§ 335 through 346.4, California Civil Code, §§ 1783, 1791.1, 1793.2, and 1793.22, California Commercial C0de,§ 2725, and Business and Professions Code, § 17208. / / / 6 DEFENDANT FORD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TWENTY-EIGHTH AFFIRMATIVE DEFENSE (Warranty Exclusions) Plaintiffs’ action for breach of warranty is barred by the terms, conditions, disclaimers and exclusions of the warranty, if any. Moreover, Plaintiffs have failed to comply with all obligations under the warranty, if any, t0 include, but not limited t0, timely notice, proper maintenance and appropriate use. TWENTY-NINTH AFFIRMATIVE DEFENSE (Civil Penalty Barred) Any prayer made by Plaintiffs for a civil penalty pursuant t0 Civil Code § 1794(6) is barred because Ford maintains a qualified third party dispute resolution process, which substantially complies with subdivision (d) 0f § 1793.22 0f the Civil Code. Further, Plaintiffs failed t0 serve the notice required for recovery of a civil penalty under this provision. THIRTIETH AFFIRMATIVE DEFENSE (Spoliation of Evidence) This action is barred 0r limited because of the altering, spoiling, damaging, destruction, or losing 0f evidence by Plaintiffs, which thereby has reduced the likelihood that this action will result in a reliable adjudication 0f facts, and impairs Ford’s right t0 a fair opportunity t0 adjudicate its alleged liability. THIRTY-FIRST AFFIRMATIVE DEFENSE (Failure to Properly Notify) Plaintiffs have failed t0 properly provide timely notice, Within a reasonable period 0f time after discovery 0f their claims and alleged defects. Consequently, Ford has been damaged and prejudiced, barring the Complaint, and each cause 0f action therein, as a matter 0f law. THIRTY-SECOND AFFIRMATIVE DEFENSE (No Breach) Defendant performed all duties owed under the warranty other than any duties that were prevented 0r excused. Accordingly, there has been no breach of warranty. / / / 7 DEFENDANT FORD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THIRTY-THIRD AFFIRMATIVE DEFENSE (Statute of Frauds) To the extent Plaintiffs are suing for breach of an oral representation 0r contract, such an oral representation 0r contract would be unenforceable pursuant t0 Civil Code section 1624(a)(1-7). THIRTY-FOURTH AFFIRMATIVE DEFENSE (Qualified Third Party Dispute Resolution Process) Defendant maintained a qualified third party dispute resolution process at the time the subj ect vehicle was purchased that substantially complied With Section 1793.2 of the California Civil Code. Defendant is informed and believes and thereon alleges Plaintiffs received timely and appropriate notification, in writing, of the availability 0f the third party resolution process. Accordingly, since Plaintiffs did not avail themselves of the third party dispute resolution process prior t0 filing this litigation, Section 1794(e)(2) of the California Civil Code may bar Plaintiffs from recovering damages for (i) attorney fees, (ii) costs, and (iii) treble damages (as provided under California Civil Code Section 1794(6)), and Plaintiffs may not avail themselves 0f the rebuttable presumption pursuant t0 California Civil Code Section 1793.2(e)(1). THIRTY-FIFTH AFFIRMATIVE DEFENSE (Preemption) The Complaint and each and every cause of action therein, in whole or in part, are preempted by the Federal National Traffic and Motor Vehicle Safety Act pursuant to 49 U.S.C. sections 301 18 et seq. THIRTY-SIXTH AFFIRMATIVE DEFENSE (Constitutionality 0f Punitive Damages) Plaintiffs’ claims are in contravention 0f Ford’s rights under applicable clauses of the United States and California Constitutions, including without limitation the following provisions: (a) said claims constitute an impermissible burden 0n interstate commerce in contravention of Article I, Section 8 of the United States Constitution; (b) said claims 8 DEFENDANT FORD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 contravene the Excessive Fines Clause of the Eighth Amendment of the United States Constitution; (c) said claims Violate Ford’s right to Due Process under the Fourteenth Amendment 0f the United States Constitution; (d) said claims contravene the constitutional prohibition against vague and overbroad laws; and (e) said claims contravene the Due Process Clause 0f the California Constitution. THIRTY-SEVENTH AFFIRMATIVE DEFENSE (Punitive Damages Improperly Pled/Not Recoverable) Plaintiffs have not properly pled a claim for punitive damages and these damages are not recoverable based 0n the facts contained in Plaintiffs’ Complaint, 0r are otherwise barred by the provisions 0f California Civil Code sections 3294, 3295, and 3296, 0r such conduct was adopted, ratified or authorized by Ford under California Civil Code section 3294(b). THIRTY-EIGHTH AFFIRMATIVE DEFENSE (Punitive Damages Impermissible For Extra-Territorial Conduct) Any award of punitive damages based on anything other than Ford’s conduct in connection with the design, manufacture, and sale 0f the subj ect vehicle 0r products that are the subj ect 0f this lawsuit would Violate the due process clause of the Fourteenth Amendment to the United States Constitution because any other judgment for punitive damages in this case cannot protect Ford against impermissible multiple punishment for the same wrong and against punishment for extra-territorial conduct. THIRTY-NINTH AFFIRMATIVE DEFENSE (Punitive Damages Unconstitutional) An award 0f punitive 0r exemplary damages to Plaintiff would Violate Ford’s constitutional rights under the provisions of the United States and California Constitutions, including but not limited t0 the Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 7 0f the California Constitution because, among other things, (1) any award 0f punitive 0r exemplary damages would be grossly out of proportion t0 the alleged wrongfiJI conduct and purported injury at issue here; (2) there is n0 legitimate state interest in punishing the alleged wrongful conduct at issue here, or in deterring 9 DEFENDANT FORD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 its possible repetition; (3) the alleged wrongful conduct at issue here is lawful in other jurisdictions; (4) the alleged wrongful conduct at issue here is not sufficiently reprehensible to warrant the imposition of any punitive 0r exemplary damages; and (5) the criteria for the imposition of punitive or exemplary damage are unconstitutionally vague and uncertain and fail t0 provide fair notice of what conduct Will result in the imposition 0f such damages. FORTIETH AFFIRMATIVE DEFENSE (Clear and Convincing Standard for Punitive Damages) Ford alleges that any predicate liability finding for the imposition of punitive damages 0r a finding of the amount of any punitive damage award based upon a burden ofproof of less than clear and convincing evidence violates due process and is unconstitutional. FORTY-FIRST AFFIRMATIVE DEFENSE (Punitive Damages - Financial Status 0f Defendant) To the extent that California law permits punishment t0 be measured by the net worth 0r financial status 0f Ford and allows the fact finder to impose greater punishment 0n defendants With larger net worth, such an award would be unconstitutional because it permits arbitrary, capricious and fundamentally unfair punishments, allows bias and prejudice t0 infect verdicts imposing punishment, allows punishment to be imposed based 0n lawful profits and conduct 0f Ford in other States, and allows dissimilar treatment 0f similarly situated defendants, in Violation of the due process and equal protection provisions of the Fourteenth Amendment to the United States Constitution, the Commerce Clause 0f the United States Constitution, and the California Constitution. FORTY-SECOND AFFIRMATIVE DEFENSE (Arbitration Clause in Purchase Agreement) The purchase 0r lease agreement for the subj ect vehicle, signed by Plaintiff, includes an agreement to arbitrate. Plaintiffs have thus agreed t0 resolve this dispute by neutral, binding arbitration and not by court action. / / / / / / 10 DEFENDANT FORD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FORTY-THIRD AFFIRMATIVE DEFENSE (Set Off) Defendant alleges that if it is established that it is in any manner legally responsible for any of the damages claimed by Plaintiffs, Which is denied, Defendant is entitled t0 a set off of those damages, if any, that resulted from the wrongful acts 0f Plaintiffs and/or others. FORTY-FOURTH AFFIRMATIVE DEFENSE (Fees and Costs) Defendant is informed and believes, and on that basis alleges, that the Complaint was brought without reasonable cause and without a good faith belief that there was a justifiable controversy under the facts 0r the law which warranted the filing of the Complaint against Defendant. Plaintiffs should therefore be responsible for all of Defendant’s necessary and reasonable attorney’s fees and defense costs as permitted by California law. FORTY-FIFTH AFFIRMATIVE DEFENSE (Additional Defenses) Ford alleges that it may have additional affirmative defenses available t0 it 0fWhich it is not now fully aware. Ford reserves the right t0 assert affirmative defenses after the same shall have been ascertained. PRAYER WHEREFORE, Ford prays as follows: 1. For dismissal 0f Plaintiffs’ Complaint with prejudice; 2. For judgment in favor of Ford against Plaintiffs; 3. For Ford’s fees and costs of suit herein; and 4. For such other and further relief as the Court may deem just and proper. / / / / / / / / / / / / / / / 1 1 DEFENDANT FORD’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (415) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEMAND FOR JURY TRIAL Ford hereby demands a jury trial on all claims asserted by Plaintiffs. Dated: November 4, 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 PLAINTIFFS’ 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 Plaintiffs Strategic Legal Practices, APC TROY LAWRENCE and 1840 Century Park East, Suite 430 GINA-MARIE LAWRENCE 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 4, 2019, at San Francisco, California. V 'SUSIE M. ARZAVE PROOF OF SERVICE SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET, 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STEPHEN H. DYE (SBN 104385) e-mail: sdye@schnader.com RICHARD J. MAY (SBN 234684) e-mail: rmay@schnader.com SCHNADER HARRISON SEGAL & LEWIS LLP 650 California Street, Suite 1900 San Francisco, California 94108-2736 Telephone: (415) 364-6700 Facsimile: (415) 364-6785 Attorneys for Defendant PERRY FORD OF NATIONAL CITY, LLC IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA - UNLIMITED JURISDICTION TROY LAWRENCE and GINA-MARIE Case N0. 19CV355905 LAWRENCE, DEFENDANT PERRY FORD OF Plaintiffs, NATIONAL CITY, LLC’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR vs. VIOLATION OF STATUTORY OBLIGATIONS FORD MOTOR COMPANY; PERRY FORD; and DOES 1 through 10, inclusive, DEMAND FOR JURY TRIAL Defendants. Action Filed: September 30, 2019 Trial Date: None assigned Defendant PERRY FORD OF NATIONAL CITY, LLC (“Dealership” or “Defendant”), for itself alone and for n0 other parties, hereby answers the Complaint 0f Plaintiffs TROY LAWRENCE and GINA-MARIE LAWRENCE (“Plaintiffs”), as follows: GENERAL DENIAL Under the provisions of § 43 1 .30(d) 0f the California Code 0f Civil Procedure, Dealership denies each and every allegation, both specifically and generally, of each cause of action contained in Plaintiffs’ Complaint 0n file herein and the Whole thereof, and denies that Plaintiffs were damaged in any sum 0r sums, 0r at all. 1 DEALERSHIP’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AFFIRMATIVE DEFENSES Dealership alleges on information and belief, and Where information is not available but the failure t0 allege would result in waiver of the defense, the following affirmative defenses: FIRST AFFIRMATIVE DEFENSE (Failure to State Facts) Plaintiffs’ Complaint fails t0 state facts sufficient t0 constitute a cause 0f action against Dealership. SECOND AFFIRMATIVE DEFENSE (No Breach of Warranty) There was n0 breach of warranty t0 the extent that Plaintiffs’ concerns were resolved under the warranty or occurred after the expiration 0f the original express warranty. THIRD AFFIRMATIVE DEFENSE (Estoppel) Plaintiffs are estopped from obtaining the relief sought, or pursing any of the claims raised or causes 0f actions contained in the Complaint, by Virtue 0f their acts, failure to act, conduct, representations, admission, and the like. FOURTH AFFIRMATIVE DEFENSE (Waiver) Plaintiffs have waived their rights to the claims, causes 0f action and relief sought in this Complaint against Dealership, by Virtue of their acts, failure to act, conduct, representations, admissions, and the like. FIFTH AFFIRMATIVE DEFENSE (Laches) Plaintiffs have unreasonably delayed the commencement of this action t0 the prejudice of Dealership. Therefore, the Complaint, and each and every cause 0f action alleged therein is barred, in whole or in part, by the doctrine of laches. / / / / / / 2 DEALERSHIP’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SIXTH AFFIRMATIVE DEFENSE (Economic Loss Rule) Plaintiffs’ causes 0f action have not accrued because Plaintiffs cannot establish that they suffered injury directly from the subj ect vehicle 0r products and, therefore, Plaintiffs’ contention that the subj ect vehicle 0r products failed t0 adequately perform their functions are barred by the economic loss rule. SEVENTH AFFIRMATIVE DEFENSE (Performance) Prior t0 the commencement 0f this action, Dealership fully performed, satisfied and discharged all duties and obligations it may have owed t0 Plaintiffs arising out of any and all agreements, representations or contracts made by it or 0n its behalf and this action is therefore barred by the provisions of Civil Code section 1473. EIGHTH AFFIRMATIVE DEFENSE (Abuse, Misuse, Alteration and Improper Care) Plaintiffs and/or others misused, abused, altered and improperly cared for and maintained the subj ect vehicle contrary to Dealership’s approval or consent and Plaintiffs’ damages, if any, were proximately caused by such misuse, alteration, abuse and neglect 0f the product. NINTH AFFIRMATIVE DEFENSE (N0 Defect in Materials or Workmanship) The damages asserted in Plaintiffs’ Complaint were not the result of any defect in material or workmanship in any vehicle manufactured by Dealership. Specifically, Dealership alleges that after appropriate discovery, one or more of the stated specific warranty exclusions may be applicable. TENTH AFFIRMATIVE DEFENSE (No Timely Revocation 0f Acceptance) Plaintiffs have n0 restitution remedy under breach 0f implied warranty because there / / / 3 DEALERSHIP’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 was no timely revocation of acceptance before a substantial change in the condition of the goods. ELEVENTH AFFIRMATIVE DEFENSE (Failure to Maintain Vehicle) Dealership alleges that Plaintiffs are precluded from recovery due t0 failure to maintain and service the subj ect vehicle in conformance With the requirements and recommendations 0f the owner’s manual and/or warranty booklet. TWELFTH AFFIRMATIVE DEFENSE (Disclaimer 0f Incidental and Consequential Damages and Limitation of Damages) The limited warranty for the subj ect vehicle at issue limits the damages that may be obtained by Plaintiffs for any alleged breach of warranty such that some, if not all, 0f the damages sought, including those for incidental or consequential damages, are not recoverable. THIRTEENTH AFFIRMATIVE DEFENSE (Vehicle Fit for Intended Purpose) The subj ect vehicle was fit for providing transportation at all relevant times hereto. Accordingly, Plaintiffs are not entitled t0 relief for breach 0f the implied warranty 0f merchantability. American Suzuki Motor Corp. v. Superior Court, 37 Cal. App. 4th 1291 (1 995). FOURTEENTH AFFIRMATIVE DEFENSE (Duration of Implied Warranty) The alleged nonconformities did not arise until after the implied warranty expired. Accordingly, Plaintiffs are not entitled t0 relief for breach 0f the implied warranty 0f merchantability. California Civil Code § 1791.1(c). FIFTEENTH AFFIRMATIVE DEFENSE (No Impairment 0f Use, Value or Safety) The subj ect vehicle has not been subj ect to repair for any nonconformity or condition that substantially impaired the use, value or safety 0f the vehicle. / / / 4 DEALERSHIP’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SIXTEENTH AFFIRMATIVE DEFENSE (Failure to Abide by Terms 0f Warranty) Plaintiffs’ breach of warranty claims are barred because Plaintiffs’ failure t0 give timely and appropriate notice of any claim of breach of warranty. SEVENTEENTH AFFIRMATIVE DEFENSE (Unreasonable Use 0f Vehicle) Plaintiffs’ claims may be barred by waiver due to Plaintiffs’ unreasonable use 0f the vehicle after the nonconformity 0r nonconformities allegedly could not be repaired. EIGHTEENTH AFFIRMATIVE DEFENSE (Failure t0 Use Dispute Resolution Process) Plaintiffs and/or the owner(s) 0f the subj ect vehicle received timely notice of the availability 0f a third party dispute resolution process, and that n0 effort was made t0 use such process. NINETEENTH AFFIRMATIVE DEFENSE (Failure t0 Provide Reasonable Opportunity t0 Cure) Plaintiffs failed t0 provide it with a reasonable opportunity t0 cure any alleged defect as required by 15 U.S.C. § 2310(6) and Civil Code § 1790, et seq. TWENTIETH AFFIRMATIVE DEFENSE (No Prejudgment Interest) Plaintiffs’ Complaint fails t0 state facts sufficient t0 constitute a basis for recovery 0f prejudgment interest. TWENTY-FIRST AFFIRMATIVE DEFENSE (Business Use) The subj ect vehicle was not purchased 0r used primarily for personal, family, 0r household purposes and that the business use was by a person, including a partnership, limited liability company, corporation, association, 0r any other legal entity, t0 which more than five motor vehicles were registered in this state. / / / 5 DEALERSHIP’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TWENTY-SECOND AFFIRMATIVE DEFENSE (Failure to Mitigate) Plaintiffs failed and neglected to use reasonable care t0 protect themselves and t0 minimize their losses and damages, if any. TWENTY-THIRD AFFIRMATIVE DEFENSE (N0 Agency Relationship) Dealership denies any allegations of agency contained in Plaintiffs’ Complaint. TWENTY-FOURTH AFFIRMATIVE DEFENSE (Assumption 0f Risk) Plaintiffs knew about matters giving rise to the Complaint and assumed the risk created thereby. TWENTY-FIFTH AFFIRMATIVE DEFENSE (Good Faith Conduct) Dealership has acted in good faith and reasonably with respect t0 the matters alleged in Plaintiffs’ Complaint. TWENTY-SIXTH AFFIRMATIVE DEFENSE (Doctrine 0f Consent) Plaintiffs are barred from recovering the relief sought by reason 0f the doctrine of consent. TWENTY-SEVENTH AFFIRMATIVE DEFENSE (Statute of Limitations) Plaintiffs’ Complaint and each cause of action contained therein does not state facts sufficient to constitute a cause of action in that the Complaint and each cause of action is barred by the applicable statute of limitations, including, but not limited t0, those stated in Part II, Title 2, Chapter 3 of the California Code 0f Civil Procedure, §§ 335 through 346.4, California Civil Code, §§ 1783, 1791.1, 1793.2, and 1793.22, California Commercial Code, § 2725, and Business and Professions Code, § 17208. / / / 6 DEALERSHIP’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TWENTY-EIGHTH AFFIRMATIVE DEFENSE (Warranty Exclusions) Plaintiffs’ action for breach of warranty is barred by the terms, conditions, disclaimers and exclusions of the warranty, if any. Moreover, Plaintiffs have failed to comply with all obligations under the warranty, if any, t0 include, but not limited t0, timely notice, proper maintenance and appropriate use. TWENTY-NINTH AFFIRMATIVE DEFENSE (Civil Penalty Barred) Any prayer made by Plaintiffs for a civil penalty pursuant t0 Civil Code § 1794(6) is barred because Dealership maintains a qualified third party dispute resolution process, which substantially complies with subdivision (d) 0f § 1793.22 0f the Civil Code. Further, Plaintiffs failed t0 serve the notice required for recovery of a civil penalty under this provision. THIRTIETH AFFIRMATIVE DEFENSE (Spoliation of Evidence) This action is barred 0r limited because of the altering, spoiling, damaging, destruction, or losing 0f evidence by Plaintiffs, which thereby has reduced the likelihood that this action will result in a reliable adjudication 0f facts, and impairs Dealership’s right t0 a fair opportunity t0 adjudicate its alleged liability. THIRTY-FIRST AFFIRMATIVE DEFENSE (Failure to Properly Notify) Plaintiffs have failed t0 properly provide timely notice, Within a reasonable period 0f time after discovery 0f their claims and alleged defects. Consequently, Dealership has been damaged and prejudiced, barring the Complaint, and each cause of action therein, as a matter 0f law. THIRTY-SECOND AFFIRMATIVE DEFENSE (N0 Breach) Defendant performed all duties owed under the warranty other than any duties that were prevented or excused. Accordingly, there has been no breach 0f warranty. 7 DEALERSHIP’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THIRTY-THIRDAFFIRMATIVE DEFENSE (Statute of Frauds) To the extent Plaintiffs are suing for breach of an oral representation 0r contract, such an oral representation 0r contract would be unenforceable pursuant t0 Civil Code section 1624(a)(1-7). THIRTY-FOURTHAFFIRMATIVE DEFENSE (Qualified Third Party Dispute Resolution Process) Defendant maintained a qualified third party dispute resolution process at the time the subj ect vehicle was purchased that substantially complied With Section 1793.2 of the California Civil Code. Defendant is informed and believes and thereon alleges Plaintiffs received timely and appropriate notification, in writing, of the availability 0f the third party resolution process. Accordingly, since Plaintiffs did not avail themselves of the third party dispute resolution process prior t0 filing this litigation, Section 1794(e)(2) of the California Civil Code may bar Plaintiffs from recovering damages for (i) attorney fees, (ii) costs, and (iii) treble damages (as provided under California Civil Code Section 1794(6)), and Plaintiffs may not avail themselves 0f the rebuttable presumption pursuant t0 California Civil Code Section 1793.2(e)(1). THIRTY-FIFTHAFFIRMATIVE DEFENSE (Preemption) The Complaint and each and every cause of action therein, in whole or in part, are preempted by the Federal National Traffic and Motor Vehicle Safety Act pursuant to 49 U.S.C. sections 301 18 et seq. THIRTY-SIXTH AFFIRMATIVE DEFENSE (Constitutionality 0f Punitive Damages) Plaintiffs’ claims are in contravention 0f Dealership’s rights under applicable clauses 0f the United States and California Constitutions, including without limitation the following provisions: (a) said claims constitute an impermissible burden 0n interstate commerce in contravention of Article I, Section 8 of the United States Constitution; (b) said claims 8 DEALERSHIP’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 contravene the Excessive Fines Clause of the Eighth Amendment of the United States Constitution; (c) said claims Violate Dealership’s right t0 Due Process under the Fourteenth Amendment 0f the United States Constitution; (d) said claims contravene the constitutional prohibition against vague and overbroad laws; and (e) said claims contravene the Due Process Clause 0f the California Constitution. THIRTY-SEVENTH AFFIRMATIVE DEFENSE (Punitive Damages Improperly Pled/Not Recoverable) Plaintiffs have not properly pled a claim for punitive damages and these damages are not recoverable based 0n the facts contained in Plaintiffs’ Complaint, 0r are otherwise barred by the provisions 0f California Civil Code sections 3294, 3295, and 3296, 0r such conduct was adopted, ratified or authorized by Dealership under California Civil Code section 3294(b). THIRTY-EIGHTH AFFIRMATIVE DEFENSE (Punitive Damages Impermissible For Extra-Territorial Conduct) Any award of punitive damages based on anything other than Dealership’s conduct in connection with the design, manufacture, and sale 0f the subj ect vehicle 0r products that are the subj ect 0f this lawsuit would Violate the due process clause of the Fourteenth Amendment to the United States Constitution because any other judgment for punitive damages in this case cannot protect Dealership against impermissible multiple punishment for the same wrong and against punishment for extra-territorial conduct. THIRTY-NINTH AFFIRMATIVE DEFENSE (Punitive Damages Unconstitutional) An award 0f punitive 0r exemplary damages to Plaintiffs would Violate Dealership’s constitutional rights under the provisions of the United States and California Constitutions, including but not limited t0 the Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 7 0f the California Constitution because, among other things, (1) any award 0f punitive 0r exemplary damages would be grossly out of proportion t0 the alleged wrongfiJI conduct and purported injury at issue here; (2) there is n0 legitimate state interest in punishing the alleged wrongful conduct at issue here, or in deterring 9 DEALERSHIP’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 its possible repetition; (3) the alleged wrongful conduct at issue here is lawful in other jurisdictions; (4) the alleged wrongful conduct at issue here is not sufficiently reprehensible to warrant the imposition of any punitive 0r exemplary damages; and (5) the criteria for the imposition of punitive or exemplary damage are unconstitutionally vague and uncertain and fail t0 provide fair notice of what conduct Will result in the imposition 0f such damages. FORTIETH AFFIRMATIVE DEFENSE (Clear and Convincing Standard for Punitive Damages) Dealership alleges that any predicate liability finding for the imposition of punitive damages or a finding 0f the amount 0f any punitive damage award based upon a burden ofproof of less than clear and convincing evidence violates due process and is unconstitutional. FORTY-FIRSTAFFIRMATIVE DEFENSE (Punitive Damages - Financial Status 0f Defendant) To the extent that California law permits punishment t0 be measured by the net worth 0r financial status 0f Dealership and allows the fact finder t0 impose greater punishment 0n defendants with larger net worth, such an award would be unconstitutional because it permits arbitrary, capricious and fundamentally unfair punishments, allows bias and prejudice t0 infect verdicts imposing punishment, allows punishment t0 be imposed based on lawful profits and conduct of Dealership in other States, and allows dissimilar treatment 0f similarly situated defendants, in Violation of the due process and equal protection provisions of the Fourteenth Amendment to the United States Constitution, the Commerce Clause 0f the United States Constitution, and the California Constitution. FORTY-SECOND AFFIRMATIVE DEFENSE (Arbitration Clause in Purchase Agreement) The purchase 0r lease agreement for the subj ect vehicle, signed by Plaintiffs, includes an agreement to arbitrate. Plaintiffs have thus agreed t0 resolve this dispute by neutral, binding arbitration and not by court action. / / / / / / 10 DEALERSHIP’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (4 1 5) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FORTY-THIRD AFFIRMATIVE DEFENSE (Set Off) Defendant alleges that if it is established that it is in any manner legally responsible for any of the damages claimed by Plaintiffs, Which is denied, Defendant is entitled t0 a set off of those damages, if any, that resulted from the wrongful acts 0f Plaintiffs and/or others. FORTY-FOURTH AFFIRMATIVE DEFENSE (Fees and Costs) Defendant is informed and believes, and on that basis alleges, that the Complaint was brought without reasonable cause and without a good faith belief that there was a justifiable controversy under the facts 0r the law which warranted the filing of the Complaint against Defendant. Plaintiffs should therefore be responsible for all of Defendant’s necessary and reasonable attorney’s fees and defense costs as permitted by California law. FORTY-FIFTH AFFIRMATIVE DEFENSE (Additional Defenses) Dealership alleges that it may have additional affirmative defenses available t0 it 0f which it is not now fully aware. Dealership reserves the right to assert affirmative defenses after the same shall have been ascertained. PRAYER WHEREFORE, Dealership prays as follows: 1. For dismissal 0f Plaintiffs’ Complaint with prejudice; 2. For judgment in favor of Dealership against Plaintiffs; 3. For Dealership’s fees and costs of suit herein; and 4. For such other and further relief as the Court may deem just and proper. / / / / / / / / / / / / / / / 1 1 DEALERSHIP’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19TH FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (415) 364-6700 FAX: (415) 364-6785 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEMAND FOR JURY TRIAL Dealership hereby demands a jury trial on all claims asserted by Plaintiffs. Dated: November 4, 2019 SCHNADER HARRISON SEGAL & LEWIS LLP RICHARD J. MAY” U U Attorneys for Defendant PERRY FORD OF NATIONAL CITY, LLC 12 DEALERSHIP’S ANSWER TO COMPLAINT FOR VIOLATION OF STATUTORY OBLIGATIONS SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19“ FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (415) 364-6700 FAX: (415) 364-6785 UI-hLQN \OOOQON 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 PERRY FORD OF NATIONAL CITY, LLC’S ANSWER TO PLAINTIFFS’ 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 Plaintiffs Strategic Legal Practices, APC TROY LAWRENCE and 1840 Century Park East, Suite 430 GINA-MARIE LAWRENCE 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 4, 2019, at San Francisco, California. V 'SUSIE M. ARZAVE PROOF OF SERVICE EXHIBIT B Case 2:18-mI-02814-AB-FFM Document 119 Filed 09/10/18 Page 1 of 16 Page ID #:3192 \DOONONUl-bUJNr-t NNNNNNNNNt-tt-trfit-tt-trfit-tt-trfit-t OONOUl-hUJNHOOOONONU‘I-PUJNr-lo UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA IN RE: FORD MOTOR CO. DPS6 Case N0. 18-ML-02814 AB (FFMX) POWERSHIFT TRANSMISSION PRODUCTS LIABILITY ORDER NO. 2: ORDER DENYING LITIGATION TEST MOTIONS FOR THIS DOCUMENT RELATES TO: D anna Dawn Becker, et al. v. Ford otor Company, et al., 2:18-cv-00942- AB-FFM Aaron Duerksen v. Ford Motor Eng/Fany, et al., 2:18-CV-01071-AB- Michael D. Bell v. Ford Motor Eggfany, et al., 2:18-CV-01752-AB- Crystal Vasquez v. Ford Motor Eggfany, et al., 2:18-CV-02972-AB- Ellen E gers and Paul Eg ers v. Ford Motor ompany, et al., 2: 8-cv-03493- AB-FFM Connie Hill v. Ford Motor Company; et al., 2: 1 8-CV-04409-AB-FFM Rigoberto Sumano v. Ford Motor Eghm/lpany, et al., 2:18-CV-04580-AB- Before the Court are test Motions for Remand filed by the Plaintiffs in seven member actions in this MDL. There were four motions filed by Plaintiffs represented by the Consumer Legal Remedies, APC Firm (“CLR Firm”), and three motions filed 1. Case 2:18-mI-02814-AB-FFM Document 119 Filed 09/10/18 Page 2 of 16 Page ID #:3193 \DOONONUl-bUJNr-t NNNNNNNNNt-tt-trfit-tt-trfit-tt-trfit-t OONOUl-hUJNHOOOONONU‘I-PUJNr-lo by Plaintiffs represented by the Knight Law Group LLP (“KLG Firm”).1 Defendant Ford filed oppositions, and the Plaintiffs filed replies. The Court heard oral argument 0n August 29, 2018. For the following reasons, the Court DENIES all of the Motions. I. BACKGROUND The actions in this MDL all concern the alleged malfunctioning 0f certain 0f Ford’s vehicles equipped With the DPS6 dual-clutch transmission. The actions assert a combination of California state-law claims against Ford, in particular, Lemon Law claims under the Song-Beverly Consumer Warranty Act, Cal. CiV. Code §§ 1790- 17955 (“Song-Beverly”); and fraudulent inducement by concealment, omission, intentional misrepresentation, and negligent misrepresentation. A11 0f the actions except Becker also assert claims against California-citizen auto dealers (“Dealers”) that attempted t0 perform repairs on the defective vehicles. Ford removed the actions 011 the basis 0f diversity jurisdiction, alleging that the amount in controversy in each case exceeds the $75,000 jurisdictional threshold, and that complete diversity exists because insofar as California Dealers are named as Defendants, they are fraudulently joined such that their California citizenship should be disregarded for purposes of analyzing complete diversity. The remand motions raise overlapping issues. First, the Plaintiffs argue that Ford did not establish that the amount in controversy is satisfied. Second, they also argue that the Dealers are not fraudulently joined, so their citizenship counts for diversity purposes and forecloses 1 The CLR Firm filed motions in the following cases: 0 C?stal Vasquez v. Ford Motor Caigpany, et al., 2:18-CV-02972-AB-FFM 0 El en E ers, et al. v. Ford Motor ompany, et al., 2:18-CV-03493-AB-FFM 0 Connie ill v. Ford Motor Compagy, et al., 2:18-CV-04409-AB-FFM 0 Rigoberto Sumano v. Ford Motor ompany, et al., 2:18-CV-04580-AB-FFM The KLG Firm filed motions in the following cases: 0 Afiaigfici/IDawn Becker, et al. v. Ford Motor Company, et al., 2:18-CV-00942- 0 Aaron Duerksen v. Ford Motor Company, et al., 2: 1 8-CV-01071-AB-FFM 0 Michael D. Bell v. Ford Motor Company, et al., 2:18-CV-01752-AB-FFM The_ Cqurt Will refer to these grog s as the CLR Plaintiffs and the KLG Plaintiffs, and to 1nd1v1dual cases by the P1a1nt1 Fs last name. 2. Case 2:18-mI-02814-AB-FFM Document 119 Filed 09/10/18 Page 3 of 16 Page ID #:3194 \DOONONUl-bUJNr-t NNNNNNNNNt-tt-trfit-tt-trfit-tt-trfit-t OONOUl-hUJNHOOOONONU‘I-PUJNr-lo complete diversity. II. LEGAL STANDARD Under 28 U.S.C. § 1441(a) (“Section 1441”), a civil action may be removed t0 the district court where the action is pending if the district court has original jurisdiction over the action. Under 28 U.S.C. § 1332 (“Section 1332”), a district court has original jurisdiction of a civil action Where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and the dispute is between “citizens 0f different states.” Section 1332(a)(1) requires complete diversity, meaning that “the citizenship of each plaintiff is diverse from the citizenship of each defendant.” Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996). Section 1441(b)(2) further limits removal to cases where no defendant “properly joined and served . . . is a citizen of the State in Which such action is brought.” 28 U.S.C. § 1441(b)(2). “The burden of establishing federal jurisdiction is on the party seeking removal, and the removal statute is strictly construed against removal jurisdiction.” Prize Frize, Inc. v. Matrix (US) Ina, 167 F.3d 1261, 1265 (9th Cir.1999), superseded by statute 0n other grounds as stated in Abrego Abrego v. The Dow Chem. Ca, 443 F.3d 676, 681 (9th Cir.2006); Martinez v. Los Angeles World Airports, 2014 WL 6851440, at *2 (C.D.Cal. Dec.2, 2014). The removing party does not need t0 prove actual facts but rather need only include a “short and plain statement” setting forth “a plausible allegation that the amount in controversy exceeds the jurisdictional threshold.” Dart Cherokee Basin Operating Company, LLC v. Owens (”Owens”), 135 S.Ct. 547, 554 (2014); Fed. R. Civ. P. 8(a). Where the plaintiff contests the defendants’ allegations, “both sides submit proof and the court decides, by a preponderance 0f the evidence, Whether the amount-in-controversy requirement has been satisfied.” Owens, 135 S.Ct. at 550. The removal statute is “strictly construe[d] against removal jurisdiction.” Gaus v. Miles, Ina, 980 F.2d 564, 566 (9th Cir. 1992). Thus, “[f]ederal jurisdiction must be rej ected if there is any doubt as to the right 0f removal in the first instance.” Id. “If at 3. Case 2:18-mI-02814-AB-FFM Document 119 Filed 09/10/18 Page 4 of 16 Page ID #:3195 \DOONONUl-bUJNr-t NNNNNNNNNt-tt-trfit-tt-trfit-tt-trfit-t OONOUl-hUJNHOOOONONU‘I-PUJNr-lo any time before final judgment it appears that the district court lacks subj ect matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c). III. DISCUSSION A. Amount in Controversy 1. Legal Standard “The amount in controversy is simply an estimate 0f the total amount in dispute, not a prospective assessment 0f defendant’s liability.” Lewis v. Verizon Commc ’ns, Ina, 627 F.3d 395, 400 (9th Cir. 2010). The notice of removal “need include only a plausible allegation that the amount in controversy exceeds the jurisdictional threshold,” and need not contain evidentiary submissions. Owens, 135 S.Ct. at 554. “Evidence establishing the amount is required [] only when the plaintiff contests, or the court questions, the defendant’s allegation.” Id. Thus, Where “it is unclear or ambiguous from the face 0f a state-court complaint Whether the requisite amount in controversy is pled, the removing defendant bears the burden of establishing, by a preponderance of the evidence, that the amount in controversy exceeds the jurisdictional threshold.” Urbino v. Orkin Servs. 0fCal., Inc., 726 F.3d 1118, 1121-22 (9th Cir. 2013) (internal citations and quotation marks omitted). The court can consider the complaint, allegations in the removal petition, and “summary- judgment-type evidence relevant to the amount in controversy at the time of removal.” Kroske v. U.S. Bank Corp, 432 F.3d 976, 980 (9th Cir. 2005) (quoting Singer v. State Farm Mut. Auto. Ins. C0., 116 F.3d 373, 377 (9th Cir. 1997)). 2. The CLR Plaintiffs For the CLR Plaintiffs, the amount in controversy is established on the face of the Complaints. 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 C0., 303 U.S. 283, 288-89 (193 8). Here, each 0f the CLR Plaintiffs’ Complaints allege that they “suffered 4. Case 2:18-mI-02814-AB-FFM Document 119 Filed 09/10/18 Page 5 of 16 Page ID #:3196 \DOONONUl-bUJNr-t NNNNNNNNNt-tt-trfit-tt-trfit-tt-trfit-t OONOUl-hUJNHOOOONONU‘I-PUJNHO damages in a sum t0 be proven at trial in an amount that exceeds $25,000,” and each seeks a civil penalty 0f two times this amount. See, e.g, Vasquez Compl. W 107, 108. This alone totals $75,000. Add on the request for attorneys’ fees under Song-Beverly, and punitive damages under the fraud counts, and the $75,000 threshold is exceeded. The CLR Plaintiffs argue that their allegation that their damages exceed $25,000 is merely the unlimited jurisdiction demand allegation applicable in California Superior Court, and suggest it should be disregarded 0n that basis. But this allegation is not merely an entry 0n the civil cover sheet that the “demand” exceeds $25,000; it is a factual allegation in the Complaint that the CLR Plaintiffs “suffered damages” in an amount that exceeds $25,000. The Court accordingly reads the Complaints as pleading $25,000 in “damages,” and seeking a civil penalty of two times this amount for the Song-Beverly claims. The CLR Plaintiffs point to no authority supporting their argument that its “damages” allegation can be ignored because it pled it only to establish unlimited jurisdiction in state court. The CLR Plaintiffs have not made any substantial showing-let alone to the point of “legal certainty”-that they will not be able t0 recover the amount they put in issue in their complaints. The Court also rejects the CLR Plaintiffs’ argument that Ford should be estopped from arguing the amount in controversy exceeds $75,000 in light of Ford’s counsel’s alleged adoptive admission in the Vargas class action that the value 0f these cases is only between $25,000 and $30,000. The relevant statement-that counsel heard that Song-Beverly claims in general settle for $25,000-$30,000-was originally made by the objectors’ counsel, not by Ford’s counsel. Furthermore, this was not a statement of the amount in controversy of the cases now before the Court, but a hearsay statement about What Song-Beverly cases tend t0 settle for. The amount in controversy is the amount a plaintiff” s claims put in controversy, not the amount plaintiffs might eventually agree to in settlement, Which by definition is a compromise 0f claims. The Vargas plaintiffs’ counsel and Ford’s counsel then responded to that 5. Case 2:18-mI-02814-AB-FFM Document 119 Filed 09/10/18 Page 6 of 16 Page ID #:3197 \DOONONUl-bUJNr-t NNNNNNNNNb-tb-lrdt-tt-Irdt-tt-trdp-t OONOUl-hUJNHOOOONONU‘I-PUJNHO assertion, but none of their statements can be read as admitting that the amount in controversy is $25,000-$30,000. Having determined that Ford did not make the admission the CLR Plaintiffs attribute t0 it, the Court need go no further to rej ect the estoppel argument. The Court therefore finds that the amount in controversy is satisfied as to the CLR Plaintiffs. 3. The KLG Plaintiffs As to the KLG Plaintiffs, their Complaints do not expressly state an amount in controversy? However, Ford presents calculations based on the KLG Plaintiffs’ demands that establish that the amount in controversy exceeds $75,000. For their Song-Beverly claims, each of the KLG Plaintiffs seek “reimbursement 0f the price paid for the vehicle less that amount directly attributable t0 use by the Plaintiffs prior to discovery of the nonconformities,” plus a civil penalty ofup to 2 times the actual damages. See, e.g., Becker Compl. W 119, 122. According to Ford’s calculations, these amounts total about $39,582 (Bell), $47,982 (Duerksen), and $42,811 (Becker). Plaintiffs also seek attorneys’ fees as authorized by Song-Beverly, and Ford asserts that the KLG attorneys have regularly sought over $100,000 in attorneys’ fees in numerous cases similar to these. See Hugret Decl. (Dkt. No. 1-5), 11114-6. Plaintiff” s counsel’s actual fee requests in nearly-identical cases is highly probative of the amount put in controversy by their request to recover fees in this case. For their fraud claims, the KLG Plaintiffs seek “restitution of all monies expended” plus punitive damages (see Becker Compl., Prayer 1H] b, g), Which could be up to nine times that amount. Ford calculates the fraud claims to put in issue a total of $190,840 2 The KLG Plaintiffs’ state court Civil Case Cover Sheets d0 indicate that these are “unlimited” jurisdiction cases in Which the amount “demanded” exceeds $25,000. But Ford doesn’t rely 0n this to establish that the amount in controversy is satisfied, so the Court Will disregard it with respect to the KLG Plaintiffs. Furthermore, there is a difference between the CLR Plaintiff” s allegation in their Complaints that their “damages” exceed $25,000, and the KLG Plaintiffs’ indicating on the civil cover sheet that the amount “demanded” exceeds $25,000. 6. Case 2:18-mI-02814-AB-FFM Document 119 Filed 09/10/18 Page 7 of 16 Page ID #:3198 \DOONONUl-bUJNr-t NNNNNNNNNt-tt-trfit-tt-trfit-tt-trfit-t OONOUl-hUJNHOOOONONU‘I-PUJNHO (Bell), $203,688 (Duerksen), and $180,067 (Becker). Based on these calculations, the amount in controversy exceeds $75,000. The KLG Plaintiffs’ counterarguments are unavailing. The KLG Plaintiffs d0 not dispute Ford’s arithmetic regarding the reimbursement/restitution claims. but argue that they d0 not account for “the multitude 0f offsets and deductions that Defendant itselfroutinely demands in similar cases, such as manufacturer’s rebates, negative equity, service contract, and trade-in condition reductions.” See Becker Mot. 7:1 1-14 (original emphasis). But again, the amount in controversy is established by What the plaintiff demands, not by any reductions that a defendant might achieve through its defenses. See Geographic Expeditions, Inc. v. Estate othotka ex rel. Lhotka, 599 F.3d 1102, 1108 (9th Cir. 2010) (“if a district court had to evaluate every possible defense that could reduce recovery below the jurisdictional amount the district court would essentially have to decide the merits of the case before it could determine if it had subj ect matter jurisdiction”); see also Garcia v. ACE Cash Express, Ina, No. SACV 14-0285-DOC, 2014 WL 2468344, at *3 (CD. Cal. May 30, 2014) C“ (relying on Geographic Expeditions t0 hold that potential offsets’ are inapplicable to the amount-in-controversy exception”). The KLG Plaintiffs also argue that Ford has not shown that attorneys’ fees would be at least $100,000 because attorneys’ fees are calculated as 0f the time 0f removal, not through the entirety of an action. But this argument was rejected by the Ninth Circuit’s recent opinion concluding that where attorneys’ fees are recoverable, future fees and not just fees incurred at the time of removal are “at stake” in the litigation and should be included in the amount in controversy. See Fritsch v. Swift Transportation C0. ofArizona, LLC, N0. 18-55746, 2018 WL 3748667, at *6 (9th Cir. Aug. 8, 2018) (so holding). Ford’s declaration that the KLG Firm routinely seeks attorneys’ fees of more than $100,000 in cases alleging the same claims against Ford is sufficient to establish that this amount is in issue. As to the fraud claims, the KLG Plaintiffs argue that Ford has not established that the amount of punitive damages in issue is up to 9 times the amount 0f restitution 7. Case 2:18-mI-02814-AB-FFM Document 119 Filed 09/10/18 Page 8 of 16 Page ID #:3199 \DOONONUl-bUJNr-t NNNNNNNNNt-tt-trfit-tt-trfit-tt-trfit-t OONOUl-hUJNHOOOONONU‘I-PUJNHO available. But, the question is Whether all of the claims together put more than $75,000 in issue. The Court need not pinpoint an amount of punitive damages in issue, but it suffices t0 say that if the amount put in controversy by the Song-Beverly claims were to fall somewhat short 0f the threshold, that shortfall would not be great and is easily made up by punitive damages available through the fraud claim. The Court also notes that in the state court case Cazares, Which alleged the same claims based on an allegedly defective DPS6 transmission, the KLG Firm filed a damages expert report calculating punitive damages to be 9 times the restitutionary amount (see Luna Decl. Dkt. N0. 1-6), and that in another such case, Myers, the jury awarded punitive damages 0f $500,000, which was more than nine times the actual damages ($54,365) awarded the plaintiff. See Thomas Decl. (18-ml-02814, Dkt. N0. 85) Ex. E (Myers verdict). Given that these cases are nearly identical to the cases before this Court, the Court finds that this evidence establishes by a preponderance that the punitive damages claim is sufficient to at least make up any difference between the compensatory damages and attorneys’ fees put in issue by the Song-Beverly claims, and the $75,000 jurisdictional threshold. Finally, Ford points to the $75,001 settlement offers it made to dozens 0f plaintiffs in these cases, none ofWhich were accepted, as establishing the amount in controversy exceeds that amount. The KLG Plaintiffs characterize the offer as gamesmanship and urge the Court to disregard it. However, the logic behind Ford’s argument is clear: if the amount in controversy were less than $75,000 as Plaintiffs contend, then Plaintiffs should have accepted a settlement offer for $75,001. Because Plaintiffs did not accept these settlements, they must believe that not only d0 their cases put more than that in controversy, but that they’re likely to do better by litigating. Although the unaccepted settlement offers are by n0 means conclusive, they do have some probative value and reinforce the Court’s conclusion that the amount in Case 2:18-mI-02814-AB-FFM Document 119 Filed 09/10/18 Page 9 of 16 Page ID #:3200 \DOONONUl-bUJNr-t NNNNNNNNNt-tt-trfit-tt-trfit-tt-trfit-t OONOUl-hUJNHOOOONONU‘I-PUJNr-lo controversy is satisfied.3 B. Whether There is Complete Diversity 0f Citizenship All but one of the cases addressed in these motions name a California Dealer as a defendant; these Dealer defendants defeat complete diversity. There is no dispute that except for the Dealer defendants, there is complete diversity between the Plaintiffs and Ford. In its Notices ofRemoval, Ford argued that the Dealers were fraudulently joined and that therefore their citizenship can be disregarded for purposes 0f diversity. 1. Fraudulent Joinder A non-diverse party may be disregarded for purposes 0f determining Whether jurisdiction exists if the court determines that the party’s joinder was “fraudulent” or a “sham.” Morris v. Princess Cruises, Ina, 236 F.3d 1061, 1067 (9th Cir. 2001); Ritchey v. Upjohn Drug C0., 139 F.3d 1313, 1318 (9th Cir. 1998); McCabe v. General Foods Corp, 811 F.2d 1336, 1339 (9th Cir. 1987). The term “fraudulentjoinder” is a term of art and does not imply any intent to deceive on the part of a plaintiff or his counsel. Lewis v. Time Ina, 83 F.R.D. 455, 460 (E.D. Cal. 1979) afl’d 710 F.2d 549 (9th Cir. 1983) impliedly overruled 0n other grounds in Milkovich v. Lorain Journal C0., 497 U.S. 1 (1990). “There are two ways to establish fraudulent joinder: ‘(1) actual fraud in the pleading ofjurisdictional facts, or (2) inability of the plaintiff to 3” establish a cause of action against the non-diverse party in state court. Grancare, LLC v. Thrower by & through Mills, 889 F.3d 543, 548 (9th Cir. 2018) (internal citation omitted). 2. Ford Has Established that the Dealers Were Fraudulently Joined. Ford argues both theories 0f fraudulent joinder as to the KLG Plaintiffs, and 3 The Becker case differs from the others addressed herein because no Dealer defendant was named, and therefore the only jurisdictional issue is Whether the amount in controversy is satisfied. Because the amount in controversy is satisfied, the Becker motion for remand Will be denied. 9. Case \DOONONUl-bUJNr-t NNNNNNNNNt-tt-trfit-tt-trfit-tt-trfit-t OONOUl-hUJNHOOOONONU‘I-PUJNr-lo 2:18-mI-02814-AB-FFM Document 119 Filed 09/10/18 Page 10 of 16 Page ID #:3201 only the second theory as t0 the CLR Plaintiffs. The Court Will address each theory in turn.4 a. Ford Has Not Shown “Actual Fraud” In The Pleading of Jurisdictional Facts. Ford states that the KLG Plaintiffs’ negligent repair allegations against the Dealers are fraudulent because they were “cut and pasted into dozens of complaints, Without regard to the actual facts of any case, for the obvious purpose of defeating jurisdiction.” Opp’n (Dkt. No. 86) 11:14-17. Ford also points out that KLG started naming Dealers as defendants only once Ford started removing cases to federal court based 011 diversity jurisdiction. Even assuming these contentions are true, they d0 not establish “actual fraud” in pleading jurisdictional facts. Indeed, Ford has not explained What “actual fraud” means in this context, nor has it identified a single case Where this theory has been proven. It suffices to say that Ford has not shown that any of the facts alleged are false or fraudulent, and therefore it has not established this theory of fraudulent joinder. b. FordE Shown that the Plaintiffs Cannot Establish a Cause 0f Action Against the Dealer Defendants. Ford also argues that the Plaintiffs cannot state a claim against the Dealers. “Fraudulent joinder is established the second way if a defendant shows that an ‘individua1[ ] joined in the action cannot be liable on any theory.’ ” Grancare, 889 F.3d at 548 (quoting Ritchey, 139 F.3d at 1318). “But ‘if there is a possibility that a state court would find that the complaint states a cause 0f action against any 0f the resident defendants, the federal court must find that the joinder was proper and remand the case to the state court.’” Id., 889 F.3d at 548 (citing Hunter v. Philip 4 Some of Ford’s Notices of Removal argued that the Dealer defendants could be disregarded for diversity purposes because Ford 1s going to indemnify them. The Motions challenge this proposition, arguing there 1s no authority for it. Ford has not responded 1n its oppositions, thereby abandoning its‘‘indemnification” basis for removal. 10. Case \DOONONUl-bUJNr-t NNNNNNNNNt-tt-trfit-tt-trfit-tt-trfit-t OONOUl-hUJNHOOOONONU‘I-PUJNHO 2:18-mI-02814-AB-FFM Document 119 Filed 09/10/18 Page 11 of 16 Page ID #:3202 Morris USA, 582 F.3d 1039, 1046 (9th Cir. 2009); see also Macey v. Allstate Prop. & CaS. Ins. C0., 220 F. Supp. 2d 1116, 1117 (N.D. Cal. 2002) (“If there is a non-fanciful possibility that plaintiff can state a claim under California law against the non-diverse defendants the court must remand”). “Merely a ‘glimmer of hope’ that plaintiff can establish [a] claim is sufficient to preclude application of [the] fraudulent joinder doctrine.” Gonzalez v. J.S. Paluch C0., No. 12-08696-DDP (FMOX), 2013 WL 100210, at *4 (C.D. Cal. Jan. 7, 2013) (internal quotations omitted) (brackets in original). i. The KLG Plaintiffs The KLG Plaintiffs assert negligent repair claims against the dealers. Ford contends that the KLG Plaintiffs failed to adequately plead these claims because the complaints plead vague facts, lack facts, and/or seek relief only from Ford. The Court agrees that these claims are woefully inadequately pled: counsel directed the Court to certain paragraphs in the Complaints that they argue adequately plead a claim, but these paragraphs simply do not allege any conduct by the dealers (see Bell Compl. 111157-61), or these paragraphs are empty boilerplate devoid of factual matter (see Bell Compl. W 155-159, Duerksen Compl. 1111156460). Such “[l]abels, conclusions, and “a formulaic recitation of the elements of a cause 0f action Will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Notably, the gravamen of the negligent repair claim appears to be that the Dealer failed “t0 properly store, prepare and repair” a vehicle, but the KLG Plaintiffs point to no factual allegations to that effect. The KLG Plaintiffs therefore have not pled any claim for negligent repair against the Dealers.5 However, if a complaint “cannot withstand a Rule 12(b)(6) motion . . . the district court must consider. . . Whether a deficiency in the complaint can possibly be cured by granting the plaintiff leave to amend.” Grancare, 889 F.3d at 550. Ford argues that even assuming the KLG Plaintiffs try to re-plead a negligent repair claim, 5 At oral argument, the KLG Plaintiffs’ counsel conceded that the negligent repair claims were insufficiently pled. 11. Case \DOONONUl-bUJNr-t NNNNNNNNNt-tt-trfit-tt-trfit-tt-trfit-t OONOUl-hUJNHOOOONONU‘I-PUJNHO 2:18-mI-02814-AB-FFM Document 119 Filed 09/10/18 Page 12 of 16 Page ID #:3203 it would be barred by the economic loss rule. The economic loss rule precludes tort claims (like negligence) for purely economic damages. In re Mesa Bus. Equip, Ina, 931 F.2d 60 (9th Cir. 1991). T0 successfully bring a claim for negligence, a plaintiff must demonstrate that the defendant’s 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). Here, the KLG Plaintiffs have not pointed t0 any allegations establishing that the Dealer’s allegedly negligent repair 0f their vehicles injured them 0r their property, such as by causing an accident in Which they were injured or their vehicles damaged. There are a number 0f exceptions to the economic loss rule, including the independent tort exception, tortious breach of the implied covenant, and bad faith denial of a contract. See Harris v. Atl. Richfield C0., 14 Cal. App. 4th 70, 77- 78 (1993), as modified 0n denial ofreh ’g (Apr. 8, 1993) (identifying these exceptions). However, the KLG Plaintiffs in n0 way explain Which of these exceptions rescues their claims from the economic loss rule. It is not enough to merely identify some exceptions; Plaintiffs must make some colorable showing that these exceptions apply in their case. Finally, Ford argues that Plaintiffs will not be able to show any causation by the dealerships because the defects in the DPS6 transmissions were allegedly irreparable. Both the Bell and the Duerksen Complaints allege that all of the repairs the Dealers attempted were covered by Ford’s warranty, that the repairs Ford recommended were “completely ineffective at addressing the Transmission Defect,” that problems With the transmission was “irreparable,” and that Ford did not disclose “its inability t0 repair the defects.” See Bell Compl. 1H] 67, 87, 136, 139, 172; Duerksen Compl. 1H] 67, 83, 88, 137, 140. If Plaintiffs’ vehicles were plagued by defects that were irreparable, that would break any causal connection between the Dealers and the Plaintiffs’ alleged harm. Indeed, the KLG Plaintiffs do not respond to this argument, and they point to no allegations 0f harm caused by the Dealers as opposed t0 the defect inherent in their Ford vehicles. 12. Case \DOONONUl-bUJNr-t NNNNNNNNNt-tt-trfit-tt-trfit-tt-trfit-t OONOUl-hUJNHOOOONONU‘I-PUJNHO 2:18-ml-02814-AB-FFM Document 119 Filed 09/10/18 Page 13 of 16 Page ID #:3204 Given the foregoing, the Court finds that the KLG Plaintiffs have not and cannot state a claim against the Dealer defendants. The standard for fraudulent joinder is high, but it has been met here. ii. The CLR Plaintiffs The CLR Plaintiffs do not allege negligent repair claims against the Dealers. Frankly, CLR Plaintiffs’ Complaints are not a model of clarity, but in their Motions, they indicate that the first five 0f their seven claims are alleged against both Ford and the Dealers. This is not obvious from the Complaints, since those claims refer only t0 “Defendant” in the singular. But for purposes of these motions, the Court accepts the CLR Plaintiffs’ characterization of their own Complaints. The first five claims are Lemon Law claims under the Song-Beverly Act, and claims under other California warranty statutes. (The last two claims, pled only against Ford, are fraud claims.) Ford contends that the Dealers were fraudulently joined by pointing out that the five claims asserted against them can impose liability only on manufacturers, distributors, and/or sellers. See Opp’n (Dkt. N0. 90) 5:8-27 (quoting the statutes imposing liability on manufacturers, distributors, and/or sellers). In the cases herein, these Dealers repaired the vehicles; they are not manufacturers, and there are no allegations that they distributed 0r sold the vehicles in issue, so they cannot be held liable under any of those causes 0f action. The CLR Plaintiffs appear to concede this point, but instead argue that these claims are “equivalent to” negligent repair claims. This argument is unpersuasive. These claims are plainly not equivalent to negligent repair claims because they are statutory warranty claims; they are simply not directed at alleged negligence (the breach of a duty of care) by an entity performing a repair. The CLR Plaintiffs then argue that they can amend the complaints to expressly plead negligent repair claims against the Dealers. But, such an amendment would be futile for the reasons discussed above in connection With the KLG Plaintiffs. Finally, the CLR Plaintiffs further argue that they recently received discovery 13. Case \DOONONUl-bUJNr-t NNNNNNNNNt-tt-trfit-tt-trfit-tt-trfit-t OONOUl-hUJNHOOOONONU‘I-PUJNHO 2:18-ml-02814-AB-FFM Document 119 Filed 09/10/18 Page 14 of 16 Page ID #:3205 implicating the Dealers in conduct actionable under the fraud claims, so they can amend their complaints to add the Dealers to the fraud claims. Counsel stated this material was subject t0 a protective order and therefore could not be filed 0n the record. The Court Will not grant the motions based on these vague and unsupported assertions. iii. Counsel’s Responses At Oral Argument Are Unavailing. At oral argument, counsel for the CLR Plaintiffs and the KLG Plaintiffs presented a thorough and thoughtful response the above analysis and the Court appreciated the robust dialog 0n the merits of the motions. Nevertheless, the Court finds the arguments unpersuasive. The Court Will address them briefly. The CLR Plaintiffs had referred in their papers to discovery materials that they claim establish a fraud claim against the dealers. At oral argument, counsel explained, in essence, that the Dealers, at Ford’s direction, told drivers that there is nothing wrong with the vehicles and that the drivers are just driving them in an incorrect manner. The CLR Plaintiffs contended that this amounts to common law fraud by misrepresentation. When pressed as t0 What post-purchase damages these alleged misrepresentations caused, counsel argued that the Plaintiffs incurred additional mileage offsets that would reduce their damages under Song-Beverly, and they continued t0 pay vehicle registration fees and insurance longer than they would have otherwise. However, the mileage offset is calculated based 0n the number of miles driven at the first repair attempt, see Cal. CiV. Code §1793.2(d)(2)(C) (use deduction based 011 mileage at time the buyer first delivered vehicle for repair), so additional mileage driven during delays caused by the Dealers’ alleged misrepresentations would not create a greater mileage offset. Furthermore, Plaintiffs would have had to pay registration and insurance fees 0n any vehicle they purchased, so it does not appear that such costs can be deemed “damages” caused by whatever misrepresentations the Dealers allegedly made. The Court has also pressed counsel t0 explain What specific facts the Plaintiffs 14. Case \DOONONUl-bUJNr-t NNNNNNNNNt-tt-trfit-tt-trfit-tt-trfit-t OONOUl-hUJNHOOOONONU‘I-PUJNHO 2:18-ml-02814-AB-FFM Document 119 Filed 09/10/18 Page 15 of 16 Page ID #:3206 could allege tending t0 show that the Dealers negligently “store[d], prepare[d] and repair[ed]” the vehicles as required to plead a negligent repair claim, but neither counsel offered any additional facts. The Court also invited counsel to explain how their negligent repair claims could overcome the economic loss rule. The CLR Plaintiffs pointed to the exceptions to that rule, and argued that the independent tort exception applies, in particular, that the Dealers’ alleged misrepresentations take these cases out of the economic loss rule. But this argument assumes that Plaintiffs can amend to state arguably Viable fraud claims against the Dealers, and as discussed above, the Court finds they cannot. T0 support the Viability of a negligent repair claim and t0 show that the Dealers are not dispensable parties that could be dropped under Rule 21, both counsel referred to another case, in Riverside, in Which Ford asserted a negligent repair defense at trial. According to Plaintiffs, in that case Ford argued that the vehicle was not defective and the problem with it was not Ford’s responsibility, but instead the dealer repaired the vehicle negligently, and any liability should attach to the dealer. Counsel suggested Ford could take the same position in this case, thereby implicating the Dealers in these claims. But as CLR Plaintiffs’ counsel noted, and as Ford confirmed, that case did not involve a DPS6 transmission and there is no basis t0 consider it analogous, so that Ford asserted a negligent repair defense there is not germane here. Plaintiffs simply made no showing that there is any factual basis for a negligent repair argument in these cases-either as a claim asserted by Plaintiffs against the Dealers, or as a defense asserted by Ford. In sum, the removals and motions for remand put squarely in issue whether the Plaintiffs could possibly establish any cause of action against the Dealers. In its oppositions, Ford explained why no claims could lie against the Dealers. Despite this, neither Plaintiffs’ replies nor their presentations at oral argument presented any facts that could establish either a negligent repair claim 0r a fraud claim against the Dealers. The Court therefore finds that there is no possibility that Plaintiffs can amend their 1 5. Case \DOONONUl-bUJNr-t NNNNNNNNNt-tt-trfit-tt-trfit-tt-trfit-t OONOUl-hUJNHOOOONONU‘I-PUJNr-lo 2:18-mI-02814-AB-FFM Document 119 Filed 09/10/18 Page 16 of 16 Page ID #:3207 complaints to state any claim against the Dealers. iv. Conclusion On the present state of the record, the Court finds that the Dealer defendants were fraudulently joined. Their citizenship may therefore be disregarded for purposes 0f diversity jurisdiction, and as a result there is complete diversity and this Court has subj ect matter jurisdiction over the actions. C. In the Alternative The Court Drops the Dealers Under Fed. R. Civ. P. 21 Under Fed. R. Civ. P. 21, “the court may, at any time, on just terms, add 0r drop a party.” “Rule 21 grants a federal district 0r appellate court the discretionary power t0 perfect its diversity jurisdiction by dropping a nondiverse party provided the nondiverse party is not indispensable to the action under Rule 19.” Sams v. Beech Aircraft Corp, 625 F.2d 273, 277 (9th Cir. 1980). Here, in light of the analysis above, the Court finds that the Dealers are dispensable parties. The Plaintiffs can secure full relief from Ford alone, as the gravamen of their claims is that their Ford vehicles were irreparably defective, and that Ford fraudulently concealed that fact. Plaintiffs have not shown that the Dealers are necessary t0 afford them full relief as they have not identified any cognizable damages from the Dealers’ alleged misrepresentations. As such, to preserve its subject matter jurisdiction, the Court Will sever the Dealer defendants. IV. CONCLUSION For the foregoing reasons, the Motions for Remand are DENIED. IT IS SO ORDERED. . G&Efir- Dated. 9/10/18 HONORABLE ANDRE BIROTTE JR. UNITED STATES DISTRICT COURT JUDGE 16. EXHIBIT C UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, DC 20549 FORM 10-K (Mark One) M Annual report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 For the fiscal year ended December 31, 2017 or U Transition report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 For the transition period from to Commission file number 1-3950 Ford Motor Company (Exact name of Registrant as specified in its charter) Delaware 38-0549190 (State of incorporation) (I.R.S. Employer Identification No.) One American Road, Dearborn, Michigan 48126 (Address ofprincipa/ executive offices) (Zip Code) 31 3-322-3000 (Registrant’s telephone number, including area code) Securities registered pursuant to Section 12(b) of the Act: Title of each class Name of each exchange on which registered Common Stock, par value $.01 per share New York Stock Exchange Securities registered pursuant to Section 12(9) of the Act: None. Indicate by check mark if the registrant is a weII-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes M No D Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes D No E Indicate by check mark if the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes E No U Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes M No D Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§ 229.405 of this chapter) is not contained herein, and will not be contained, to the best of registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part Ill of this Form 10-K or any amendment to this Form 10-K. D Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or emerging growth company. See the definitions of “large accelerated filer," “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act. Large accelerated filer M Accelerated filer D Non-accelerated filer D Smaller reporting company D Emerging growth company D If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. D Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). Yes D No M As of June 30. 2017, Ford had outstanding 3,900,795,510 shares of Common Stock and 70,852,076 shares of Class B Stock. Based on the New York Stock Exchange Composite Transaction closing price of the Common Stock on that date ($11 .19 per share), the aggregate market value of such Common Stock was $43,649,901 ,757. Although there is no quoted market for our Class B Stock, shares of Class B Stock may be converted at any time into an equal number of shares of Common Stock for the purpose of effecting the sale or other disposition of such shares of Common Stock. The shares of Common Stock and Class B Stock outstanding at June 30, 2017 included shares owned by persons who may be deemed to be “affiliates" of Ford. We do not believe, however, that any such person should be considered to be an affiliate. For information concerning ownership of outstanding Common Stock and Class B Stock, see the Proxy Statement for Ford’s Annual Meeting of Stockholders currently scheduled to be held on May 10, 2018 (our “Proxy Statement”), which is incorporated by reference under various Items of this Report as indicated below. As of January 31, 2018, Ford had outstanding 3,902,499,580 shares of Common Stock and 70,852,076 shares of Class B Stock. Based on the New York Stock Exchange Composite Transaction closing price of the Common Stock on that date ($10.97 per share), the aggregate market value of such Common Stock was $42,810,420,393. DOCUMENTS INCORPORATED BY REFERENCE Document Where Incorporated Proxy Statement" Part Ill (Items 10, 11, 12, 13, and 14) * As stated under various Items of this Report, only certain specified portions of such document are incorporated by reference in this Report. Exhibit Index begins on page _9_9 PART I. ITEM 1. Business. Ford Motor Company was incorporated in Delaware in 1919. We acquired the business of a Michigan company, also known as Ford Motor Company, which had been incorporated in 1903 to produce and sell automobiles designed and engineered by Henry Ford. We are a global company based in Dearborn, Michigan. With about 202,000 employees worldwide, the Company designs, manufactures, markets, and services a full line of Ford cars, trucks, sport utility vehicles (“SUVs”), electrified vehicles, and Lincoln luxury vehicles, provides financial services through Ford Motor Credit Company LLC (“Ford Credit"), and is pursuing leadership positions in electrification, autonomous vehicles, and mobility solutions. In addition to the information about Ford and our subsidiaries contained in this Annual Report on Form 10-K for the year ended December 31, 2017 ("2017 Form 10-K Report" or “Report”), extensive information about our Company can be found at httg://corporate.ford.com, including information about our management team, our brands and products, and our corporate governance principles. The corporate governance information on our website includes our Corporate Governance Principles, Code of Ethics for Senior Financial Personnel, Code of Ethics for the Board of Directors, Code of Corporate Conduct for all employees, and the Charters for each of the Committees of our Board of Directors. In addition, any amendments to our Code of Ethics or waivers granted to our directors and executive officers will be posted on our corporate website. All of these documents may be accessed by going to our corporate website, or may be obtained free of charge by writing to our Shareholder Relations Department, Ford Motor Company, One American Road, P.O. Box 1899, Dearborn, Michigan 48126-1 899. Our recent periodic reports filed with the Securities and Exchange Commission (“SEC”) pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended, are available free of charge at httpzllshareholderford.com. This includes recent Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, and Current Reports on Form 8-K, as well as any amendments to those Reports. Recent Section 16 filings made with the SEC by the Company or any of our executive officers or directors with respect to our Common Stock also are made available free of charge through our website. We post each of these documents on our website as soon as reasonably practicable after it is electronically filed with the SEC. Our reports filed with the SEC also may be found on the SEC’s website at www.sec.gov. The foregoing information regarding our website and its content is for convenience only and not deemed to be incorporated by reference into this Report nor filed with the SEC. SCHNADER HARRISON SEGAL & LEWIS LLP 650 CALIFORNIA STREET 19“ FLOOR SAN FRANCISCO, CA 94108-2736 TELEPHONE: (415) 364-6700 FAX: (415) 364-6785 \OOOQQ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I declare under penalty of perjury under the laws of the State of California that the following is true and correct: I am employed in the City and County 0f San Francisco, State of California, in the office 0f a member of the bar of this court, at whose direction the service was made. I am a citizen 0f the United States, over the age of eighteen (18) years, and not a party to 0r interested in the Within-entitled cause. My business address is SCHNADER HARRISON SEGAL & LEWIS LLP, 650 California Street, 19th Floor, San Francisco, California 94108-2736. I caused to be served the following document(s) and by the following means: DEFENDANTS FORD MOTOR COMPANY AND PERRY FORD 0F NATIONAL CITY, LLC’S NOTICE OF REMOVAL OF STATE COURT ACTION TO THE UNITED STATES DISTRICT COURT U.S. Mail: I enclosed a true and correct copy of said document in an envelope and placed it for collection and mailing With the United States Post Office on the date set forth below, following the ordinary business practice; addressed as follows: Tionna Dolin, Esq. Attorneysfor Plaintiffs Daniel Tai, Esq. TROY LAWRENCE and Strategic Legal Practices, APC GINA'MARIE LAWRENCE 1840 Century Park East, Suite 430 Los Angeles, CA 90067 T: (3 10) 929-4900 F: (310) 943-3838 Email: tdolin@slpattorney.com dtai s1 attorne .com I am readily familiar with my firm’s practice for collection and processing of correspondence for delivery in the manner indicated above, to Wit, that correspondence Will be deposited for collection in the above-described manner this same day in the ordinary course of business. Executed 0n November 5, 2019, at San Francisco, California. V SUS'IE M. ARZAVE PROOF OF SERVICE