Answer Filed

Cal. Super. - 5th Dist.July 23, 2021

1o 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Michael J. Gregg (SBN 321765) Mark W. Skanes (SBN 322072) E-FILED ROSEWALDORF LLP 8/18/2021 9:25 AM 100 Oceangate, Suite 300 Superior Court of California Long Beach, California 90802 County of Fresno Telephone: (518) 869-9200 By_ A_ Ramos) Deputy Facsimile: (518) 869-3334 Email: mgregg@rosewaldorf.com mskanes@rosewald0rf. com Attorneys for Defendant FCA US LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF FRESNO JUANITA ISIDORO and JAVIER ISIDORO, Case No.: 21CECG02121 Plaintiffs, Judge: Hon. Kimberly Gaab Dept: 503 vs. DEFENDANT FCA US LLC’S ANSWER FCA US LLC, a Limited Liability Company; T0 PLAINTIFFS’ COMPLAINT CLOVIS CHRYSLER DODGE JEEP RAM, a business organization, form unknown; and Action Filed: July 23, 2021 DOES 1 through 10, inclusive, Trial Date: Unassigned Defendants. Defendant FCA US LLC hereby responds to Plaintiffs’ Complaint as follows: GENERAL DENIAL Pursuant t0 California Code 0f Civil Procedure § 431.30, Defendant FCA US LLC denies each and every allegation in the Complaint and further denies that Plaintiffs have been damaged in any sum whatsoever. FIRST AFFIRMATIVE DEFENSE (Failure to State a Cause of Action) Plaintiffs’ Complaint, and each cause of action therein, fails to state facts sufficient to constitute a cause of action against Defendant. l DEFENDANT FCA US LLC’S ANSWER TO PLAINTIFFS’ COMPLAINT 2 DEFENDANT FCA US LLC’S ANSWER TO PLAINTIFFS’ COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SECOND AFFIRMATIVE DEFENSE (Statute of Limitations) Plaintiffs’ claims are barred by the applicable statute of limitations, including but not limited to California Code of Civil Procedure §§ 337, 338, 338.1, et seq., and Commercial Code § 2725, etc. THIRD AFFIRMATIVE DEFENSE (Comparative Fault) If Plaintiffs sustained any damages as alleged in the Complaint, such damages were proximately caused and contributed to by Plaintiffs by failing to act in a manner ordinarily expected of a reasonably prudent person in the conduct of their affairs and business. The contributory negligence and fault of Plaintiffs eliminates or diminishes any recovery sought in Plaintiffs’ Complaint. FOURTH AFFIRMATIVE DEFENSE (Contributory Negligence of Third Parties) If Plaintiffs sustained any damages as alleged in the Complaint, such damages were proximately caused and contributed to by persons and/or parties other than Defendant by such persons or parties’ failure to conduct themselves in a manner ordinarily expected of reasonably prudent persons in the conduct of their affairs and business. The contributory negligence and fault of persons and/or parties other than Defendant eliminates or diminishes any recovery sought in Plaintiffs’ Complaint. FIFTH AFFIRMATIVE DEFENSE (Failure to Mitigate Damages) If Plaintiffs sustained any damages as alleged in the Complaint, such damages were proximately caused and contributed to by Plaintiffs in failing to mitigate Plaintiffs’ damages. Plaintiffs’ failure to mitigate damages eliminates or diminishes any recovery herein. SIXTH AFFIRMATIVE DEFENSE (Offset) To the extent that Defendant has or will incur any damages by reason of Plaintiffs’ conduct arising out of this case, then Defendant has the right to offset any amounts owed by Plaintiffs to Defendant against monies allegedly owed by Defendant to Plaintiffs. /// 3 DEFENDANT FCA US LLC’S ANSWER TO PLAINTIFFS’ COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SEVENTH AFFIRMATIVE DEFENSE (Express Disclaimers) Plaintiffs’ cause of action for breach of express warranty and incidental and consequential damages is barred by the express disclaimers and limitations of liability contained in the alleged express warranties. EIGHTH AFFIRMATIVE DEFENSE (Civil Code § 1791.1(c)-Implied Warranty) Each and every cause of action based upon breach of implied warranty is barred by virtue of Civil Code § 1791.1(c). NINTH AFFIRMATIVE DEFENSE (Estoppel) Plaintiffs have engaged in conduct and activity sufficient to estop Plaintiffs from asserting all or any part of the claims asserted or relief sought in Plaintiffs’ Complaint. TENTH AFFIRMATIVE DEFENSE (Waiver) Plaintiffs have engaged in conduct and activities sufficient to constitute a waiver of any alleged breach of contract, breach of warranty, negligence, or any other conduct as set forth in Plaintiffs’ Complaint. ELEVENTH AFFIRMATIVE DEFENSE (Laches) Plaintiffs waited an unreasonable period of time to complain of the alleged acts or omissions at issue in Plaintiffs’ Complaint so as to prejudice Defendant. Plaintiffs are, therefore, guilty of laches and are barred from recovery. TWELFTH AFFIRMATIVE DEFENSE (Unclean Hands and/or Bad Faith) Plaintiffs’ Complaint, and the claims and relief sought therein, is barred by the doctrine of unclean hands and/or bad faith. /// 4 DEFENDANT FCA US LLC’S ANSWER TO PLAINTIFFS’ COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THIRTEENTH AFFIRMATIVE DEFENSE (Failure of Performance) Any failure to perform the obligations as described in the Complaint resulted from Plaintiffs’ failure to perform as required by the contract and/or warranty. Performance of Plaintiffs’ obligations was a condition precedent to the performance of Defendant’s obligations. FOURTEENTH AFFIRMATIVE DEFENSE (Lack of Standing) Plaintiffs’ causes of action arising out of the Song-Beverly Consumer Warranty Act are barred to the extent Plaintiffs did not purchase the subject vehicle within the State of California. FIFTEENTH AFFIRMATIVE DEFENSE (Abuse or Failure to Maintain) Plaintiffs are barred from recovery by virtue of Civil Code § 1794.3 since the claimed defect or nonconformity was caused by the unauthorized or unreasonable use of the vehicle following sale and/or a failure to properly maintain the vehicle. SIXTEENTH AFFIRMATIVE DEFENSE (Alteration of Product) The vehicle was not defective or in an unmerchantable condition at any time when it left the possession, custody, and control of the manufacturer. Any damage to the subject automobile was caused and created by changes and alterations made to the vehicle, subsequent to the vehicle’s manufacture and/or sale, by persons other than the manufacturer or any of its agents, servants, or employees; thus, barring Plaintiff’s recovery. SEVENTEENTH AFFIRMATIVE DEFENSE (Proper Repair and Consent) The repair process to Plaintiffs’ vehicle was appropriate and proper and is believed to have been done with the consent of the Plaintiffs. /// /// /// 5 DEFENDANT FCA US LLC’S ANSWER TO PLAINTIFFS’ COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EIGHTEENTH AFFIRMATIVE DEFENSE (Compliance with Industry Standards) At all relevant times, Defendant acted in conformity with industry standards based upon the state of knowledge existing at the various time periods alleged in the Complaint, and therefore Plaintiffs are barred from any recovery. NINETEENTH AFFIRMATIVE DEFENSE (Failure to Provide Reasonable Opportunity to Repair) Plaintiffs are precluded from any recovery pursuant to the Song-Beverly Consumer Warranty Act because Plaintiffs failed and refused to provide a reasonable opportunity to repair. TWENTIETH AFFIRMATIVE DEFENSE (Failure to State Cause of Action for Civil Penalties) Plaintiffs’ Complaint fails to state sufficient facts to warrant the imposition of civil penalties because it was believed that replacement or repurchase of the subject vehicle was not appropriate under the circumstances then known. TWENTY-FIRST AFFIRMATIVE DEFENSE (Statute of Limitations for Civil Penalties) Any cause of action alleged in Plaintiffs’ Complaint seeking civil penalties is barred by the statute of limitations contained in the California Code of Civil Procedure, specifically § 340. TWENTY-SECOND AFFIRMATIVE DEFENSE (Failure to Serve Written Notice-Civil Code § 1794(e)(3)) FCA US LLC contends that the Complaint fails to state facts sufficient to warrant the imposition of civil penalties because Plaintiffs failed to serve upon FCA US LLC written notice requesting that FCA US LLC comply with paragraph (2) of subdivision (d) of Civil Code § 1793.2 as required by Civil Code § 1794(e)(3). TWENTY-THIRD AFFIRMATIVE DEFENSE (Unconstitutionality of Civil Penalty) Imposition of a civil penalty in this case would violate Defendant’s rights under the Fourteenth Amendment to the United States Constitution and/or Article I of the California Constitution. 6 DEFENDANT FCA US LLC’S ANSWER TO PLAINTIFFS’ COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TWENTY-FOURTH AFFIRMATIVE DEFENSE (Compliance with the Law) Defendant contends that the Complaint fails to state facts sufficient to state a cause of action for Violation of Business and Professions Code section 17200 because Defendant is in compliance with all of the requirements under the Song-Beverly Warranty Act. TWENTY-FIFTH AFFIRMATIVE DEFENSE (Lack of Deception) Defendant contends that the Complaint fails to state facts sufficient to state a cause of action for Violation of Business and Professions Code section 17200 because there was no deception on the part of Defendant and the acts of Defendant would not likely mislead a reasonable person. TWENTY-SIXTH AFFIRMATIVE DEFENSE (Adequate Remedy at Law) Defendant contends that the Complaint fails to state facts sufficient to state damages under the cause of action for Violation of Business and Professions Code section 17200 because Plaintiffs have an adequate remedy at law. TWENTY-SEVENTH AFFIRMATIVE DEFENSE (Reservation of Rights) FCA US LLC presently has insufficient knowledge or information on which to form a belief as to whether it may have additional, as yet unstated, defenses available. FCA US LLC reserves the right to assert additional defenses in the event that they would be appropriate. /// /// /// /// /// /// /// /// 7 DEFENDANT FCA US LLC’S ANSWER TO PLAINTIFFS’ COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WHEREFORE, FCA US LLC prays judgment as follows: 1. That Plaintiffs recover nothing by way of the Complaint; 2. That the present action be dismissed with prejudice; 3. That judgment be entered in favor of Defendant for attorney’s fees and costs of suit; and 4. For such other and further relief as the Court may deem just and proper. Dated: August 18, 2021 ROSEWALDORF LLP By: Michael J. Gregg Mark W. Skanes Attorneys for Defendant FCA US LLC 1o 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE Juanita Isidoro and Javier Isidoro v. FCA US LLC, a Limited Liability Company; Clovis Chrysler Dodge Jeep Ram, a business organization, fbrm unknown; and DOES 1 through 10, inclusive Fresno County Superior Court, Case No. 21CECV02121 I, the undersigned, am over the age of 18 and am not a party to the within action. My business address is 501 New Kamer Road, Albany, New York 12205. On the date below, I served the following document(s) described as: DEFENDANT FCA US LLC’S ANSWER T0 PLAINTIFFS’ COMPLAINT T0 the following party or parties in this matter: John C Feely, Esq. Attorneysfor Plaintiffs Neal F Morrow III, Esq. MFS Lega1 Inc 53 1 8 East 2nd Street #490 Long Beach, California 90803 Phone: (562) 907-8055 Email: lawclerk(a)calemonlawteam.c0m; john@calem0nlawteam.com; neal@calemonlawteam.com D BY PERSONAL SERVICE: I caused the foregoing document(s) t0 be personally delivered to the above addressee(s) by One Legal, LLC Via a registered process server pursuant t0 C.C.P. § 101 1. D BY U.S. MAIL: By enclosing the foregoing document(s) 1n a sealed envelope to the addressee(s) above and under the firm’ s ordinary course of business, placing said envelope(s) for pick-up and mailing pursuant t0 C. C.P. § 1013. I am readily familiar with the firm’ s practice for collection and processing of outgoing mail. Under that practice, the outgoing mail ls deposited with the U. S. Postal Service on the same day as collected With postage fully prepaid. D BY OVERNIGHT DELIVERY: Ienclosed the foregoing documents in a sealed envelope or package to the addressee(s) listed above and placed said envelope 0r package for pick-up for overnight delivery via UPS under the firm’s ordinary course 0f business. I am familiar with the firm’s practice of collecting and processing documents for overnight delivery Via UPS. Under that practice, the envelope 0r package would be deposited for pick up by an authorized UPS courier or driver that same day and delivered t0 the addressee(s) the following business day pursuant t0 C.C.P. § 1013. IXBY ELECTRONIC SERVICE/EMAIL: Ielectronically filed the document(s) with this Court using the Court’ s designated electronic filing serv1ce provider, which sent notification 0f that filing t0 the person(s) listed above t0 accept service by electronic transmission, and/or I caused the document(s) to be transmitted via electronic mail t0 the addressees as listed above pursuant to C.C.P. § 1010.6 and 1013(g), Cal. Rule 0f Court 2.251, and/or agreement or stipulation between the parties. I declare under penalty 0f perjury under the laws of the State of California, that the foregoing is true and correct. Dated: August 18, 2021 Nicofe Timyanaro Nlcole T1mpanar0 PROOF OF SERVICE