Answer Unlimited Fee AppliesCal. Super. - 6th Dist.March 2, 202110 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Electronically Filed Michael P. Sweeney (SBN 220462) by Superior Court of CAmike@sweenevapc.com C t f S t Cl ’ Michael C. Yu (SBN 293833) 0"" Y ° a" a araa mw@sweeneyapc_com on 6/1 7/2021 12:32 PM Catherine Fong (SBN 305349) Reviewed By: L Del Mundo cfong@sweenevapc.com Case #21 CV378934 Jane M. Chung (SBN 303412) Envelope: 6670939 ichung@sweenevapc.com Nicholas S. Maugeri II (SBN 315075) nmaugeri®sweenevapocom SWEENEY APC 2 1 5 1 5 Hawthorne B1Vd., Suite 640 Torrance, CA 90503 Telephone: 424.757.01 51 Facsimile: 424.757.0 1 52 Attorney for Defendant PORSCHE CARS NORTH AMERICA. INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA ECU TUNING GROUP, Case No. 21CV378934 Plaintiff, DEFENDANT PORSCHE CARS NORTH AMERICA, INC.’S ANSWER TO V. COMPLAINT PORSCHE CARS NORTH AMERICA, The Hon. Peter H. Kirwan in Dept. 19 INC., and DOES 1 through 10, inclusive, Defendants. Complaint Filed: March 2, 2021 COMES NOW Defendant Porsche Cars North America, Inc., and in answer to Plaintiff s Complaint on file herein alleges and avers as follows: GENERAL DENIAL Defendant Porsche Cars North America, Inc. (“Defendant” or “PCNA”), for itself and for n0 other person or entity, files this general denial pursuant to Code of Civil Procedure section 43 1 .30(d) and hereby denies - each and every, all and singular, generally and specifically - the allegations contained in Plaintiff’ s Complaint, and further specifically denies that Plaintiff has been injured in any way or damaged in any sum or amount whatsoever. -1- ANSWER T0 COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AFFIRMATIVE DEFENSES AS AND FOR ITS SEPARATE, DISTINCT, AND AFFIRMATIVE DEFENSES t0 the Complaint 0n file herein and t0 each cause 0f action thereof, this answering Defendant alleges as follows: FAILURE T0 STATE A CAUSE 0F ACTION (As t0 all claims) 1. The subject Complaint fails to state facts sufficient to constitute a cause of action upon which reliefmay be granted against this answering Defendant. LACK 0F NONCONFORMITY (As to all claims) 2. There is n0 warranted defect or nonconformity With respect to the subj ect vehicle. Moreover, the alleged defect(s) - if any exist - in the subj ect vehicle d0 not substantially impair the use, value or safety of Plaintiff’s vehicle so as to warrant or support Plaintiff s Complaint, and thus Plaintiff is barred from the recovery sought therein. N0 REASONABLE NUMBER 0F REPAIR ATTEMPTS (As to all claims) 3. Plaintiff did not allow this answering Defendant or its dealer(s) a reasonable number of attempts to conform the vehicle t0 the express warranty applicable t0 the subj ect vehicle. CONDITIONS BEYOND CONTROL 0F DEFENDANT - CIV. CODE § 1793.2(B) (As t0 all Song-Beverly Consumer Warranty Act claims) 4. Any delay in the repair of the subj ect vehicle 0r any alleged defect or nonconformity thereofwas caused by conditions beyond this answering Defendant’s control. (Civil Code § 1793.2(b)). / / / / / / -2- ANSWER To COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CONDITIONS BEYOND CONTROL 0F DEFENDANT - CIV. CODE § 1793.22(B)(3) (As to all Song-Beverly Consumer Warranty Act claims) 5. Any delay in the repair 0f the subj ect vehicle or any alleged defect 0r nonconformity thereofwas due t0 conditions beyond this answering Defendant’s control. (Civil Code § 1793.22(b)(3)). LACK 0F WARRANTY COVERAGE (As to all claims) 6. The alleged defect or nonconformity at issue, and any alleged damage resulting from the alleged defect 0r nonconformity at issue, were and are expressly excluded from and otherwise not covered by the express written limited warranty applicable to the subj ect vehicle. FAULT OF OTHERS (As t0 all claims) 7. The losses and damages complained of by Plaintiff, if any, were proximately caused by the negligence, acts, omissions and/or fault of Plaintiff and parties, individuals, or entities other than this answering Defendant. ALTERATION 0F PRODUCT (As t0 all claims) 8. Upon information and belief, the subj ect vehicle was altered, changed, or otherwise modified by parties, individuals, or entities other than this answering Defendant, and said modifications, changes, 0r alterations were a proximate cause of the damages alleged by Plaintiff, if any there were. MISUSE 0F VEHICLE AND FAILURE T0 FOLLOW INSTRUCTIONS (As t0 all claims) 9. Upon information and belief, any alleged defects or nonconformities in the subj ect vehicle were caused solely and exclusively by misuse, abuse, and failure to use the subject vehicle in the manner in Which it was intended, and by a failure t0 follow instructions regarding the subj ect vehicle. Such misuse, abuse, and failure t0 follow instructions on the part of Plaintiff -3- ANSWER To COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and parties, individuals, and entities other than this answering Defendant, proximately caused or contributed t0 the damages complained 0f, if any there were. UNAUTHORIZED 0R UNREASONABLE USE (As to all Song-Beverly Consumer Warranty Act claims) 10. Upon information and belief, any alleged defects 0r nonconformities in the subj ect vehicle were caused by the unauthorized 0r unreasonable use 0f the subj ect vehicle following sale. (Civil Code § 1794.3) FAILURE TO COMPLY WITH APPLICABLE PROVISIONS OF LAW (As t0 all Song-Beverly Consumer Warranty Act claims) 11. Plaintiff has failed to comply with the requirements of the applicable statutory provisions for asserting the causes of action alleged in the Complaint including, but not limited to, those set forth under the provisions the Song-Beverly Consumer Warranty Act, Civil Code section 1791 et seq.; accordingly, Plaintiff is barred from asserting such claims in this action. FAILURE T0 EXHAUST DISPUTE RESOLUTION PROCESS - CIVIL CODE § 1793.22(C) (As t0 all Song-Beverly Consumer Warranty Act claims) 12. Upon information and belief, Plaintiff did not resort t0, exhaust, or otherwise fillly comply with a qualified third-party dispute resolution process, pursuant t0 Civil Code section 1 793 22(0). COMPLIANCE (As to all Song-Beverly Consumer Warranty Act claims) 13. Defendant has complied With its obligations under the implied warranty and limited express warranty, and with the requirements 0f the Song-Beverly Consumer Warranty Act. CIVIL CODE § 1794(E)(2) (As t0 all Song-Beverly Consumer Warranty Act claims) 14. Defendant maintains a qualified third-party dispute resolution process which complies or substantially complies With Section 1793.22 and therefore Defendant is not liable for civil penalties pursuant t0 Section 1794(e)(2). / / / -4- ANSWER To COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LACK 0F VERTICAL PRIVITY (As t0 all implied warranty claims) 15. Plaintiff s claims for breach of implied warranty are barred by a lack 0f vertical priVity between Plaintiff and this answering Defendant, as Plaintiff did not purchase the subject vehicle from or otherwise contract With PCNA. FAILURE T0 MITIGATE DAMAGES (As to all claims) 16. Plaintiff was under a duty t0 mitigate any damages Which may have been sustained, and Plaintiff failed t0 act reasonably and properly to mitigate any damages or losses Plaintiff claims to have sustained, if any there were. Accordingly, Plaintiff is barred from recovering any damages, which could have been avoided by reasonable mitigation efforts. REPAIR (As to all claims) 17. If there were any nonconformities 0r defects manifested in the subj ect vehicle (which this answering Defendant expressly denies), those nonconformities 0r defects have been fully serviced or repaired to conform the vehicle to the applicable warranty(ies). EQUITABLE DEFENSES (As to all claims seeking equitable relief) 18. Plaintiff is estopped from seeking equitable relief from this answering Defendant because Plaintiff s own inequitable conduct precludes equitable relief under the doctrines 0f unclean hands, equitable estoppel, and/or laches. EXPIRATION 0F IMPLIED WARRANTY - CIVIL CODE § 1791.1 (As to all Song-Beverly Consumer Warranty Act claims) 19. Any and all implied warranties, if any there were, including but not limited t0 warranties 0f merchantability and fitness, expired by their own terms or by operation of Civil Code section 1791.1 prior to Plaintiff’ s filing 0f the complaint. / / / / / / -5- ANSWER To COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STATUTE 0F LIMITATIONS (As t0 all claims) 20. The claims alleged in the Complaint are barred by the applicable statutes of limitations including, but not limited to, the provisions 0f California Code 0f Civil Procedure sections 3 12, 337(1)-(3), 338(a) (d) (j), 339(1) (3), and 343, and/or California Commercial Code section 2725. DEMAND FOR ARBITRATION (As t0 all claims) 21. Upon information and belief, the contract for the purchase of the vehicle at issue in Plaintiff s Complaint includes an arbitration clause and by way of this answer and affirmative defense, this answering Defendant hereby demands arbitration. RESERVATION 0F DEFENSES (As to all claims) 22. This answering Defendant has insufficient knowledge or information upon which to form a belief as to Whether it may have additional, as yet unstated, affirmative defenses available, and this answering Defendant reserves the right to assert such additional defenses in the event discovery, investigation, or analysis indicate the need for same. / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / -6- ANSWER To COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WHEREFORE, this answering Defendant prays for judgment and relief as follows: 1. That Plaintiff take nothing by way of the Complaint 0n file herein; 2. For judgment in favor 0f this answering Defendant and against Plaintiff 0n each and every cause of action of the Complaint; 3. For this answering Defendant’s attorneys’ fees as allowed by law; 4. For this answering Defendant’s costs 0f suit as allowed by law; and, 5. For such other relief as the Court may deem just and proper. Dated: June 17, 2021 SWEENEY APC Michael P. Sweeney Catherine Fong Michael C. Yu Jane M. Chung Nicholas S. Maugeri II Attorney for Defendant PORSCHE CARS NORTH AMERICA, INC. -7- ANSWER To COMPLAINT .b QGUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ECU Tuning Group v. Porsche Cars North America, Ina, et al. Santa Clara County Superior Court, Case No: 21CV378934 PROOF OF SERVICE At the time 0f service, I was over 18 years of age and not a party t0 this action. I am employed in the County of Los Angeles, State of California. My business address is 21515 Hawthorne B1Vd., Suite 640, Torrance, CA 90503. My electronic service address is kbanales@sweeneyapc.com On June 17, 2021, I served electronic copies 0f the following document(s) described as: DEFENDANT PORSCHE CARS NORTH AMERICA, INC.’S ANSWER TO COMPLAINT 0n the interested parties in this action as follows: William R. McGee Attorneysfor PlaintiffECU TUNING GROUP Deanna M. Wallace Kevin A. Alexander II LAW OFFICES OF WILLIAM R. MCGEE, APLC 701 Palomar Airport Road, Suite 250 Carlsbad, California 92011 lemonattv@aol.com deannalemonlaw®gmaiLcom kevin.lemonlaw@gmail.com BY ELECTRONIC SERVICE: Pursuant to an agreement of the parties t0 accept service by electronic transmission, I electronically served the documents listed above. The documents were served 0n the individuals listed in the service list at their electronic address(es). I declare under penalty of perjury under the laws 0f the State 0f California that the foregoing is true and correct. Executed 0n June 17, 2021, at Torrance, California. {Xmflmgp Karla B‘anaifi PROOF OF SERVICE