Answer Unlimited Fee AppliesCal. Super. - 6th Dist.March 3, 202110 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MV Mary Arens McBride, Bar N0. 282459 Stacey Davis, Bar NO. 1641 16 Electronically FIled ERSKINE LAW GROUP, APC by SuperiOV Court 0f CA, 1576 N. Batavia St, suite A County 0f Santa Clara, Orange, CA 92867 on 5/6/2021 12:13 PM Telephone: (949) 777-6032 Rev'ewed By: M VU Facsimile: (949) 916-1 152 Case #21 CV3791 11 Envelope: 6391543marensmcbride@erskinelaw.com sdavis@erskinelaw.com Attorneys for Defendant, GENERAL MOTORS LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA DONOVAN VANANTWERP, Case No.1 21CV3791 11 Plaintiff, GENERAL MOTORS LLC’S ANSWER TO vs. PLAINTIFF’S UNVERIFIED COMPLAINT GENERAL MOTORS, LLC, and DOES, 1 through 10, inclusive, Hon. Socrates P. Manoukian Dept. 20 Defendants. vvvvvvvvvvvvvvvv Defendant General Motors LLC (“GM”) answers Plaintiff’s Unverified Complaint as follows: I. GM answers the Unverified Complaint pursuant to California Code of Civil Procedure § 43 1 .30 by denying, generally and specifically, each, every, and all of the allegations in the Unverified Complaint and each and every part of it, including each and every cause 0f action in it, and denies that Plaintiff has sustained 0r Will sustain any damage in the sum referenced in it, or any other sum(s), 0r at all. GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT 1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. GM further answers the Unverified Complaint on file herein and each and every purported cause 0f action in it by denying that Plaintiff has sustained or will sustain, any damages in any sum at all by reason 0f the carelessness, negligence or other faults, act, 0r omission by GM, its agents, servants, or employees. AFFIRMATIVE DEFENSES TO THE COMPLAINT AND EACH ALLEGED CAUSE OF ACTION THEREOF FIRST AFFIRMATIVE DEFENSE (Failure to State a Cause of Action) The Unverified Complaint, and each purported cause 0f action alleged in it, fails t0 state facts sufficient t0 constitute a cause 0f action against GM. SECOND AFFIRMATIVE DEFENSE (Failure to Allow a Cure) GM is informed and believes, and therefore alleges, that Plaintiff is barred from obtaining the relief sought in the Unverified Complaint because Plaintiff has failed and refused t0 allow GM a reasonable opportunity to cure any alleged breach by GM. THIRD AFFIRMATIVE DEFENSE (Mitigation) GM is informed and believes, and therefore alleges, that Plaintiff” s alleged damages, if any, are the result, in whole or in part, of Plaintiff’ s failure to exercise care to reduce or mitigate damages. FOURTH AFFIRMATIVE DEFENSE (Contributory Negligence, Unclean Hands, Assumption of Risk) GM is informed and believes, and therefore alleges, that Plaintiff is barred in Whole or in part by Plaintiff” s negligence, unclean hands, fault, assumption of risk or otherwise from any and all legal 0r equitable relief against GM, as requested in the Unverified Complaint or otherwise. FIFTH AFFIRMATIVE DEFENSE (Statutes of Limitation) GM is informed and believes, and therefore alleges, that the Unverified Complaint, and each GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT 2 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 cause 0f action alleged in it, is barred by application of the statutes of limitation in California Code of Civil Procedure §§ 337(1), 337(2), 337(3), 338(1), 338(2), 338(3), 338(4), 338(7), 339(1), 339(3), 340(1), 340(2), 340(3), 342, 343, 344, 348, Commercial Code § 2725 and any other statute 0f limitation applicable t0 this action. SIXTH AFFIRMATIVE DEFENSE (Laches) GM is informed and believes, and therefore alleges, that the Plaintiff waited an unreasonable length of time t0 complain of the alleged acts or omissions at issue in the Unverified Complaint to prejudice GM. Plaintiff is, therefore, guilty of laches and is barred from recovery. SEVENTH AFFIRMATIVE DEFENSE (Failure of Performance) GM is informed and believes, and therefore alleges, that any failure t0 perform the obligations as described in the Unverified Complaint resulted from Plaintiff s failure to perform as required by the contract and warranty. Performance by Plaintiff of his obligations is a condition precedent to the performance of GM’S obligations. EIGHTH AFFIRMATIVE DEFENSE (Apportionment) Any and all injuries, if any, and damages, if any, allegedly sustained or suffered by Plaintiff were proximately caused and contributed t0 by the superseding, intervening acts or omissions ofpersons other than GM. Those persons, and each of them, were careless and negligent concerning the matters alleged in the Unverified Complaint, and their negligence and carelessness proximately contributed t0 the loss, injury, damage, 0r detriment alleged in the Unverified Complaint, With the result that the damages, if any, recoverable by Plaintiff must be diminished in proportion to the fault attributable to those other persons. NINTH AFFIRMATIVE DEFENSE (Misuse of Product) Any and all injuries, if any, and damages, if any, allegedly sustained or suffered by Plaintiff were directly and proximately caused and contributed to by the misuse 0f and the unreasonable and GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT 3 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 improper use of GM’S product. The misuse 0f or failure t0 use GM’s product properly contributed t0 the loss, injury, damage, 0r detriment, if any, alleged in the Unverified Complaint, and the damages, if any, recoverable by Plaintiffmust be diminished in proportion t0 the amount 0f fault attributable to that misuse 0r unreasonable 0r improper use. TENTH AFFIRMATIVE DEFENSE (Alteration of Product) Any damage t0 the subj ect vehicle was caused 0r created by changes 0r alterations to the vehicle, after GM manufactured and sold the vehicle, by persons other than GM or any 0f its agents, servants, 0r employees, barring Plaintiff s recovery in this action. ELEVENTH AFFIRMATIVE DEFENSE (Disclaimer) GM is informed and believes, and therefore alleges, that before and at the time of the alleged acts, omissions, and conduct 0fGM alleged in the Unverified Complaint, GM had expressly disclaimed, negated, and excluded all warranties of the type alleged by Plaintiff, and ofany type, express or implied, whatsoever. TWELFTH AFFIRMATIVE DEFENSE (Lack 0f Causation) N0 act or omission of GM was the cause in fact 0r the proximate cause 0f the alleged injuries and damages, if any, sustained by Plaintiff. GM is informed and believes, and therefore alleges, that any breach 0f warranty of fitness or merchantability if any, and any other breach 0f warranty, if any, and any breach of contractual undertakings by GM, if any, were neither the cause in fact nor the proximate cause of Plaintiff’s damages. Rather, any alleged breach was only secondary, inconsequential, indirect and in n0 way contributed t0 or caused Plaintiff” s alleged damages. THIRTEENTH AFFIRMATIVE DEFENSE (Unauthorized Use of the Product) GM is informed and believes, and therefore alleges, that any and all damages, if any, allegedly sustained 0r suffered by Plaintiff was proximately caused and contributed t0 by Plaintiff” s use of the subject vehicle for a purpose t0 Which the subject vehicle was not intended t0 be used. Plaintiff knew GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT 4 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 or should have known that the use t0 Which Plaintiffput the vehicle was not the use for Which the vehicle was manufactured 0r intended and that the unintended use could cause damage t0 Plaintiff. FOURTEENTH AFFIRMATIVE DEFENSE (Estoppel) GM is informed and believes, and therefore alleges, that Plaintiff is estopped from obtaining the relief sought in the Unverified Complaint by Virtue 0f Plaintiff s acts and conduct in connection With the matters alleged in the Unverified Complaint. FIFTEENTH AFFIRMATIVE DEFENSE (Waiver) GM is informed and believes and therefore alleges, that Plaintiffhas waived Plaintiff” s rights, if any, to obtain the relief sought in the Unverified Complaint. SIXTEENTH AFFIRMATIVE DEFENSE (Comparative Negligence) GM is informed and believes, and therefore alleges, that Plaintiff’s damages, if any, were the direct and proximate result of the conduct of Plaintiff or Plaintiff’ s agents, employees, and invitees, in that they negligently, carelessly, recklessly, knowingly, and willfully operated, maintained, serviced, directed, and otherwise controlled all operations and maintenance of Plaintiff’s vehicle. Plaintiff’s damages, if any, were directly and proximately caused, in Whole or in part, or were contributed t0 or aggravated by the conduct 0f Plaintiff or Plaintiff’s agents, employees, and invitees, when they negligently, carelessly, recklessly, knowingly, and willfully failed t0 repair the subj ect vehicle, knowing that the vehicle needed service, maintenance, 0r repair, but instead, proceeded to operate, maintain, navigate, direct, and otherwise make use 0f the vehicle or made improper and inadequate service, maintenance and repairs t0 it. GM is further informed and believes, and therefore alleges, that the vehicle owner knowingly and willfully authorized these actions and knowingly and willfully assumed the known risk that these actions would cause, compound, 0r aggravate the known problems With the vehicle and would proximately cause damage t0 it. GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT 5 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SEVENTEENTH AFFIRMATIVE DEFENSE (Assumption of Risk) The risks and dangers in Plaintiff’s conduct were known t0 Plaintiff, but Plaintiff conducted himself in such a manner as to expose himself and remain exposed to such risks and dangers and, by doing so, assumed all the risks attendant to that conduct. At the time(s), date(s), and place(s) of the events described in the Unverified Complaint, Plaintiff voluntarily assumed the risks of the activities in which Plaintiff was then and there engaged. Under the circumstances and conditions then and there existing, the resulting injuries, if any, and damages, if any, sustained by Plaintiff were proximately caused by Plaintiff’ s own voluntary assumption of risk. EIGHTEENTH AFFIRMATIVE DEFENSE (Qualified Third-Party Dispute Resolution Process) GM maintains a qualified third-party dispute resolution process that substantially complies With California Civil Code § 1793.22. GM is informed and believes, and therefore alleges, that Plaintiff received a timely and appropriate notification, in writing, 0f the availability of GM’s third-party resolution process. Accordingly, since Plaintiff did not avail himself of the third-party dispute resolution process before filing the Unverified Complaint, § 1794(e)(2) of the California Civil Code affirmatively bars Plaintiff from recovering treble damages (as provided under California Civil Code § 1794(6)) and Plaintiff cannot avail himself 0f the rebuttable presumption under California Civil Code § 1793.22(e)(1). NINETEENTH AFFIRMATIVE DEFENSE (Good Faith Belief in Legality of Actions) At all times relevant to this action, GM acted in good faith and believes its actions to be legal. TWENTIETH AFFIRMATIVE DEFENSE (Offset for Use) GM intends to avail itself of the reduction authorized by Civil Code § 1793.2(d)(2)(C) ifGM is found t0 Violate the Song-Beverly Consumer Warranty Act. GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT 6 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TWENTY-FIRST AFFIRMATIVE DEFENSE (Civil Code § 1791.1(c) - Implied Warranty) Each and every cause of action based 0n breach of implied warranty is barred by Civil Code § 1791.1(0). TWENTY-SECOND AFFIRMATIVE DEFENSE (Consent) The repair process to Plaintiff” s vehicle was appropriate and proper and is believed t0 have been done with Plaintiff s consent. TWENTY-THIRD AFFIRMATIVE DEFENSE (Failure to Provide Notice) GM is informed and believes, and therefore alleges, that Plaintiff failed to provide notice to GM pursuant t0 Civil Code § 1794(e)(3). Plaintiff is, therefore, barred from asserting the presumptions in Civil Code § 1793.22 and from recovering civil penalties pursuant t0 Civil Code § 1794(6). TWENTY-FOURTH AFFIRMATIVE DEFENSE (Failure t0 State Cause of Action for Civil Penalties) The Complaint fails to state sufficient facts t0 warrant the imposition of civil penalties if replacement 0r repurchase 0f the subject vehicle was not appropriate under the circumstances then known, 0r ifGM offered to repurchase 0r replace the subj ect vehicle. TWENTY-FIFTH AFFIRMATIVE DEFENSE (Reservation of Rights) GM presently has insufficient knowledge or information on Which t0 form a belief as t0 Whether it may have additional, as yet unstated, affirmative defenses available. GM reserves the right t0 assert additional affirmative defenses if discovery indicates that they would be appropriate. WHEREFORE, GM prays: 1. That Plaintiff takes nothing by the Unverified Complaint; 2. For the cost of suit; and 3. For such other and further relief as the Court deems just and proper. GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: May 6, 2021 ERSKINE LAW GROUP, APC 1 ficey Davis Attorneys for Defendant GENERAL MOTORS LLC GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I am employed in the County of Orange and my business address is 1576 N. Batavia Street, Suite A in Orange, CA, 92867. I am over the age of 18 years and I am not a party t0 this action. I am readily familiar with the practices of The Erskine Law Group, PC for the collection and processing 0f correspondence for mailing with the United States Postal Service. Such correspondence is deposited with the United States Postal Service the same day in the ordinary course of business. On Thursday, May 6, 2021, I served the foregoing document(s), bearing the title(s): GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT 0n the interested parties in the action as follows: [X] by placing [] the original [X] a true copy thereof enclosed in a sealed envelope addressed as follows: CALIFORNIA LEMON LAW GROUP, INC. Deborah L. Horowitz, State Bar No. 216607 11440 West Bernardo Court Suite 300 San Diego, California 92127 Telephone:(858)759-2501 Facsimile:(858)759-2502 E-mail: Debbie@CaliforniaLemonLawGroup.com [] (BY MAIL SERVICE) I placed such envelopes for collection and to be mailed 0n this date following ordinary business practices. [] (BY PERSONAL SERVICE) I caused t0 be delivered such envelope by hand t0 the office of the addressee. [] (BY FACSIMILE) The document stated herein was transmitted by facsimile transmission and the transmission was reported as complete and without error. A transmission report was properly issued by the transmitting facsimile machine and a copy of said transmission report is attached t0 the original proof of service indicating the time 0f transmission. [] (BY NEXT DAY DELIVERY) I caused to be delivered such envelope by hand to the office of the addressee. [X] (BY E-MAIL) I served the above-mentioned document Via electronic transmission per agreement of the parties. [X] (State) I declare under penalty 0f perjury under the laws of the State of California that the foregoing is true and correct. [] (Federal) I declare under penalty 0f perjury that I am employed by a member of the Bar of this Court, at Whose direction this service is made. Executed on Thursday, May 6, 2021, at Orange, CA. / A ‘ .= Wm» (WV Signed: PROOF OF SERVICE