Answer Unlimited Fee Applies

Cal. Super. - 6th Dist.March 3, 2021

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 CV3791 13 Santa Clara - Civil A. Villanuev Mary Lynn Arens, Esq., SBN: 282459 Jonathan M. Shugart, Esq., SBN: 278221 THE ERSKINE LAW GROUP, PC 1576 N. Batavia St., Suite A Orange, CA 92867 Tel: (949) 777-6032 Fax: (714) 844-9035 marensmcbride@erskinelaw.com jshugart@erskinelaw.com Electronically Filed by Superior Court of CA, County of Santa Clara, on 7/1/2021 1:15 PM Reviewed By: A. Villanueva Case #21 CV3791 1 3 Envelope: 6766637 Attorneys for Defendant, GENERAL MOTORS LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA LUIS FLORES BORUNDA, Case No.2 21CV3791 13 Plaintiff, GENERAL MOTORS LLC’S ANSWER TO V. PLAINTIFF’S UNVERIFIED COMPLAINT GENERAL MOTORS LLC; and DOES 1 - 10, Hon. Dept. 20 Defendants. vvvvvvvvvvvvvvvv Defendant General Motors LLC (“GM”) answers Plaintiff’s Unverified Complaint as follows: I. GM answers the Unverified Complaint pursuant t0 California Code 0f Civil Procedure § 43 1 .30 by denying, generally and specifically, each, every, and all 0f 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 or will sustain any damage in the sum referenced in it, 0r 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 0r 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 of action alleged in it, fails t0 state facts sufficient t0 constitute a cause of 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 t0 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 t0 exercise care to reduce 0r 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 0f risk 0r 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) 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 GM is informed and believes, and therefore alleges, that the Unverified Complaint, and each cause 0f action alleged in it, is barred by application 0f 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 to this action. SIXTH AFFIRMATIVE DEFENSE (Laches) GM is informed and believes, and therefore alleges, that Plaintiff waited an unreasonable length of time to 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 0f 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 0r suffered by Plaintiff were proximately caused and contributed t0 by the superseding, intervening acts 0r omissions 0f persons 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, or 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 t0 those other persons. NINTH AFFIRMATIVE DEFENSE (Misuse of Product) Any and all injuries, if any, and damages, if any, allegedly sustained 0r suffered by Plaintiff 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 were directly and proximately caused and contributed t0 by the misuse 0f and the unreasonable and improper use of GM’S product. The misuse of or failure to use GM’s product properly contributed t0 the loss, injury, damage, or detriment, if any, alleged in the Unverified Complaint, and the damages, if any, recoverable by Plaintiff must be diminished in proportion t0 the amount 0f fault attributable t0 that misuse 0r unreasonable 0r improper use. TENTH AFFIRMATIVE DEFENSE (Alteration of Product) Any damage t0 the subject vehicle was caused 0r created by changes 0r alterations t0 the vehicle, after GM manufactured and sold the vehicle, by persons other than GM 0r any of its agents, servants, or 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 of GM alleged in the Unverified Complaint, GM had expressly disclaimed, negated, and excluded all warranties 0f the type alleged by Plaintiff, and of any type, express 0r implied, whatsoever. TWELFTH AFFIRMATIVE DEFENSE (Lack of Causation) N0 act or omission ofGM was the cause in fact 0r the proximate cause of the alleged injuries and damages, if any, sustained by Plaintiff. GM is informed and believes, and therefore alleges, that any breach 0f warranty 0f fitness or merchantability if any, and any other breach of 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 no way contributed to or caused Plaintiff s alleged damages. THIRTEENTH AFFIRMATIVE DEFENSE (Unauthorized Use 0f the Product) GM is informed and believes, and therefore alleges, that any and all damages, if any, allegedly sustained or suffered by Plaintiff was proximately caused and contributed t0 by Plaintiff’s use of the 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 subj ect vehicle for a purpose to Which the subj ect vehicle was not intended to be used. Plaintiff knew or should have known that the use t0 Which Plaintiff put the vehicle was not the use for Which the vehicle was manufactured or intended and that the unintended use could cause damage to 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 Plaintiff has 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 0f Plaintiff 0r 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, 0r were contributed t0 0r aggravated by the conduct of Plaintiff or Plaintiff‘s agents, employees, and invitees, when they negligently, carelessly, recklessly, knowingly, and willfully failed to repair the subject vehicle, knowing that the vehicle needed service, maintenance, or repair, but instead, proceeded t0 operate, maintain, navigate, direct, and otherwise make use of the vehicle 0r made improper and inadequate service, maintenance and repairs to it. GM is further informed and believes, and therefore alleges, that the vehicle owner knowingly and Willfillly authorized these actions and knowingly and willfully assumed the known risk that these actions would cause, compound, or aggravate the known problems with the vehicle and would proximately cause damage to 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 0f Risk) The risks and dangers in Plaintiff’s conduct were known to Plaintiff, but Plaintiff conducted himself in such a manner as to expose himself and remain exposed t0 such risks and dangers and, by doing so, assumed all the risks attendant t0 that conduct. At the time(s), date(s), and p1ace(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 0f 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 of 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 t0 avail itself of the reduction authorized by Civil Code § 1793.2(d)(2)(C) if GM is found to 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 on breach of implied warranty is barred by Civil Code § 1 79 1 . 1 (c). TWENTY-SECOND AFFIRMATIVE DEFENSE (Consent) The repair process t0 Plaintiff’s vehicle was appropriate and proper and is believed to have been done With Plaintiff s consent. TWENTY-THIRD AFFIRMATIVE DEFENSE (Failure t0 Provide Notice) GM is informed and believes and therefore alleges, that Plaintiff failed to provide notice to GM pursuant to 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 t0 state sufficient facts t0 warrant the imposition 0f civil penalties if replacement or repurchase of the subject vehicle was not appropriate under the circumstances then known, or ifGM offered t0 repurchase or replace the subject vehicle. TWENTY-FIFTH AFFIRMATIVE DEFENSE (Adequate Remedy at Law) GM is informed and believes, and therefore alleges that Plaintiff’s prayer for injunctive relief is improper on the basis that Plaintiff has an adequate remedy at law. TWENTY-SIXTH AFFIRMATIVE DEFENSE (Reservation 0f Rights) GM presently has insufficient knowledge 0r information 0n 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. 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 WHEREFORE, GM prays: 1. That Plaintiff takes nothing by the Unverified Complaint; 2. For the cost 0f suit; and 3. For such other and further relief as the Court deems just and proper. Dated: July 1, 2021 ERSKINE LAW GROUP, PC/%f JONATHAN M. SHUGART 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 Oakland, State of Michigan, and my business address is 612 W. University Drive, Rochester, Michigan 48307. I am over the age of 18 years and I am not a party t0 this action. I am readily familiar with the practices 0f 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 0f business. On Thursday, July 1, 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: Kimberli C. Zazzi (SBN 249638) Vincent M. Onorio (SBN 117699) Rene J. Dupart (SBN 289956) LaDawna Fleckenstein (SBN 330538) LEMON LAW PRO 1098 Melody Lane, Building 200 Roseville, CA 95678 Telephone: (916) 836-8565 Fascimile: (916) 836-8583 [X] (BY MAIL SERVICE) I placed such envelopes for collection and t0 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 0f said transmission report is attached to the original proof of service indicating the time of transmission. (BY NEXT DAY DELIVERY) I caused to be delivered such envelope by hand to the office 0f the addressee. [] (BY E-MAIL) I served the above-mentioned document Via electronic transmission per agreement 0f 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. PROOF OF SERVICE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Executed on Thursday, July 1, 2021, at Rochester, MI.MM Dustin M. Anderson, Paralegal Signed: PROOF OF SERVICE