Answer Unlimited Fee AppliesCal. Super. - 6th Dist.March 26, 2021SQUIRE PATTON BOGGS (US) LLP 555 S. Flower Street, Suite 3100 Los Angeles, California 90071 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Electronically Filed by Superior Court of CA, County of Santa Clara, on 6/4/2021 4:41 PM Reviewed By: L Del Mundo Case #21 CV381404 Envelope: 6587289 Squire Patton Boggs (US) LLP Sean P. Conboy (State Bar No. 214487) sean.conboy@squirepb.com Shaun Kim (State Bar N0. 307812) shaun.kim@squirepb.com 555 South Flower Street, 3lst Floor Los Angeles, CA 90071 Telephone: +1 213.624.2500 Facsimile: +1 213.623.4581 Attorneys for Defendants VOLKSWAGEN GROUP OF AMERICA, INC. and STEVENS CREEK VOLKSWAGEN SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA MYLNA T. DELMUNDO and ANGELITO Case No. 21CV38 1404 DELMUNDO, DEFENDANT STEVENS CREEK Plaintiffs, VOLKSWAGEN’S ANSWER T0 COMPLAINT V. Complaint Filed: March 26, 2021 VOLKSWAGEN GROUP OF AMERICA, INC; STEVENS CREEK VOLKSWAGEN; and DOES 1 through 10, inclusive, Defendants. COMES NOW Defendant Stevens Creek Volkswagen, and in answer to Plaintiffs’ Complaint on file herein alleges and avers as follows: GENERAL DENIAL Defendant Stevens Creek Volkswagen (“Defendant”), for itself and for no other person or entity, files this general denial pursuant t0 Code of Civil Procedure section 431.30(d) and hereby denies - each and every, all and singular, generally and specifically - the allegations contained in Plaintiffs’ Complaint, and further specifically denies that Plaintiffs have been injured in any way 0r damaged in any sum 0r amount whatsoever. ANSWER T0 COMPLAINT CASE No. 2 1CV3 8 1404 010-9220-0160/1/AMERICAS SQUIRE PATTON BOGGS (US) LLP 555 S. Flower Street, Suite 3100 Los Angeles, California 90071 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 to 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 to all claims) 1. The subject Complaint fails to state facts sufficient t0 constitute a cause 0f action upon Which reliefmay be granted against this answering Defendant. LACK 0F NONCONFORMITY (As to all Claims) 2. There is no warranted defect or nonconformity with respect t0 the subject vehicle. Moreover, the subj ect vehicle’s alleged defects - if any exist - do not substantially impair the use, value or safety of the subj ect vehicle so as to warrant 0r support Plaintiffs’ Complaint, and thus Plaintiffs are barred from the recovery sought therein. N0 REASONABLE NUMBER 0F REPAIR ATTEMPTS (As to all Claims) 3. Plaintiffs did not allow this answering Defendant or its dealer(s) a reasonable number 0f attempts to conform the subj ect vehicle to the express warranty applicable t0 it. 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 thereof was caused by conditions beyond this answering Defendant’s control. (Civil Code § 1793.2(b)). 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 0r any alleged defect 0r nonconformity was due t0 conditions beyond this answering Defendant’s control. (Civil Code § 1793.22(b)(3)). ANSWER T0 COMPLAINT CASE No. 2 1CV3 8 1404 010-9220-0160/1/AMERICAS SQUIRE PATTON BOGGS (US) LLP 555 S. Flower Street, Suite 3100 Los Angeles, California 90071 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LACK OF WARRANTY COVERAGE (As to all claims) 6. The alleged defects 0r nonconformities at issue, and any alleged damage resulting therefrom, were and are expressly excluded from and otherwise not covered by the express written limited warranty applicable to the subj ect vehicle. FAULT 0F OTHERS (As to all Claims) 7. The losses and damages complained 0fby Plaintiffs, if any, were proximately caused by the negligence, acts, omissions and/or fault 0f Plaintiffs and parties, individuals, or entities other than this answering Defendant. ALTERATION 0F PRODUCT (As to all claims) 8. Upon information and belief, the subj ect vehicle was altered, changed, 0r otherwise modified by parties, individuals, 0r entities other than this answering Defendant, and said modifications, changes, 0r alterations were a proximate cause of the damages alleged by Plaintiffs, if any there were. MISUSE 0F VEHICLE AND FAILURE T0 FOLLOW INSTRUCTIONS (As to all claims) 9. Upon information and belief, any alleged defects 0r nonconformities in the subject vehicle were caused solely and exclusively by misuse, abuse, and failure to use the subj ect vehicle in the manner in which it was intended, and by a failure to follow instructions regarding the subject vehicle. Such misuse, abuse, and failure t0 follow instructions on the part of Plaintiffs and parties, individuals, and entities other than this answering Defendant, proximately caused 0r contributed to the damages complained 0f, if any there were. ANSWER T0 COMPLAINT CASE No. 2 1CV3 8 1404 010-9220-0160/1/AMERICAS SQUIRE PATTON BOGGS (US) LLP 555 S. Flower Street, Suite 3100 Los Angeles, California 90071 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNAUTHORIZED OR UNREASONABLE USE (As t0 all Song-Beverly Consumer Warranty Act claims) 10. Upon information and belief, any alleged defects 0r nonconformities in the subject vehicle were caused by the unauthorized 0r unreasonable use 0f the subject vehicle following sale. (Civil Code § 1794.3). FAILURE T0 COMPLY WITH APPLICABLE PROVISIONS 0F LAW (AS t0 all Song-Beverly Consumer Warranty Act Claims) 11. Plaintiffs have failed to comply with the requirements 0f the applicable statutory provisions for asserting the causes 0f action alleged in the Complaint including, but not limited t0, those set forth under the provisions the Song-Beverly Consumer Warranty Act, Civil Code section 1791 et seq.; accordingly, Plaintiffs are barred from asserting such claims in this action. FAILURE T0 EXHAUST DISPUTE RESOLUTION PROCESS - CIVIL CODE § 1793.22(C) (As to all Song-Beverly Consumer Warranty Act Claims) 12. Upon information and belief, Plaintiff did not resort to, exhaust, 0r otherwise fully comply with a qualified third-party dispute resolution process, pursuant t0 Civil Code section 1 793 .22(c). COMPLIANCE (As to all Song-Beverly Consumer Warranty Act claims) 13. This answering 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. This answering Defendant maintains a qualified third-party dispute resolution process Which complies 0r substantially complies With Section 1793.22 and therefore this answering Defendant is not liable for civil penalties pursuant to Section 1794(e)(2). ANSWER T0 COMPLAINT CASE No. 2 1CV3 8 1404 010-9220-0160/1/AMERICAS SQUIRE PATTON BOGGS (US) LLP 555 S. Flower Street, Suite 3100 Los Angeles, California 90071 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FAILURE TO MITIGATE DAMAGES (As to all claims) 15. Plaintiffs were under a duty to mitigate any damages which may have been sustained, and Plaintiffs failed t0 act reasonably and properly t0 mitigate any damages 0r losses Plaintiffs claim to have sustained, if any there were. Accordingly, Plaintiffs are barred from recovering any damages, which could have been avoided by reasonable mitigation efforts. REPAIR (As to all claims) 16. If there were any nonconformities 0r defects manifested in the subject vehicle (Which this answering Defendant expressly denies), those nonconformities 0r defects have been fully serviced 0r repaired t0 conform the vehicle t0 the applicable warranty(ies). EQUITABLE DEFENSES (As t0 all claims seeking equitable relief) 17. Plaintiffs are estopped from seeking equitable relief from this answering Defendant because, upon information and belief, Plaintiffs’ own inequitable conduct precludes equitable reliefunder the doctrines of unclean hands, equitable estoppel, and/or laches. EXPIRATION 0F IMPLIED WARRANTY - CIVIL CODE § 1791.1 (As to all Song-Beverly Consumer Warranty Act claims) 18. Any and all implied warranties, if any there were, including but not limited to warranties 0f merchantability and fitness, expired by their own terms or by operation 0f Civil Code section 1791.1 prior to the filing of Plaintiffs’ Complaint. STATUTE OF LIMITATIONS (As to all claims) 19. Upon information and belief, the claims alleged in the Complaint are barred by the applicable statutes of limitations including, but not limited t0, the provisions 0f California Code of Civil Procedure sections 312, 337(1)-(3), 338(a) (d) (j), 339(1) (3), and 343, and/or California Commercial Code section 2725. ANSWER T0 COMPLAINT CASE No. 2 1CV3 8 1404 010-9220-0160/1/AMERICAS SQUIRE PATTON BOGGS (US) LLP 555 S. Flower Street, Suite 3100 Los Angeles, California 90071 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEMAND FOR ARBITRATION (As to all claims) 20. Upon information and belief, the contract for the purchase 0f the subj ect vehicle referenced in Plaintiffs’ Complaint includes an arbitration clause and by way 0f this answer and affirmative defense, this answering Defendant hereby demands arbitration and does not waive its rights to seek arbitration of those issues. CODE CIVIL PROCEDURE § 389 (As to all claims) 21. Upon information and belief, the Complaint does not name all necessary or indispensable persons as plaintiffs in this action, and does not state the reasons said person(s) is/are not joined; therefore, the action should be dismissed. CIVIL CODE § 1793.22 (N0 NOTICE) (As to all Song-Beverly Consumer Warranty Act Claims) 22. This answering Defendant clearly and conspicuously disclosed t0 Plaintiffs the provisions of Civil Code section 1793.22 and of Civil Code section 1793 .2(d), including the requirement that Plaintiffs must notify this answering Defendant directly pursuant t0 paragraphs (1) and (2) 0f Civil Code section 1793.22(b). This answering Defendant is informed and believes, and based thereon alleges, that Plaintiffs did not give proper notice to this answering Defendant. N0 WILLFUL VIOLATION (As to all Song-Beverly Consumer Warranty Act claims) 23. Plaintiffs cannot recover a Civil penalty because this answering Defendant's acts or omissions were not willful. (CiV. Code, § 1794(c)). CIVIL CODE § 1794 (BREACH 0F IMPLIED WARRANTY) (As to all Song-Beverly Consumer Warranty Act Claims) 24. Plaintiffs cannot recover a civil penalty because Plaintiffs’ claim is based 0n breach of an implied warranty. (CiV. Code, § 1794(c)). ANSWER T0 COMPLAINT CASE No. 2 1CV3 8 1404 010-9220-0160/1/AMERICAS SQUIRE PATTON BOGGS (US) LLP 555 S. Flower Street, Suite 3100 Lns Angeles, Califnrnia 90071 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CIV. CODE § 1794(E)(3) (N0 NOTICE) (As t0 all Song-Beverly Consumer Warranty Act claims) 25. This answering Defendant is informed and believes, and based thereon alleges, that Plaintiffs cannot recover a civil penalty for a non-Willful Violation ofparagraph (2) of subdivision ( d) of Civil Code section 1793.2, because Plaintiffs failed to serve proper notice. (CiV. Code § 1794(e)(3)). RESERVATION OF DEFENSES (As to all claims) 26. This answering Defendant has insufficient knowledge or information upon Which t0 form a belief as t0 Whether it may have additional affirmative defenses available, so this answering Defendant reserves the right to assert such additional defenses in the event discovery, investigation, 0r analysis indicate the need for same. WHEREFORE, this answering Defendant prays for judgment and relief as follows: 1. That Plaintiffs take nothing by way of the Complaint on file herein; 2. For judgment in favor of this answering Defendant and against Plaintiffs 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 4, 2021 Squire Patton Boggs (US) LLP Shaun Kim Sean P. Conboy Attorneys for Defendants VOLKSWAGEN GROUP OF AMERICA, INC. and STEVENS CREEK VOLKSWAGEN ANSWER To COMPLAINT CASE No. 2 1 CV3 8 1404 010-9220-0160/1/AMERICAS SQUIRE PATTON BOGGS (US) LLP 555 S. Flower Street, Suite 3100 Lns Angeles, Califnrnia 90071 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF 0F SERVICE (Pursuant t0 California State Law) The undersigned certifies and declares as follows: I am a resident of the State of California and over 18 years of age and am not a party t0 this action. My business address is 555 South Flower Street, Suite 3100, Los Angeles, CA 90071, Which is located in the county where any non-personal service described below took place. On June 4, 2021, a copy of the following document(s): DEFENDANT STEVENS CREEK VOLKSWAGEN’S ANSWER TO COMPLAINT was served on: Tionna Dolin, Esq. Attorneysfor Plaintifl STRATEGIC LEGAL PRACTICES MYLNA T. DELMUNDO and A PROFESSIONAL CORPORATION ANGELITO DELMUNDO 1840 Century Park East, Suite 430 Los Angeles, CA 90067 Service was accomplished as follows. E By U.S. Mail, According to Normal Business Practices. On the above date, at my place of business at the above address, I sealed the above document(s) in an envelope addressed to the above, and Iplaced that sealed envelope for collection and mailing following ordinary business practices, for deposit With the U.S. Postal Service. I am readily familiar with the business practice at my place of business for the collection and processing 0f correspondence for mailing with the U.S. Postal Service. Correspondence s0 collected and processed is deposited the U.S. Postal Service the same day in the ordinary course 0f business, postage fully prepaid. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on June 4, 2021, at Los Angeles, California.m Shelia Sanders 4401 1 1 .03621 ANSWER To COMPLAINT CASE No. 2 1 CV3 8 1404 010-9220-0160/1/AMERICAS
