Answer

Cal. Super. - 3rd Dist.July 31, 2017

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES OF JOHN A. BRITTON, INC. JOHN A. BRITTON, State Bar No. 55490 1478 Stone Point Drive, #400 Roseville, CA 95661 Telephone: (916) 781-2050 Fax: (916) 782-7560 Email: jbritton@jbrittonlaw.com Attorney for Defendants JOHN L. SULLIVAN INVESTMENTS, INC. dba ROSEVILLE TOYOTA and RLI INSURANCE COMPANY SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF PLACER ANDREA FILIMON and EMANUELA FILIMON, CASE NO. SCV 0039808 DEFENDANTS JOHN L. SULLIVAN INVESTMENTS, INC. dba ROSEVILLE TOYOTA AND RLI INSURANCE COMPANY’S ANSWER TO PLAINTIFFS’ COMPLAINT Plaintiffs, V. ROSEVILLE TOYOTA, a California Corporation; TOYOTA MOTOR CREDIT CORPORATION, a California Corporation; RLI INSURANCE COMPANY, an Illinois Corporation; and DOES 1 through 75, inclusive, Defendants. Ne we r N e e N e e e e e e e f e f e l e f e e e e e e e a a COME NOW Defendants JOHN L. SULLIVAN INVESTMENTS, INC. dba ROSEVILLE E/S/A Asseville Fo TOYOTA and Defendant RLI TNRCRANCE COMPANY (hereinafter “Defendants’’), and in answer to Plaintiffs’ Complaint on file herein and each cause of action therein stated, admits, denies, and alleges as follows: L GENERAL DENIAL Pursuant to Code of Civil Procedure Section 431.30(d), Defendants deny each and every, all and singular, of the allegations contained in the Complaint, and each purported cause of action therein Answer to Complaint -l- 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 contained, and further denies that Plaintiffs were, are, or will be injured in the sum or sums therein alleged or otherwise or at all. II. AFFIRMATIVE DEFENSES AS AND FOR SEPARATE AND DISTINCT AFFIRMATIVE DEFENSES, Defendants allege as follows: FIRST AFFIRMATIVE DEFENSE (Failure to State a Cause of Action) The Complaint and each cause of action therein contained fails to state facts sufficient to constitute a cause of action against Defendants. SECOND AFFIRMATIVE DEFENSE (Statute of Limitations) The Complaint and each alleged cause of action therein contained is barred by the applicable statute of limitations as set forth in Code of Civil Procedure sections 335.1, 337(1) , 337(3), 337.1, 338, 338(a), 338(c), 338(d), 338(h), 338(n), 339(1), 339(3), 340, 343, 2725, Civil Code sections 1790, et. seq. THIRD AFFIRMATIVE DEFENSE (Estoppel) Plaintiffs are estopped by their own conduct and/or the conduct of their agents from seeking and/or obtaining a recovery against Defendants in reference to the incidents and occurrences described in the Complaint. FOURTH AFFIRMATIVE DEFENSE (Failure to Mitigate) Defendants are informed and believe, and on that basis allege, that Plaintiffs have failed to mitigate their damages through the exercise of reasonable diligence. MIT Answer to Complaint a a 10 1 - 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 FIFTH AFFIRMATIVE DEFENSE (Comparative Negligence) Plaintiffs were careless and negligent and/or at fault in and about the matters alleged in the Complaint and were contributorily negligent with respect to the matters referred to in the Complaint, and each alleged cause of action contained therein, which said carelessness, negligence and/or fault on said Plaintiffs own part was the proximate cause of the alleged injuries, losses and damages sustained, if any there be, and proximately contributed to the happening of the incident and to the injuries, losses and damages, if any there were, alleged in the Complaint on file herein. Under the doctrine of Li v. Yellow Cab Co. of California (1975) 13 Cal.3d 804 [119 Cal.Rptr. 858], American Motorcycle Association v. Superior Court of Los Angeles County (Viking Motorcycle Club) (1978) 20 Cal.3d 578 [146 Cal.Rptr. 182] and progeny, Plaintiffs contributory negligence and/or fault shall reduce any and all damages sustained by said Plaintiffs, if any there be. SIXTH AFFIRMATIVE DEFENSE (Impossibility) Defendants are excused from performing the alleged contract to the extent that it was impossible for Defendants to perform the contract. SEVENTH AFFIRMATIVE DEFENSE (Breach of Contract) Defendants claim upon information and belief that Plaintiffs breached the alleged contract. EIGHTH AFFIRMATIVE DEFENSE (Prevention from Performing Contract) Defendants are excused from performing any obligations under the alleged contract to the extent that Plaintiffs prevented Defendants from performing the contract. NINTH AFFIRMATIVE DEFENSE (Plaintiffs’ Failure to Fulfill Contractual Obligations) The Complaint is barred to the extent that Defendants are excused from performing any Answer to Complaint -3- O o = 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 agreements between themselves and Plaintiffs due to the failure of Plaintiffs to fulfill their contractual obligations under the agreement. TENTH AFFIRMATIVE DEFENSE (Failure of Consideration) The Complaint is barred to the extent that there is a failure of consideration between Plaintiffs and Defendants. ELEVENTH AFFIRMATIVE DEFENSE (Parol Evidence Rule) The Complaint and each cause of action contained therein is barred by the parol evidence rule. TWELFTH AFFIRMATIVE DEFENSE (Failure to State a Claim for Punitive Damages) Plaintiffs’ demand for recovery of punitive damages fails to state facts sufficient to constitute a cause of action against Defendants. THIRTEENTH AFFIRMATIVE DEFENSE (Failure to State a Claim for Attorneys Fees) The Complaint and each cause of action contained therein fails to state facts sufficient to constitute a cause of action against Defendants for attorneys’ fees. FOURTEENTH AFFIRMATIVE DEFENSE (Plaintiffs’ Acts or Omissions) The Complaint, and each cause of action alleged in the Complaint, are barred because to the extent Plaintiffs suffered any damages, those damages were caused by Plaintiffs own acts or omissions. FIFTEENTH AFFIRMATIVE DEFENSE (Assumption of Risk) As to the Complaint and each cause of action therein contained, Plaintiffs voluntarily assumed the specific risk of any and all damage of which Plaintiffs complain, resulting by reason of Plaintiffs own actions or failure to act. Answer to Complaint -4- 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 SIXTEENTH AFFIRMATIVE DEFENSE (Conclusive, Uncertain, Unclear) The Complaint, and each and every cause of action therein, is generally conclusive, uncertain, unclear and ambiguous and fails to state facts sufficient to constitute a claim for relief as to Defendants. SEVENTEENTH AFFIRMATIVE DEFENSE (Unclean Hands) The Complaint and each cause of action therein contained are barred by virtue of Plaintiffs’ unclean hands with regard to the matters at issue. EIGHTEENTH AFFIRMATIVE DEFENSE (Discharge of Duty) Defendants duly performed, satisfied, and discharged all duties and obligations it may have owed to Plaintiffs arising out of any and all agreements, representations or contracts made by or on behalf of Defendants or any defendants, and the Complaint and related claims are therefore barred, in whole or in part, by the provisions of California Civil Code section 1473. NINETEENTH AFFIRMATIVE DEFENSE (Waiver) By reason of Plaintiffs’ actions with respect to the matters and things set forth in the Complaint, Plaintiffs consented to all actions by Defendants, and knowingly and voluntarily waived any right to seek relief or claim damages against Defendants; said waiver operates as a bar to Plaintiffs claim for relief herein. TWENTIETH AFFIRMATIVE DEFENSE (Lack of Damages) Defendants allege that Plaintiffs have not been damaged, nor will they be, in the amount alleged or in any amount or at all through the conduct of Defendants. Mi/1 Answer ta Complaint -5- 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 TWENTY-FIRST AFFIRMATIVE DEFENSE (Mistake) As to the Complaint and each cause of action therein contained, Defendants assert that any errors allegedly contained within the sales agreement at issue were accidental and/or as a result of a bona fide mistake. TWENTY-SECOND AFFIRMATIVE DEFENSE (Set Off) Defendants are entitled to a set off against any amount which Plaintiffs may be entitled to recover as money paid under the conditional sales contract, and such amount representing depreciation in value of the automobile occasioned by use made of it by Plaintiffs while in their possession. TWENTY-THIRD AFFIRMATIVE DEFENSE (Res Judicata) The Complaint and each cause of action therein contained are barred by the doctrine of res judicata. TWENTY-FOURTH AFFIRMATIVE DEFENSE (Collateral Estoppel) The Complaint and each cause of action therein contained are barred by the doctrine of collateral estoppel. TWENTY-FIFTH AFFIRMATIVE DEFENSE (Statute of Frauds) The Complaint, and each and every cause of action, is barred either in whole or in part because of the California Doctrine of Statutes of Fraud with respect to certain types of contract which must be in written form. TWENTY-SIXTH AFFIRMATIVE DEFENSE (Failure to State a Claim for Civil Penalties) Plaintiffs’ Complaint does not state facts sufficient to support an award of civil penalties under Answer to Complaint -6- 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 the applicable law. TWENTY-SEVENTH AFFIRMATIVE DEFENSE (Condition of Vehicle) Defendants contend that the condition of the subject vehicle, as described in the Complaint, did not and does not substantially impair the vehicle’s use, value or safety or enjoyment. TWENTY-EIGHTH AFFIRMATIVE DEFENSE (Limitation of Damages) Plaintiffs’ Complaint, and each and every purported cause of action therein, is limited by Civil Code § 2982.5(d)(4), to damages not to exceed the amount of the loan. TWENTY-NINTH AFFIRMATIVE DEFENSE (Secondary Evidence Rule) Plaintiffs’ Complaint, and each and every purported cause of action therein, fails because secondary evidence of the content of a writing must be excluded because there is a genuine dispute concerning the material terms of the writing, justice requires the exclusion, and admission of secondary evidence would be unfair pursuant to Evidence Code §1521. THIRTIETH AFFIRMATIVE DEFENSE (Preemption) Plaintiffs’ Complaint, and each and every purported cause of action therein, are preempted in whole, or in part, by the applicable provisions of the State and Federal Truth and Lending Acts, Consumer Legal Remedy Acts, and/or any acts, statutes, and/or laws dealing with disclosure requirements on Motor Vehicle Sales Agreements. THIRTY-FIRST AFFIRMATIVE DEFENSE (Oral Testimony) Plaintiffs’ Complaint, and each and every purported cause of action therein, fails because oral testimony is not admissible to prove the contents of a writing unless otherwise permitted by statute pursuant to Evidence Code §1523(a). Answer to Complaint -7- 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 THIRTY-SECOND AFFIRMATIVE DEFENSE (Subject to Arbitration) Defendants allege that the court lacks jurisdiction due to the existence of a mandatory, binding arbitration agreement between the parties as set forth in the Retail Installment Sales Contract. THIRTY-THIRD AFFIRMATIVE DEFENSE (Failure to Send out Pre-Suit Notice) Plaintiffs may not seek damages due to his failure to send out a Pre-Suit Notice pursuant to California Civil Code Section 1782. THIRTY-FOURTH AFFIRMATIVE DEFENSE (Reservation of Additional Affirmative Defenses) Defendants contend that because the Complaint is couched in conclusory terms, Defendant cannot fully anticipate all affirmative defenses that may be applicable to the within action. Accordingly, the right to assert additional affirmative defenses, if and to the extent that such affirmative defenses are applicable, is hereby reserved. WHEREFORE, Defendants pray for judgment as follows: 1. That Plaintiffs take nothing by way of their Complaint; ae That any damages sustained by Plaintiffs be reduced by the percentage of their negligence and/or other wrongdoing; 3. For costs of suit incurred herein; 4. For reasonable attorney’s fees; and 5. For such other and further relief as the Court deems just and proper. DATED: September So, 2017 LAW OFFICES OF JOHN A. BRITTON, INC. By: A. T ttorney for Defendants JOHN L. SULLIVAN INVESTMENTS, INC. dba ROSEVILLE TOYOTA and RLI INSURANCE COMPANY Answer ta Complaint -8- 10 11 12 L.3 14 15 16 17 18 19 20 21 22 29 24 25 26 27 28 CASE NAME: FILIMON v. ROSEVILLE TOYOTA COURT: PLACER COUNTY SUPERIOR COURT CASE NO.: SCV 0039808 PROOF OF SERVICE Iam employed in the County of Placer, State of California. I am over the age of 18 and not a party to the within action; I am employed by John A. Britton, Inc., 1478 Stone Point Drive, Suite 400, Roseville, California 95661. I am familiar with the regular mail collection and processing practice of said business, and in the ordinary course of business the mail is deposited with the United State Postal Service that same day. On this date, I caused to be served the foregoing documents described as: ANSWER TO COMPLAINT on all parties in said action as addressed below by causing a true copy thereof to be: ] Telecopied Via Facsimile. X] Placed in a sealed envelope with postage thereon fully prepaid in the designated area for outgoing mail. Delivered Via Personal Service Sent Via Overnight Delivery Sent Via Electronic Mail o e r a e Michael Mixer ROSNER, BARRY & BABBITT, LLP 10085 Carroll Canyon Road, Ste. 100 San Diego, CA 92131 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on September 6 , 2017, at Roseville, California. J oye TgApani