AnswerCal. Super. - 3rd Dist.July 31, 2017No c C o o c l h l O l U l U l U M O U L U N Y C U C N O N - e e t - - i y je mi - -_ _ ~ a wn as w N - oo 19 H. Paul Efstratis, Esq. (SBN 242373) Paul. Efstratis@Leclairryan.Com Kristina O, Lambert, Esq. (SBN 290403) Kristina.Lambert@Leclairryan.Com Christopher J.C. Waldon, Esq. (SBN 310179) Christopher. Waldon@Leclairryan.Com Taylor F. Sullivan, Esq. (SBN 297014) Taylor.Sullivan@Leclairryan.Com LECLAIRRYAN, LLP 44 Montgomery Street Suite 3100 San Francisco, CA 94104 TELEPHONE: 415.391.7111 FAX: 415.391.8766 Attorneys for Defendant Ford Motor Company of Cajifornia | urt Superior Co of Placer SEP 18 2011 Jake Chatters Clerk ep tive Officer a Brown, D SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF PLACER KIMBERLY PAGE, Plaintiff, Vv. FORD MOTOR COMPANY; a Delaware Corporation; FUTURE FORD, INC. d/b/a FUTURE FORD LINCOLN, a California corporation, AND DOES 1-20, Defendants. Case No.: SCV0039908 ANSWER OF DEFENDANT FORD MOTOR COMPANY TO PLAINTIFF’S UNVERIFIED COMPLAINT Complaint Filed: July 31, 2017 Trial Date: To be determined Defendant Ford Motor Company (“Defendant”), for itself alone and no other defendant, hereby answers the unverified complaint of Plaintiff on file as follows: General Denial Pursuant to the provisions of Section 431.30(d) of the Code of Civil Procedure, Defendant ANSWER OF DEFENDANT FORD MOTOR COMPANY TO PLAINTIFF'S UNVERIFIED COMPLAINT B Y F A X an nn eR Ww W nN ~ denies, generally and specifically, all of the allegations contained in the Complaint and specifically denies that it caused or contributed to any alleged damages, and further denies that Plaintiff has been or will be damaged in any sum or sums, either as alleged, otherwise, or at all. Affirmative Defenses Defendant alleges the following affirmative defenses to the Complaint: FIRST AFFIRMATIVE DEFENSE (Failure to State a Legal Claim) L Each and every allegation in the Complaint fails to state facts sufficient to constitute a cause of action against Defendant. SECOND AFFIRMATIVE DEFENSE (Breach of Conditions Precedent) 2. Upon information and belief, Defendant alleges that the improper conduct of Plaintiff and other parties, as well as the failure to give written or other notice as required under the applicable statutes, constituted a breach of conditions precedent to any right or theory of recovery against Defendant which might otherwise apply. THIRD AFFIRMATIVE DEFENSE (Failure to Mitigate) 3. To the extent that any injury, damage or loss sustained by Plaintiff was legally caused by a failure to mitigate damages by failing to exercise reasonable care in caring for any injury, damage or loss or preventing the aggravation thereof, the claims of Plaintiff are barred. FOURTH AFFIRMATIVE DEFENSE (No Defect) 4. Upon information and belief, Defendant alleges that any injury or damage alleged by Plaintiff in the Complaint was not due to any defect or nonconformity for which Defendant is responsible, and that any defect or nonconformity of which Plaintiff complains was not present at the time the product left the custody, control, or possession of Defendant but arose and was brought about subsequent thereto. FIFTH AFFIRMATIVE DEFENSE 2 ANSWER OF DEFENDANT FORD MOTOR COMPANY TO PLAINTIFF’S UNVERIFIED COMPLAINT oa Oo @w ~_ rn Ww & we N - - _ a _ - _ - oO Oo nN a wn - Ww nN tN oO 21 (Product Misuse) 5. Upon information and belief, Defendant alleges that at the time and place of the occurrences alleged in the Complaint, the product was not being used in the manner and for the purpose for which it was intended, and that the product was subjected to unreasonable, unintended and/or unauthorized use. To the extent that any injury or damage alleged by Plaintiff was due to the unreasonable, unintended or unauthorized use of the product, Plaintiff is barred from seeking any relief or remedy. SIXTH AFFIRMATIVE DEFENSE (Not Covered by Warranty) 6; At the time of sale of the product, the Ford Warranty Guide, which accompanied and is applicable to the product, expressly negated and/or limited any express warranty on the product by excluding coverage or warranty for tire damage, damage due to accidents, misuse or negligence, damage due to lack of maintenance, damage due to alterations, damage due to non- genuine Ford repair parts and accessories, damage caused by improper body repairs, an altered odometer, damage from the environment, and damage to glass not resulting from a defect or nonconformity. To the extent that any injury or damage alleged by Plaintiff was due to one or more conditions that are applicable to the categories not covered by the warranty, Plaintiff is barred from seeking any relief or remedy. SEVENTH AFFIRMATIVE DEFENSE (Failure to Give Proper Notice) he Some or all of the claims are barred by failure of Plaintiff to give reasonable notice of the defect or nonconformity to 1) seller as required by Section 2607 of California’s Commercial Code, and/or 2) Defendant as required by Section 1793.22 of California’s Civil Code and the Ford Warranty Guide, which was provided at the time of the sale of the product. EIGHTH AFFIRMATIVE DEFENSE (Failure to Give Statutory Notice) 8. Plaintiff's prayer for a civil penalty under the Song-Beverly Act is barred by the failure of Plaintiff to give statutory notice as required by Section 1793.2 of California’s Civil 3 ANSWER OF DEFENDANT FORD MOTOR COMPANY TO PLAINTIFF’S UNVERIFIED COMPLAINT o O 0 O B N D H R RF W Y Y e m e e t o o N Y W D H W F k W Y NY O eS 19 Code. NINTH AFFIRMATIVE DEFENSE (Reasonable Number of Attempts) 9. Upon information and belief, Defendant was not afforded a reasonable opportunity or reasonable number of attempts to repair or remedy any alleged defect or nonconformity of the product; therefore, Plaintiff is not entitled to any remedy or relief. TENTH AFFIRMATIVE DEFENSE (Failure to Restore Benefits Received) 10. Plaintiff has failed to restore or offer to restore to Defendant everything of value and benefit that Plaintiff received under the contract of sale for the product; therefore, Plaintiff is barred from seeking the remedy of rescission. ELEVENTH AFFIRMATIVE DEFENSE (Recoupment or Set-Off) dis In the event Plaintiff is entitled to any relief, Defendant is entitled to a recoupment right or set-off for the value of the use of the product by Plaintiff and other or further relief to prevent any unjust enrichment. TWELFTH AFFIRMATIVE DEFENSE (Lack of Revocation of Acceptance) 12. Any claim for an alleged breach of the implied warranty of merchantability is barred, or otherwise limited to the cost of repair, because Plaintiff did not rightfully reject or justifiably revoke acceptance of the product. THIRTEENTH AFFIRMATIVE DEFENSE (Defendant’s Good Faith) 13; The prayer for a civil penalty under the Song-Beverly Act is barred by Defendant’s reasonable and good faith belief that it had complied with its obligations, if any, under the law and any in accordance with any applicable warranty. FOURTEENTH AFFIRMATIVE DEFENSE (Unclean Hands, Laches, Waiver, Estoppel) 4 ANSWER OF DEFENDANT FORD MOTOR COMPANY TO PLAINTIFF'S UNVERIFIED COMPLAINT w WN a a 14, Plaintiff is barred from any recovery or relief by reason of the equitable doctrine of unclean hands, laches, waiver, and/or estoppel. FIFTEENTH AFFIRMATIVE DEFENSE (Statute of Limitations) 15. The claims of each Plaintiff are barred by the applicable statute of limitations including, but not limited to, Sections 337(1), 337(3), 338, 339(1), 339(3), and 340 of the California Code of Civil Procedure, Section 2725 of California’s Commercial Code, and Sections 1783 and 1791.1 of California’s Civil Code. SIXTEENTH AFFIRMATIVE DEFENSE (Purchase Outside of California) 16. The claims of each Plaintiff are barred to the extent that the product was purchased outside of the State of California. SEVENTEENTH AFFIRMATIVE DEFENSE (Limitation on Remedy) 17. The right of Plaintiff to a refund or replacement, as provided in Section 1793.2(d) of California’s Civil Code, is limited to a claim for the breach of an express warranty and is, therefore, not an available remedy where the claim is for the breach of an implied warranty. EIGHTEENTH AFFIRMATIVE DEFENSE (Duration of Implied Warranty) 18. To the extent the claim of Plaintiff is for the breach of an implied warranty of merchantability or an implied warranty of fitness for a used motor vehicle, and such claim is brought more than three months following the sale of the motor vehicle, Section 1795.5(c) of California’s Civil Code bars any remedy based thereupon. NINETEENTH AFFIRMATIVE DEFENSE (Duration of Implied Warranty) 19. To the extent the claim of Plaintiff is for the breach of an implied warranty of merchantability or an implied warranty of fitness for a new motor vehicle, and such claim is brought more than one year following the sale of the motor vehicle, Section 1791.1 (c) of 5 ANSWER OF DEFENDANT FORD MOTOR COMPANY TO PLAINTIFF'S UNVERIFIED COMPLAINT N S o 0 O o N O N H BR California’s Civil Code bars any remedy based thereupon. TWENTIETH AFFIRMATIVE DEFENSE (Availability of Additional Affirmative Defense) 20. Defendant has insufficient knowledge or information upon which to form a belief as to whether it may have additional, and as yet unstated, affirmative defenses available, and Defendant reserves the right to assert such additional defenses in the event discovery, investigation, or analysis indicated they are proper. WHEREFORE, Defendant requests judgment as follows: ft. That Plaintiff takes nothing by reason of the Complaint; 2. That Defendant be awarded costs and expenses of suit herein, including reasonable attorneys’ fees; and 3. That this Court grant such other and further relief to Defendant as may be deemed just and proper. DATED: September 18, 2017 LECLAIRRYAN LLP By: Core H, Paul Efstratis, Esq. (SBN 242373) Paul.Efstratis@Leclairryan.Com Kristina O. Lambert, Esq. (SBN 290403) Kristina. Lambert@Leclairryan.Com Christopher J.C. Waldon, Esq. (SBN 310179) Christopher.Waldon@Leclairryan.Com Taylor F. Sullivan, Esq. (SBN 297014) Taylor.Sullivan@Leclairryan.Com Attorneys for Defendant Ford Motor Company 6 ANSWER OF DEFENDANT FORD MOTOR COMPANY TO PLAINTIFF’S UNVERIFIED COMPLAINT o S 6 B t H m H R B HB Y W Kw Y b N YY N Y N Y N N N R m e o y D M & ® B W Y N K F S C O C M H I D M B W NH E S Page v. Ford Motor Company, et al. PROOF OF SERVICE T declare that: Iam a citizen of the United States, employed in the County of San Francisco, California, over the age of eighteen years, and not a party to the within cause. My business address is 44 Montgomery Street, Suite 3100, San Francisco, California, 94104. On this date, I served the within: ANSWER OF DEFENDANT FORD MOTOR COMPANY TO PLAINTIFF'S UNVERIFIED COMPLAINT on the parties in said cause, by placing a true and correct copy thereof addressed as follows: Attorneys for Plaintiff Christopher M. Lovasz Jeeho H. Lim Consumer Legal Services, P.C. 2330 Long Beach Boulevard Long Beach, CA 90806 Telephone: (562) 424-3293 Fax: (562) 595-1849 X__ BY MAIL: on the parties in said cause, by placing a true and correct copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the United States mail at San Francisco, California, as addressed as above. I certify and declare under penalty of perjury that the foregoing is true and correct and that _, | - this declaration was executed on September 18, 2017, at San Francisco, California. Opn 7) Charmaine Villaverk_ )
