AnswerCal. Super. - 3rd Dist.September 12, 2018Go rd on Re es Sc ul ly Ma ns uk ha ni , LL P 27 5 Ba tt er y St re et , Su it e 20 00 Sa n Fr an ci sc o, CA 94 11 1 o O o O D f e N W N H W k e Y W N O HS N M M O N O NH N H N B L KN R O N O m w e l C o N D O U N F& F W Y NY -§ &§ CO O O W B N K D A BP W w NN O - supe an EL m4 } ourt of Califo County of Placer ma SPENCER P. HUGRET (SBN: 240424) shugret@grsm.com OCT 1 MICAH A. YOSPE (SBN: 281350) myospe@egrsm.com Exec ome & Clerk SAMLECIA D. GAYE (SBN: 296981) sgaye@grsm.com GORDON REES SCULLY MANSUKHANI, LLP 275 Battery Street, Suite 2000 San Francisco, CA 94111 Telephone: (415) 875-3193 Facsimile: (415) 986-8054 By: S. " rlatte, Depry Attorneys for Defendant KIA MOTORS AMERICA, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF PLACER AMANDA FISHER, Case No. SCV0041798 Unlimited Jurisdiction Plaintiff, DEFENDANT KIA MOTORS vs, AMERICA, INC.S ANSWER TO COMPLAINT KIA MOTORS AMERICA, INC.; and DOES 1 through 10, inclusive, Complaint Filed: September 12, 2018 Defendants. N e e e e e N e e e ee S e ee ee ee ee ee ee ee ” Defendant KIA MOTORS AMERICA, INC. (“KMA”), for itself alone and for no other parties, hereby answers Plaintiff AMANDA FISHER (“Plaintiff”) Complaint as follows: Under the provisions of section 431.30(d) of the California Code of Civil Procedure, KMA denies each and every allegation, both specifically and generally, of each cause of action contained in Plaintiff's Complaint on file herein and the whole thereof, and denies that Plaintiff was damaged in any sum or sums, or at all. Further answering the Complaint, and the whole thereof, including each and every cause of action contained therein, KMA denies that Plaintiff has sustained or will l DEFENDANT KIA MOTORS AMERICA, INC.S ANSWER TO COMPLAINT B Y F A X G o r d o n Re es Sc ul ly Ma ns uk ha ni , LL P 27 5 Ba tt er y St re et , Su it e 20 00 Sa n Fr an ci sc o, CA 94 11 1 o O O o N I D H AH F P WY NY O - O o NY O N O H N N O K O O RO NO RO w w w e m m m l e o N D O A Fk W Y N Y | D e O o W B N H H B wD FP W Y N Y KY OS sustain any injury, damage, or loss, if any, by reason of any act or omission, fault or negligence on the part of KMA, its agents, servants and employees, or any of them. SEPARATE AFFIRMATIVE DEFENSES For further and separate answer to the Complaint and by way of affirmative defense, KMaA alleges as follows: FIRST AFFIRMATIVE DEFENSE (Failure to State Cause of Action) 1. Plaintiff's Complaint, and each and every cause of action alleged therein, fails to state facts sufficient to constitute a cause of action against KMA and KMA denies that Plaintiff was damaged in any sum or sums, or at all. SECOND AFFIRMATIVE DEFENSE (Estoppel) os Plaintiff is estopped from obtaining the relief sought, or pursing any of the claims raised or causes of actions contained in the Complaint, by virtue of her acts, failures to act, conduct, representations, admissions, and the like. THIRD AFFIRMATIVE DEFENSE (Waiver) Ds Plaintiff has waived Plaintiff's rights to the claims, causes of action, and relief sought in this Complaint against KMA, by virtue of their acts, failures to act, conduct, representations, admissions, and the like. FOURTH AFFIRMATIVE DEFENSE (Laches) 4. Plaintiff has unreasonably delayed the commencement of this action to the prejudice of KMA. Therefore, the Complaint, and each and every cause of action alleged therein is barred, in whole or in part, by the doctrine of laches. /// //1 //1 2 DEFENDANT KIA MOTORS AMERICA, INC.S ANSWER TO COMPLAINT | B Y F A X Go rd on Re es Sc ul ly Ma ns uk ha ni , LL P 27 5 Ba tt er y St re et , Su it e 20 00 Sa n Fr an ci sc o, CA 94 11 1 O o C O Y N B D U H BR WH KF = N y N Y N Y N H NH N N Y N Y N O R w m e m e m e m e e e e t o N D U F F W N KY § G D O D w e NI N D W H B P W w & Oo FIFTH AFFIRMATIVE DEFENSE (Vehicle Fit for Intended Purpose) 5. KMA is informed and believes, and on that basis alleges, that the subject vehicle was fit for providing transportation at all relevant times hereto. Accordingly, Plaintiff is not entitled to relief for breach of the implied warranty of merchantability. American Suzuki Motor Corporation v. Superior Court (1995) 37 Cal.App.4th 1291. SIXTH AFFIRMATIVE DEFENSE (Duration of Implied Warranty) 6. KMA is informed and believes, and on that basis alleges, that some or all of the alleged defects did not arise until more than three months had elapsed since the subject vehicle was sold to Plaintiff. Accordingly, Plaintiff is not entitled to relief for such concerns under the breach of the implied warranty of merchantability. Civil Code section 1795.5. SEVENTH AFFIRMATIVE DEFENSE (Lack of Maintenance and Other Exclusions) 7. KMaA is informed and believes, and on that basis alleges, that Plaintiff and/or others may have improperly cared for and maintained the subject vehicle, and that some of Plaintiff's concerns may have been proximately caused by such lack of maintenance of the subject vehicle or products. KMA reserves the right to identify additional exclusions, which may be applicable. EIGHTH AFFIRMATIVE DEFENSE (Unreasonable or Unauthorized Use of Vehicle) 8. KMaA is informed and believes, and on that basis alleges, that some of Plaintiff's concerns may be barred by Plaintiff's unreasonable or unauthorized use of the vehicle. Civil Code section 1794.3. /// //1 //1 //1 3 DEFENDANT KIA MOTORS AMERICA, INC.S ANSWER TO COMPLAINT B Y F A X Go rd on Re es Sc ul ly Ma ns uk ha ni , L L P 27 5 Ba tt er y St re et , Su it e 20 00 Sa n Fr an ci sc o, CA 94 11 1 o O O o NN D n Uo F F W Y YN = N M NY O N O N O N O N O K N R O O m e me me me l e o N N D U N P h W Y NH N K Y C O O o F e N Y DB D H H F F W Y NY F Y O& O NINTH AFFIRMATIVE DEFENSE (No Timely Revocation of Acceptance) 9. Plaintiff has no restitution remedy under breach of implied warranty because there was no timely revocation of acceptance before a substantial change in the condition of the goods. TENTH AFFIRMATIVE DEFENSE (No Reasonable Number of Attempts to Repair Afforded) 10. The Complaint and, each and every cause of action therein, does not state facts sufficient to meet the statutory presumption of a reasonable number of repair attempts under the terms of the Civil Code section 1793.22(b). ELEVENTH AFFIRMATIVE DEFENSE (Performance) i. Prior to the commencement of this action, KMA fully performed, satisfied and discharged all duties and obligations it may have owed to Plaintiff arising out of any and all agreements, representations or contracts made by it or on its behalf and this action is therefore barred by the provisions of Civil Code section 1473. TWELFTH AFFIRMATIVE DEFENSE (Failure to Abide by Terms of Warranty) 12. Claims by Plaintiff of breach of warranty are barred because of Plaintiff's failure to give timely and appropriate notice of any claim of breach of warranty. THIRTEENTH AFFIRMATIVE DEFENSE (Failure to Use Third-Party Dispute Resolution) 12. KMA makes available a qualified third-party dispute resolution process, and therefore, it is entitled to relief under certain provisions of the Song-Beverly Consumer Warranty Act. FOURTEENTH AFFIRMATIVE DEFENSE (Accord and Satisfaction) 14. Plaintiff is barred from recovery, in whole or in part, on the ground that Plaintiff is subject to the defense of accord and satisfaction. 4 DEFENDANT KIA MOTORS AMERICA, INC.S ANSWER TO COMPLAINT B Y F A X G o r d o n Re es Sc ul ly Ma ns uk ha ni , LL P 27 5 Ba tt er y St re et , Su it e 20 00 Sa n Fr an ci sc o, CA 94 11 1 oO o OU F N D H Fe WY NO N n N N o n o N o n N N O n N N - _ - - " - - - _ - _ om e pa m en et s oO ~] oO “n A & eS ) No - oS Ne ) o “I Oo A te Ww W N _ FIFTEENTH AFFIRMATIVE DEFENSE (Good Faith Evaluation) 1S. Atall times, KMA's evaluation of Plaintiff's repurchase and/or replacement request has been in good faith, and consequently, Plaintiff has no claim for civil penalty for any alleged willful violation. SIXTEENTH AFFIRMATIVE DEFENSE (Failure to Notify) 16. | KMA is informed and believes, and on that basis alleges, that Plaintiff has failed to provide timely notice, within a reasonable period of time after discovery of their claims and alleged defects. As a result, KMA has been damaged and prejudiced. Therefore, the Complaint and each cause of action therein, is barred as a matter of law. SEVENTEENTH AFFIRMATIVE DEFENSE (Complete Performance) 17. | KMA has appropriately, completely and fully performed and discharged any and all obligations and legal duties arising out of the matters alleged in the Complaint. EIGHTEENTH AFFIRMATIVE DEFENSE (Compliance with Laws) 18. KMA has complied with all laws and regulations with regard to the subject matter of Plaintiff's Complaint, and is therefore not liable to Plaintiff for any damages Plaintiff may have sustained, if any. NINETEENTH AFFIRMATIVE DEFENSE (Good Faith) 19. At all times relevant and material to this action, KMA acted reasonably and in good faith. TWENTIETH AFFIRMATIVE DEFENSE (Independent Causes) 20. The alleged injuries, damages or loss, if any, for which Plaintiff seek recovery, were the result of causes independent of any purported acts or omissions on the part of KMA, or 5 DEFENDANT KIA MOTORS AMERICA, INC.S ANSWER TO COMPLAINT -__ B Y F A X Go rd on Re es Sc ul ly Ma ns uk ha ni , LL P 27 5 Ba tt er y St re et , Su it e 20 00 Sa n Fr an ci sc o, CA 94 11 1 O o Ba N N Dn A fF Ww W NH - N y N O N O P O P O N O N Y N O O m l e a N A v A f F W Y NY -§ |& § O o U O D B N Y D B vA F& F W Y N O -| & OS any of its agents, representatives or employees, thereby eliminating or reducing the alleged liability of KMA. TWENTY-FIRST AFFIRMATIVE DEFENSE (Failure to Maintain) 21. | KMA alleges that any and all conditions in the subject vehicle or products described in the Complaint, if any there were, were solely a result of the failure to properly maintain and service the subject vehicle or products, thereby eliminating or reducing the alleged liability of KMA. TWENTY-SECOND AFFIRMATIVE DEFENSE (No Breach) 22. | KMA alleges that it did not breach any duties to Plaintiff, thereby barring and/or precluding Plaintiff from recovery. TWENTY-THIRD AFFIRMATIVE DEFENSE (Failure to Mitigate) 23; If Plaintiff has suffered any loss, damage or injury, it was directly or proximately caused by and is the result of Plaintiff's conduct and/or Plaintiff's failure to mitigate any such loss, damage, or injury. TWENTY-FOURTH AFFIRMATIVE DEFENSE (Disclaimer of Incidental and Consequential Damages) 24. KMA is informed and believes, and on that basis alleges, that by the terms of the limited warranty for the subject vehicle at issue, KMA is not liable for incidental or consequential damages. TWENTY-FIFTH AFFIRMATIVE DEFENSE (No Civil Penalty) 25. KMaA is informed and believes, and on that basis alleges, that Plaintiff is barred from the recovery of a civil penalty by reason of Plaintiff's failure to serve written notice pursuant to Civil Code section 1794(e)(3). Hl 6 DEFENDANT KIA MOTORS AMERICA, INC.S ANSWER TO COMPLAINT B Y F A X Go rd on Re es Sc ul ly Ma ns uk ha ni , L L P 27 5 Ba tt er y St re et , Su it e 20 00 Sa n Fr an ci sc o, C A 94 11 1 C o C O o S N D N U H B R WD LP N N N O N O N O N O K R R O m w m m m m e m e e k R R B E O R R B R S S E D A R B E B H E A S TWENTY-SIXTH AFFIRMATIVE DEFENSE (No Representation Beyond Express Warranty) 26. KMaA is informed and believes, and on that basis alleges that it did not represent to Plaintiff that the subject vehicle had characteristics and benefits it did not have and/or that its express warranty conferred or involved remedies or obligations it did not have. TWENTY-SEVENTH AFFIRMATIVE DEFENSE (Set Off) 27. | KMA alleges that if it is established that KMA is in any manner legally responsible for any of the damages claimed by Plaintiff, which is denied, KMA is entitled to a set off these damages, if any, that resulted from the wrongful acts of Plaintiff and/or others. TWENTY-EIGHTH AFFIRMATIVE DEFENSE (Spoliation of Evidence) 28. The subject vehicle or products identified in the Complaint that were allegedly designed, manufactured and distributed by KMA are missing, have been modified or altered and/or are no longer available for KMA’s possession, which impacts KMA’s defense in this case. KMA is therefore entitled to relief from this spoliation, including appropriate jury instructions, admonitions and any other relief affiliated by the Court. TWENTY-NINTH AFFIRMATIVE DEFENSE (Additional Affirmative Defenses) 29. KMA reserves its rights to raise and plead additional defenses and/or affirmative defenses which might become known during the course of discovery, as well as to dismiss any defenses which, as a result of discovery, are determined to be unsupported by good faith reliance upon either the facts or the law, or a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law. /// /// /// /// 7 DEFENDANT KIA MOTORS AMERICA, INC.S ANSWER TO COMPLAINT B Y F A X G o r d o n Re es Sc ul ly M a n s u k h a n i , L L P 27 5 Ba tt er y St re et , Su it e 20 00 Sa n Fr an ci sc o, CA 94 11 1 o O O N D N H e BP W Y YB N R N Y K N KN N O RO RO w m m e m e > © B R B O B B R B G a e R D A a A a R a A S s WHEREFORE, KMA prays as follows: Ls 2. 3. 4. For dismissal of Plaintiff's Complaint with prejudice; For judgment in favor of KMA against Plaintiff; For the costs of suit herein; and, For such other and further relief as the Court may deem just and proper. Dated: October 15, 2018 8 GORDON REES SCULLY MANSUKHANI, LLP = By: Spencer P. Hugret Micah A. Yospe Samlecia D. Gaye Attorneys for Defendant KIA MOTORS AMERICA, INC. “DEFENDANT KIA MOTORS AMERICA, INC.S ANSWER TO COMPLAINT _ B Y F A X G o r d o n Re es Sc ul ly Ma ns uk ha ni , LL P 27 5 Ba tt er y St re et , Su it e 20 00 Sa n Fr an ci sc o, C A 94 11 1 | $68388/40796983v. 1 - N O R Q R O O R Q w e m e m m N W N o n PROOF OF SERVICE Amanda Fisher v. Kia Motors America, Inc. Placer County Superior Court Case No. SCV0041798 I am a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is: Gordon & Rees LLP 275 Battery Street, Suite 2000, San Francisco, CA 94111. On the below mentioned date, I served the within documents: DEFENDANT KIA MOTORS AMERICA, INC.S ANSWER TO COMPLAINT by transmitting via facsimile the document(s) listed above to the fax number(s) set forth below on this date before 5:00 p.m. by transmitting VIA ELECTRONIC MAIL the document(s) listed above to the email address(es) set forth below on this date before 5:00 p.m. (Per agreement of the parties.) by having Nationwide PERSONALLY DELIVER the document(s) listed above to the person(s) at the address(es) set forth below. by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in United States mail in the State of California at San Francisco, addressed as set forth below. i] by placing a true copy thereof enclosed in a sealed envelope, at a station designated for collection and processing of envelopes and packages for overnight delivery by FEDEX as part of the ordinary business practices of Gordon Rees Scully Mansukhani, LLP described below, addressed as follows: 0 Law Offices of Patrea R. Bullock 1420 East Roseville Parkway, Suite 140-335 Roseville, CA 95661 Tel: (916) 878-0161 Fax: (855) 520-1690 Email: Attorney@CaliforniaLemonLawExpert.com Attorneys for Plaintiff I am readily familiar with the firm’s practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after the date of deposit for mailing in affidavit. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on October 15, 2018, at San Francisco, California. is KN © Sg SS er Terry L. Johnson PROOF OF SERVICE B Y F A X
