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1 Mary Arens McBride, Esq., SBN: 282459
Ryan Kay, Esq., SBN: 340354
2
THE ERSKINE LAW GROUP, PC.
3 1576 N. Batavia St., Suite A
Orange, CA 92867
4 Tel: (949) 777-6032
Fax: (714) 844-9035
5 marensmcbride@erskinelaw.com
rkay@erskinelaw.com
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7 Attorneys for Defendant,
GENERAL MOTORS LLC
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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FOR THE COUNTY OF KERN
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MELISSA CLAIRE TENHET, )
12 ) Case No.: BCV-22-101476
Plaintiff, )
13 ) GENERAL MOTORS LLC’S ANSWER TO
vs. ) PLAINTIFF’S UNVERIFIED COMPLAINT
14 )
15 )
GENERAL MOTORS LLC; and DOES 1 ) Hon. Bernard C. Barmann, JR
16 through 10, inclusive, ) Dept. H
)
17 Defendants. )
)
18 )
19 )
)
20 )
21 Defendant General Motors LLC (“GM”) answers Plaintiff’s Unverified Complaint as follows:
22 I.
23 GM answers the Unverified Complaint pursuant to California Code of Civil Procedure § 431.30
24 by denying, generally and specifically, each, every, and all of the allegations in the Unverified
25 Complaint and each and every part of it, including each and every cause of action in it, and denies that
26 Plaintiff has sustained or will sustain any damage in the sum referenced in it, or any other sum(s), or at
27 all.
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______________________________________________________________________________
GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT
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2 II.
3 GM further answers the Unverified Complaint on file herein and each and every purported cause
4 of action in it by denying that Plaintiff has sustained or will sustain, any damages in any sum at all by
5 reason of the carelessness, negligence or other faults, act, or omission by GM, its agents, servants, or
6 employees.
AFFIRMATIVE DEFENSES TO THE COMPLAINT
7 AND EACH ALLEGED CAUSE OF ACTION THEREOF
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FIRST AFFIRMATIVE DEFENSE
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(Failure to State a Cause of Action)
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The Unverified Complaint, and each purported cause of action alleged in it, fails to state facts
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sufficient to constitute a cause of action against GM.
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SECOND AFFIRMATIVE DEFENSE
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(Failure to Allow a Cure)
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GM is informed and believes, and therefore alleges, that Plaintiff is barred from obtaining the
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relief sought in the Unverified Complaint because Plaintiff has failed and refused to allow GM a
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reasonable opportunity to cure any alleged breach by GM.
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THIRD AFFIRMATIVE DEFENSE
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(Mitigation)
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GM is informed and believes, and therefore alleges, that Plaintiff’s alleged damages, if any, are
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the result, in whole or in part, of Plaintiff’s failure to exercise care to reduce or mitigate damages.
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FOURTH AFFIRMATIVE DEFENSE
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(Contributory Negligence, Unclean Hands, Assumption of Risk)
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GM is informed and believes, and therefore alleges, that Plaintiff is barred in whole or in part
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by Plaintiff’s negligence, unclean hands, fault, assumption of risk or otherwise from any and all legal
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or equitable relief against GM, as requested in the Unverified Complaint or otherwise.
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FIFTH AFFIRMATIVE DEFENSE
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(Statutes of Limitation)
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______________________________________________________________________________
GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT
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1 GM is informed and believes, and therefore alleges, that the Unverified Complaint, and each
2 cause of action alleged in it, is barred by application of the statutes of limitation in California Code of
3 Civil Procedure §§ 337(1), 337(2), 337(3), 338(1), 338(2), 338(3), 338(4), 338(7), 339(1), 339(3),
4 340(1), 340(2), 340(3), 342, 343, 344, 348, Commercial Code § 2725 and any other statute of limitation
5 applicable to this action.
6 SIXTH AFFIRMATIVE DEFENSE
7 (Laches)
8 GM is informed and believes, and therefore alleges, that the Plaintiff waited an unreasonable
9 length of time to complain of the alleged acts or omissions at issue in the Unverified Complaint to
10 prejudice GM. Plaintiff is, therefore, guilty of laches and is barred from recovery.
11 SEVENTH AFFIRMATIVE DEFENSE
12 (Failure of Performance)
13 GM is informed and believes, and therefore alleges, that any failure to perform the obligations
14 as described in the Unverified Complaint resulted from Plaintiff’s failure to perform as required by the
15 contract and warranty. Performance by Plaintiff of her obligations is a condition precedent to the
16 performance of GM’s obligations.
17 EIGHTH AFFIRMATIVE DEFENSE
18 (Apportionment)
19 Any and all injuries, if any, and damages, if any, allegedly sustained or suffered by Plaintiff
20 were proximately caused and contributed to by the superseding, intervening acts or omissions of persons
21 other than GM. Those persons, and each of them, were careless and negligent concerning the matters
22 alleged in the Unverified Complaint, and their negligence and carelessness proximately contributed to
23 the loss, injury, damage, or detriment alleged in the Unverified Complaint, with the result that the
24 damages, if any, recoverable by Plaintiff must be diminished in proportion to the fault attributable to
25 those other persons.
26 NINTH AFFIRMATIVE DEFENSE
27 (Misuse of Product)
28 Any and all injuries, if any, and damages, if any, allegedly sustained or suffered by Plaintiff
______________________________________________________________________________
GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT
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1 were directly and proximately caused and contributed to by the misuse of and the unreasonable and
2 improper use of GM’s product. The misuse of or failure to use GM’s product properly contributed to
3 the loss, injury, damage, or detriment, if any, alleged in the Unverified Complaint, and the damages, if
4 any, recoverable by Plaintiff must be diminished in proportion to the amount of fault attributable to that
5 misuse or unreasonable or improper use.
6 TENTH AFFIRMATIVE DEFENSE
7 (Alteration of Product)
8 Any damage to the subject vehicle was caused or created by changes or alterations to the vehicle,
9 after GM manufactured and sold the vehicle, by persons other than GM or any of its agents, servants,
10 or employees, barring Plaintiff’s recovery in this action.
11 ELEVENTH AFFIRMATIVE DEFENSE
12 (Disclaimer)
13 GM is informed and believes, and therefore alleges, that before and at the time of the alleged
14 acts, omissions, and conduct of GM alleged in the Unverified Complaint, GM had expressly disclaimed,
15 negated, and excluded all warranties of the type alleged by Plaintiff, and of any type, express or implied,
16 whatsoever.
17 TWELFTH AFFIRMATIVE DEFENSE
18 (Lack of Causation)
19 No act or omission of GM was the cause in fact or the proximate cause of the alleged injuries
20 and damages, if any, sustained by Plaintiff. GM is informed and believes, and therefore alleges, that
21 any breach of warranty of fitness or merchantability if any, and any other breach of warranty, if any,
22 and any breach of contractual undertakings by GM, if any, were neither the cause in fact nor the
23 proximate cause of Plaintiff’s damages. Rather, any alleged breach was only secondary,
24 inconsequential, indirect and in no way contributed to or caused Plaintiff’s alleged damages.
25 THIRTEENTH AFFIRMATIVE DEFENSE
26 (Unauthorized Use of the Product)
27 GM is informed and believes, and therefore alleges, that any and all damages, if any, allegedly
28 sustained or suffered by Plaintiff was proximately caused and contributed to by Plaintiff’s use of the
______________________________________________________________________________
GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT
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1 subject vehicle for a purpose to which the subject vehicle was not intended to be used. Plaintiff knew
2 or should have known that the use to which Plaintiff put the vehicle was not the use for which the vehicle
3 was manufactured or intended and that the unintended use could cause damage to Plaintiff.
4 FOURTEENTH AFFIRMATIVE DEFENSE
5 (Estoppel)
6 GM is informed and believes, and therefore alleges, that Plaintiff is estopped from obtaining the
7 relief sought in the Unverified Complaint by virtue of Plaintiff’s acts and conduct in connection with
8 the matters alleged in the Unverified Complaint.
9 FIFTEENTH AFFIRMATIVE DEFENSE
10 (Waiver)
11 GM is informed and believes and therefore alleges, that Plaintiff has waived Plaintiff’s rights, if
12 any, to obtain the relief sought in the Unverified Complaint.
13 SIXTEENTH AFFIRMATIVE DEFENSE
14 (Comparative Negligence)
15 GM is informed and believes, and therefore alleges, that Plaintiff’s damages, if any, were the
16 direct and proximate result of the conduct of Plaintiff or Plaintiff’s agents, employees, and invitees, in
17 that they negligently, carelessly, recklessly, knowingly, and willfully operated, maintained, serviced,
18 directed, and otherwise controlled all operations and maintenance of Plaintiff’s vehicle. Plaintiff’s
19 damages, if any, were directly and proximately caused, in whole or in part, or were contributed to or
20 aggravated by the conduct of Plaintiff or Plaintiff’s agents, employees, and invitees, when they
21 negligently, carelessly, recklessly, knowingly, and willfully failed to repair the subject vehicle, knowing
22 that the vehicle needed service, maintenance, or repair, but instead, proceeded to operate, maintain,
23 navigate, direct, and otherwise make use of the vehicle or made improper and inadequate service,
24 maintenance and repairs to it. GM is further informed and believes, and therefore alleges, that the
25 vehicle owner knowingly and willfully authorized these actions and knowingly and willfully assumed
26 the known risk that these actions would cause, compound, or aggravate the known problems with the
27 vehicle and would proximately cause damage to it.
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______________________________________________________________________________
GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT
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1 SEVENTEENTH AFFIRMATIVE DEFENSE
2 (Assumption of Risk)
3 The risks and dangers in Plaintiff’s conduct were known to Plaintiff, but Plaintiff conducted
4 herself in such a manner as to expose herself and remain exposed to such risks and dangers and, by
5 doing so, assumed all the risks attendant to that conduct. At the time(s), date(s), and place(s) of the
6 events described in the Unverified Complaint, Plaintiff voluntarily assumed the risks of the activities in
7 which Plaintiff was then and there engaged. Under the circumstances and conditions then and there
8 existing, the resulting injuries, ifany, and damages, if any, sustained by Plaintiff were proximately
9 caused by Plaintiff’s own voluntary assumption of risk.
10 EIGHTEENTH AFFIRMATIVE DEFENSE
11 (Qualified Third-Party Dispute Resolution Process)
12 GM maintains a qualified third-party dispute resolution process that substantially complies with
13 California Civil Code § 1793.22. GM is informed and believes, and therefore alleges, that Plaintiff
14 received a timely and appropriate notification, in writing, of the availability of GM’s third-party
15 resolution process. Accordingly, since Plaintiff did not avail herself of the third-party dispute resolution
16 process before filing the Unverified Complaint, § 1794(e)(2) of the California Civil Code affirmatively
17 bars Plaintiff from recovering treble damages (as provided under California Civil Code § 1794(e)) and
18 Plaintiff cannot avail herself of the rebuttable presumption under California Civil Code § 1793.22(e)(1).
19 NINETEENTH AFFIRMATIVE DEFENSE
20 (Good Faith Belief in Legality of Actions)
21 At all times relevant to this action, GM acted in good faith and believes its actions to be legal.
22 TWENTIETH AFFIRMATIVE DEFENSE
23 (Offset for Use)
24 GM intends to avail itself of the reduction authorized by Civil Code § 1793.2(d)(2)(C) if GM is
25 found to violate the Song-Beverly Consumer Warranty Act.
26 TWENTY-FIRST AFFIRMATIVE DEFENSE
27 (Civil Code § 1791.1(c) – Implied Warranty)
28 Each and every cause of action based on breach of implied warranty is barred by Civil Code §
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GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT
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1 1791.1(c).
2 TWENTY-SECOND AFFIRMATIVE DEFENSE
3 (Consent)
4 The repair process to Plaintiff’s vehicle was appropriate and proper and is believed to have been
5 done with Plaintiff’s consent.
6 TWENTY-THIRD AFFIRMATIVE DEFENSE
7 (Failure to Provide Notice)
8 GM is informed and believes, and therefore alleges, that Plaintiff failed to provide notice to GM
9 pursuant to Civil Code § 1794(e)(3). Plaintiff is, therefore, barred from asserting the presumptions in
10 Civil Code § 1793.22 and from recovering civil penalties pursuant to Civil Code § 1794(e).
11 TWENTY-FOURTH AFFIRMATIVE DEFENSE
12 (Failure to State Cause of Action for Civil Penalties)
13 The Complaint fails to state sufficient facts to warrant the imposition of civil penalties if
14 replacement or repurchase of the subject vehicle was not appropriate under the circumstances then
15 known, or if GM offered to repurchase or replace the subject vehicle.
16 TWENTY-FIFTH AFFIRMATIVE DEFENSE
17 (Reservation of Rights)
18 GM presently has insufficient knowledge or information on which to form a belief as to whether
19 it may have additional, as yet unstated, affirmative defenses available. GM reserves the right to assert
20 additional affirmative defenses if discovery indicates that they would be appropriate.
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GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT
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1 WHEREFORE, GM prays:
2 1. That Plaintiff takes nothing by the Unverified Complaint;
3 2. For the cost of suit; and
4 3. For such other and further relief as the Court deems just and proper.
5
6
Dated: August 11, 2022 ERSKINE LAW GROUP, APC
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___________________________
9 Mary Arens McBride
Attorneys for Defendant
10 GENERAL MOTORS LLC
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GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT
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1 PROOF OF SERVICE
2 I am employed in the County of Orange and my business address is 1576 N. Batavia Street, Suite
A in Orange, CA, 92867. I am over the age of 18 years and I am not a party to this action. I am readily
3 familiar with the practices of The Erskine Law Group, PC for the collection and processing of
correspondence for mailing with the United States Postal Service. Such correspondence is deposited
4 with the United States Postal Service the same day in the ordinary course of business.
5 On Thursday, August 11, 2022, I served the foregoing document(s), bearing the title(s):
6 GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT
7 on the interested parties in the action as follows:
8 [X] by placing [] the original [X] a true copy thereof enclosed in a sealed envelope addressed as
follows:
9
Tionna Dolin (SBN 299010)
10 e-mail: tdolin@slpattorney.com
(emailservices@s1pattorney.com)
11 Debora Rabieian (SBN 315022)
e-mail: drabieian@slpattorney.com
12 Strategic Legal Practices, APC
1888 Century Park East, 19th Fl.
13 Los Angeles, CA 90067
Telephone: (310) 929-4900
14 Facsimile: (310) 943-3838
15 [] (BY MAIL SERVICE) I placed such envelopes for collection and to be mailed on this date
following ordinary business practices.
16
[] (BY PERSONAL SERVICE) I caused to be delivered such envelope by hand to the office of
17 the addressee.
18 [] (BY NEXT DAY DELIVERY) I caused to be delivered such envelope by hand to the office of
the addressee.
19
[X] (BY E-MAIL) I served the above-mentioned document via electronic transmission per
20 agreement of the parties.
21 [X] (State) I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
22
[] (Federal) I declare under penalty of perjury that I am employed by a member of the Bar of this
23 Court, at whose direction this service is made.
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Executed on Thursday, August 11, 2022, at Orange, CA.
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Signed:
27 Anisa Sasso
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_______________________________________________________________________________
PROOF OF SERVICE
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1 Mary Arens McBride, Esq., SBN: 282459 Ryan Kay, Esq., SBN: 340354 2 THE ERSKINE LAW GROUP, PC. 3 1576 N. Batavia St., Suite A Orange, CA 92867 4 Tel: (949) 777-6032 Fax: (714) 844-9035 5 marensmcbride@erskinelaw.com rkay@erskinelaw.com 6 7 Attorneys for Defendant, GENERAL MOTORS LLC 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF KERN 10 11 MELISSA CLAIRE TENHET, ) 12 ) Case No.: BCV-22-101476 Plaintiff, ) 13 ) GENERAL MOTORS LLC’S ANSWER TO vs. ) PLAINTIFF’S UNVERIFIED COMPLAINT 14 ) 15 ) GENERAL MOTORS LLC; and DOES 1 ) Hon. Bernard C. Barmann, JR 16 through 10, inclusive, ) Dept. H ) 17 Defendants. ) ) 18 ) 19 ) ) 20 ) 21 Defendant General Motors LLC (“GM”) answers Plaintiff’s Unverified Complaint as follows: 22 I. 23 GM answers the Unverified Complaint pursuant to California Code of Civil Procedure § 431.30 24 by denying, generally and specifically, each, every, and all of the allegations in the Unverified 25 Complaint and each and every part of it, including each and every cause of action in it, and denies that 26 Plaintiff has sustained or will sustain any damage in the sum referenced in it, or any other sum(s), or at 27 all. 28 ______________________________________________________________________________ GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT 1 1 2 II. 3 GM further answers the Unverified Complaint on file herein and each and every purported cause 4 of action in it by denying that Plaintiff has sustained or will sustain, any damages in any sum at all by 5 reason of the carelessness, negligence or other faults, act, or omission by GM, its agents, servants, or 6 employees. AFFIRMATIVE DEFENSES TO THE COMPLAINT 7 AND EACH ALLEGED CAUSE OF ACTION THEREOF 8 FIRST AFFIRMATIVE DEFENSE 9 (Failure to State a Cause of Action) 10 The Unverified Complaint, and each purported cause of action alleged in it, fails to state facts 11 sufficient to constitute a cause of action against GM. 12 SECOND AFFIRMATIVE DEFENSE 13 (Failure to Allow a Cure) 14 GM is informed and believes, and therefore alleges, that Plaintiff is barred from obtaining the 15 relief sought in the Unverified Complaint because Plaintiff has failed and refused to allow GM a 16 reasonable opportunity to cure any alleged breach by GM. 17 THIRD AFFIRMATIVE DEFENSE 18 (Mitigation) 19 GM is informed and believes, and therefore alleges, that Plaintiff’s alleged damages, if any, are 20 the result, in whole or in part, of Plaintiff’s failure to exercise care to reduce or mitigate damages. 21 FOURTH AFFIRMATIVE DEFENSE 22 (Contributory Negligence, Unclean Hands, Assumption of Risk) 23 GM is informed and believes, and therefore alleges, that Plaintiff is barred in whole or in part 24 by Plaintiff’s negligence, unclean hands, fault, assumption of risk or otherwise from any and all legal 25 or equitable relief against GM, as requested in the Unverified Complaint or otherwise. 26 FIFTH AFFIRMATIVE DEFENSE 27 (Statutes of Limitation) 28 ______________________________________________________________________________ GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT 2 1 GM is informed and believes, and therefore alleges, that the Unverified Complaint, and each 2 cause of action alleged in it, is barred by application of the statutes of limitation in California Code of 3 Civil Procedure §§ 337(1), 337(2), 337(3), 338(1), 338(2), 338(3), 338(4), 338(7), 339(1), 339(3), 4 340(1), 340(2), 340(3), 342, 343, 344, 348, Commercial Code § 2725 and any other statute of limitation 5 applicable to this action. 6 SIXTH AFFIRMATIVE DEFENSE 7 (Laches) 8 GM is informed and believes, and therefore alleges, that the Plaintiff waited an unreasonable 9 length of time to complain of the alleged acts or omissions at issue in the Unverified Complaint to 10 prejudice GM. Plaintiff is, therefore, guilty of laches and is barred from recovery. 11 SEVENTH AFFIRMATIVE DEFENSE 12 (Failure of Performance) 13 GM is informed and believes, and therefore alleges, that any failure to perform the obligations 14 as described in the Unverified Complaint resulted from Plaintiff’s failure to perform as required by the 15 contract and warranty. Performance by Plaintiff of her obligations is a condition precedent to the 16 performance of GM’s obligations. 17 EIGHTH AFFIRMATIVE DEFENSE 18 (Apportionment) 19 Any and all injuries, if any, and damages, if any, allegedly sustained or suffered by Plaintiff 20 were proximately caused and contributed to by the superseding, intervening acts or omissions of persons 21 other than GM. Those persons, and each of them, were careless and negligent concerning the matters 22 alleged in the Unverified Complaint, and their negligence and carelessness proximately contributed to 23 the loss, injury, damage, or detriment alleged in the Unverified Complaint, with the result that the 24 damages, if any, recoverable by Plaintiff must be diminished in proportion to the fault attributable to 25 those other persons. 26 NINTH AFFIRMATIVE DEFENSE 27 (Misuse of Product) 28 Any and all injuries, if any, and damages, if any, allegedly sustained or suffered by Plaintiff ______________________________________________________________________________ GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT 3 1 were directly and proximately caused and contributed to by the misuse of and the unreasonable and 2 improper use of GM’s product. The misuse of or failure to use GM’s product properly contributed to 3 the loss, injury, damage, or detriment, if any, alleged in the Unverified Complaint, and the damages, if 4 any, recoverable by Plaintiff must be diminished in proportion to the amount of fault attributable to that 5 misuse or unreasonable or improper use. 6 TENTH AFFIRMATIVE DEFENSE 7 (Alteration of Product) 8 Any damage to the subject vehicle was caused or created by changes or alterations to the vehicle, 9 after GM manufactured and sold the vehicle, by persons other than GM or any of its agents, servants, 10 or employees, barring Plaintiff’s recovery in this action. 11 ELEVENTH AFFIRMATIVE DEFENSE 12 (Disclaimer) 13 GM is informed and believes, and therefore alleges, that before and at the time of the alleged 14 acts, omissions, and conduct of GM alleged in the Unverified Complaint, GM had expressly disclaimed, 15 negated, and excluded all warranties of the type alleged by Plaintiff, and of any type, express or implied, 16 whatsoever. 17 TWELFTH AFFIRMATIVE DEFENSE 18 (Lack of Causation) 19 No act or omission of GM was the cause in fact or the proximate cause of the alleged injuries 20 and damages, if any, sustained by Plaintiff. GM is informed and believes, and therefore alleges, that 21 any breach of warranty of fitness or merchantability if any, and any other breach of warranty, if any, 22 and any breach of contractual undertakings by GM, if any, were neither the cause in fact nor the 23 proximate cause of Plaintiff’s damages. Rather, any alleged breach was only secondary, 24 inconsequential, indirect and in no way contributed to or caused Plaintiff’s alleged damages. 25 THIRTEENTH AFFIRMATIVE DEFENSE 26 (Unauthorized Use of the Product) 27 GM is informed and believes, and therefore alleges, that any and all damages, if any, allegedly 28 sustained or suffered by Plaintiff was proximately caused and contributed to by Plaintiff’s use of the ______________________________________________________________________________ GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT 4 1 subject vehicle for a purpose to which the subject vehicle was not intended to be used. Plaintiff knew 2 or should have known that the use to which Plaintiff put the vehicle was not the use for which the vehicle 3 was manufactured or intended and that the unintended use could cause damage to Plaintiff. 4 FOURTEENTH AFFIRMATIVE DEFENSE 5 (Estoppel) 6 GM is informed and believes, and therefore alleges, that Plaintiff is estopped from obtaining the 7 relief sought in the Unverified Complaint by virtue of Plaintiff’s acts and conduct in connection with 8 the matters alleged in the Unverified Complaint. 9 FIFTEENTH AFFIRMATIVE DEFENSE 10 (Waiver) 11 GM is informed and believes and therefore alleges, that Plaintiff has waived Plaintiff’s rights, if 12 any, to obtain the relief sought in the Unverified Complaint. 13 SIXTEENTH AFFIRMATIVE DEFENSE 14 (Comparative Negligence) 15 GM is informed and believes, and therefore alleges, that Plaintiff’s damages, if any, were the 16 direct and proximate result of the conduct of Plaintiff or Plaintiff’s agents, employees, and invitees, in 17 that they negligently, carelessly, recklessly, knowingly, and willfully operated, maintained, serviced, 18 directed, and otherwise controlled all operations and maintenance of Plaintiff’s vehicle. Plaintiff’s 19 damages, if any, were directly and proximately caused, in whole or in part, or were contributed to or 20 aggravated by the conduct of Plaintiff or Plaintiff’s agents, employees, and invitees, when they 21 negligently, carelessly, recklessly, knowingly, and willfully failed to repair the subject vehicle, knowing 22 that the vehicle needed service, maintenance, or repair, but instead, proceeded to operate, maintain, 23 navigate, direct, and otherwise make use of the vehicle or made improper and inadequate service, 24 maintenance and repairs to it. GM is further informed and believes, and therefore alleges, that the 25 vehicle owner knowingly and willfully authorized these actions and knowingly and willfully assumed 26 the known risk that these actions would cause, compound, or aggravate the known problems with the 27 vehicle and would proximately cause damage to it. 28 ______________________________________________________________________________ GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT 5 1 SEVENTEENTH AFFIRMATIVE DEFENSE 2 (Assumption of Risk) 3 The risks and dangers in Plaintiff’s conduct were known to Plaintiff, but Plaintiff conducted 4 herself in such a manner as to expose herself and remain exposed to such risks and dangers and, by 5 doing so, assumed all the risks attendant to that conduct. At the time(s), date(s), and place(s) of the 6 events described in the Unverified Complaint, Plaintiff voluntarily assumed the risks of the activities in 7 which Plaintiff was then and there engaged. Under the circumstances and conditions then and there 8 existing, the resulting injuries, ifany, and damages, if any, sustained by Plaintiff were proximately 9 caused by Plaintiff’s own voluntary assumption of risk. 10 EIGHTEENTH AFFIRMATIVE DEFENSE 11 (Qualified Third-Party Dispute Resolution Process) 12 GM maintains a qualified third-party dispute resolution process that substantially complies with 13 California Civil Code § 1793.22. GM is informed and believes, and therefore alleges, that Plaintiff 14 received a timely and appropriate notification, in writing, of the availability of GM’s third-party 15 resolution process. Accordingly, since Plaintiff did not avail herself of the third-party dispute resolution 16 process before filing the Unverified Complaint, § 1794(e)(2) of the California Civil Code affirmatively 17 bars Plaintiff from recovering treble damages (as provided under California Civil Code § 1794(e)) and 18 Plaintiff cannot avail herself of the rebuttable presumption under California Civil Code § 1793.22(e)(1). 19 NINETEENTH AFFIRMATIVE DEFENSE 20 (Good Faith Belief in Legality of Actions) 21 At all times relevant to this action, GM acted in good faith and believes its actions to be legal. 22 TWENTIETH AFFIRMATIVE DEFENSE 23 (Offset for Use) 24 GM intends to avail itself of the reduction authorized by Civil Code § 1793.2(d)(2)(C) if GM is 25 found to violate the Song-Beverly Consumer Warranty Act. 26 TWENTY-FIRST AFFIRMATIVE DEFENSE 27 (Civil Code § 1791.1(c) – Implied Warranty) 28 Each and every cause of action based on breach of implied warranty is barred by Civil Code § ______________________________________________________________________________ GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT 6 1 1791.1(c). 2 TWENTY-SECOND AFFIRMATIVE DEFENSE 3 (Consent) 4 The repair process to Plaintiff’s vehicle was appropriate and proper and is believed to have been 5 done with Plaintiff’s consent. 6 TWENTY-THIRD AFFIRMATIVE DEFENSE 7 (Failure to Provide Notice) 8 GM is informed and believes, and therefore alleges, that Plaintiff failed to provide notice to GM 9 pursuant to Civil Code § 1794(e)(3). Plaintiff is, therefore, barred from asserting the presumptions in 10 Civil Code § 1793.22 and from recovering civil penalties pursuant to Civil Code § 1794(e). 11 TWENTY-FOURTH AFFIRMATIVE DEFENSE 12 (Failure to State Cause of Action for Civil Penalties) 13 The Complaint fails to state sufficient facts to warrant the imposition of civil penalties if 14 replacement or repurchase of the subject vehicle was not appropriate under the circumstances then 15 known, or if GM offered to repurchase or replace the subject vehicle. 16 TWENTY-FIFTH AFFIRMATIVE DEFENSE 17 (Reservation of Rights) 18 GM presently has insufficient knowledge or information on which to form a belief as to whether 19 it may have additional, as yet unstated, affirmative defenses available. GM reserves the right to assert 20 additional affirmative defenses if discovery indicates that they would be appropriate. 21 22 23 24 25 26 27 28 ______________________________________________________________________________ GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT 7 1 WHEREFORE, GM prays: 2 1. That Plaintiff takes nothing by the Unverified Complaint; 3 2. For the cost of suit; and 4 3. For such other and further relief as the Court deems just and proper. 5 6 Dated: August 11, 2022 ERSKINE LAW GROUP, APC 7 8 ___________________________ 9 Mary Arens McBride Attorneys for Defendant 10 GENERAL MOTORS LLC 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ______________________________________________________________________________ GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT 8 1 PROOF OF SERVICE 2 I am employed in the County of Orange and my business address is 1576 N. Batavia Street, Suite A in Orange, CA, 92867. I am over the age of 18 years and I am not a party to this action. I am readily 3 familiar with the practices of The Erskine Law Group, PC for the collection and processing of correspondence for mailing with the United States Postal Service. Such correspondence is deposited 4 with the United States Postal Service the same day in the ordinary course of business. 5 On Thursday, August 11, 2022, I served the foregoing document(s), bearing the title(s): 6 GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT 7 on the interested parties in the action as follows: 8 [X] by placing [] the original [X] a true copy thereof enclosed in a sealed envelope addressed as follows: 9 Tionna Dolin (SBN 299010) 10 e-mail: tdolin@slpattorney.com (emailservices@s1pattorney.com) 11 Debora Rabieian (SBN 315022) e-mail: drabieian@slpattorney.com 12 Strategic Legal Practices, APC 1888 Century Park East, 19th Fl. 13 Los Angeles, CA 90067 Telephone: (310) 929-4900 14 Facsimile: (310) 943-3838 15 [] (BY MAIL SERVICE) I placed such envelopes for collection and to be mailed on this date following ordinary business practices. 16 [] (BY PERSONAL SERVICE) I caused to be delivered such envelope by hand to the office of 17 the addressee. 18 [] (BY NEXT DAY DELIVERY) I caused to be delivered such envelope by hand to the office of the addressee. 19 [X] (BY E-MAIL) I served the above-mentioned document via electronic transmission per 20 agreement of the parties. 21 [X] (State) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 22 [] (Federal) I declare under penalty of perjury that I am employed by a member of the Bar of this 23 Court, at whose direction this service is made. 24 Executed on Thursday, August 11, 2022, at Orange, CA. 25 26 Signed: 27 Anisa Sasso 28 _______________________________________________________________________________ PROOF OF SERVICE