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oO OB N DO aA FF WN
BOWMAN AND BROOKE LLP ELECTRONICALLY
Brian Takahashi (SBN: 146505) FILED
970 West 190th Street, Suite 700 Superior Court of California,
Torrance, California 90502 County of San Francisco
Tel No.: 310/768-3068
Fax No.: 310/719-1019 telpereoar
BY:ANNA TORRES
BOWMAN AND BROOKE LLP pepety cier
Sean A. Ramia (SBN: 172989)
Parris H. Schmidt (SBN: 183999)
1741 Technology Drive, Suite 200
San Jose, California 95110-1364
TelNo: 408/ 279-5393
Fax No: 408/279-5845
Attorneys for Defendant
JAGUAR LAND ROVER NORTH AMERICA, LLC
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO
HAITHAM AL HAFNAWI, CASE NO.: CGC-18-568235
Plaintiff, Assigned to: Hon. TBD
Department:
vs.
DEFENDANT'S JAGUAR LAND ROVER
JAGUAR LAND ROVER NORTH NORTH AMERICA, LLC'S ANSWER TO
AMERICA, LLC; and DOES 1 to 10, COMPLAINT
Defendants. Action Filed: July 19, 2018
) Trial: None
Defendant JAGUAR LAND ROVER NORTH AMERICA, LLC ("JLRNA"), for itself
alone and for no other parties, hereby answers Plaintiffs Complaint as follows:
1. Under the provisions of §431.30(d) of the California Code of Civil
Procedure, Defendant JLRNA, denies each and every allegation, both specifically and
generally, of each cause of action contained in Plaintiffs Complaint on file herein and
the whole thereof, and denies that Plaintiffs was damaged in any sum or sums, or at
all.
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DEFENDANT'S JAGUAR LAND ROVER NORTH AMERICA, LLC'S ANSWER TO COMPLAINToO OB N DO aA FF WN
FIRST AFFIRMATIVE DEFENSE
(FAILURE TO STATE CAUSE OF ACTION)
2. Plaintiffs Complaint fails to state facts sufficient to constitute a cause of
action against JLRNA.
SECOND AFFIRMATIVE DEFENSE
(DURATION OF IMPLIED WARRANTY — NEW VEHICLE)
3. The implied warranty duration is only one year. Civil Code section
1791.1(c).
THIRD AFFIRMATIVE DEFENSE
(SUBJECT VEHICLE FIT FOR ITS INTENDED PURPOSE)
4. JLRNA 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.
FOURTH AFFIRMATIVE DEFENSE
(NO TIMELY REVOCATION OF ACCEPTANCE)
5. Plaintiff has no restitution remedy under breach of implied warranty
because there was no timely revocation of acceptance after the alleged breach and
before a substantial change in the condition of the goods.
FIFTH AFFIRMATIVE DEFENSE
(UNREASONABLE OR UNAUTHORIZED USE)
6. JLRNA is informed and believes some of Plaintiff's concerns may have
been caused by unreasonable or unauthorized use. Civil Code Section 1794.3.
SIXTH AFFIRMATIVE DEFENSE
(MISUSE, ABUSE, IMPROPER MAINTENANCE OR OTHER EXCLUSION)
7. JLRNA is informed and believes, and on that basis alleges, that Plaintiff
and/or others misused, abused and improperly cared for and maintained the subject
19825650v1 2
DEFENDANT'S JAGUAR LAND ROVER NORTH AMERICA, LLC'S ANSWER TO COMPLAINToO OB N DO aA FF WN
2010 Range Rover, therefore, some or all of Plaintiff's nonconformities were or should
have been excluded from coverage. Specifically, JLRNA alleges that after appropriate
discovery, one or more of the stated specific warranty exclusions may be applicable.
SEVENTH AFFIRMATIVE DEFENSE
(FAILURE TO COMPLY WITH CIVIL CODE SECTION 1794.3(e))
8. JLRNA is informed and believes, and on that basis alleges, that Plaintiff
has failed to provide written notice under Civil Code Section 1794.3(e), therefore,
Plaintiff's civil penalty claim is barred.
EIGHTH AFFIRMATIVE DEFENSE
(ESTOPPEL, LACHES, LACK GOOD FAITH)
9. JLRNA is informed and believes some or all of Plaintiff's claims may be
barred by estoppel, laches and/or lack of good faith.
NINTH AFFIRMATIVE DEFENSE
(MAGNUSON MOSS — NO PRIOR DISPUTE RESOLUTION)
10. JLRNA is informed and believes, and on that basis alleges, that Plaintiff
received timely notice of the availability of a third-party dispute resolution process, and
that no effort was made to use such process. Accordingly, Plaintiffs Magnuson Moss
claim is barred.
TENTH AFFIRMATIVE DEFENSE
(MAGNUSON MOSS - NO REASONABLE OPPORTUNITY TO CURE)
11. | JLRNA is informed and believes and on that basis alleges that Plaintiff
has failed to provide it with a reasonable opportunity to cure any alleged defect as
required by 15 U.S.C. §2310(e).
ELEVENTH AFFIRMATIVE DEFENSE
(THIRD-PARTY RESOLUTION)
12. JLRNA maintains a qualified third-party dispute resolution process,
consequently, Plaintiff has no claim for civil penalty for any alleged willful violation.
Suman v. BMW of North America, Inc (1994) 23 Cal. App. 4th 1.
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DEFENDANT'S JAGUAR LAND ROVER NORTH AMERICA, LLC'S ANSWER TO COMPLAINToO OB N DO aA FF WN
TWELVTH AFFIRMATIVE DEFENSE
(FAILURE TO GIVE NOTICE)
13. JLRNA is informed and believes and on that basis alleges that Plaintiff
failed to comply with the notice requirements to assert a cause of action for damages
for violation of the Consumer Legal Remedies Act. Civil Code §1782(a); Outboard
Marine Corporation v. Superior Court (1975) 52 Cal.App.3d 30.
THIRTEEN AFFIRMATIVE DEFENSE
(NO REASONABLE RELIANCE)
14. | JLRNA is informed and believes and on that basis alleges that Plaintiff did
not reasonably rely on any representation, disclaimer, warning or other act or omission
of JLRNA.
FOURTEENTH AFFIRMATIVE DEFENSE
(NO CONCEALMENT)
15. | JLRNA is informed and believes and on that basis alleges that it did not
intentionally conceal or suppress any material fact, and even if it did, it did so without
intent to defraud the Plaintiff.
FIFTEENTH AFFIRMATIVE DEFENSE
(NO MISREPRESENTATION)
16. JLRNA is informed and believes and on that basis alleges that it did not
make any misrepresentations or concealments of material fact, and even if it did, it did
so without intent or knowledge.
SIXTEENTH AFFIRMATIVE DEFENSE
(NO DAMAGE)
17. JLRNA is informed and believes and on that basis alleges that Plaintiff
was not damaged by any representations or concealments, if any, made by JLRNA.
/]
/]
//
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DEFENDANT'S JAGUAR LAND ROVER NORTH AMERICA, LLC'S ANSWER TO COMPLAINToO OB N DO aA FF WN
SEVENTEENTH AFFIRMATIVE DEFENSE
(NO UNFAIR ACT)
18. | JLRNA is informed and believes, and on that basis alleges that it did not
engage in any unfair method of competition or unfair act and/or deceptive practice.
EIGHTEENTH AFFIRMATIVE DEFENSE
(PREEMPTION)
19. | JLRNA is informed and believes, and on that basis, alleges that Plaintiff's
Business and Professions Code § 17200 claim is preempted by the equitable
abstention doctrine. More specifically, this Court should not intervene under the guise
of the UCL in this matter because injunctive relief implicates matters of complex
economic policy and would result in the ongoing judicial supervision of an industry.
Diaz v. Kay-Dix Ranch (1970) 9 Cal.App.3d 588, 598-599.
NINETEENTH AFFIRMATIVE DEFENSE
(NO UNFAIR BUSINESS PRACTICE)
20. JLRNA did not commit any "unfair" business practice within the meaning
of Business and Professions Code section 17200. The utility of the JLRNA's business
practices outweighs any potential harm. Moreover, Plaintiff has failed to identify any
particular "unfair" business practice.
TWENTIETH AFFIRMATIVE DEFENSE
(NO FRAUD)
21. JLRNA did not conduct any business practice that was "fraudulent" or
"likely to mislead" the public. Moreover, plaintiff has failed to identify any particular
business practice that was "fraudulent" or "likely to mislead" the public.
TWENTY-FIRST AFFIRMATIVE DEFENSE
(B&P 17200 CAUSE OF ACTION BARRED)
22. Plaintiffs causes of action and each of them are barred in light of
California Supreme Court's observation in Stop Youth Addiction, Inc. v. Lucky Stores.
19825650v1 5
DEFENDANT'S JAGUAR LAND ROVER NORTH AMERICA, LLC'S ANSWER TO COMPLAINToO OB N DO aA FF WN
Inc. (1998) 17 Cal. 4th 553, 566 that "the UCL cannot be used to state a cause of
action the gist of which is absolutely barred under some other principle of law."
TWENTY-SECOND AFFIRMATIVE DEFENSE
(NO SPECIFICITY)
23. ‘Plaintiffs Complaint fails to state specific facts sufficient to claim
exemplary or punitive damages against JLRNA as required by the common law,
statutory law and public policy of the State of California.
TWENTY-THIRD AFFIRMATIVE DEFENSE
(NO RESTITUTION)
24. JLRNA is informed and believes and on that basis alleges that Plaintiff is
not entitled to restitution or disgorgement of profits pursuant to the California Supreme
Court's interpretation of Business and Professions Code §17200, et seq.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
(BIFURCATION)
25. ‘Plaintiff's claim for exemplary or punitive damages against JURNA cannot
be sustained because any award of exemplary or punitive damages under California
law, without bifurcating the trial and trying all exemplary or punitive damages issues
only if and after liability on the merits has been found, would violate Defendants’ due
process rights guaranteed by the Fourteenth Amendment to the Constitution of the
United States and Article One, Section Seven, of the Constitution of the State of
California, and would be improper under the common law and public policies of the
State of California and under California Civil Code, Sections 3294 and 3295.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
(NO DUE PROCESS)
26. ‘Plaintiff's claim for exemplary or punitive damages against JURNA cannot
be sustained because an award of exemplary or punitive damages under California law
by a jury that (1) is not provided standards of sufficient clarity for determining the
appropriateness, and the appropriate size, of an exemplary of punitive damages award,
19825650v1 6
DEFENDANT'S JAGUAR LAND ROVER NORTH AMERICA, LLC'S ANSWER TO COMPLAINToO OB N DO aA FF WN
(2) is not adequately instructed on the limits on exemplary or punitive damages
imposed by the applicable principles of deterrence and punishment, (3) is not expressly
prohibited from awarding exemplary or punitive damages, or determining the amount of
an award of exemplary or punitive damages, in whole or in part, on the basis of
invidiously discriminatory characteristics, including the residence, wealth, and corporate
status of JLRNA, (4) is permitted to award exemplary or punitive damages under a
standard for determining liability for exemplary or punitive damages that is vague and
arbitrary and does not define with sufficient clarity the conduct or mental state that
makes exemplary or punitive damages permissible, and (5) is not subject to trial court
and appellate judicial review for reasonableness and furtherance of legitimate purposes
on the basis of objective standards, would violate JLRNA’s due process and equal
protection right guaranteed by the Fourteenth Amendment to the Constitution of the
United States and by Article One, Section Seven of the Constitution of the State of
California, and would be improper under the common law and public policies of the
State of California.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
(CLEAR & CONVINCING EVIDENCE REQUIRED)
27. Unless JLRNA's liability, if any, for exemplary or punitive damages and
the appropriate amount of exemplary or punitive damages is required to be established
by clear and convincing evidence, any award of exemplary or punitive damages would
violate JLRNA's due process rights guaranteed by the Fourteenth Amendment to the
Constitution of the United States and by Article One, Section Seven of the Constitution
of the State of California, and would be improper under the common law and public
policies of the State of California.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
(PUNITIVE DAMAGE CLAIM IMPROPER)
28. Plaintiff's claim for exemplary or punitive damages against JURNA cannot
be sustained because an award of exemplary or punitive damages under California law
19825650v1 7
DEFENDANT'S JAGUAR LAND ROVER NORTH AMERICA, LLC'S ANSWER TO COMPLAINToO OB N DO aA FF WN
subject to no predetermined limit, such as a maximum multiple of compensatory
damages or a maximum amount, on the amount of exemplary or punitive damages that
a jury may impose would violate JLRNA’s due process rights guaranteed by Article
One, Section Seven of the Constitution of the State of California, and would be
improper under the common law and public policies of the State of California.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
(PRESERVATION)
29. JLRNA alleges that it may have additional affirmative defenses available
to it of which it is not now fully aware. JLRNA, reserves the right to assert affirmative
defenses after the same shall have been ascertained.
WHEREFORE, Defendant JLRNA, prays as follows:
1. For dismissal of Plaintiff's Complaint with prejudice;
2 For judgment in favor of Defendant JLRNA, against Plaintiff.
3. For the costs of suit herein; and,
4 For such other and further relief as the Court may deem just and proper.
DATED: August 20, 2018 BOWMAN AND BROOKE LLP
Brian Takahashi
Sean A. Ramia
Parris H. Schmidt
Attorneys for Defendant
JAGUAR LAND ROVER NORTH
AMERICA, LLC
19825650v1 8
DEFENDANT'S JAGUAR LAND ROVER NORTH AMERICA, LLC'S ANSWER TO COMPLAINToO OB N DO aA FF WN
PROOF OF SERVICE
CCP 1013A(3)
STATE OF CALIFORNIA, COUNTY OF SANTA CLARA
| am employed in the County of Santa Clara, State of California. | am over the age
of 18 and not a party to the within action; my business address is 1741 Technology Drive,
Suite 200, San Jose, California 95110-1364.
On August 20, 2018, | served the foregoing document described as
DEFENDANT'S JAGUAR LAND ROVER NORTH AMERICA, LLC'S ANSWER TO
COMPLAINT
on all interested parties in this action by placing a copy thereof enclosed in sealed
envelopes addressed as follows:
Brian K. Cline
CLINE, APC
7855 Ivanhoe Avenue, Suite 408
La Jolla, California 92037
(x) BY MAIL (CCP §1013(a) and §2015.5): As follows: | am "readily familiar" with
the firm's practice of collection and processing correspondence for mailing. Under that
practice it would be deposited with U.S. postal service on that same day with postage
thereon fully prepaid at San Jose, California in the ordinary course of business. | 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 date of deposit for
mailing in affidavit
BY OVERNIGHT DELIVERY/NEXT DAY DELIVERY (CCP §1013(a) and
§2015.5): | sealed such document(s) in separate envelopes for each addressee and
deposited each for collection and mailing via overnight mail/next day delivery in a box or
other facility regularly maintained by the U.S. Postal Service or an express service
carrier, or delivered to an authorized courier or driver authorized by the U.S. Postal
Service or an express service carrier to receive documents, with delivery fees paid or
provided for.
(.). BY ELECTRONIC SERVICE (CCP 1010.6.(b)(6): Based on an agreement of the
parties to accept service by electronic transmission, | caused the documents to be sent
to the addressees persons at the electronic notification listed on the Service/Mailing
List.
() BY PERSONAL SERVICE (CCP §1011 and §2015.5): | caused to be delivered
such envelope by hand to the addressee.
Executed on August 20, 2018, at San Jose, California.
(X) (State) | declare under penalty of perjury under the laws of the State of California that
the above is true and correct.
CO ffi
Page Bridges :
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DEFENDANT'S JAGUAR LAND ROVER NORTH AMERICA, LLC'S ANSWER TO COMPLAINT
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oO OB N DO aA FF WN BOWMAN AND BROOKE LLP ELECTRONICALLY Brian Takahashi (SBN: 146505) FILED 970 West 190th Street, Suite 700 Superior Court of California, Torrance, California 90502 County of San Francisco Tel No.: 310/768-3068 Fax No.: 310/719-1019 telpereoar BY:ANNA TORRES BOWMAN AND BROOKE LLP pepety cier Sean A. Ramia (SBN: 172989) Parris H. Schmidt (SBN: 183999) 1741 Technology Drive, Suite 200 San Jose, California 95110-1364 TelNo: 408/ 279-5393 Fax No: 408/279-5845 Attorneys for Defendant JAGUAR LAND ROVER NORTH AMERICA, LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO HAITHAM AL HAFNAWI, CASE NO.: CGC-18-568235 Plaintiff, Assigned to: Hon. TBD Department: vs. DEFENDANT'S JAGUAR LAND ROVER JAGUAR LAND ROVER NORTH NORTH AMERICA, LLC'S ANSWER TO AMERICA, LLC; and DOES 1 to 10, COMPLAINT Defendants. Action Filed: July 19, 2018 ) Trial: None Defendant JAGUAR LAND ROVER NORTH AMERICA, LLC ("JLRNA"), for itself alone and for no other parties, hereby answers Plaintiffs Complaint as follows: 1. Under the provisions of §431.30(d) of the California Code of Civil Procedure, Defendant JLRNA, denies each and every allegation, both specifically and generally, of each cause of action contained in Plaintiffs Complaint on file herein and the whole thereof, and denies that Plaintiffs was damaged in any sum or sums, or at all. 19825650v1 1 DEFENDANT'S JAGUAR LAND ROVER NORTH AMERICA, LLC'S ANSWER TO COMPLAINToO OB N DO aA FF WN FIRST AFFIRMATIVE DEFENSE (FAILURE TO STATE CAUSE OF ACTION) 2. Plaintiffs Complaint fails to state facts sufficient to constitute a cause of action against JLRNA. SECOND AFFIRMATIVE DEFENSE (DURATION OF IMPLIED WARRANTY — NEW VEHICLE) 3. The implied warranty duration is only one year. Civil Code section 1791.1(c). THIRD AFFIRMATIVE DEFENSE (SUBJECT VEHICLE FIT FOR ITS INTENDED PURPOSE) 4. JLRNA 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. FOURTH AFFIRMATIVE DEFENSE (NO TIMELY REVOCATION OF ACCEPTANCE) 5. Plaintiff has no restitution remedy under breach of implied warranty because there was no timely revocation of acceptance after the alleged breach and before a substantial change in the condition of the goods. FIFTH AFFIRMATIVE DEFENSE (UNREASONABLE OR UNAUTHORIZED USE) 6. JLRNA is informed and believes some of Plaintiff's concerns may have been caused by unreasonable or unauthorized use. Civil Code Section 1794.3. SIXTH AFFIRMATIVE DEFENSE (MISUSE, ABUSE, IMPROPER MAINTENANCE OR OTHER EXCLUSION) 7. JLRNA is informed and believes, and on that basis alleges, that Plaintiff and/or others misused, abused and improperly cared for and maintained the subject 19825650v1 2 DEFENDANT'S JAGUAR LAND ROVER NORTH AMERICA, LLC'S ANSWER TO COMPLAINToO OB N DO aA FF WN 2010 Range Rover, therefore, some or all of Plaintiff's nonconformities were or should have been excluded from coverage. Specifically, JLRNA alleges that after appropriate discovery, one or more of the stated specific warranty exclusions may be applicable. SEVENTH AFFIRMATIVE DEFENSE (FAILURE TO COMPLY WITH CIVIL CODE SECTION 1794.3(e)) 8. JLRNA is informed and believes, and on that basis alleges, that Plaintiff has failed to provide written notice under Civil Code Section 1794.3(e), therefore, Plaintiff's civil penalty claim is barred. EIGHTH AFFIRMATIVE DEFENSE (ESTOPPEL, LACHES, LACK GOOD FAITH) 9. JLRNA is informed and believes some or all of Plaintiff's claims may be barred by estoppel, laches and/or lack of good faith. NINTH AFFIRMATIVE DEFENSE (MAGNUSON MOSS — NO PRIOR DISPUTE RESOLUTION) 10. JLRNA is informed and believes, and on that basis alleges, that Plaintiff received timely notice of the availability of a third-party dispute resolution process, and that no effort was made to use such process. Accordingly, Plaintiffs Magnuson Moss claim is barred. TENTH AFFIRMATIVE DEFENSE (MAGNUSON MOSS - NO REASONABLE OPPORTUNITY TO CURE) 11. | JLRNA is informed and believes and on that basis alleges that Plaintiff has failed to provide it with a reasonable opportunity to cure any alleged defect as required by 15 U.S.C. §2310(e). ELEVENTH AFFIRMATIVE DEFENSE (THIRD-PARTY RESOLUTION) 12. JLRNA maintains a qualified third-party dispute resolution process, consequently, Plaintiff has no claim for civil penalty for any alleged willful violation. Suman v. BMW of North America, Inc (1994) 23 Cal. App. 4th 1. 19825650v1 3 DEFENDANT'S JAGUAR LAND ROVER NORTH AMERICA, LLC'S ANSWER TO COMPLAINToO OB N DO aA FF WN TWELVTH AFFIRMATIVE DEFENSE (FAILURE TO GIVE NOTICE) 13. JLRNA is informed and believes and on that basis alleges that Plaintiff failed to comply with the notice requirements to assert a cause of action for damages for violation of the Consumer Legal Remedies Act. Civil Code §1782(a); Outboard Marine Corporation v. Superior Court (1975) 52 Cal.App.3d 30. THIRTEEN AFFIRMATIVE DEFENSE (NO REASONABLE RELIANCE) 14. | JLRNA is informed and believes and on that basis alleges that Plaintiff did not reasonably rely on any representation, disclaimer, warning or other act or omission of JLRNA. FOURTEENTH AFFIRMATIVE DEFENSE (NO CONCEALMENT) 15. | JLRNA is informed and believes and on that basis alleges that it did not intentionally conceal or suppress any material fact, and even if it did, it did so without intent to defraud the Plaintiff. FIFTEENTH AFFIRMATIVE DEFENSE (NO MISREPRESENTATION) 16. JLRNA is informed and believes and on that basis alleges that it did not make any misrepresentations or concealments of material fact, and even if it did, it did so without intent or knowledge. SIXTEENTH AFFIRMATIVE DEFENSE (NO DAMAGE) 17. JLRNA is informed and believes and on that basis alleges that Plaintiff was not damaged by any representations or concealments, if any, made by JLRNA. /] /] // 19825650v1 4 DEFENDANT'S JAGUAR LAND ROVER NORTH AMERICA, LLC'S ANSWER TO COMPLAINToO OB N DO aA FF WN SEVENTEENTH AFFIRMATIVE DEFENSE (NO UNFAIR ACT) 18. | JLRNA is informed and believes, and on that basis alleges that it did not engage in any unfair method of competition or unfair act and/or deceptive practice. EIGHTEENTH AFFIRMATIVE DEFENSE (PREEMPTION) 19. | JLRNA is informed and believes, and on that basis, alleges that Plaintiff's Business and Professions Code § 17200 claim is preempted by the equitable abstention doctrine. More specifically, this Court should not intervene under the guise of the UCL in this matter because injunctive relief implicates matters of complex economic policy and would result in the ongoing judicial supervision of an industry. Diaz v. Kay-Dix Ranch (1970) 9 Cal.App.3d 588, 598-599. NINETEENTH AFFIRMATIVE DEFENSE (NO UNFAIR BUSINESS PRACTICE) 20. JLRNA did not commit any "unfair" business practice within the meaning of Business and Professions Code section 17200. The utility of the JLRNA's business practices outweighs any potential harm. Moreover, Plaintiff has failed to identify any particular "unfair" business practice. TWENTIETH AFFIRMATIVE DEFENSE (NO FRAUD) 21. JLRNA did not conduct any business practice that was "fraudulent" or "likely to mislead" the public. Moreover, plaintiff has failed to identify any particular business practice that was "fraudulent" or "likely to mislead" the public. TWENTY-FIRST AFFIRMATIVE DEFENSE (B&P 17200 CAUSE OF ACTION BARRED) 22. Plaintiffs causes of action and each of them are barred in light of California Supreme Court's observation in Stop Youth Addiction, Inc. v. Lucky Stores. 19825650v1 5 DEFENDANT'S JAGUAR LAND ROVER NORTH AMERICA, LLC'S ANSWER TO COMPLAINToO OB N DO aA FF WN Inc. (1998) 17 Cal. 4th 553, 566 that "the UCL cannot be used to state a cause of action the gist of which is absolutely barred under some other principle of law." TWENTY-SECOND AFFIRMATIVE DEFENSE (NO SPECIFICITY) 23. ‘Plaintiffs Complaint fails to state specific facts sufficient to claim exemplary or punitive damages against JLRNA as required by the common law, statutory law and public policy of the State of California. TWENTY-THIRD AFFIRMATIVE DEFENSE (NO RESTITUTION) 24. JLRNA is informed and believes and on that basis alleges that Plaintiff is not entitled to restitution or disgorgement of profits pursuant to the California Supreme Court's interpretation of Business and Professions Code §17200, et seq. TWENTY-FOURTH AFFIRMATIVE DEFENSE (BIFURCATION) 25. ‘Plaintiff's claim for exemplary or punitive damages against JURNA cannot be sustained because any award of exemplary or punitive damages under California law, without bifurcating the trial and trying all exemplary or punitive damages issues only if and after liability on the merits has been found, would violate Defendants’ due process rights guaranteed by the Fourteenth Amendment to the Constitution of the United States and Article One, Section Seven, of the Constitution of the State of California, and would be improper under the common law and public policies of the State of California and under California Civil Code, Sections 3294 and 3295. TWENTY-FIFTH AFFIRMATIVE DEFENSE (NO DUE PROCESS) 26. ‘Plaintiff's claim for exemplary or punitive damages against JURNA cannot be sustained because an award of exemplary or punitive damages under California law by a jury that (1) is not provided standards of sufficient clarity for determining the appropriateness, and the appropriate size, of an exemplary of punitive damages award, 19825650v1 6 DEFENDANT'S JAGUAR LAND ROVER NORTH AMERICA, LLC'S ANSWER TO COMPLAINToO OB N DO aA FF WN (2) is not adequately instructed on the limits on exemplary or punitive damages imposed by the applicable principles of deterrence and punishment, (3) is not expressly prohibited from awarding exemplary or punitive damages, or determining the amount of an award of exemplary or punitive damages, in whole or in part, on the basis of invidiously discriminatory characteristics, including the residence, wealth, and corporate status of JLRNA, (4) is permitted to award exemplary or punitive damages under a standard for determining liability for exemplary or punitive damages that is vague and arbitrary and does not define with sufficient clarity the conduct or mental state that makes exemplary or punitive damages permissible, and (5) is not subject to trial court and appellate judicial review for reasonableness and furtherance of legitimate purposes on the basis of objective standards, would violate JLRNA’s due process and equal protection right guaranteed by the Fourteenth Amendment to the Constitution of the United States and by Article One, Section Seven of the Constitution of the State of California, and would be improper under the common law and public policies of the State of California. TWENTY-SIXTH AFFIRMATIVE DEFENSE (CLEAR & CONVINCING EVIDENCE REQUIRED) 27. Unless JLRNA's liability, if any, for exemplary or punitive damages and the appropriate amount of exemplary or punitive damages is required to be established by clear and convincing evidence, any award of exemplary or punitive damages would violate JLRNA's due process rights guaranteed by the Fourteenth Amendment to the Constitution of the United States and by Article One, Section Seven of the Constitution of the State of California, and would be improper under the common law and public policies of the State of California. TWENTY-SEVENTH AFFIRMATIVE DEFENSE (PUNITIVE DAMAGE CLAIM IMPROPER) 28. Plaintiff's claim for exemplary or punitive damages against JURNA cannot be sustained because an award of exemplary or punitive damages under California law 19825650v1 7 DEFENDANT'S JAGUAR LAND ROVER NORTH AMERICA, LLC'S ANSWER TO COMPLAINToO OB N DO aA FF WN subject to no predetermined limit, such as a maximum multiple of compensatory damages or a maximum amount, on the amount of exemplary or punitive damages that a jury may impose would violate JLRNA’s due process rights guaranteed by Article One, Section Seven of the Constitution of the State of California, and would be improper under the common law and public policies of the State of California. TWENTY-EIGHTH AFFIRMATIVE DEFENSE (PRESERVATION) 29. JLRNA alleges that it may have additional affirmative defenses available to it of which it is not now fully aware. JLRNA, reserves the right to assert affirmative defenses after the same shall have been ascertained. WHEREFORE, Defendant JLRNA, prays as follows: 1. For dismissal of Plaintiff's Complaint with prejudice; 2 For judgment in favor of Defendant JLRNA, against Plaintiff. 3. For the costs of suit herein; and, 4 For such other and further relief as the Court may deem just and proper. DATED: August 20, 2018 BOWMAN AND BROOKE LLP Brian Takahashi Sean A. Ramia Parris H. Schmidt Attorneys for Defendant JAGUAR LAND ROVER NORTH AMERICA, LLC 19825650v1 8 DEFENDANT'S JAGUAR LAND ROVER NORTH AMERICA, LLC'S ANSWER TO COMPLAINToO OB N DO aA FF WN PROOF OF SERVICE CCP 1013A(3) STATE OF CALIFORNIA, COUNTY OF SANTA CLARA | am employed in the County of Santa Clara, State of California. | am over the age of 18 and not a party to the within action; my business address is 1741 Technology Drive, Suite 200, San Jose, California 95110-1364. On August 20, 2018, | served the foregoing document described as DEFENDANT'S JAGUAR LAND ROVER NORTH AMERICA, LLC'S ANSWER TO COMPLAINT on all interested parties in this action by placing a copy thereof enclosed in sealed envelopes addressed as follows: Brian K. Cline CLINE, APC 7855 Ivanhoe Avenue, Suite 408 La Jolla, California 92037 (x) BY MAIL (CCP §1013(a) and §2015.5): As follows: | am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at San Jose, California in the ordinary course of business. | 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 date of deposit for mailing in affidavit BY OVERNIGHT DELIVERY/NEXT DAY DELIVERY (CCP §1013(a) and §2015.5): | sealed such document(s) in separate envelopes for each addressee and deposited each for collection and mailing via overnight mail/next day delivery in a box or other facility regularly maintained by the U.S. Postal Service or an express service carrier, or delivered to an authorized courier or driver authorized by the U.S. Postal Service or an express service carrier to receive documents, with delivery fees paid or provided for. (.). BY ELECTRONIC SERVICE (CCP 1010.6.(b)(6): Based on an agreement of the parties to accept service by electronic transmission, | caused the documents to be sent to the addressees persons at the electronic notification listed on the Service/Mailing List. () BY PERSONAL SERVICE (CCP §1011 and §2015.5): | caused to be delivered such envelope by hand to the addressee. Executed on August 20, 2018, at San Jose, California. (X) (State) | declare under penalty of perjury under the laws of the State of California that the above is true and correct. CO ffi Page Bridges : 19825650v1 9 DEFENDANT'S JAGUAR LAND ROVER NORTH AMERICA, LLC'S ANSWER TO COMPLAINT