Preview
Mary Arens McBride, Esq. (SBN 282459)
1 Cameron Major, Esq. (SBN 325986)
ERSKINE LAW GROUP, PC
2
1592 N. Batavia St., Suite 1A
3 Orange, CA 92867
Tel: (949) 777-6032
4 Fax: (714) 844-9035
Email: marensmcbride@erskinelaw.com
5 Email: cmajor@erskinelaw.com
6
Attorneys for Defendant,
7 GENERAL MOTORS LLC
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF MONTEREY
10
MA ARMENTA ZAVALA, CASE NO.: 23CV001042
11
Plaintiff, ASSIGNED TO:
12 Honorable Thomas W. Wills
vs. Department 15
13
14 GENERAL MOTORS LLC, a Delaware
Limited Liability Company; and DOES DEFENDANT GENERAL MOTORS LLC’S
15 1 through 10, inclusive, ANSWER TO PLAINTIFF’S UNVERIFIED
COMPLAINT
16 Defendants.
17 Defendant General Motors LLC (“GM”) answers Plaintiff’s Unverified Complaint as follows:
18 I.
19 GM answers the Unverified Complaint pursuant to California Code of Civil Procedure § 431.30
20 by denying, generally and specifically, each, every, and all of the allegations in the Unverified
21 Complaint and each and every part of it, including each and every cause of action in it, and denies that
22 Plaintiff has sustained or will sustain any damage in the sum referenced in it, or any other sum(s), or at
23 all.
24 II.
25 GM further answers the Unverified Complaint on file herein and each and every purported cause
26 of action in it by denying that Plaintiff has sustained or will sustain, any damages in any sum at all by
27 reason of the carelessness, negligence or other faults, act, or omission by GM, its agents, servants, or
28 employees.
______________________________________________________________________________
DEFENDANT GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT
1
AFFIRMATIVE DEFENSES TO THE COMPLAINT
1 AND EACH ALLEGED CAUSE OF ACTION THEREOF
2 FIRST AFFIRMATIVE DEFENSE
3 (Failure to State a Cause of Action)
4 The Unverified Complaint, and each purported cause of action alleged in it, fails to state facts
5 sufficient to constitute a cause of action against GM.
6 SECOND AFFIRMATIVE DEFENSE
7 (Failure to Allow a Cure)
8 GM is informed and believes, and therefore alleges, that Plaintiff is barred from obtaining the
9 relief sought in the Unverified Complaint because Plaintiff has failed and refused to allow GM a
10 reasonable opportunity to cure any alleged breach by GM.
11 THIRD AFFIRMATIVE DEFENSE
12 (Mitigation)
13 GM is informed and believes, and therefore alleges, that Plaintiff’s alleged damages, if any, are
14 the result, in whole or in part, of Plaintiff’s failure to exercise care to reduce or mitigate damages.
15 FOURTH AFFIRMATIVE DEFENSE
16 (Contributory Negligence, Unclean Hands, Assumption of Risk)
17 GM is informed and believes, and therefore alleges, that Plaintiff is barred in whole or in part
18 by Plaintiff’s negligence, unclean hands, fault, assumption of risk or otherwise from any and all legal
19 or equitable relief against GM, as requested in the Unverified Complaint or otherwise.
20 FIFTH AFFIRMATIVE DEFENSE
21 (Statutes of Limitation)
22 GM is informed and believes, and therefore alleges, that the Unverified Complaint, and each
23 cause of action alleged in it, is barred by application of the statutes of limitation in California Code of
24 Civil Procedure §§ 337(1), 337(2), 337(3), 338(1), 338(2), 338(3), 338(4), 338(7), 339(1), 339(3),
25 340(1), 340(2), 340(3), 342, 343, 344, 348, Commercial Code § 2725 and any other statute of limitation
26 applicable to this action.
27 SIXTH AFFIRMATIVE DEFENSE
28 (Laches)
______________________________________________________________________________
DEFENDANT 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 Plaintiff waited an unreasonable
2 length of time to complain of the alleged acts or omissions at issue in the Unverified Complaint to
3 prejudice GM. Plaintiff is, therefore, guilty of laches and is barred from recovery.
4 SEVENTH AFFIRMATIVE DEFENSE
5 (Failure of Performance)
6 GM is informed and believes, and therefore alleges, that any failure to perform the obligations
7 as described in the Unverified Complaint resulted from Plaintiff’s failure to perform as required by the
8 contract and warranty. Performance by Plaintiff of his obligations is a condition precedent to the
9 performance of GM’s obligations.
10 EIGHTH AFFIRMATIVE DEFENSE
11 (Apportionment)
12 Any and all injuries, if any, and damages, if any, allegedly sustained or suffered by Plaintiff
13 were proximately caused and contributed to by the superseding, intervening acts or omissions of persons
14 other than GM. Those persons, and each of them, were careless and negligent concerning the matters
15 alleged in the Unverified Complaint, and their negligence and carelessness proximately contributed to
16 the loss, injury, damage, or detriment alleged in the Unverified Complaint, with the result that the
17 damages, if any, recoverable by Plaintiff must be diminished in proportion to the fault attributable to
18 those other persons.
19 NINTH AFFIRMATIVE DEFENSE
20 (Misuse of Product)
21 Any and all injuries, if any, and damages, if any, allegedly sustained or suffered by Plaintiff
22 were directly and proximately caused and contributed to by the misuse of and the unreasonable and
23 improper use of GM’s product. The misuse of or failure to use GM’s product properly contributed to
24 the loss, injury, damage, or detriment, if any, alleged in the Unverified Complaint, and the damages, if
25 any, recoverable by Plaintiff must be diminished in proportion to the amount of fault attributable to that
26 misuse or unreasonable or improper use.
27 TENTH AFFIRMATIVE DEFENSE
28 (Alteration of Product)
______________________________________________________________________________
DEFENDANT GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT
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1 Any damage to the subject vehicle was caused or created by changes or alterations to the vehicle,
2 after GM manufactured and sold the vehicle, by persons other than GM or any of its agents, servants,
3 or employees, barring Plaintiff’s recovery in this action.
4 ELEVENTH AFFIRMATIVE DEFENSE
5 (Disclaimer)
6 GM is informed and believes, and therefore alleges, that before and at the time of the alleged
7 acts, omissions, and conduct of GM alleged in the Unverified Complaint, GM had expressly disclaimed,
8 negated, and excluded all warranties of the type alleged by Plaintiff, and of any type, express or implied,
9 whatsoever.
10 TWELFTH AFFIRMATIVE DEFENSE
11 (Lack of Causation)
12 No act or omission of GM was the cause in fact or the proximate cause of the alleged injuries
13 and damages, if any, sustained by Plaintiff. GM is informed and believes, and therefore alleges, that
14 any breach of warranty of fitness or merchantability if any, and any other breach of warranty, if any,
15 and any breach of contractual undertakings by GM, if any, were neither the cause in fact nor the
16 proximate cause of Plaintiff’s damages. Rather, any alleged breach was only secondary,
17 inconsequential, indirect and in no way contributed to or caused Plaintiff’s alleged damages.
18 THIRTEENTH AFFIRMATIVE DEFENSE
19 (Unauthorized Use of the Product)
20 GM is informed and believes, and therefore alleges, that any and all damages, if any, allegedly
21 sustained or suffered by Plaintiff was proximately caused and contributed to by Plaintiff’s use of the
22 subject vehicle for a purpose to which the subject vehicle was not intended to be used. Plaintiff knew
23 or should have known that the use to which Plaintiff put the vehicle was not the use for which the vehicle
24 was manufactured or intended and that the unintended use could cause damage to Plaintiff.
25 FOURTEENTH AFFIRMATIVE DEFENSE
26 (Estoppel)
27 GM is informed and believes, and therefore alleges, that Plaintiff is estopped from obtaining the
28 relief sought in the Unverified Complaint by virtue of Plaintiff’s acts and conduct in connection with
______________________________________________________________________________
DEFENDANT GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT
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1 the matters alleged in the Unverified Complaint.
2 FIFTEENTH AFFIRMATIVE DEFENSE
3 (Waiver)
4 GM is informed and believes and therefore alleges, that Plaintiff has waived Plaintiff’s rights, if
5 any, to obtain the relief sought in the Unverified Complaint.
6 SIXTEENTH AFFIRMATIVE DEFENSE
7 (Comparative Negligence)
8 GM is informed and believes, and therefore alleges, that Plaintiff’s damages, if any, were the
9 direct and proximate result of the conduct of Plaintiff or Plaintiff’s agents, employees, and invitees, in
10 that they negligently, carelessly, recklessly, knowingly, and willfully operated, maintained, serviced,
11 directed, and otherwise controlled all operations and maintenance of Plaintiff’s vehicle. Plaintiff’s
12 damages, if any, were directly and proximately caused, in whole or in part, or were contributed to or
13 aggravated by the conduct of Plaintiff or Plaintiff’s agents, employees, and invitees, when they
14 negligently, carelessly, recklessly, knowingly, and willfully failed to repair the subject vehicle, knowing
15 that the vehicle needed service, maintenance, or repair, but instead, proceeded to operate, maintain,
16 navigate, direct, and otherwise make use of the vehicle or made improper and inadequate service,
17 maintenance and repairs to it. GM is further informed and believes, and therefore alleges, that the
18 vehicle owner knowingly and willfully authorized these actions and knowingly and willfully assumed
19 the known risk that these actions would cause, compound, or aggravate the known problems with the
20 vehicle and would proximately cause damage to it.
21 SEVENTEENTH AFFIRMATIVE DEFENSE
22 (Assumption of Risk)
23 The risks and dangers in Plaintiff’s conduct were known to Plaintiff, but Plaintiff conducted
24 himself in such a manner as to expose himself and remain exposed to such risks and dangers and, by
25 doing so, assumed all the risks attendant to that conduct. At the time(s), date(s), and place(s) of the
26 events described in the Unverified Complaint, Plaintiff voluntarily assumed the risks of the activities in
27 which Plaintiff was then and there engaged. Under the circumstances and conditions then and there
28 existing, the resulting injuries, if any, and damages, if any, sustained by Plaintiff were proximately
______________________________________________________________________________
DEFENDANT GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT
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1 caused by Plaintiff’s own voluntary assumption of risk.
2 EIGHTEENTH AFFIRMATIVE DEFENSE
3 (Qualified Third-Party Dispute Resolution Process)
4 GM maintains a qualified third-party dispute resolution process that substantially complies with
5 California Civil Code § 1793.22. GM is informed and believes, and therefore alleges, that Plaintiff
6 received a timely and appropriate notification, in writing, of the availability of GM’s third-party
7 resolution process. Accordingly, since Plaintiff did not avail himself of the third-party dispute
8 resolution process before filing the Unverified Complaint, § 1794(e)(2) of the California Civil Code
9 affirmatively bars Plaintiff from recovering treble damages (as provided under California Civil Code §
10 1794(e)) and Plaintiff cannot avail himself of the rebuttable presumption under California Civil Code §
11 1793.22(e)(1).
12 NINETEENTH AFFIRMATIVE DEFENSE
13 (Good Faith Belief in Legality of Actions)
14 At all times relevant to this action, GM acted in good faith and believes its actions to be legal.
15 TWENTIETH AFFIRMATIVE DEFENSE
16 (Offset for Use)
17 GM intends to avail itself of the reduction authorized by Civil Code § 1793.2(d)(2)(C) if GM is
18 found to violate the Song-Beverly Consumer Warranty Act.
19 TWENTY-FIRST AFFIRMATIVE DEFENSE
20 (Civil Code § 1791.1(c) – Implied Warranty)
21 Each and every cause of action based on breach of implied warranty is barred by Civil Code §
22 1791.1(c).
23 TWENTY-SECOND AFFIRMATIVE DEFENSE
24 (Consent)
25 The repair process to Plaintiff’s vehicle was appropriate and proper and is believed to have been
26 done with Plaintiff’s consent.
27 TWENTY-THIRD AFFIRMATIVE DEFENSE
28 (Failure to Provide Notice)
______________________________________________________________________________
DEFENDANT GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT
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1 GM is informed and believes, and therefore alleges, that Plaintiff failed to provide notice to GM
2 pursuant to Civil Code § 1794(e)(3). Plaintiff is, therefore, barred from asserting the presumptions in
3 Civil Code § 1793.22 and from recovering civil penalties pursuant to Civil Code § 1794(e).
4 TWENTY-FOURTH AFFIRMATIVE DEFENSE
5 (Failure to State Cause of Action for Civil Penalties)
6 The Complaint fails to state sufficient facts to warrant the imposition of civil penalties if
7 replacement or repurchase of the subject vehicle was not appropriate under the circumstances then
8 known, or if GM offered to repurchase or replace the subject vehicle.
9 TWENTY-FIFTH AFFIRMATIVE DEFENSE
10 (Reservation of Rights)
11 GM presently has insufficient knowledge or information on which to form a belief as to whether
12 it may have additional, as yet unstated, affirmative defenses available. GM reserves the right to assert
13 additional affirmative defenses if discovery indicates that they would be appropriate.
14
15 WHEREFORE, GM prays:
16 1. That Plaintiff takes nothing by the Unverified Complaint;
17 2. For the cost of suit; and
18 3. For such other and further relief as the Court deems just and proper.
19
20 DATED: May 3, 2023 ERSKINE LAW GROUP, PC
21
CAMERON MAJOR, Esq.
22 Attorneys for Defendant,
GENERAL MOTORS LLC
23
24
25
26
27
28
______________________________________________________________________________
DEFENDANT 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 1592 N. Batavia St., Suite 1A,
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 Erskine Law Group for the collection and processing of correspondence
for mailing with the United States Postal Service. Such correspondence is deposited with the United
4 States Postal Service the same day in the ordinary course of business.
5 On May 3, 2023, I served the foregoing document(s), bearing the title(s):
6 DEFENDANT 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
9 follows:
10 ROGER KIRNOS, Esq.
CHRISTOPHER SWANSON, Esq.
11 KNIGHT LAW GROUP, LLP
10250 Constellation Blvd., Suite 2500
12 Los Angeles, CA 90067
Phone: (310) 552-2250; Fax: (310) 552-7973
13 emailservice@knightlaw.com
14 [ ] (BY MAIL SERVICE) I placed such envelopes for collection and to be mailed on this date
following ordinary business practices.
15
[ ] (BY PERSONAL SERVICE) I caused to be delivered such envelope by hand to the office of
16 the addressee.
17 [ ] (BY NEXT DAY DELIVERY) I caused to be delivered such envelope by hand to the office of
the addressee.
18
[X] (BY E-MAIL) I served the above mentioned document via electronic transmission per
19 agreement of the parties.
20 [X] (State) I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
21
[ ] (Federal) I declare under penalty of perjury that I am employed by a member of the Bar of this
22 Court, at whose direction this service is made.
23 Executed on May 3, 2023, at Orange, CA.
24 Signed: ______________________
Stanley Chan
25
26
27
28
_______________________________________________________________________________
PROOF OF SERVICE
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Mary Arens McBride, Esq. (SBN 282459) 1 Cameron Major, Esq. (SBN 325986) ERSKINE LAW GROUP, PC 2 1592 N. Batavia St., Suite 1A 3 Orange, CA 92867 Tel: (949) 777-6032 4 Fax: (714) 844-9035 Email: marensmcbride@erskinelaw.com 5 Email: cmajor@erskinelaw.com 6 Attorneys for Defendant, 7 GENERAL MOTORS LLC 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF MONTEREY 10 MA ARMENTA ZAVALA, CASE NO.: 23CV001042 11 Plaintiff, ASSIGNED TO: 12 Honorable Thomas W. Wills vs. Department 15 13 14 GENERAL MOTORS LLC, a Delaware Limited Liability Company; and DOES DEFENDANT GENERAL MOTORS LLC’S 15 1 through 10, inclusive, ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT 16 Defendants. 17 Defendant General Motors LLC (“GM”) answers Plaintiff’s Unverified Complaint as follows: 18 I. 19 GM answers the Unverified Complaint pursuant to California Code of Civil Procedure § 431.30 20 by denying, generally and specifically, each, every, and all of the allegations in the Unverified 21 Complaint and each and every part of it, including each and every cause of action in it, and denies that 22 Plaintiff has sustained or will sustain any damage in the sum referenced in it, or any other sum(s), or at 23 all. 24 II. 25 GM further answers the Unverified Complaint on file herein and each and every purported cause 26 of action in it by denying that Plaintiff has sustained or will sustain, any damages in any sum at all by 27 reason of the carelessness, negligence or other faults, act, or omission by GM, its agents, servants, or 28 employees. ______________________________________________________________________________ DEFENDANT GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT 1 AFFIRMATIVE DEFENSES TO THE COMPLAINT 1 AND EACH ALLEGED CAUSE OF ACTION THEREOF 2 FIRST AFFIRMATIVE DEFENSE 3 (Failure to State a Cause of Action) 4 The Unverified Complaint, and each purported cause of action alleged in it, fails to state facts 5 sufficient to constitute a cause of action against GM. 6 SECOND AFFIRMATIVE DEFENSE 7 (Failure to Allow a Cure) 8 GM is informed and believes, and therefore alleges, that Plaintiff is barred from obtaining the 9 relief sought in the Unverified Complaint because Plaintiff has failed and refused to allow GM a 10 reasonable opportunity to cure any alleged breach by GM. 11 THIRD AFFIRMATIVE DEFENSE 12 (Mitigation) 13 GM is informed and believes, and therefore alleges, that Plaintiff’s alleged damages, if any, are 14 the result, in whole or in part, of Plaintiff’s failure to exercise care to reduce or mitigate damages. 15 FOURTH AFFIRMATIVE DEFENSE 16 (Contributory Negligence, Unclean Hands, Assumption of Risk) 17 GM is informed and believes, and therefore alleges, that Plaintiff is barred in whole or in part 18 by Plaintiff’s negligence, unclean hands, fault, assumption of risk or otherwise from any and all legal 19 or equitable relief against GM, as requested in the Unverified Complaint or otherwise. 20 FIFTH AFFIRMATIVE DEFENSE 21 (Statutes of Limitation) 22 GM is informed and believes, and therefore alleges, that the Unverified Complaint, and each 23 cause of action alleged in it, is barred by application of the statutes of limitation in California Code of 24 Civil Procedure §§ 337(1), 337(2), 337(3), 338(1), 338(2), 338(3), 338(4), 338(7), 339(1), 339(3), 25 340(1), 340(2), 340(3), 342, 343, 344, 348, Commercial Code § 2725 and any other statute of limitation 26 applicable to this action. 27 SIXTH AFFIRMATIVE DEFENSE 28 (Laches) ______________________________________________________________________________ DEFENDANT GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT 2 1 GM is informed and believes, and therefore alleges, that the Plaintiff waited an unreasonable 2 length of time to complain of the alleged acts or omissions at issue in the Unverified Complaint to 3 prejudice GM. Plaintiff is, therefore, guilty of laches and is barred from recovery. 4 SEVENTH AFFIRMATIVE DEFENSE 5 (Failure of Performance) 6 GM is informed and believes, and therefore alleges, that any failure to perform the obligations 7 as described in the Unverified Complaint resulted from Plaintiff’s failure to perform as required by the 8 contract and warranty. Performance by Plaintiff of his obligations is a condition precedent to the 9 performance of GM’s obligations. 10 EIGHTH AFFIRMATIVE DEFENSE 11 (Apportionment) 12 Any and all injuries, if any, and damages, if any, allegedly sustained or suffered by Plaintiff 13 were proximately caused and contributed to by the superseding, intervening acts or omissions of persons 14 other than GM. Those persons, and each of them, were careless and negligent concerning the matters 15 alleged in the Unverified Complaint, and their negligence and carelessness proximately contributed to 16 the loss, injury, damage, or detriment alleged in the Unverified Complaint, with the result that the 17 damages, if any, recoverable by Plaintiff must be diminished in proportion to the fault attributable to 18 those other persons. 19 NINTH AFFIRMATIVE DEFENSE 20 (Misuse of Product) 21 Any and all injuries, if any, and damages, if any, allegedly sustained or suffered by Plaintiff 22 were directly and proximately caused and contributed to by the misuse of and the unreasonable and 23 improper use of GM’s product. The misuse of or failure to use GM’s product properly contributed to 24 the loss, injury, damage, or detriment, if any, alleged in the Unverified Complaint, and the damages, if 25 any, recoverable by Plaintiff must be diminished in proportion to the amount of fault attributable to that 26 misuse or unreasonable or improper use. 27 TENTH AFFIRMATIVE DEFENSE 28 (Alteration of Product) ______________________________________________________________________________ DEFENDANT GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT 3 1 Any damage to the subject vehicle was caused or created by changes or alterations to the vehicle, 2 after GM manufactured and sold the vehicle, by persons other than GM or any of its agents, servants, 3 or employees, barring Plaintiff’s recovery in this action. 4 ELEVENTH AFFIRMATIVE DEFENSE 5 (Disclaimer) 6 GM is informed and believes, and therefore alleges, that before and at the time of the alleged 7 acts, omissions, and conduct of GM alleged in the Unverified Complaint, GM had expressly disclaimed, 8 negated, and excluded all warranties of the type alleged by Plaintiff, and of any type, express or implied, 9 whatsoever. 10 TWELFTH AFFIRMATIVE DEFENSE 11 (Lack of Causation) 12 No act or omission of GM was the cause in fact or the proximate cause of the alleged injuries 13 and damages, if any, sustained by Plaintiff. GM is informed and believes, and therefore alleges, that 14 any breach of warranty of fitness or merchantability if any, and any other breach of warranty, if any, 15 and any breach of contractual undertakings by GM, if any, were neither the cause in fact nor the 16 proximate cause of Plaintiff’s damages. Rather, any alleged breach was only secondary, 17 inconsequential, indirect and in no way contributed to or caused Plaintiff’s alleged damages. 18 THIRTEENTH AFFIRMATIVE DEFENSE 19 (Unauthorized Use of the Product) 20 GM is informed and believes, and therefore alleges, that any and all damages, if any, allegedly 21 sustained or suffered by Plaintiff was proximately caused and contributed to by Plaintiff’s use of the 22 subject vehicle for a purpose to which the subject vehicle was not intended to be used. Plaintiff knew 23 or should have known that the use to which Plaintiff put the vehicle was not the use for which the vehicle 24 was manufactured or intended and that the unintended use could cause damage to Plaintiff. 25 FOURTEENTH AFFIRMATIVE DEFENSE 26 (Estoppel) 27 GM is informed and believes, and therefore alleges, that Plaintiff is estopped from obtaining the 28 relief sought in the Unverified Complaint by virtue of Plaintiff’s acts and conduct in connection with ______________________________________________________________________________ DEFENDANT GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT 4 1 the matters alleged in the Unverified Complaint. 2 FIFTEENTH AFFIRMATIVE DEFENSE 3 (Waiver) 4 GM is informed and believes and therefore alleges, that Plaintiff has waived Plaintiff’s rights, if 5 any, to obtain the relief sought in the Unverified Complaint. 6 SIXTEENTH AFFIRMATIVE DEFENSE 7 (Comparative Negligence) 8 GM is informed and believes, and therefore alleges, that Plaintiff’s damages, if any, were the 9 direct and proximate result of the conduct of Plaintiff or Plaintiff’s agents, employees, and invitees, in 10 that they negligently, carelessly, recklessly, knowingly, and willfully operated, maintained, serviced, 11 directed, and otherwise controlled all operations and maintenance of Plaintiff’s vehicle. Plaintiff’s 12 damages, if any, were directly and proximately caused, in whole or in part, or were contributed to or 13 aggravated by the conduct of Plaintiff or Plaintiff’s agents, employees, and invitees, when they 14 negligently, carelessly, recklessly, knowingly, and willfully failed to repair the subject vehicle, knowing 15 that the vehicle needed service, maintenance, or repair, but instead, proceeded to operate, maintain, 16 navigate, direct, and otherwise make use of the vehicle or made improper and inadequate service, 17 maintenance and repairs to it. GM is further informed and believes, and therefore alleges, that the 18 vehicle owner knowingly and willfully authorized these actions and knowingly and willfully assumed 19 the known risk that these actions would cause, compound, or aggravate the known problems with the 20 vehicle and would proximately cause damage to it. 21 SEVENTEENTH AFFIRMATIVE DEFENSE 22 (Assumption of Risk) 23 The risks and dangers in Plaintiff’s conduct were known to Plaintiff, but Plaintiff conducted 24 himself in such a manner as to expose himself and remain exposed to such risks and dangers and, by 25 doing so, assumed all the risks attendant to that conduct. At the time(s), date(s), and place(s) of the 26 events described in the Unverified Complaint, Plaintiff voluntarily assumed the risks of the activities in 27 which Plaintiff was then and there engaged. Under the circumstances and conditions then and there 28 existing, the resulting injuries, if any, and damages, if any, sustained by Plaintiff were proximately ______________________________________________________________________________ DEFENDANT GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT 5 1 caused by Plaintiff’s own voluntary assumption of risk. 2 EIGHTEENTH AFFIRMATIVE DEFENSE 3 (Qualified Third-Party Dispute Resolution Process) 4 GM maintains a qualified third-party dispute resolution process that substantially complies with 5 California Civil Code § 1793.22. GM is informed and believes, and therefore alleges, that Plaintiff 6 received a timely and appropriate notification, in writing, of the availability of GM’s third-party 7 resolution process. Accordingly, since Plaintiff did not avail himself of the third-party dispute 8 resolution process before filing the Unverified Complaint, § 1794(e)(2) of the California Civil Code 9 affirmatively bars Plaintiff from recovering treble damages (as provided under California Civil Code § 10 1794(e)) and Plaintiff cannot avail himself of the rebuttable presumption under California Civil Code § 11 1793.22(e)(1). 12 NINETEENTH AFFIRMATIVE DEFENSE 13 (Good Faith Belief in Legality of Actions) 14 At all times relevant to this action, GM acted in good faith and believes its actions to be legal. 15 TWENTIETH AFFIRMATIVE DEFENSE 16 (Offset for Use) 17 GM intends to avail itself of the reduction authorized by Civil Code § 1793.2(d)(2)(C) if GM is 18 found to violate the Song-Beverly Consumer Warranty Act. 19 TWENTY-FIRST AFFIRMATIVE DEFENSE 20 (Civil Code § 1791.1(c) – Implied Warranty) 21 Each and every cause of action based on breach of implied warranty is barred by Civil Code § 22 1791.1(c). 23 TWENTY-SECOND AFFIRMATIVE DEFENSE 24 (Consent) 25 The repair process to Plaintiff’s vehicle was appropriate and proper and is believed to have been 26 done with Plaintiff’s consent. 27 TWENTY-THIRD AFFIRMATIVE DEFENSE 28 (Failure to Provide Notice) ______________________________________________________________________________ DEFENDANT GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT 6 1 GM is informed and believes, and therefore alleges, that Plaintiff failed to provide notice to GM 2 pursuant to Civil Code § 1794(e)(3). Plaintiff is, therefore, barred from asserting the presumptions in 3 Civil Code § 1793.22 and from recovering civil penalties pursuant to Civil Code § 1794(e). 4 TWENTY-FOURTH AFFIRMATIVE DEFENSE 5 (Failure to State Cause of Action for Civil Penalties) 6 The Complaint fails to state sufficient facts to warrant the imposition of civil penalties if 7 replacement or repurchase of the subject vehicle was not appropriate under the circumstances then 8 known, or if GM offered to repurchase or replace the subject vehicle. 9 TWENTY-FIFTH AFFIRMATIVE DEFENSE 10 (Reservation of Rights) 11 GM presently has insufficient knowledge or information on which to form a belief as to whether 12 it may have additional, as yet unstated, affirmative defenses available. GM reserves the right to assert 13 additional affirmative defenses if discovery indicates that they would be appropriate. 14 15 WHEREFORE, GM prays: 16 1. That Plaintiff takes nothing by the Unverified Complaint; 17 2. For the cost of suit; and 18 3. For such other and further relief as the Court deems just and proper. 19 20 DATED: May 3, 2023 ERSKINE LAW GROUP, PC 21 CAMERON MAJOR, Esq. 22 Attorneys for Defendant, GENERAL MOTORS LLC 23 24 25 26 27 28 ______________________________________________________________________________ DEFENDANT GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT 7 1 PROOF OF SERVICE 2 I am employed in the County of Orange and my business address is 1592 N. Batavia St., Suite 1A, 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 Erskine Law Group for the collection and processing of correspondence for mailing with the United States Postal Service. Such correspondence is deposited with the United 4 States Postal Service the same day in the ordinary course of business. 5 On May 3, 2023, I served the foregoing document(s), bearing the title(s): 6 DEFENDANT 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 9 follows: 10 ROGER KIRNOS, Esq. CHRISTOPHER SWANSON, Esq. 11 KNIGHT LAW GROUP, LLP 10250 Constellation Blvd., Suite 2500 12 Los Angeles, CA 90067 Phone: (310) 552-2250; Fax: (310) 552-7973 13 emailservice@knightlaw.com 14 [ ] (BY MAIL SERVICE) I placed such envelopes for collection and to be mailed on this date following ordinary business practices. 15 [ ] (BY PERSONAL SERVICE) I caused to be delivered such envelope by hand to the office of 16 the addressee. 17 [ ] (BY NEXT DAY DELIVERY) I caused to be delivered such envelope by hand to the office of the addressee. 18 [X] (BY E-MAIL) I served the above mentioned document via electronic transmission per 19 agreement of the parties. 20 [X] (State) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 21 [ ] (Federal) I declare under penalty of perjury that I am employed by a member of the Bar of this 22 Court, at whose direction this service is made. 23 Executed on May 3, 2023, at Orange, CA. 24 Signed: ______________________ Stanley Chan 25 26 27 28 _______________________________________________________________________________ PROOF OF SERVICE