Preview
1 Squire Patton Boggs (US) LLP 1/8/2024
Sean P. Conboy, No. 214487
2 sean.conboy@squirepb.com
Kevin Kumar, No. 315710
3 kevin.kumar@squirepb.com
555 South Flower Street, 31st Floor
4 Los Angeles, CA 90071
Telephone: +1 213.624.2500
5 Facsimile: +1 213.623.4581
6
Attorneys for Defendant
7 Volkswagen Group of America, Inc.
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF BUTTE
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SQUIRE PATTON BOGGS (US) LLP
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TIFFANY HILDEBRAND, Case No. 23CV03282
555 South Flower Street, 31st Floor
12
Los Angeles, CA 90071
Plaintiff, DEFENDANT VOLKSWAGEN GROUP OF
13 AMERICA, INC.’S ANSWER TO COMPLAINT
v.
14 Complaint Filed: November 28, 2023
VOLKSWAGEN GROUP OF AMERICA,
15 INC.; and DOES 1 through 20,
16 Defendants.
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COMES NOW Defendant Volkswagen Group of America, Inc., and in answer to
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Plaintiff’s Complaint on file herein alleges and avers as follows:
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GENERAL DENIAL
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Defendant Volkswagen Group of America, Inc. (“Defendant” or “VWGoA”), for itself
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and for no other person or entity, files this general denial pursuant to Code of Civil Procedure
23
section 431.30(d) and hereby denies – each and every, all and singular, generally and specifically
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– the allegations contained in Plaintiff’s Complaint, and further specifically denies that Plaintiff
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has been injured in any way or damaged in any sum or amount whatsoever.
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ANSWER TO COMPLAINT CASE NO. 23CV03282
1099888906\1\AMERICAS
1 AFFIRMATIVE DEFENSES
2 AS AND FOR ITS SEPARATE, DISTINCT, AND AFFIRMATIVE DEFENSES to the
3 Complaint on file herein and to each cause of action thereof, this answering Defendant alleges as
4 follows:
5 FAILURE TO STATE A CAUSE OF ACTION
6 (As to all claims)
7 1. The subject Complaint fails to state facts sufficient to constitute a cause of action
8 upon which relief may be granted against this answering Defendant.
9 LACK OF NONCONFORMITY
10 (As to all claims)
SQUIRE PATTON BOGGS (US) LLP
11 2. There is no warranted defect or nonconformity with respect to the subject vehicle.
555 South Flower Street, 31st Floor
12 Moreover, the subject vehicle’s alleged defects – if any exist – do not substantially impair the use,
Los Angeles, CA 90071
13 value or safety of the subject vehicle so as to warrant or support Plaintiff’s Complaint, and thus
14 Plaintiff is barred from the recovery sought therein.
15 NO REASONABLE NUMBER OF REPAIR ATTEMPTS
16 (As to all claims)
17 3. Plaintiff did not allow this answering Defendant or its dealer(s) a reasonable
18 number of attempts to conform the subject vehicle to the express warranty applicable to it.
19 CONDITIONS BEYOND CONTROL OF DEFENDANT – CIV. CODE § 1793.2(b)
20 (As to all Song-Beverly Consumer Warranty Act claims)
21 4. Any delay in the repair of the subject vehicle or any alleged defect or
22 nonconformity thereof was caused by conditions beyond this answering Defendant’s control.
23 (Civil Code § 1793.2(b)).
24 CONDITIONS BEYOND CONTROL OF DEFENDANT – CIV. CODE § 1793.22(b)(3)
25 (As to all Song-Beverly Consumer Warranty Act claims)
26 5. Any delay in the repair of the subject vehicle or any alleged defect or
27 nonconformity was due to conditions beyond this answering Defendant’s control. (Civil Code §
28 1793.22(b)(3)).
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ANSWER TO COMPLAINT CASE NO. 23CV03282
1099888906\1\AMERICAS
1 LACK OF WARRANTY COVERAGE
2 (As to all claims)
3 6. Upon information and belief, the alleged defects or nonconformities at issue, and
4 any alleged damage resulting therefrom, were and are expressly excluded from and otherwise not
5 covered by the express written limited warranty applicable to the subject vehicle.
6 FAULT OF OTHERS
7 (As to all claims)
8 7. Upon information and belief, the losses and damages complained of by Plaintiff, if
9 any, were proximately caused by the negligence, acts, omissions and/or fault of Plaintiff and
10 parties, individuals, or entities other than this answering Defendant.
SQUIRE PATTON BOGGS (US) LLP
11 ALTERATION OF PRODUCT
555 South Flower Street, 31st Floor
12 (As to all claims)
Los Angeles, CA 90071
13 8. Upon information and belief, the subject vehicle was altered, changed, or
14 otherwise modified by parties, individuals, or entities other than this answering Defendant, and
15 said modifications, changes, or alterations were a proximate cause of the damages alleged by
16 Plaintiff, if any there were.
17 MISUSE OF VEHICLE AND FAILURE TO FOLLOW INSTRUCTIONS
18 (As to all claims)
19 9. Upon information and belief, any alleged defects or nonconformities in the subject
20 vehicle were caused solely and exclusively by misuse, abuse, and failure to use the subject vehicle
21 in the manner in which it was intended, and by a failure to follow instructions regarding the subject
22 vehicle. Such misuse, abuse, and failure to follow instructions on the part of Plaintiff and parties,
23 individuals, and entities other than this answering Defendant, proximately caused or contributed
24 to the damages complained of, if any there were.
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ANSWER TO COMPLAINT CASE NO. 23CV03282
1099888906\1\AMERICAS
1 UNAUTHORIZED OR UNREASONABLE USE
2 (As to all Song-Beverly Consumer Warranty Act claims)
3 10. Upon information and belief, any alleged defects or nonconformities in the subject
4 vehicle were caused by the unauthorized or unreasonable use of the subject vehicle following sale.
5 (Civil Code § 1794.3).
6 FAILURE TO COMPLY WITH APPLICABLE PROVISIONS OF LAW
7 (As to all Song-Beverly Consumer Warranty Act claims)
8 11. Plaintiff has failed to comply with the requirements of the applicable statutory
9 provisions for asserting the causes of action alleged in the Complaint including, but not limited to,
10 those set forth under the provisions the Song-Beverly Consumer Warranty Act, Civil Code
SQUIRE PATTON BOGGS (US) LLP
11 section 1791 et seq.; accordingly, Plaintiff is barred from asserting such claims in this action.
555 South Flower Street, 31st Floor
12 FAILURE TO EXHAUST DISPUTE RESOLUTION PROCESS – CIVIL CODE § 1793.22(C)
Los Angeles, CA 90071
13 (As to all Song-Beverly Consumer Warranty Act claims)
14 12. Upon information and belief, Plaintiff did not resort to, exhaust, or otherwise fully
15 comply with a qualified third-party dispute resolution process, pursuant to Civil Code section
16 1793.22(c).
17 COMPLIANCE
18 (As to all Song-Beverly Consumer Warranty Act claims)
19 13. This answering Defendant has complied with its obligations under the implied
20 warranty and limited express warranty, and with the requirements of the Song-Beverly Consumer
21 Warranty Act.
22 CIVIL CODE § 1794(e)(2)
23 (As to all Song-Beverly Consumer Warranty Act claims)
24 14. This answering Defendant maintains a qualified third-party dispute resolution
25 process which complies or substantially complies with Section 1793.22 and therefore this
26 answering Defendant is not liable for civil penalties pursuant to Section 1794(e)(2).
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ANSWER TO COMPLAINT CASE NO. 23CV03282
1099888906\1\AMERICAS
1 LACK OF VERTICAL PRIVITY
2 (As to all implied warranty claims)
3 15. Plaintiff’s claims for breach of implied warranty are barred by a lack of vertical
4 privity between Plaintiff and this answering Defendant, as Plaintiff did not purchase the subject
5 vehicle from or otherwise contract with this answering Defendant.
6 FAILURE TO MITIGATE DAMAGES
7 (As to all claims)
8 16. Plaintiff was under a duty to mitigate any damages which may have been
9 sustained, and Plaintiff failed to act reasonably and properly to mitigate any damages or losses
10 Plaintiff claims to have sustained, if any there were. Accordingly, Plaintiff is barred from
SQUIRE PATTON BOGGS (US) LLP
11 recovering any damages, which could have been avoided by reasonable mitigation efforts.
555 South Flower Street, 31st Floor
12 REPAIR
Los Angeles, CA 90071
13 (As to all claims)
14 17. If there were any nonconformities or defects manifested in the subject vehicle
15 (which this answering Defendant expressly denies), those nonconformities or defects have been
16 fully serviced or repaired to conform the vehicle to the applicable warranty(ies).
17 EQUITABLE DEFENSES
18 (As to all claims seeking equitable relief)
19 18. Plaintiff is estopped from seeking equitable relief from this answering Defendant
20 because, upon information and belief, Plaintiff’s own inequitable conduct precludes equitable
21 relief under the doctrines of unclean hands, equitable estoppel, and/or laches.
22 EXPIRATION OF IMPLIED WARRANTY – CIVIL CODE § 1791.1
23 (As to all Song-Beverly Consumer Warranty Act claims)
24 19. Any and all implied warranties, if any there were, including but not limited to
25 warranties of merchantability and fitness, expired by their own terms or by operation of Civil
26 Code section 1791.1 prior to the filing of Plaintiff’s Complaint.
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ANSWER TO COMPLAINT CASE NO. 23CV03282
1099888906\1\AMERICAS
1 STATUTE OF LIMITATIONS
2 (As to all claims)
3 20. Upon information and belief, the claims alleged in the Complaint are barred by the
4 applicable statutes of limitations including, but not limited to, the provisions of California Code
5 of Civil Procedure sections 312, 337(1)-(3), 338(a) (d) (j), 339(1) (3), and 343, and/or California
6 Commercial Code section 2725.
7 DEMAND FOR ARBITRATION
8 (As to all claims)
9 21. Upon information and belief, the contract for the lease of the subject vehicle
10 referenced in Plaintiff’s Complaint includes an arbitration clause and by way of this answer and
SQUIRE PATTON BOGGS (US) LLP
11 affirmative defense, this answering Defendant hereby demands arbitration and does not waive its
555 South Flower Street, 31st Floor
12 rights to seek arbitration of those issues.
Los Angeles, CA 90071
13 CODE CIVIL PROCEDURE § 389
14 (As to all claims)
15 22. Upon information and belief, the Complaint does not name all necessary or
16 indispensable persons as plaintiffs in this action, and does not state the reasons said person(s)
17 is/are not joined; therefore, the action should be dismissed.
18 CIVIL CODE § 1793.22 (NO NOTICE)
19 (As to all Song-Beverly Consumer Warranty Act claims)
20 23. This answering Defendant clearly and conspicuously disclosed to Plaintiff the
21 provisions of Civil Code section 1793.22 and of Civil Code section 1793 .2(d), including the
22 requirement that Plaintiff must notify this answering Defendant directly pursuant to paragraphs
23 (1) and (2) of Civil Code section 1793.22(b). This answering Defendant is informed and
24 believes, and based thereon alleges, that Plaintiff did not give proper notice to this answering
25 Defendant.
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ANSWER TO COMPLAINT CASE NO. 23CV03282
1099888906\1\AMERICAS
1 NO WILLFUL VIOLATION
2 (As to all Song-Beverly Consumer Warranty Act claims)
3 24. Plaintiff cannot recover a civil penalty because this answering Defendant's acts or
4 omissions were not willful. (Civ. Code, § 1794(c)).
5 CIVIL CODE § 1794 (BREACH OF IMPLIED WARRANTY)
6 (As to all Song-Beverly Consumer Warranty Act claims)
7 25. Plaintiff cannot recover a civil penalty because Plaintiff’s claim is based on breach
8 of an implied warranty. (Civ. Code, § 1794(c)).
9 CIV. CODE § 1794(E)(3) (NO NOTICE)
10 (As to all Song-Beverly Consumer Warranty Act claims)
SQUIRE PATTON BOGGS (US) LLP
11 26. This answering Defendant is informed and believes, and based thereon alleges,
555 South Flower Street, 31st Floor
12 that Plaintiff cannot recover a civil penalty for a non-willful violation of paragraph (2) of
Los Angeles, CA 90071
13 subdivision ( d) of Civil Code section 1793.2, because Plaintiff failed to serve proper notice. (Civ.
14 Code § 1794(e)(3)).
15 DEFENDANT NOT RETAILER OR DISTRIBUTOR OF USED VEHICLES
16 (As to all Song-Beverly Consumer Warranty Act claims)
17 27. This answering Defendant is not a retailer or distributor of used vehicles so cannot
18 be liable for any alleged breach of implied warranty.
19 CLAIM PRECLUSION
20 (As to all claims)
21 28. This answering Defendant is informed and believes and thereon alleges that all
22 claims asserted by Plaintiff(s) in this action are barred by the doctrine of claim preclusion.
23 RES JUDICATA
24 (As to all claims)
25 29. This answering Defendant is informed and believes and thereon alleges that all
26 claims asserted by Plaintiff(s) in this action are barred by the doctrines of res judicata.
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ANSWER TO COMPLAINT CASE NO. 23CV03282
1099888906\1\AMERICAS
1 RESERVATION OF DEFENSES
2 (As to all claims)
3 30. This answering Defendant has insufficient knowledge or information upon which
4 to form a belief as to whether it may have additional affirmative defenses available, so this
5 answering Defendant reserves the right to assert such additional defenses in the event discovery,
6 investigation, or analysis indicate the need for same.
7 WHEREFORE, this answering Defendant prays for judgment and relief as follows:
8 1. That Plaintiff take nothing by way of the Complaint on file herein;
9 2. For judgment in favor of this answering Defendant and against Plaintiff on each
10 and every cause of action of the Complaint;
SQUIRE PATTON BOGGS (US) LLP
11 3. For this answering Defendant’s attorneys’ fees as allowed by law;
555 South Flower Street, 31st Floor
12 4. For this answering Defendant’s costs of suit as allowed by law; and,
Los Angeles, CA 90071
13 5. For such other relief as the Court may deem just and proper.
14
Dated: January 8, 2024 Squire Patton Boggs (US) LLP
15
16
By:
17 Kevin Kumar
Sean P. Conboy
18 Attorneys for Defendant
Volkswagen Group of America, Inc.
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ANSWER TO COMPLAINT CASE NO. 23CV03282
1099888906\1\AMERICAS
1 PROOF OF SERVICE
(Pursuant to California State Law)
2
The undersigned certifies and declares as follows:
3
I am a resident of the State of California and over 18 years of age and am not a party to
4 this action. My business address is 555 South Flower Street, 31st Floor, Los Angeles, California
90071, which is located in the county where any non-personal service described below took
5 place.
6 On January 8, 2024, a copy of the following document(s):
7 DEFENDANT VOLKSWAGEN GROUP OF AMERICA, INC.’S ANSWER TO COMPLAINT
8
was served on:
9 David N. Barry, Esq. Attorneys for Plaintiff
Elizabeth Quinn, Esq. TIFFANY HILDEBRAND
10 Debora Rabieian, Esq.
THE BARRY LAW FIRM
SQUIRE PATTON BOGGS (US) LLP
11
11845 W. Olympic Blvd., Suite 1270
555 South Flower Street, 31st Floor
12 Los Angeles, CA 90064
Los Angeles, CA 90071
dbarry@mylemonrights.com
13 equinn@mylemonrights.com
drabieian@mylemonrights.com
14 mhoerman@mylemonrights.com
15 jtemplin@mylemonrights.com
ahernandez@mylemonrights.com
16 eservicevw@mylemonrights.com
17 Service was accomplished as follows.
18 By U.S. Mail. On the above date, I sealed the above document(s) in an
envelope addressed to the above, and deposited that sealed envelope in a post
19 office, mailbox, sub-post office, substation, mail chute or other like facility
regularly maintained by the U.S. Postal Service, located in Los Angeles,
Preview
1 Squire Patton Boggs (US) LLP 1/8/2024 Sean P. Conboy, No. 214487 2 sean.conboy@squirepb.com Kevin Kumar, No. 315710 3 kevin.kumar@squirepb.com 555 South Flower Street, 31st Floor 4 Los Angeles, CA 90071 Telephone: +1 213.624.2500 5 Facsimile: +1 213.623.4581 6 Attorneys for Defendant 7 Volkswagen Group of America, Inc. 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF BUTTE 10 SQUIRE PATTON BOGGS (US) LLP 11 TIFFANY HILDEBRAND, Case No. 23CV03282 555 South Flower Street, 31st Floor 12 Los Angeles, CA 90071 Plaintiff, DEFENDANT VOLKSWAGEN GROUP OF 13 AMERICA, INC.’S ANSWER TO COMPLAINT v. 14 Complaint Filed: November 28, 2023 VOLKSWAGEN GROUP OF AMERICA, 15 INC.; and DOES 1 through 20, 16 Defendants. 17 18 COMES NOW Defendant Volkswagen Group of America, Inc., and in answer to 19 Plaintiff’s Complaint on file herein alleges and avers as follows: 20 GENERAL DENIAL 21 Defendant Volkswagen Group of America, Inc. (“Defendant” or “VWGoA”), for itself 22 and for no other person or entity, files this general denial pursuant to Code of Civil Procedure 23 section 431.30(d) and hereby denies – each and every, all and singular, generally and specifically 24 – the allegations contained in Plaintiff’s Complaint, and further specifically denies that Plaintiff 25 has been injured in any way or damaged in any sum or amount whatsoever. 26 27 28 -1- ANSWER TO COMPLAINT CASE NO. 23CV03282 1099888906\1\AMERICAS 1 AFFIRMATIVE DEFENSES 2 AS AND FOR ITS SEPARATE, DISTINCT, AND AFFIRMATIVE DEFENSES to the 3 Complaint on file herein and to each cause of action thereof, this answering Defendant alleges as 4 follows: 5 FAILURE TO STATE A CAUSE OF ACTION 6 (As to all claims) 7 1. The subject Complaint fails to state facts sufficient to constitute a cause of action 8 upon which relief may be granted against this answering Defendant. 9 LACK OF NONCONFORMITY 10 (As to all claims) SQUIRE PATTON BOGGS (US) LLP 11 2. There is no warranted defect or nonconformity with respect to the subject vehicle. 555 South Flower Street, 31st Floor 12 Moreover, the subject vehicle’s alleged defects – if any exist – do not substantially impair the use, Los Angeles, CA 90071 13 value or safety of the subject vehicle so as to warrant or support Plaintiff’s Complaint, and thus 14 Plaintiff is barred from the recovery sought therein. 15 NO REASONABLE NUMBER OF REPAIR ATTEMPTS 16 (As to all claims) 17 3. Plaintiff did not allow this answering Defendant or its dealer(s) a reasonable 18 number of attempts to conform the subject vehicle to the express warranty applicable to it. 19 CONDITIONS BEYOND CONTROL OF DEFENDANT – CIV. CODE § 1793.2(b) 20 (As to all Song-Beverly Consumer Warranty Act claims) 21 4. Any delay in the repair of the subject vehicle or any alleged defect or 22 nonconformity thereof was caused by conditions beyond this answering Defendant’s control. 23 (Civil Code § 1793.2(b)). 24 CONDITIONS BEYOND CONTROL OF DEFENDANT – CIV. CODE § 1793.22(b)(3) 25 (As to all Song-Beverly Consumer Warranty Act claims) 26 5. Any delay in the repair of the subject vehicle or any alleged defect or 27 nonconformity was due to conditions beyond this answering Defendant’s control. (Civil Code § 28 1793.22(b)(3)). -2- ANSWER TO COMPLAINT CASE NO. 23CV03282 1099888906\1\AMERICAS 1 LACK OF WARRANTY COVERAGE 2 (As to all claims) 3 6. Upon information and belief, the alleged defects or nonconformities at issue, and 4 any alleged damage resulting therefrom, were and are expressly excluded from and otherwise not 5 covered by the express written limited warranty applicable to the subject vehicle. 6 FAULT OF OTHERS 7 (As to all claims) 8 7. Upon information and belief, the losses and damages complained of by Plaintiff, if 9 any, were proximately caused by the negligence, acts, omissions and/or fault of Plaintiff and 10 parties, individuals, or entities other than this answering Defendant. SQUIRE PATTON BOGGS (US) LLP 11 ALTERATION OF PRODUCT 555 South Flower Street, 31st Floor 12 (As to all claims) Los Angeles, CA 90071 13 8. Upon information and belief, the subject vehicle was altered, changed, or 14 otherwise modified by parties, individuals, or entities other than this answering Defendant, and 15 said modifications, changes, or alterations were a proximate cause of the damages alleged by 16 Plaintiff, if any there were. 17 MISUSE OF VEHICLE AND FAILURE TO FOLLOW INSTRUCTIONS 18 (As to all claims) 19 9. Upon information and belief, any alleged defects or nonconformities in the subject 20 vehicle were caused solely and exclusively by misuse, abuse, and failure to use the subject vehicle 21 in the manner in which it was intended, and by a failure to follow instructions regarding the subject 22 vehicle. Such misuse, abuse, and failure to follow instructions on the part of Plaintiff and parties, 23 individuals, and entities other than this answering Defendant, proximately caused or contributed 24 to the damages complained of, if any there were. 25 26 27 28 -3- ANSWER TO COMPLAINT CASE NO. 23CV03282 1099888906\1\AMERICAS 1 UNAUTHORIZED OR UNREASONABLE USE 2 (As to all Song-Beverly Consumer Warranty Act claims) 3 10. Upon information and belief, any alleged defects or nonconformities in the subject 4 vehicle were caused by the unauthorized or unreasonable use of the subject vehicle following sale. 5 (Civil Code § 1794.3). 6 FAILURE TO COMPLY WITH APPLICABLE PROVISIONS OF LAW 7 (As to all Song-Beverly Consumer Warranty Act claims) 8 11. Plaintiff has failed to comply with the requirements of the applicable statutory 9 provisions for asserting the causes of action alleged in the Complaint including, but not limited to, 10 those set forth under the provisions the Song-Beverly Consumer Warranty Act, Civil Code SQUIRE PATTON BOGGS (US) LLP 11 section 1791 et seq.; accordingly, Plaintiff is barred from asserting such claims in this action. 555 South Flower Street, 31st Floor 12 FAILURE TO EXHAUST DISPUTE RESOLUTION PROCESS – CIVIL CODE § 1793.22(C) Los Angeles, CA 90071 13 (As to all Song-Beverly Consumer Warranty Act claims) 14 12. Upon information and belief, Plaintiff did not resort to, exhaust, or otherwise fully 15 comply with a qualified third-party dispute resolution process, pursuant to Civil Code section 16 1793.22(c). 17 COMPLIANCE 18 (As to all Song-Beverly Consumer Warranty Act claims) 19 13. This answering Defendant has complied with its obligations under the implied 20 warranty and limited express warranty, and with the requirements of the Song-Beverly Consumer 21 Warranty Act. 22 CIVIL CODE § 1794(e)(2) 23 (As to all Song-Beverly Consumer Warranty Act claims) 24 14. This answering Defendant maintains a qualified third-party dispute resolution 25 process which complies or substantially complies with Section 1793.22 and therefore this 26 answering Defendant is not liable for civil penalties pursuant to Section 1794(e)(2). 27 28 -4- ANSWER TO COMPLAINT CASE NO. 23CV03282 1099888906\1\AMERICAS 1 LACK OF VERTICAL PRIVITY 2 (As to all implied warranty claims) 3 15. Plaintiff’s claims for breach of implied warranty are barred by a lack of vertical 4 privity between Plaintiff and this answering Defendant, as Plaintiff did not purchase the subject 5 vehicle from or otherwise contract with this answering Defendant. 6 FAILURE TO MITIGATE DAMAGES 7 (As to all claims) 8 16. Plaintiff was under a duty to mitigate any damages which may have been 9 sustained, and Plaintiff failed to act reasonably and properly to mitigate any damages or losses 10 Plaintiff claims to have sustained, if any there were. Accordingly, Plaintiff is barred from SQUIRE PATTON BOGGS (US) LLP 11 recovering any damages, which could have been avoided by reasonable mitigation efforts. 555 South Flower Street, 31st Floor 12 REPAIR Los Angeles, CA 90071 13 (As to all claims) 14 17. If there were any nonconformities or defects manifested in the subject vehicle 15 (which this answering Defendant expressly denies), those nonconformities or defects have been 16 fully serviced or repaired to conform the vehicle to the applicable warranty(ies). 17 EQUITABLE DEFENSES 18 (As to all claims seeking equitable relief) 19 18. Plaintiff is estopped from seeking equitable relief from this answering Defendant 20 because, upon information and belief, Plaintiff’s own inequitable conduct precludes equitable 21 relief under the doctrines of unclean hands, equitable estoppel, and/or laches. 22 EXPIRATION OF IMPLIED WARRANTY – CIVIL CODE § 1791.1 23 (As to all Song-Beverly Consumer Warranty Act claims) 24 19. Any and all implied warranties, if any there were, including but not limited to 25 warranties of merchantability and fitness, expired by their own terms or by operation of Civil 26 Code section 1791.1 prior to the filing of Plaintiff’s Complaint. 27 28 -5- ANSWER TO COMPLAINT CASE NO. 23CV03282 1099888906\1\AMERICAS 1 STATUTE OF LIMITATIONS 2 (As to all claims) 3 20. Upon information and belief, the claims alleged in the Complaint are barred by the 4 applicable statutes of limitations including, but not limited to, the provisions of California Code 5 of Civil Procedure sections 312, 337(1)-(3), 338(a) (d) (j), 339(1) (3), and 343, and/or California 6 Commercial Code section 2725. 7 DEMAND FOR ARBITRATION 8 (As to all claims) 9 21. Upon information and belief, the contract for the lease of the subject vehicle 10 referenced in Plaintiff’s Complaint includes an arbitration clause and by way of this answer and SQUIRE PATTON BOGGS (US) LLP 11 affirmative defense, this answering Defendant hereby demands arbitration and does not waive its 555 South Flower Street, 31st Floor 12 rights to seek arbitration of those issues. Los Angeles, CA 90071 13 CODE CIVIL PROCEDURE § 389 14 (As to all claims) 15 22. Upon information and belief, the Complaint does not name all necessary or 16 indispensable persons as plaintiffs in this action, and does not state the reasons said person(s) 17 is/are not joined; therefore, the action should be dismissed. 18 CIVIL CODE § 1793.22 (NO NOTICE) 19 (As to all Song-Beverly Consumer Warranty Act claims) 20 23. This answering Defendant clearly and conspicuously disclosed to Plaintiff the 21 provisions of Civil Code section 1793.22 and of Civil Code section 1793 .2(d), including the 22 requirement that Plaintiff must notify this answering Defendant directly pursuant to paragraphs 23 (1) and (2) of Civil Code section 1793.22(b). This answering Defendant is informed and 24 believes, and based thereon alleges, that Plaintiff did not give proper notice to this answering 25 Defendant. 26 27 28 -6- ANSWER TO COMPLAINT CASE NO. 23CV03282 1099888906\1\AMERICAS 1 NO WILLFUL VIOLATION 2 (As to all Song-Beverly Consumer Warranty Act claims) 3 24. Plaintiff cannot recover a civil penalty because this answering Defendant's acts or 4 omissions were not willful. (Civ. Code, § 1794(c)). 5 CIVIL CODE § 1794 (BREACH OF IMPLIED WARRANTY) 6 (As to all Song-Beverly Consumer Warranty Act claims) 7 25. Plaintiff cannot recover a civil penalty because Plaintiff’s claim is based on breach 8 of an implied warranty. (Civ. Code, § 1794(c)). 9 CIV. CODE § 1794(E)(3) (NO NOTICE) 10 (As to all Song-Beverly Consumer Warranty Act claims) SQUIRE PATTON BOGGS (US) LLP 11 26. This answering Defendant is informed and believes, and based thereon alleges, 555 South Flower Street, 31st Floor 12 that Plaintiff cannot recover a civil penalty for a non-willful violation of paragraph (2) of Los Angeles, CA 90071 13 subdivision ( d) of Civil Code section 1793.2, because Plaintiff failed to serve proper notice. (Civ. 14 Code § 1794(e)(3)). 15 DEFENDANT NOT RETAILER OR DISTRIBUTOR OF USED VEHICLES 16 (As to all Song-Beverly Consumer Warranty Act claims) 17 27. This answering Defendant is not a retailer or distributor of used vehicles so cannot 18 be liable for any alleged breach of implied warranty. 19 CLAIM PRECLUSION 20 (As to all claims) 21 28. This answering Defendant is informed and believes and thereon alleges that all 22 claims asserted by Plaintiff(s) in this action are barred by the doctrine of claim preclusion. 23 RES JUDICATA 24 (As to all claims) 25 29. This answering Defendant is informed and believes and thereon alleges that all 26 claims asserted by Plaintiff(s) in this action are barred by the doctrines of res judicata. 27 28 -7- ANSWER TO COMPLAINT CASE NO. 23CV03282 1099888906\1\AMERICAS 1 RESERVATION OF DEFENSES 2 (As to all claims) 3 30. This answering Defendant has insufficient knowledge or information upon which 4 to form a belief as to whether it may have additional affirmative defenses available, so this 5 answering Defendant reserves the right to assert such additional defenses in the event discovery, 6 investigation, or analysis indicate the need for same. 7 WHEREFORE, this answering Defendant prays for judgment and relief as follows: 8 1. That Plaintiff take nothing by way of the Complaint on file herein; 9 2. For judgment in favor of this answering Defendant and against Plaintiff on each 10 and every cause of action of the Complaint; SQUIRE PATTON BOGGS (US) LLP 11 3. For this answering Defendant’s attorneys’ fees as allowed by law; 555 South Flower Street, 31st Floor 12 4. For this answering Defendant’s costs of suit as allowed by law; and, Los Angeles, CA 90071 13 5. For such other relief as the Court may deem just and proper. 14 Dated: January 8, 2024 Squire Patton Boggs (US) LLP 15 16 By: 17 Kevin Kumar Sean P. Conboy 18 Attorneys for Defendant Volkswagen Group of America, Inc. 19 20 21 22 23 24 25 26 27 28 -8- ANSWER TO COMPLAINT CASE NO. 23CV03282 1099888906\1\AMERICAS 1 PROOF OF SERVICE (Pursuant to California State Law) 2 The undersigned certifies and declares as follows: 3 I am a resident of the State of California and over 18 years of age and am not a party to 4 this action. My business address is 555 South Flower Street, 31st Floor, Los Angeles, California 90071, which is located in the county where any non-personal service described below took 5 place. 6 On January 8, 2024, a copy of the following document(s): 7 DEFENDANT VOLKSWAGEN GROUP OF AMERICA, INC.’S ANSWER TO COMPLAINT 8 was served on: 9 David N. Barry, Esq. Attorneys for Plaintiff Elizabeth Quinn, Esq. TIFFANY HILDEBRAND 10 Debora Rabieian, Esq. THE BARRY LAW FIRM SQUIRE PATTON BOGGS (US) LLP 11 11845 W. Olympic Blvd., Suite 1270 555 South Flower Street, 31st Floor 12 Los Angeles, CA 90064 Los Angeles, CA 90071 dbarry@mylemonrights.com 13 equinn@mylemonrights.com drabieian@mylemonrights.com 14 mhoerman@mylemonrights.com 15 jtemplin@mylemonrights.com ahernandez@mylemonrights.com 16 eservicevw@mylemonrights.com 17 Service was accomplished as follows. 18 By U.S. Mail. On the above date, I sealed the above document(s) in an envelope addressed to the above, and deposited that sealed envelope in a post 19 office, mailbox, sub-post office, substation, mail chute or other like facility regularly maintained by the U.S. Postal Service, located in Los Angeles,