Preview
1 Mary Arens McBride, Esq., SBN: 282459
Jesse Valencia, Esq., SBN:
2
THE ERSKINE LAW GROUP, PC.
3 1576 N. Batavia St., Suite A ELECTRONICALLY
Orange, CA 92867
4 Tel: (949) 777-6032
FILED
Superior Court of California,
County of San Francisco
Fax: (714) 844-9035
5 marensmcbride@erskinelaw.com 03/03/2023
jvalencia@erskinelaw.com Clerk of the Court
6 BY: MADONNA CARANTO
Deputy Clerk
7 Attorneys for Defendant,
GENERAL MOTORS LLC
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
FOR THE COUNTY OF SAN FRANCISCO
10
11
KAITLIN KELLY DUNN, an individual, )
12 ) Case No.: CGC-23-604304
Plaintiff, )
13 ) GENERAL MOTORS LLC’S ANSWER TO
vs. ) PLAINTIFF’S UNVERIFIED COMPLAINT
14 )
15 )
GENERAL MOTORS LLC, a Delaware ) Hon. Anne-Chrstine Massullo
16 Limited Liability Company, and DOES 1 ) Dept. 610
through 10, inclusive, )
17 )
Defendants. )
18 )
19 )
)
20 )
21 Defendant General Motors LLC (“GM”) answers Plaintiff’s Unverified Complaint as follows:
22 I.
23 GM answers the Unverified Complaint pursuant to California Code of Civil Procedure § 431.30
24 by denying, generally and specifically, each, every, and all of the allegations in the Unverified
25 Complaint and each and every part of it, including each and every cause of action in it, and denies that
26 Plaintiff has sustained or will sustain any damage in the sum referenced in it, or any other sum(s), or at
27 all.
28 II.
______________________________________________________________________________
GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT
1
1 GM further answers the Unverified Complaint on file herein and each and every purported cause
2 of action in it by denying that Plaintiff has sustained or will sustain, any damages in any sum at all by
3 reason of the carelessness, negligence or other faults, act, or omission by GM, its agents, servants, or
4 employees.
AFFIRMATIVE DEFENSES TO THE COMPLAINT
5 AND EACH ALLEGED CAUSE OF ACTION THEREOF
6
FIRST AFFIRMATIVE DEFENSE
7
(Failure to State a Cause of Action)
8
The Unverified Complaint, and each purported cause of action alleged in it, fails to state facts
9
sufficient to constitute a cause of action against GM.
10
SECOND AFFIRMATIVE DEFENSE
11
(Failure to Allow a Cure)
12
GM is informed and believes, and therefore alleges, that Plaintiff is barred from obtaining the
13
relief sought in the Unverified Complaint because Plaintiff has failed and refused to allow GM a
14
reasonable opportunity to cure any alleged breach by GM.
15
THIRD AFFIRMATIVE DEFENSE
16
(Mitigation)
17
GM is informed and believes, and therefore alleges, that Plaintiff’s alleged damages, if any, are
18
the result, in whole or in part, of Plaintiff’s failure to exercise care to reduce or mitigate damages.
19
FOURTH AFFIRMATIVE DEFENSE
20
(Contributory Negligence, Unclean Hands, Assumption of Risk)
21
GM is informed and believes, and therefore alleges, that Plaintiff is barred in whole or in part
22
by Plaintiff’s negligence, unclean hands, fault, assumption of risk or otherwise from any and all legal
23
or equitable relief against GM, as requested in the Unverified Complaint or otherwise.
24
FIFTH AFFIRMATIVE DEFENSE
25
(Statutes of Limitation)
26
GM is informed and believes, and therefore alleges, that the Unverified Complaint, and each
27
cause of action alleged in it, is barred by application of the statutes of limitation in California Code of
28
______________________________________________________________________________
GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT
2
1 Civil Procedure §§ 337(1), 337(2), 337(3), 338(1), 338(2), 338(3), 338(4), 338(7), 339(1), 339(3),
2 340(1), 340(2), 340(3), 342, 343, 344, 348, Commercial Code § 2725 and any other statute of limitation
3 applicable to this action.
4 SIXTH AFFIRMATIVE DEFENSE
5 (Laches)
6 GM is informed and believes, and therefore alleges, that the Plaintiff waited an unreasonable
7 length of time to complain of the alleged acts or omissions at issue in the Unverified Complaint to
8 prejudice GM. Plaintiff is, therefore, guilty of laches and is barred from recovery.
9 SEVENTH AFFIRMATIVE DEFENSE
10 (Failure of Performance)
11 GM is informed and believes, and therefore alleges, that any failure to perform the obligations
12 as described in the Unverified Complaint resulted from Plaintiff’s failure to perform as required by the
13 contract and warranty. Performance by Plaintiff of her obligations is a condition precedent to the
14 performance of GM’s obligations.
15 EIGHTH AFFIRMATIVE DEFENSE
16 (Apportionment)
17 Any and all injuries, if any, and damages, if any, allegedly sustained or suffered by Plaintiff
18 were proximately caused and contributed to by the superseding, intervening acts or omissions of persons
19 other than GM. Those persons, and each of them, were careless and negligent concerning the matters
20 alleged in the Unverified Complaint, and their negligence and carelessness proximately contributed to
21 the loss, injury, damage, or detriment alleged in the Unverified Complaint, with the result that the
22 damages, if any, recoverable by Plaintiff must be diminished in proportion to the fault attributable to
23 those other persons.
24 NINTH AFFIRMATIVE DEFENSE
25 (Misuse of Product)
26 Any and all injuries, if any, and damages, if any, allegedly sustained or suffered by Plaintiff
27 were directly and proximately caused and contributed to by the misuse of and the unreasonable and
28 improper use of GM’s product. The misuse of or failure to use GM’s product properly contributed to
______________________________________________________________________________
GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT
3
1 the loss, injury, damage, or detriment, if any, alleged in the Unverified Complaint, and the damages, if
2 any, recoverable by Plaintiff must be diminished in proportion to the amount of fault attributable to that
3 misuse or unreasonable or improper use.
4 TENTH AFFIRMATIVE DEFENSE
5 (Alteration of Product)
6 Any damage to the subject vehicle was caused or created by changes or alterations to the vehicle,
7 after GM manufactured and sold the vehicle, by persons other than GM or any of its agents, servants,
8 or employees, barring Plaintiff’s recovery in this action.
9 ELEVENTH AFFIRMATIVE DEFENSE
10 (Disclaimer)
11 GM is informed and believes, and therefore alleges, that before and at the time of the alleged
12 acts, omissions, and conduct of GM alleged in the Unverified Complaint, GM had expressly disclaimed,
13 negated, and excluded all warranties of the type alleged by Plaintiff, and of any type, express or implied,
14 whatsoever.
15 TWELFTH AFFIRMATIVE DEFENSE
16 (Lack of Causation)
17 No act or omission of GM was the cause in fact or the proximate cause of the alleged injuries
18 and damages, if any, sustained by Plaintiff. GM is informed and believes, and therefore alleges, that
19 any breach of warranty of fitness or merchantability if any, and any other breach of warranty, if any,
20 and any breach of contractual undertakings by GM, if any, were neither the cause in fact nor the
21 proximate cause of Plaintiff’s damages. Rather, any alleged breach was only secondary,
22 inconsequential, indirect and in no way contributed to or caused Plaintiff’s alleged damages.
23 THIRTEENTH AFFIRMATIVE DEFENSE
24 (Unauthorized Use of the Product)
25 GM is informed and believes, and therefore alleges, that any and all damages, if any, allegedly
26 sustained or suffered by Plaintiff was proximately caused and contributed to by Plaintiff’s use of the
27 subject vehicle for a purpose to which the subject vehicle was not intended to be used. Plaintiff knew
28 or should have known that the use to which Plaintiff put the vehicle was not the use for which the vehicle
______________________________________________________________________________
GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT
4
1 was manufactured or intended and that the unintended use could cause damage to Plaintiff.
2 FOURTEENTH AFFIRMATIVE DEFENSE
3 (Estoppel)
4 GM is informed and believes, and therefore alleges, that Plaintiff is estopped from obtaining the
5 relief sought in the Unverified Complaint by virtue of Plaintiff’s acts and conduct in connection with
6 the matters alleged in the Unverified Complaint.
7 FIFTEENTH AFFIRMATIVE DEFENSE
8 (Waiver)
9 GM is informed and believes and therefore alleges, that Plaintiff has waived Plaintiff’s rights, if
10 any, to obtain the relief sought in the Unverified Complaint.
11 SIXTEENTH AFFIRMATIVE DEFENSE
12 (Comparative Negligence)
13 GM is informed and believes, and therefore alleges, that Plaintiff’s damages, if any, were the
14 direct and proximate result of the conduct of Plaintiff or Plaintiff’s agents, employees, and invitees, in
15 that they negligently, carelessly, recklessly, knowingly, and willfully operated, maintained, serviced,
16 directed, and otherwise controlled all operations and maintenance of Plaintiff’s vehicle. Plaintiff’s
17 damages, if any, were directly and proximately caused, in whole or in part, or were contributed to or
18 aggravated by the conduct of Plaintiff or Plaintiff’s agents, employees, and invitees, when they
19 negligently, carelessly, recklessly, knowingly, and willfully failed to repair the subject vehicle, knowing
20 that the vehicle needed service, maintenance, or repair, but instead, proceeded to operate, maintain,
21 navigate, direct, and otherwise make use of the vehicle or made improper and inadequate service,
22 maintenance and repairs to it. GM is further informed and believes, and therefore alleges, that the
23 vehicle owner knowingly and willfully authorized these actions and knowingly and willfully assumed
24 the known risk that these actions would cause, compound, or aggravate the known problems with the
25 vehicle and would proximately cause damage to it.
26 SEVENTEENTH AFFIRMATIVE DEFENSE
27 (Assumption of Risk)
28 The risks and dangers in Plaintiff’s conduct were known to Plaintiff, but Plaintiff conducted
______________________________________________________________________________
GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT
5
1 herself in such a manner as to expose herself and remain exposed to such risks and dangers and, by
2 doing so, assumed all the risks attendant to that conduct. At the time(s), date(s), and place(s) of the
3 events described in the Unverified Complaint, Plaintiff voluntarily assumed the risks of the activities in
4 which Plaintiff was then and there engaged. Under the circumstances and conditions then and there
5 existing, the resulting injuries, if any, and damages, if any, sustained by Plaintiff were proximately
6 caused by Plaintiff’s own voluntary assumption of risk.
7 EIGHTEENTH AFFIRMATIVE DEFENSE
8 (Qualified Third-Party Dispute Resolution Process)
9 GM maintains a qualified third-party dispute resolution process that substantially complies with
10 California Civil Code § 1793.22. GM is informed and believes, and therefore alleges, that Plaintiff
11 received a timely and appropriate notification, in writing, of the availability of GM’s third-party
12 resolution process. Accordingly, since Plaintiff did not avail herself of the third-party dispute resolution
13 process before filing the Unverified Complaint, § 1794(e)(2) of the California Civil Code affirmatively
14 bars Plaintiff from recovering treble damages (as provided under California Civil Code § 1794(e)) and
15 Plaintiff cannot avail herself of the rebuttable presumption under California Civil Code § 1793.22(e)(1).
16 NINETEENTH AFFIRMATIVE DEFENSE
17 (Good Faith Belief in Legality of Actions)
18 At all times relevant to this action, GM acted in good faith and believes its actions to be legal.
19 TWENTIETH AFFIRMATIVE DEFENSE
20 (Offset for Use)
21 GM intends to avail itself of the reduction authorized by Civil Code § 1793.2(d)(2)(C) if GM is
22 found to violate the Song-Beverly Consumer Warranty Act.
23 TWENTY-FIRST AFFIRMATIVE DEFENSE
24 (Civil Code § 1791.1(c) – Implied Warranty)
25 Each and every cause of action based on breach of implied warranty is barred by Civil Code §
26 1791.1(c).
27 TWENTY-SECOND AFFIRMATIVE DEFENSE
28 (Consent)
______________________________________________________________________________
GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT
6
1 The repair process to Plaintiff’s vehicle was appropriate and proper and is believed to have been
2 done with Plaintiff’s consent.
3 TWENTY-THIRD AFFIRMATIVE DEFENSE
4 (Failure to Provide Notice)
5 GM is informed and believes, and therefore alleges, that Plaintiff failed to provide notice to GM
6 pursuant to Civil Code § 1794(e)(3). Plaintiff is, therefore, barred from asserting the presumptions in
7 Civil Code § 1793.22 and from recovering civil penalties pursuant to Civil Code § 1794(e).
8 TWENTY-FOURTH AFFIRMATIVE DEFENSE
9 (Failure to State Cause of Action for Civil Penalties)
10 The Complaint fails to state sufficient facts to warrant the imposition of civil penalties if
11 replacement or repurchase of the subject vehicle was not appropriate under the circumstances then
12 known, or if GM offered to repurchase or replace the subject vehicle.
13 TWENTY-FIFTH AFFIRMATIVE DEFENSE
14 (Reservation of Rights)
15 GM presently has insufficient knowledge or information on which to form a belief as to whether
16 it may have additional, as yet unstated, affirmative defenses available. GM reserves the right to assert
17 additional affirmative defenses if discovery indicates that they would be appropriate.
18
19 WHEREFORE, GM prays:
20 1. That Plaintiff takes nothing by the Unverified Complaint;
21 2. For the cost of suit; and
22 3. For such other and further relief as the Court deems just and proper.
23
24
Dated: March 3, 2023 ERSKINE LAW GROUP, APC
25
26
___________________________
27 Jesse Valencia
Attorneys for Defendant
28 GENERAL MOTORS LLC
______________________________________________________________________________
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 1576 N. Batavia Street, Suite
A in Orange, CA, 92867. I am over the age of 18 years and I am not a party to this action. I am readily
3 familiar with the practices of The Erskine Law Group, PC for the collection and processing of
correspondence for mailing with the United States Postal Service. Such correspondence is deposited
4 with the United States Postal Service the same day in the ordinary course of business.
5 On Friday, March 3, 2023, I served the foregoing document(s), bearing the title(s):
6 GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT
7 on the interested parties in the action as follows:
8 [X] by placing [] the original [X] a true copy thereof enclosed in a sealed envelope addressed as
follows:
9
QUILL & ARROW, LLP
10 Kevin Y. Jacobson, Esq. (SBN 320532)
kjacobson@quillarrowlaw.com
11 Kim Anglin, Esq. (SBN 218749)
kanglin@quillarrowlaw.com
12 e-service@quillarrowlaw.com
10900 Wilshire Boulevard, Suite 300
13 Los Angeles, CA, 90024
Telephone: (310) 933-4271
14 Facsimile: (310) 889-0645
15 [] (BY MAIL SERVICE) I placed such envelopes for collection and to be mailed on this date
following ordinary business practices.
16
[] (BY PERSONAL SERVICE) I caused to be delivered such envelope by hand to the office of
17 the addressee.
18 [] (BY NEXT DAY DELIVERY) I caused to be delivered such envelope by hand to the office of
the addressee.
19
[X] (BY E-MAIL) I served the above-mentioned document via electronic transmission per
20 agreement of the parties.
21 [X] (State) I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
22
[] (Federal) I declare under penalty of perjury that I am employed by a member of the Bar of this
23 Court, at whose direction this service is made.
24
25 Executed on Friday, March 3, 2023, at Orange, CA.
26
27 Signed:
Anisa Sasso
28
_______________________________________________________________________________
PROOF OF SERVICE
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1 Mary Arens McBride, Esq., SBN: 282459 Jesse Valencia, Esq., SBN: 2 THE ERSKINE LAW GROUP, PC. 3 1576 N. Batavia St., Suite A ELECTRONICALLY Orange, CA 92867 4 Tel: (949) 777-6032 FILED Superior Court of California, County of San Francisco Fax: (714) 844-9035 5 marensmcbride@erskinelaw.com 03/03/2023 jvalencia@erskinelaw.com Clerk of the Court 6 BY: MADONNA CARANTO Deputy Clerk 7 Attorneys for Defendant, GENERAL MOTORS LLC 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SAN FRANCISCO 10 11 KAITLIN KELLY DUNN, an individual, ) 12 ) Case No.: CGC-23-604304 Plaintiff, ) 13 ) GENERAL MOTORS LLC’S ANSWER TO vs. ) PLAINTIFF’S UNVERIFIED COMPLAINT 14 ) 15 ) GENERAL MOTORS LLC, a Delaware ) Hon. Anne-Chrstine Massullo 16 Limited Liability Company, and DOES 1 ) Dept. 610 through 10, inclusive, ) 17 ) Defendants. ) 18 ) 19 ) ) 20 ) 21 Defendant General Motors LLC (“GM”) answers Plaintiff’s Unverified Complaint as follows: 22 I. 23 GM answers the Unverified Complaint pursuant to California Code of Civil Procedure § 431.30 24 by denying, generally and specifically, each, every, and all of the allegations in the Unverified 25 Complaint and each and every part of it, including each and every cause of action in it, and denies that 26 Plaintiff has sustained or will sustain any damage in the sum referenced in it, or any other sum(s), or at 27 all. 28 II. ______________________________________________________________________________ GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT 1 1 GM further answers the Unverified Complaint on file herein and each and every purported cause 2 of action in it by denying that Plaintiff has sustained or will sustain, any damages in any sum at all by 3 reason of the carelessness, negligence or other faults, act, or omission by GM, its agents, servants, or 4 employees. AFFIRMATIVE DEFENSES TO THE COMPLAINT 5 AND EACH ALLEGED CAUSE OF ACTION THEREOF 6 FIRST AFFIRMATIVE DEFENSE 7 (Failure to State a Cause of Action) 8 The Unverified Complaint, and each purported cause of action alleged in it, fails to state facts 9 sufficient to constitute a cause of action against GM. 10 SECOND AFFIRMATIVE DEFENSE 11 (Failure to Allow a Cure) 12 GM is informed and believes, and therefore alleges, that Plaintiff is barred from obtaining the 13 relief sought in the Unverified Complaint because Plaintiff has failed and refused to allow GM a 14 reasonable opportunity to cure any alleged breach by GM. 15 THIRD AFFIRMATIVE DEFENSE 16 (Mitigation) 17 GM is informed and believes, and therefore alleges, that Plaintiff’s alleged damages, if any, are 18 the result, in whole or in part, of Plaintiff’s failure to exercise care to reduce or mitigate damages. 19 FOURTH AFFIRMATIVE DEFENSE 20 (Contributory Negligence, Unclean Hands, Assumption of Risk) 21 GM is informed and believes, and therefore alleges, that Plaintiff is barred in whole or in part 22 by Plaintiff’s negligence, unclean hands, fault, assumption of risk or otherwise from any and all legal 23 or equitable relief against GM, as requested in the Unverified Complaint or otherwise. 24 FIFTH AFFIRMATIVE DEFENSE 25 (Statutes of Limitation) 26 GM is informed and believes, and therefore alleges, that the Unverified Complaint, and each 27 cause of action alleged in it, is barred by application of the statutes of limitation in California Code of 28 ______________________________________________________________________________ GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT 2 1 Civil Procedure §§ 337(1), 337(2), 337(3), 338(1), 338(2), 338(3), 338(4), 338(7), 339(1), 339(3), 2 340(1), 340(2), 340(3), 342, 343, 344, 348, Commercial Code § 2725 and any other statute of limitation 3 applicable to this action. 4 SIXTH AFFIRMATIVE DEFENSE 5 (Laches) 6 GM is informed and believes, and therefore alleges, that the Plaintiff waited an unreasonable 7 length of time to complain of the alleged acts or omissions at issue in the Unverified Complaint to 8 prejudice GM. Plaintiff is, therefore, guilty of laches and is barred from recovery. 9 SEVENTH AFFIRMATIVE DEFENSE 10 (Failure of Performance) 11 GM is informed and believes, and therefore alleges, that any failure to perform the obligations 12 as described in the Unverified Complaint resulted from Plaintiff’s failure to perform as required by the 13 contract and warranty. Performance by Plaintiff of her obligations is a condition precedent to the 14 performance of GM’s obligations. 15 EIGHTH AFFIRMATIVE DEFENSE 16 (Apportionment) 17 Any and all injuries, if any, and damages, if any, allegedly sustained or suffered by Plaintiff 18 were proximately caused and contributed to by the superseding, intervening acts or omissions of persons 19 other than GM. Those persons, and each of them, were careless and negligent concerning the matters 20 alleged in the Unverified Complaint, and their negligence and carelessness proximately contributed to 21 the loss, injury, damage, or detriment alleged in the Unverified Complaint, with the result that the 22 damages, if any, recoverable by Plaintiff must be diminished in proportion to the fault attributable to 23 those other persons. 24 NINTH AFFIRMATIVE DEFENSE 25 (Misuse of Product) 26 Any and all injuries, if any, and damages, if any, allegedly sustained or suffered by Plaintiff 27 were directly and proximately caused and contributed to by the misuse of and the unreasonable and 28 improper use of GM’s product. The misuse of or failure to use GM’s product properly contributed to ______________________________________________________________________________ GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT 3 1 the loss, injury, damage, or detriment, if any, alleged in the Unverified Complaint, and the damages, if 2 any, recoverable by Plaintiff must be diminished in proportion to the amount of fault attributable to that 3 misuse or unreasonable or improper use. 4 TENTH AFFIRMATIVE DEFENSE 5 (Alteration of Product) 6 Any damage to the subject vehicle was caused or created by changes or alterations to the vehicle, 7 after GM manufactured and sold the vehicle, by persons other than GM or any of its agents, servants, 8 or employees, barring Plaintiff’s recovery in this action. 9 ELEVENTH AFFIRMATIVE DEFENSE 10 (Disclaimer) 11 GM is informed and believes, and therefore alleges, that before and at the time of the alleged 12 acts, omissions, and conduct of GM alleged in the Unverified Complaint, GM had expressly disclaimed, 13 negated, and excluded all warranties of the type alleged by Plaintiff, and of any type, express or implied, 14 whatsoever. 15 TWELFTH AFFIRMATIVE DEFENSE 16 (Lack of Causation) 17 No act or omission of GM was the cause in fact or the proximate cause of the alleged injuries 18 and damages, if any, sustained by Plaintiff. GM is informed and believes, and therefore alleges, that 19 any breach of warranty of fitness or merchantability if any, and any other breach of warranty, if any, 20 and any breach of contractual undertakings by GM, if any, were neither the cause in fact nor the 21 proximate cause of Plaintiff’s damages. Rather, any alleged breach was only secondary, 22 inconsequential, indirect and in no way contributed to or caused Plaintiff’s alleged damages. 23 THIRTEENTH AFFIRMATIVE DEFENSE 24 (Unauthorized Use of the Product) 25 GM is informed and believes, and therefore alleges, that any and all damages, if any, allegedly 26 sustained or suffered by Plaintiff was proximately caused and contributed to by Plaintiff’s use of the 27 subject vehicle for a purpose to which the subject vehicle was not intended to be used. Plaintiff knew 28 or should have known that the use to which Plaintiff put the vehicle was not the use for which the vehicle ______________________________________________________________________________ GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT 4 1 was manufactured or intended and that the unintended use could cause damage to Plaintiff. 2 FOURTEENTH AFFIRMATIVE DEFENSE 3 (Estoppel) 4 GM is informed and believes, and therefore alleges, that Plaintiff is estopped from obtaining the 5 relief sought in the Unverified Complaint by virtue of Plaintiff’s acts and conduct in connection with 6 the matters alleged in the Unverified Complaint. 7 FIFTEENTH AFFIRMATIVE DEFENSE 8 (Waiver) 9 GM is informed and believes and therefore alleges, that Plaintiff has waived Plaintiff’s rights, if 10 any, to obtain the relief sought in the Unverified Complaint. 11 SIXTEENTH AFFIRMATIVE DEFENSE 12 (Comparative Negligence) 13 GM is informed and believes, and therefore alleges, that Plaintiff’s damages, if any, were the 14 direct and proximate result of the conduct of Plaintiff or Plaintiff’s agents, employees, and invitees, in 15 that they negligently, carelessly, recklessly, knowingly, and willfully operated, maintained, serviced, 16 directed, and otherwise controlled all operations and maintenance of Plaintiff’s vehicle. Plaintiff’s 17 damages, if any, were directly and proximately caused, in whole or in part, or were contributed to or 18 aggravated by the conduct of Plaintiff or Plaintiff’s agents, employees, and invitees, when they 19 negligently, carelessly, recklessly, knowingly, and willfully failed to repair the subject vehicle, knowing 20 that the vehicle needed service, maintenance, or repair, but instead, proceeded to operate, maintain, 21 navigate, direct, and otherwise make use of the vehicle or made improper and inadequate service, 22 maintenance and repairs to it. GM is further informed and believes, and therefore alleges, that the 23 vehicle owner knowingly and willfully authorized these actions and knowingly and willfully assumed 24 the known risk that these actions would cause, compound, or aggravate the known problems with the 25 vehicle and would proximately cause damage to it. 26 SEVENTEENTH AFFIRMATIVE DEFENSE 27 (Assumption of Risk) 28 The risks and dangers in Plaintiff’s conduct were known to Plaintiff, but Plaintiff conducted ______________________________________________________________________________ GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT 5 1 herself in such a manner as to expose herself and remain exposed to such risks and dangers and, by 2 doing so, assumed all the risks attendant to that conduct. At the time(s), date(s), and place(s) of the 3 events described in the Unverified Complaint, Plaintiff voluntarily assumed the risks of the activities in 4 which Plaintiff was then and there engaged. Under the circumstances and conditions then and there 5 existing, the resulting injuries, if any, and damages, if any, sustained by Plaintiff were proximately 6 caused by Plaintiff’s own voluntary assumption of risk. 7 EIGHTEENTH AFFIRMATIVE DEFENSE 8 (Qualified Third-Party Dispute Resolution Process) 9 GM maintains a qualified third-party dispute resolution process that substantially complies with 10 California Civil Code § 1793.22. GM is informed and believes, and therefore alleges, that Plaintiff 11 received a timely and appropriate notification, in writing, of the availability of GM’s third-party 12 resolution process. Accordingly, since Plaintiff did not avail herself of the third-party dispute resolution 13 process before filing the Unverified Complaint, § 1794(e)(2) of the California Civil Code affirmatively 14 bars Plaintiff from recovering treble damages (as provided under California Civil Code § 1794(e)) and 15 Plaintiff cannot avail herself of the rebuttable presumption under California Civil Code § 1793.22(e)(1). 16 NINETEENTH AFFIRMATIVE DEFENSE 17 (Good Faith Belief in Legality of Actions) 18 At all times relevant to this action, GM acted in good faith and believes its actions to be legal. 19 TWENTIETH AFFIRMATIVE DEFENSE 20 (Offset for Use) 21 GM intends to avail itself of the reduction authorized by Civil Code § 1793.2(d)(2)(C) if GM is 22 found to violate the Song-Beverly Consumer Warranty Act. 23 TWENTY-FIRST AFFIRMATIVE DEFENSE 24 (Civil Code § 1791.1(c) – Implied Warranty) 25 Each and every cause of action based on breach of implied warranty is barred by Civil Code § 26 1791.1(c). 27 TWENTY-SECOND AFFIRMATIVE DEFENSE 28 (Consent) ______________________________________________________________________________ GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT 6 1 The repair process to Plaintiff’s vehicle was appropriate and proper and is believed to have been 2 done with Plaintiff’s consent. 3 TWENTY-THIRD AFFIRMATIVE DEFENSE 4 (Failure to Provide Notice) 5 GM is informed and believes, and therefore alleges, that Plaintiff failed to provide notice to GM 6 pursuant to Civil Code § 1794(e)(3). Plaintiff is, therefore, barred from asserting the presumptions in 7 Civil Code § 1793.22 and from recovering civil penalties pursuant to Civil Code § 1794(e). 8 TWENTY-FOURTH AFFIRMATIVE DEFENSE 9 (Failure to State Cause of Action for Civil Penalties) 10 The Complaint fails to state sufficient facts to warrant the imposition of civil penalties if 11 replacement or repurchase of the subject vehicle was not appropriate under the circumstances then 12 known, or if GM offered to repurchase or replace the subject vehicle. 13 TWENTY-FIFTH AFFIRMATIVE DEFENSE 14 (Reservation of Rights) 15 GM presently has insufficient knowledge or information on which to form a belief as to whether 16 it may have additional, as yet unstated, affirmative defenses available. GM reserves the right to assert 17 additional affirmative defenses if discovery indicates that they would be appropriate. 18 19 WHEREFORE, GM prays: 20 1. That Plaintiff takes nothing by the Unverified Complaint; 21 2. For the cost of suit; and 22 3. For such other and further relief as the Court deems just and proper. 23 24 Dated: March 3, 2023 ERSKINE LAW GROUP, APC 25 26 ___________________________ 27 Jesse Valencia Attorneys for Defendant 28 GENERAL MOTORS LLC ______________________________________________________________________________ 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 1576 N. Batavia Street, Suite A in Orange, CA, 92867. I am over the age of 18 years and I am not a party to this action. I am readily 3 familiar with the practices of The Erskine Law Group, PC for the collection and processing of correspondence for mailing with the United States Postal Service. Such correspondence is deposited 4 with the United States Postal Service the same day in the ordinary course of business. 5 On Friday, March 3, 2023, I served the foregoing document(s), bearing the title(s): 6 GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT 7 on the interested parties in the action as follows: 8 [X] by placing [] the original [X] a true copy thereof enclosed in a sealed envelope addressed as follows: 9 QUILL & ARROW, LLP 10 Kevin Y. Jacobson, Esq. (SBN 320532) kjacobson@quillarrowlaw.com 11 Kim Anglin, Esq. (SBN 218749) kanglin@quillarrowlaw.com 12 e-service@quillarrowlaw.com 10900 Wilshire Boulevard, Suite 300 13 Los Angeles, CA, 90024 Telephone: (310) 933-4271 14 Facsimile: (310) 889-0645 15 [] (BY MAIL SERVICE) I placed such envelopes for collection and to be mailed on this date following ordinary business practices. 16 [] (BY PERSONAL SERVICE) I caused to be delivered such envelope by hand to the office of 17 the addressee. 18 [] (BY NEXT DAY DELIVERY) I caused to be delivered such envelope by hand to the office of the addressee. 19 [X] (BY E-MAIL) I served the above-mentioned document via electronic transmission per 20 agreement of the parties. 21 [X] (State) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 22 [] (Federal) I declare under penalty of perjury that I am employed by a member of the Bar of this 23 Court, at whose direction this service is made. 24 25 Executed on Friday, March 3, 2023, at Orange, CA. 26 27 Signed: Anisa Sasso 28 _______________________________________________________________________________ PROOF OF SERVICE