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1 GATES, GONTER, GUY, PROUDFOOT & MUENCH, LLP
38 Discovery, Suite 200
2 Irvine, California 92618
Telephone: (949) 753-0255
3 Facsimile: (949) 753-0265
Electronic Service: eservice@g3pmlaw.com
4
Attorney: MATTHEW M. PROUDFOOT, SBN: 155988
5
Attorney for Defendant FCA US LLC
6
7
8 SUPERIOR COURT OF CALIFORNIA – COUNTY OF KERN
CENTRAL DISTRICT
9 UNLIMITED JURISDICTION
10
11 GABRIELLE HERNANDEZ, an individual )Case No: BCV-24-100816
)Judge: Thomas S. Clark
12 Plaintiff, )Dept. 17
vs. )
13 )
FCA US LLC, a Delaware Limited )FCA US LLC’S ANSWER TO COMPLAINT
14 Liability Company, and DOES 1 )
through 20, inclusive )
15 )
Defendants. )Complaint Filed: March 7, 2024
16 )Trial Date:
17 Defendant, FCA US LLC hereby responds to Plaintiff’s Complaint
18 herein, as follows.
19 GENERAL DENIAL
20 1. Pursuant to California Code of Civil Procedure § 431.30,
21 Defendant herein denies each and every allegation in the Complaint
22 and further denies that Plaintiff has been damaged in any sum
23 whatsoever.
24 FIRST AFFIRMATIVE DEFENSE
25 (Failure To State A Cause Of Action)
26 2. Plaintiff’s Complaint, and each cause of action and count
27 thereof, fails to state sufficient facts to constitute a cause of
28 action against this answering Defendant.
1
___________________________________________________________________________________
FCA US LLC’S ANSWER TO COMPLAINT
1 SECOND AFFIRMATIVE DEFENSE
2 (Disclaimer of Warranties)
3 3. Plaintiff’s cause of action for breach of express warranty
4 and incidental and consequential damages is barred by the express
5 disclaimers and limitations of liability contained in the alleged
6 express warranties.
7 THIRD AFFIRMATIVE DEFENSE
8 (Statute of Limitations)
9 4. Any cause of action alleged in the Complaint is barred by
10 the statutes of limitations contained in the Code of Civil Procedure,
11 specifically § 337, 338, 338.1, 339, 340, 343, Civil Code § 1783,
12 Business and Professions Code §17208, and Commercial Code § 2725.
13 FOURTH AFFIRMATIVE DEFENSE
14 (Failure to Mitigate Damages)
15 5. If Plaintiff sustained any damages as alleged in the
16 Complaint, that damage was proximately caused and contributed to by
17 Plaintiff in failing to mitigate damages. Plaintiff’s failure to
18 mitigate damages diminishes any recovery herein.
19 FIFTH AFFIRMATIVE DEFENSE
20 (Failure of Performance)
21 6. Defendant is informed and believes and based thereon
22 alleges that any failure to perform the obligations as described in
23 the Complaint resulted from Plaintiff’s failure to perform as
24 required by the contract and/or warranty. Performance on Plaintiff’s
25 part of his obligations was a condition precedent to the performance
26 of Defendant’s obligations.
27 ///
28 ///
2
___________________________________________________________________________________
FCA US LLC’S ANSWER TO COMPLAINT
1 SIXTH AFFIRMATIVE DEFENSE
2 (Alteration of Product)
3 7. The vehicle was not defective or in an unmerchantable
4 condition when it left the possession, custody and control of the
5 manufacturer. Any damage to the subject automobile was caused and
6 created by changes and alterations made to the vehicle, subsequent to
7 the vehicle's manufacture and/or sale, by persons other than the
8 manufacturer or any of its agents, servants, or employees, thereby
9 barring Plaintiff’s recovery herein.
10 SEVENTH AFFIRMATIVE DEFENSE
11 (Failure to State Cause of Action for Civil Penalties)
12 8. The Complaint fails to state sufficient facts to warrant
13 the imposition of civil penalties because it was believed that
14 replacement or repurchase of the subject vehicle was not appropriate
15 under the circumstances then known.
16 EIGHTH AFFIRMATIVE DEFENSE
17 (Abuse or Failure to Maintain)
18 9. The Plaintiff is barred from recovery by virtue of Civil
19 Code § 1794.3 since the claimed defect or nonconformity was caused by
20 the unauthorized or unreasonable use of the vehicle following sale.
21 NINTH AFFIRMATIVE DEFENSE
22 (Civil Code § 1791.1(c)-Implied Warranty)
23 10. Each and every cause of action based upon breach of implied
24 warranty is barred by virtue of Civil Code § 1791.1(c).
25 TENTH AFFIRMATIVE DEFENSE
26 (Failure to Provide Reasonable Opportunity to Repair)
27 11. Plaintiff is precluded from any recovery pursuant to the
28 Song-Beverly Consumer Warranty Act as Plaintiff failed and refused to
3
___________________________________________________________________________________
FCA US LLC’S ANSWER TO COMPLAINT
1 provide a reasonable opportunity to repair.
2 ELEVENTH AFFIRMATIVE DEFENSE
3 (Qualified Third Party Dispute Resolution Process)
4 12. Defendant maintains a third party dispute resolution
5 process which substantially complies with Civil Code § 1793.22.
6 Defendant is informed and believes, and based thereon alleges, that
7 Plaintiff received timely and appropriate notice of the availability
8 of the process. Plaintiff is therefore barred from asserting the
9 presumptions set forth in Civil Code § 1793.22 and from recovering
10 civil penalties pursuant to Civil Code § 1794(e).
11 TWELFTH AFFIRMATIVE DEFENSE
12 (Failure to Provide Notice)
13 13. Defendant is informed and believes, and based thereon
14 alleges, that Plaintiff failed to provide notice to this answering
15 Defendant pursuant to Civil Code § 1794(e)(3). Plaintiff is
16 therefore barred from asserting the presumptions set forth in Civil
17 Code § 1793.22 and from recovering civil penalties pursuant to Civil
18 Code § 1794(e).
19 THIRTEENTH AFFIRMATIVE DEFENSE
20 (Due Process)
21 14. The civil penalty provisions of Civil Code § 1794(c) and
22 (e) violate the Due Process clause of the United States Constitution
23 and the California Constitution.
24 FOURTEENTH AFFIRMATIVE DEFENSE
25 (Revocation Not Effective)
26 15. Any purported revocation of acceptance was not made
27 within a reasonable time nor before a substantial change in the
28 condition of the vehicle which was not caused by any alleged defects.
4
___________________________________________________________________________________
FCA US LLC’S ANSWER TO COMPLAINT
1 FIFTEENTH AFFIRMATIVE DEFENSE
2 (Reasonable and Good Faith Conduct)
3 16. At all times, Defendants acted in good faith and had
4 reasonable grounds for believing their actions were in compliance
5 with the law and therefore civil penalties are not recoverable.
6 SIXTEENTH AFFIRMATIVE DEFENSE
7 (Conduct not Willful)
8 17. FCA US LLC did not willfully fail to comply with any
9 obligation set forth in the Song-Beverly Consumer Warranty Act.
10 Therefore, Plaintiffs are not entitled to recover civil penalties.
11 PRAYER
12 WHEREFORE, Defendant FCA US LLC prays as follows:
13 1. That Plaintiff takes nothing by way of his Complaint on
14 file herein;
15 2. That judgment be entered in favor of Defendant for attorney
16 fees and costs of suit; and,
17 3. For such other and further relief as the Court may deem
18 just and proper.
19
20 Dated: April 17, 2024 GATES, GONTER, GUY,
PROUDFOOT & MUENCH, LLP
21
22 By: ___________________________________
MATTHEW M. PROUDFOOT
23 Attorneys for Defendant FCA US LLC
24
25
26
27
28
5
___________________________________________________________________________________
FCA US LLC’S ANSWER TO COMPLAINT
1 PROOF OF SERVICE - 1013(a) C.C.P.
2 STATE OF CALIFORNIA, COUNTY OF ORANGE
3 I am employed in the County of Orange, State of California. I am over the
age of 18 and not a party to the within action; my business address is Gates,
4 Gonter, Guy, Proudfoot & Muench, LLP, located at 38 Discovery, Suite 200, Irvine,
CA 92618. My electronic service address is eservice@g3pmlaw.com.
5
On April 17, 2024, I served the foregoing document described as FCA US LLC’S
6 ANSWER TO COMPLAINT on the interested parties in this action as set forth on the
attached service list in the following manner:
7
( ) BY MAIL. I am familiar with this firm's practice of collection
8 and processing correspondence for mailing with the United States
Postal Service, and that the correspondence shall be deposited
9 with the United States Postal Service on the same day in the
ordinary course of business pursuant to Code of Civil Procedure
10 §1013a. I am aware that on a motion of party served, service is
presumed invalid if postal cancellation date or postage meter date
11 is more than one day after date of deposit for mailing affidavit.
12 ( ) BY FACSIMILE. In addition to service by mail as set forth above,
a copy of said document(s) was also delivered by facsimile
13 transmission to the addressee(s) pursuant to Code of Civil
PROUDFOOT & MUENCH LLP
Procedure §1013(e).
38 DISCOVERY, SUITE 200
GATES, GONTER, GUY,
14
IRVINE, CA 92618
(949) 753-0255
( ) BY PERSONAL SERVICE. I caused a true copy of said document(s) to
15 be hand-delivered to the addressee(s) via a California registered
process server pursuant to Code of Civil Procedure §1011.
16
( ) BY EXPRESS MAIL. I caused said document(s) to be deposited in a
17 box or other facility regularly maintained by the express service
carrier providing overnight delivery pursuant to Code of Civil
18 Procedure §1013(c).
19 (xxx) BY ELECTRONIC MAIL. I caused said document(s) to be served
electronically to eserviceFCA@mylemonrights.com;
20
dbarry@mylemonrights.com; equinn@mylemonrights.com;
21 lpascal@mylemonrights.com; cshumake@mylemonrights.com;
mhoerman@mylemonrights.com; ahernandez@mylemonrights.com pursuant
22 to Civil Procedure §1010.6(a)
23 I declare under penalty of perjury under the laws of the State of California
that the foregoing is true and correct and that this declaration was executed on
24 April 17, 2024, at Irvine, California.
25 ________________________________
Heidi Dufour
26 ***********************************************************************************
SERVICE LIST
27 ATTORNEY FOR PLAINTIFF
David N. Barry
28 THE BARRY LAW FIRM
11845 W. Olympic Blvd., Suite 1270
Los Angeles CA 90064
1
PROOF OF SERVICE
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1 GATES, GONTER, GUY, PROUDFOOT & MUENCH, LLP 38 Discovery, Suite 200 2 Irvine, California 92618 Telephone: (949) 753-0255 3 Facsimile: (949) 753-0265 Electronic Service: eservice@g3pmlaw.com 4 Attorney: MATTHEW M. PROUDFOOT, SBN: 155988 5 Attorney for Defendant FCA US LLC 6 7 8 SUPERIOR COURT OF CALIFORNIA – COUNTY OF KERN CENTRAL DISTRICT 9 UNLIMITED JURISDICTION 10 11 GABRIELLE HERNANDEZ, an individual )Case No: BCV-24-100816 )Judge: Thomas S. Clark 12 Plaintiff, )Dept. 17 vs. ) 13 ) FCA US LLC, a Delaware Limited )FCA US LLC’S ANSWER TO COMPLAINT 14 Liability Company, and DOES 1 ) through 20, inclusive ) 15 ) Defendants. )Complaint Filed: March 7, 2024 16 )Trial Date: 17 Defendant, FCA US LLC hereby responds to Plaintiff’s Complaint 18 herein, as follows. 19 GENERAL DENIAL 20 1. Pursuant to California Code of Civil Procedure § 431.30, 21 Defendant herein denies each and every allegation in the Complaint 22 and further denies that Plaintiff has been damaged in any sum 23 whatsoever. 24 FIRST AFFIRMATIVE DEFENSE 25 (Failure To State A Cause Of Action) 26 2. Plaintiff’s Complaint, and each cause of action and count 27 thereof, fails to state sufficient facts to constitute a cause of 28 action against this answering Defendant. 1 ___________________________________________________________________________________ FCA US LLC’S ANSWER TO COMPLAINT 1 SECOND AFFIRMATIVE DEFENSE 2 (Disclaimer of Warranties) 3 3. Plaintiff’s cause of action for breach of express warranty 4 and incidental and consequential damages is barred by the express 5 disclaimers and limitations of liability contained in the alleged 6 express warranties. 7 THIRD AFFIRMATIVE DEFENSE 8 (Statute of Limitations) 9 4. Any cause of action alleged in the Complaint is barred by 10 the statutes of limitations contained in the Code of Civil Procedure, 11 specifically § 337, 338, 338.1, 339, 340, 343, Civil Code § 1783, 12 Business and Professions Code §17208, and Commercial Code § 2725. 13 FOURTH AFFIRMATIVE DEFENSE 14 (Failure to Mitigate Damages) 15 5. If Plaintiff sustained any damages as alleged in the 16 Complaint, that damage was proximately caused and contributed to by 17 Plaintiff in failing to mitigate damages. Plaintiff’s failure to 18 mitigate damages diminishes any recovery herein. 19 FIFTH AFFIRMATIVE DEFENSE 20 (Failure of Performance) 21 6. Defendant is informed and believes and based thereon 22 alleges that any failure to perform the obligations as described in 23 the Complaint resulted from Plaintiff’s failure to perform as 24 required by the contract and/or warranty. Performance on Plaintiff’s 25 part of his obligations was a condition precedent to the performance 26 of Defendant’s obligations. 27 /// 28 /// 2 ___________________________________________________________________________________ FCA US LLC’S ANSWER TO COMPLAINT 1 SIXTH AFFIRMATIVE DEFENSE 2 (Alteration of Product) 3 7. The vehicle was not defective or in an unmerchantable 4 condition when it left the possession, custody and control of the 5 manufacturer. Any damage to the subject automobile was caused and 6 created by changes and alterations made to the vehicle, subsequent to 7 the vehicle's manufacture and/or sale, by persons other than the 8 manufacturer or any of its agents, servants, or employees, thereby 9 barring Plaintiff’s recovery herein. 10 SEVENTH AFFIRMATIVE DEFENSE 11 (Failure to State Cause of Action for Civil Penalties) 12 8. The Complaint fails to state sufficient facts to warrant 13 the imposition of civil penalties because it was believed that 14 replacement or repurchase of the subject vehicle was not appropriate 15 under the circumstances then known. 16 EIGHTH AFFIRMATIVE DEFENSE 17 (Abuse or Failure to Maintain) 18 9. The Plaintiff is barred from recovery by virtue of Civil 19 Code § 1794.3 since the claimed defect or nonconformity was caused by 20 the unauthorized or unreasonable use of the vehicle following sale. 21 NINTH AFFIRMATIVE DEFENSE 22 (Civil Code § 1791.1(c)-Implied Warranty) 23 10. Each and every cause of action based upon breach of implied 24 warranty is barred by virtue of Civil Code § 1791.1(c). 25 TENTH AFFIRMATIVE DEFENSE 26 (Failure to Provide Reasonable Opportunity to Repair) 27 11. Plaintiff is precluded from any recovery pursuant to the 28 Song-Beverly Consumer Warranty Act as Plaintiff failed and refused to 3 ___________________________________________________________________________________ FCA US LLC’S ANSWER TO COMPLAINT 1 provide a reasonable opportunity to repair. 2 ELEVENTH AFFIRMATIVE DEFENSE 3 (Qualified Third Party Dispute Resolution Process) 4 12. Defendant maintains a third party dispute resolution 5 process which substantially complies with Civil Code § 1793.22. 6 Defendant is informed and believes, and based thereon alleges, that 7 Plaintiff received timely and appropriate notice of the availability 8 of the process. Plaintiff is therefore barred from asserting the 9 presumptions set forth in Civil Code § 1793.22 and from recovering 10 civil penalties pursuant to Civil Code § 1794(e). 11 TWELFTH AFFIRMATIVE DEFENSE 12 (Failure to Provide Notice) 13 13. Defendant is informed and believes, and based thereon 14 alleges, that Plaintiff failed to provide notice to this answering 15 Defendant pursuant to Civil Code § 1794(e)(3). Plaintiff is 16 therefore barred from asserting the presumptions set forth in Civil 17 Code § 1793.22 and from recovering civil penalties pursuant to Civil 18 Code § 1794(e). 19 THIRTEENTH AFFIRMATIVE DEFENSE 20 (Due Process) 21 14. The civil penalty provisions of Civil Code § 1794(c) and 22 (e) violate the Due Process clause of the United States Constitution 23 and the California Constitution. 24 FOURTEENTH AFFIRMATIVE DEFENSE 25 (Revocation Not Effective) 26 15. Any purported revocation of acceptance was not made 27 within a reasonable time nor before a substantial change in the 28 condition of the vehicle which was not caused by any alleged defects. 4 ___________________________________________________________________________________ FCA US LLC’S ANSWER TO COMPLAINT 1 FIFTEENTH AFFIRMATIVE DEFENSE 2 (Reasonable and Good Faith Conduct) 3 16. At all times, Defendants acted in good faith and had 4 reasonable grounds for believing their actions were in compliance 5 with the law and therefore civil penalties are not recoverable. 6 SIXTEENTH AFFIRMATIVE DEFENSE 7 (Conduct not Willful) 8 17. FCA US LLC did not willfully fail to comply with any 9 obligation set forth in the Song-Beverly Consumer Warranty Act. 10 Therefore, Plaintiffs are not entitled to recover civil penalties. 11 PRAYER 12 WHEREFORE, Defendant FCA US LLC prays as follows: 13 1. That Plaintiff takes nothing by way of his Complaint on 14 file herein; 15 2. That judgment be entered in favor of Defendant for attorney 16 fees and costs of suit; and, 17 3. For such other and further relief as the Court may deem 18 just and proper. 19 20 Dated: April 17, 2024 GATES, GONTER, GUY, PROUDFOOT & MUENCH, LLP 21 22 By: ___________________________________ MATTHEW M. PROUDFOOT 23 Attorneys for Defendant FCA US LLC 24 25 26 27 28 5 ___________________________________________________________________________________ FCA US LLC’S ANSWER TO COMPLAINT 1 PROOF OF SERVICE - 1013(a) C.C.P. 2 STATE OF CALIFORNIA, COUNTY OF ORANGE 3 I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action; my business address is Gates, 4 Gonter, Guy, Proudfoot & Muench, LLP, located at 38 Discovery, Suite 200, Irvine, CA 92618. My electronic service address is eservice@g3pmlaw.com. 5 On April 17, 2024, I served the foregoing document described as FCA US LLC’S 6 ANSWER TO COMPLAINT on the interested parties in this action as set forth on the attached service list in the following manner: 7 ( ) BY MAIL. I am familiar with this firm's practice of collection 8 and processing correspondence for mailing with the United States Postal Service, and that the correspondence shall be deposited 9 with the United States Postal Service on the same day in the ordinary course of business pursuant to Code of Civil Procedure 10 §1013a. I am aware that on a motion of party served, service is presumed invalid if postal cancellation date or postage meter date 11 is more than one day after date of deposit for mailing affidavit. 12 ( ) BY FACSIMILE. In addition to service by mail as set forth above, a copy of said document(s) was also delivered by facsimile 13 transmission to the addressee(s) pursuant to Code of Civil PROUDFOOT & MUENCH LLP Procedure §1013(e). 38 DISCOVERY, SUITE 200 GATES, GONTER, GUY, 14 IRVINE, CA 92618 (949) 753-0255 ( ) BY PERSONAL SERVICE. I caused a true copy of said document(s) to 15 be hand-delivered to the addressee(s) via a California registered process server pursuant to Code of Civil Procedure §1011. 16 ( ) BY EXPRESS MAIL. I caused said document(s) to be deposited in a 17 box or other facility regularly maintained by the express service carrier providing overnight delivery pursuant to Code of Civil 18 Procedure §1013(c). 19 (xxx) BY ELECTRONIC MAIL. I caused said document(s) to be served electronically to eserviceFCA@mylemonrights.com; 20 dbarry@mylemonrights.com; equinn@mylemonrights.com; 21 lpascal@mylemonrights.com; cshumake@mylemonrights.com; mhoerman@mylemonrights.com; ahernandez@mylemonrights.com pursuant 22 to Civil Procedure §1010.6(a) 23 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration was executed on 24 April 17, 2024, at Irvine, California. 25 ________________________________ Heidi Dufour 26 *********************************************************************************** SERVICE LIST 27 ATTORNEY FOR PLAINTIFF David N. Barry 28 THE BARRY LAW FIRM 11845 W. Olympic Blvd., Suite 1270 Los Angeles CA 90064 1 PROOF OF SERVICE