Preview
1 Erin E. Hanson, Esq., SBN 272813
Vanessa Dao, Esq., SBN 328178
2 CLARK HILL LLP
One America Plaza
3 600 West Broadway, Suite 500
San Diego, CA 92101
4 Telephone: (619) 557-0404
Facsimile: (619) 557-0460
5 E-Service: clarkhill.fca@clarkhill.com
6 Attorneys for Defendants FCA US LLC
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8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SANTA BARBARA
10 JOHN MCCORMACK, Case No. 24CV01652
11 Plaintiffs, ANSWER OF DEFENDANT FCA US LLC TO
PLAINTIFFS’ UNVERIFIED COMPLAINT
12 v.
13 FCA US LLC, a limited liability company; Complaint Filed: March 21, 2024
DODGE RAM JEEP FIAT CHRYSLER OF Trial Date: Not set
14 SANTA BARBARA, a sole proprietorship; and
DOES 1 through 10, inclusive,
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Defendants.
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18 Defendant FCA US LLC (“Defendant” and “FCA”) hereby answers the Complaint of Plaintiffs
19 JOHN MCCORMACK (“Plaintiffs”) as follows:
20 GENERAL DENIAL
21 Pursuant to Code of Civil Procedure section 431.30(d), this Defendant generally denies each and
22 every allegation and cause of action stated in Plaintiffs’ Complaint, and further expressly denies that, as a
23 direct or proximate result of any alleged acts or omissions on the part of this answering Defendant,
24 Plaintiffs herein sustained or suffered injury or damage in the amount alleged in the Complaint, or in any
25 amount at all, or that Plaintiffs have suffered injury or damage for any reason in the sums alleged in the
26 Complaint, or in any other sum or sums, or at all.
27 AFFIRMATIVE DEFENSES
28 FCA asserts and alleges the following separate and distinct affirmative defenses:
1
ANSWER OF DEFENDANT FCA US LLC TO PLAINTIFFS’ UNVERIFIED COMPLAINT
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1 FIRST AFFIRMATIVE DEFENSE
2 (Failure to State a Claim)
3 Plaintiffs’ Complaint fails to state facts sufficient to constitute a cause of action against
4 Defendant.
5 SECOND AFFIRMATIVE DEFENSE
6 (Unclean Hands)
7 FCA is informed and believes, and on that basis alleges, that Plaintiffs’ claims against FCA are
8 barred by the doctrine of unclean hands
9 THIRD AFFIRMATIVE DEFENSE
10 (Laches)
11 FCA is informed and believes, and on that basis alleges, that Plaintiffs’ claims are, in whole or in
12 part, barred by the equitable doctrine of laches.
13 FOURTH AFFIRMATIVE DEFENSE
14 (Good Faith Belief)
15 FCA is informed and believes, and on that basis alleges, that Plaintiffs’ claims as related to
16 allegations of statements published by FCA are barred, in whole or in part, because the statements were
17 true or FCA had a good faith belief that the statement was true.
18 FIFTH AFFIRMATIVE DEFENSE
19 (Complete Performance)
20 FCA is informed and believes, and on that basis alleges, it has appropriately, completely and fully
21 performed and discharged any and all obligations and legal duties arising out of the matters alleged in the
22 Complaint.
23 SIXTH AFFIRMATIVE DEFENSE
24 (Preemption)
25 Plaintiffs’ Complaint, and each and every cause of action therein, in whole, or in part, are
26 preempted by the Federal National Traffic and Motor Vehicle Safety Act pursuant to 49 U.S.C. sections
27 30118, et seq.
28 ///
2
ANSWER OF DEFENDANT FCA US LLC TO PLAINTIFFS’ UNVERIFIED COMPLAINT
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1 SEVENTH AFFIRMATIVE DEFENSE
2 (Arbitration Agreement)
3 FCA is informed and believes and on such information and belief alleges that this dispute is
4 subject to an arbitration agreement with Plaintiffs such that this matter is properly brought before a
5 qualified arbitrator rather than in the instant court.
6 EIGHTH AFFIRMATIVE DEFENSE
7 (Recoupment or Set-Off)
8 In the event Plaintiffs are entitled to any relief, FCA is entitled to a recoupment right or set-off for
9 the value of Plaintiffs’ use of the product, sale of the product or other permissible reductions or offsets
10 and other or further relief to prevent any unjust enrichment.
11 NINTH AFFIRMATIVE DEFENSE
12 (Statute of Limitations)
13 FCA is informed and believes and thereon alleges that Plaintiffs’ causes of action as alleged in
14 their Complaint are barred by the applicable statutes of limitations, including but not limited to: Civil
15 Code sections 335.1, 337, 338, 338.1, and 340 et. seq.; Civil Code sections 1783 and 1791.1; and/or
16 Commercial Code section 2725.
17 TENTH AFFIRMATIVE DEFENSE
18 (Failure to Mitigate)
19 FCA is informed and believes and thereon alleges that Plaintiffs are barred from recovery because
20 Plaintiffs could have mitigated the amount of their damages by the exercise of reasonable effort but failed
21 to do so.
22 ELEVENTH AFFIRMATIVE DEFENSE
23 (Estoppel/Waiver)
24 FCA is informed and believes and thereon alleges that Plaintiffs’ claims for relief and damages
25 against this Defendant are barred by the doctrines of estoppel and waiver.
26 ///
27 ///
28 ///
3
ANSWER OF DEFENDANT FCA US LLC TO PLAINTIFFS’ UNVERIFIED COMPLAINT
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1 TWELFTH AFFIRMATIVE DEFENSE
2 (Set Off)
3 FCA is informed and believes, and on that basis alleges, that if it is established that FCA is in any
4 manner legally responsible for any of the damages claimed by Plaintiffs, which is denied, FCA is entitled
5 to a set off these damages, if any, that resulted from the wrongful acts of Plaintiffs and/or others.
6 THIRTEENTH AFFIRMATIVE DEFENSE
7 (Compliance with Industry Standards)
8 At all relevant times, this answering Defendant was informed and believes and thereon alleges
9 that it acted in conformity with industry standards based upon the state of knowledge existing at the
10 various time periods alleged in the Complaint, and therefore Plaintiffs are barred from any recovery in
11 this action.
12 FOURTEENTH AFFIRMATIVE DEFENSE
13 (Failure to Perform Conditions Precedent)
14 Plaintiffs failed to perform contractual conditions precedent to Defendant’s performance. This
15 failure excuses any alleged nonperformance by Defendant.
16 FIFTEENTH AFFIRMATIVE DEFENSE
17 (Lack of Notice)
18 This answering Defendant is informed and believes and thereon alleges claims by Plaintiffs for
19 breach of warranty are barred because of Plaintiffs’ failure to give timely and appropriate notice of any
20 claim of breach of warranty.
21 SIXTEENTH AFFIRMATIVE DEFENSE
22 (Comparative Fault)
23 If Plaintiffs sustained any damages as alleged in the Complaint, that damage was proximately
24 caused and contributed to by Plaintiffs in failing to conduct themselves in a manner ordinarily expected
25 of a reasonably prudent person in the conduct of their affairs and business. The contributory negligence
26 and fault of Plaintiffs diminishes any recovery herein.
27 ///
28 ///
4
ANSWER OF DEFENDANT FCA US LLC TO PLAINTIFFS’ UNVERIFIED COMPLAINT
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1 SEVENTEENTH AFFIRMATIVE DEFENSE
2 (Vehicle Fit for Intended Purpose)
3 FCA is informed and believes, and on that basis alleges, that the subject vehicle was fit for
4 providing transportation at all relevant times hereto. Accordingly, Plaintiffs are not entitled to relief for
5 breach of the implied warranty of merchantability. American Suzuki Motor Corporation v. Superior
6 Court (1995) 37 Cal.App.4th 1291.
7 EIGHTEENTH AFFIRMATIVE DEFENSE
8 (Duration of Implied Warranty)
9 FCA is informed and believes, and on that basis alleges, that some of the alleged defects did not
10 arise until more than one year had elapsed since the subject vehicle was sold to Plaintiffs. Accordingly,
11 Plaintiffs are not entitled to relief for such concerns under the breach of the implied warranty of
12 merchantability. Civil Code § 1791.1(c).
13 NINETEENTH AFFIRMATIVE DEFENSE
14 (Civ Code §§1793.2(b))
15 Defendant is informed and believes delay, if any, in the service or repair of the subject vehicle
16 was caused by conditions beyond the control of the manufacturer pursuant to Section 1793.2(b).
17 TWENTIETH AFFIRMATIVE DEFENSE
18 (Unconstitutionality of the Song-Beverly Act)
19 FCA is informed and believes, and on that basis allege, that the application of the Song-Beverly
20 Act on the facts and theories alleged by Plaintiffs, in whole and in part, on its face and as applied, violates
21 FCA’s rights under the United States Constitution, including but not limited to the Due Process Clause of
22 the Fifth and Fourteenth Amendments, because, among other things, (1) it violates Due Process to the
23 extent Plaintiffs argue that it authorizes punishment absent a finding of intentional or reckless
24 wrongdoing; (2) it violates Due Process to the extent Plaintiffs argue that it authorizes punishment based
25 on a mere preponderance of the evidence; (3) the one-way mandatory fee-shifting provision in Section
26 1794(d) is coercive and creates unfair barriers to litigants exercising their right to defend themselves in
27 court.
28 ///
5
ANSWER OF DEFENDANT FCA US LLC TO PLAINTIFFS’ UNVERIFIED COMPLAINT
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1 TWENTY-FIRST AFFIRMATIVE DEFENSE
2 (Unconstitutionality of Punitive Damages)
3 FCA is informed and believes, and on that basis allege, that an award of punitive or exemplary
4 damages to Plaintiffs would violate FCA’s constitutional rights under the provisions of the United States
5 and California Constitutions, including but not limited to the Due Process Clause of the Fifth and
6 Fourteenth Amendments to the United States Constitution and Article I, Section 7 of the California
7 Constitution because, among other things, (1) there is no legitimate state interest in punishing the alleged
8 wrongful conduct at issue here, or in deterring its possible repetition; (2) the alleged wrongful conduct at
9 issue here is lawful in other jurisdictions; and (3) the criteria for the imposition of punitive or exemplary
10 damage are unconstitutionally vague and uncertain and fail to provide fair notice of what conduct will
11 result in the imposition of such damages. In addition, an award of punitive or exemplary damages that is
12 out of proportion to the alleged wrongful conduct and purported injury at issue here violates due process.
13 TWENTY-SECOND AFFIRMATIVE DEFENSE
14 (Punitive Damages Improperly Pled/Not Recoverable)
15 FCA is informed and believes, and on that basis allege, that Plaintiffs have not properly pled a
16 claim for punitive damages and these damages are not recoverable based on the facts contained in
17 Plaintiffs’ Complaint, or are otherwise barred by the provisions of Civil Code sections 3294, 3295, and
18 3296, or such conduct was adopted, ratified or authorized by FCA under Civil Code section 3294(b).
19 TWENTY-THIRD AFFIRMATIVE DEFENSE
20 (Punitive Damages Impermissible for Extra-Territorial Conduct)
21 Any award of punitive damages based on anything other than FCA’s conduct in connection with
22 the design, manufacture, and sale of the subject vehicle or products that are the subject of this lawsuit
23 would violate the due process clause of the Fourteenth Amendment to the United States Constitution
24 because any other judgment for punitive damages in this case cannot protect FCA against impermissible
25 multiple punishment for the same wrong and against punishment for extra-territorial conduct.
26 ///
27 ///
28 ///
6
ANSWER OF DEFENDANT FCA US LLC TO PLAINTIFFS’ UNVERIFIED COMPLAINT
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1 TWENTY-FOURTH AFFIRMATIVE DEFENSE
2 (Civil Penalties/Punitive Damages – If Any – Must Be Limited)
3 FCA specifically incorporates by reference, as if fully set forth herein, any and all standards or
4 limitations regarding the determination and enforceabilityy of punitive damages awards, as set forth in
5 State Farm Mutual Automobile Insurance Company v. Campbell (2003) 123 S.Ct. 1513, and BMW of
6 North America v. Gore (1996) 116 S. Ct. 1589.
7 TWENTY-FIFTH AFFIRMATIVE DEFENSE
8 (State-of-the-Art)
9 FCA’s acts at the time of design, manufacture, and/or distribution of the subject vehicle were in
10 conformity with the state-of-the-art based upon the mechanical, technical, and scientific knowledge
11 existing at the relevant time, and FCA complied with all industry and government standards.
12 TWENTY-SIXTH AFFIRMATIVE DEFENSE
13 (Economic Loss Rule)
14 Plaintiffs’ causes of action have not accrued because Plaintiffs cannot establish that they suffered
15 injury directly from the subject vehicle or any of its component parts, and therefore, Plaintiffs’ damages
16 are exclusively economic. Plaintiffs’ tort-based causes of action are barred by California’s economic loss
17 rule.
18 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
19 (Business and Professions Code § 17200)
20 As a separate and distinct affirmative defense, Defendant alleges that its business actions or
21 practices were not unfair, unlawful, fraudulent or deceptive within the meaning of California Business
22 and Professions Code section 17200, et seq. Further, Plaintiffs have failed to state a claim under
23 California Business and Professions Code §17200 because Plaintiffs’ claims arise under contract.
24 TWENTY-EIGHTH AFFIRMATIVE DEFENSE
25 (Failure to Plead Fraud Claim with Particularity)
26 Plaintiffs are not entitled to recover punitive or exemplary damages because Plaintiffs have failed
27 to allege facts sufficient to state a claim for punitive or exemplary damages or to show that any of the
28 Defendants engaged in oppressive, fraudulent or malicious conduct.
7
ANSWER OF DEFENDANT FCA US LLC TO PLAINTIFFS’ UNVERIFIED COMPLAINT
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1 TWENTY-NINTH AFFIRMATIVE DEFENSE
2 (Reservation of Defenses)
3 New information or knowledge may require the assertion of unstated affirmative defenses.
4 Defendant reserves the right to assert additional affirmative defenses in the event discovery indicates they
5 are appropriate.
6 PRAYER FOR RELIEF
7 WHEREFORE, FCA prays for relief as follows:
8 1. That Plaintiffs take nothing by way of their Complaint;
9 2. That Plaintiffs’ Complaint be dismissed with prejudice;
10 3. That FCA recover its costs of suit herein; and
11 4. For such other and further relief as the Court may deem just and proper.
12 Dated: April 24, 2024 CLARK HILL LLP
13
14 By:
Erin E. Hanson
15 Vanessa Dao
Attorneys for Defendants FCA US LLC
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ANSWER OF DEFENDANT FCA US LLC TO PLAINTIFFS’ UNVERIFIED COMPLAINT
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1 PROOF OF SERVICE
McCormack et.al. v. FCA US LLC
2 Case No.: 24CV01652
3 I, the undersigned, am an employee of CLARK HILL LLP, located at 555 S. Flower Street, 24th
Floor, Los Angeles, California 90071. I am over the age of eighteen (18) and not a party to this matter.
4 On April 24, 2024, I served the document(s) listed below as follows:
5 ANSWER OF DEFENDANT FCA US LLC TO PLAINTIFFS’ UNVERIFIED COMPLAINT
6 to the following party(ies) in this matter:
7 MFS LEGAL INC. Attorney for Plaintiffs,
Neal Morrow JOHN MCCORMACK
8 5318 East 2nd Street, #490
Long Beach, CA 90803
9 lawclerk@calemonlawteam.com
eservice@calemonlawteam.com
10
11 El BY PERSONAL SERVICE: I caused the foregoing document(s) to be personally delivered to the
above addressee(s) by First Legal Network via a registered process server pursuant to C.C.P. § 1011.
12
El BY U.S. MAIL: I enclosed the foregoing document(s) in a sealed envelope to the addressee(s) above
13 and, under the firm’s ordinary course of business, placed said envelope(s) for pick up and mailing
pursuant to C.C.P. § 1013. I am readily familiar with the firm’s practice of processing outgoing mail,
14 under which outgoing mail is deposited for pickup by the U.S. Postal Service on the same day stated in
the proof of service, with postage fully prepaid, San Diego, California.
15
IZI BY ELECTRONIC SERVICE/EMAIL: I electronically filed the document(s) with this Court using
16 the Court’s designated electronic filing service provider, which sent notification of that filing to the
person(s) listed above to accept service by electronic transmission, and/or I caused the document(s) to be
17 transmitted via electronic mail from cfalls@clarkhill.com to the addressees as listed above pursuant to
C.C.P. §§ 1010.6 and 1013(g), Cal. Rule of Court 2.251, and/or agreement or stipulation between the
18 parties.
19 El BY ELECTRONIC SERVICE VIA ONE LEGAL: On the interested parties in this action by
electronic notification pursuant to C.C.P. §§ 1010.6 (a)(C), Cal Rule of Court 2.251. Based on a court
20 order or the parties’ consent to accept electronic service. I electronically filed the document(s) to be sent
to the person(s) at the electronic service address(es) listed for each party through One Legal’s e-serve.
21
I declare under penalty of perjury under the laws of the State of California, that the foregoing is
22 true and correct. Executed on April 24, 2024, at Los Angeles, California.
23
24 _______________________________
Carlyn Falls
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1
PROOF OF SERVICE
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Preview
1 Erin E. Hanson, Esq., SBN 272813 Vanessa Dao, Esq., SBN 328178 2 CLARK HILL LLP One America Plaza 3 600 West Broadway, Suite 500 San Diego, CA 92101 4 Telephone: (619) 557-0404 Facsimile: (619) 557-0460 5 E-Service: clarkhill.fca@clarkhill.com 6 Attorneys for Defendants FCA US LLC 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SANTA BARBARA 10 JOHN MCCORMACK, Case No. 24CV01652 11 Plaintiffs, ANSWER OF DEFENDANT FCA US LLC TO PLAINTIFFS’ UNVERIFIED COMPLAINT 12 v. 13 FCA US LLC, a limited liability company; Complaint Filed: March 21, 2024 DODGE RAM JEEP FIAT CHRYSLER OF Trial Date: Not set 14 SANTA BARBARA, a sole proprietorship; and DOES 1 through 10, inclusive, 15 Defendants. 16 17 18 Defendant FCA US LLC (“Defendant” and “FCA”) hereby answers the Complaint of Plaintiffs 19 JOHN MCCORMACK (“Plaintiffs”) as follows: 20 GENERAL DENIAL 21 Pursuant to Code of Civil Procedure section 431.30(d), this Defendant generally denies each and 22 every allegation and cause of action stated in Plaintiffs’ Complaint, and further expressly denies that, as a 23 direct or proximate result of any alleged acts or omissions on the part of this answering Defendant, 24 Plaintiffs herein sustained or suffered injury or damage in the amount alleged in the Complaint, or in any 25 amount at all, or that Plaintiffs have suffered injury or damage for any reason in the sums alleged in the 26 Complaint, or in any other sum or sums, or at all. 27 AFFIRMATIVE DEFENSES 28 FCA asserts and alleges the following separate and distinct affirmative defenses: 1 ANSWER OF DEFENDANT FCA US LLC TO PLAINTIFFS’ UNVERIFIED COMPLAINT ClarkHill\69607\489090\277084368.v1-4/24/24 1 FIRST AFFIRMATIVE DEFENSE 2 (Failure to State a Claim) 3 Plaintiffs’ Complaint fails to state facts sufficient to constitute a cause of action against 4 Defendant. 5 SECOND AFFIRMATIVE DEFENSE 6 (Unclean Hands) 7 FCA is informed and believes, and on that basis alleges, that Plaintiffs’ claims against FCA are 8 barred by the doctrine of unclean hands 9 THIRD AFFIRMATIVE DEFENSE 10 (Laches) 11 FCA is informed and believes, and on that basis alleges, that Plaintiffs’ claims are, in whole or in 12 part, barred by the equitable doctrine of laches. 13 FOURTH AFFIRMATIVE DEFENSE 14 (Good Faith Belief) 15 FCA is informed and believes, and on that basis alleges, that Plaintiffs’ claims as related to 16 allegations of statements published by FCA are barred, in whole or in part, because the statements were 17 true or FCA had a good faith belief that the statement was true. 18 FIFTH AFFIRMATIVE DEFENSE 19 (Complete Performance) 20 FCA is informed and believes, and on that basis alleges, it has appropriately, completely and fully 21 performed and discharged any and all obligations and legal duties arising out of the matters alleged in the 22 Complaint. 23 SIXTH AFFIRMATIVE DEFENSE 24 (Preemption) 25 Plaintiffs’ Complaint, and each and every cause of action therein, in whole, or in part, are 26 preempted by the Federal National Traffic and Motor Vehicle Safety Act pursuant to 49 U.S.C. sections 27 30118, et seq. 28 /// 2 ANSWER OF DEFENDANT FCA US LLC TO PLAINTIFFS’ UNVERIFIED COMPLAINT ClarkHill\69607\489090\277084368.v1-4/24/24 1 SEVENTH AFFIRMATIVE DEFENSE 2 (Arbitration Agreement) 3 FCA is informed and believes and on such information and belief alleges that this dispute is 4 subject to an arbitration agreement with Plaintiffs such that this matter is properly brought before a 5 qualified arbitrator rather than in the instant court. 6 EIGHTH AFFIRMATIVE DEFENSE 7 (Recoupment or Set-Off) 8 In the event Plaintiffs are entitled to any relief, FCA is entitled to a recoupment right or set-off for 9 the value of Plaintiffs’ use of the product, sale of the product or other permissible reductions or offsets 10 and other or further relief to prevent any unjust enrichment. 11 NINTH AFFIRMATIVE DEFENSE 12 (Statute of Limitations) 13 FCA is informed and believes and thereon alleges that Plaintiffs’ causes of action as alleged in 14 their Complaint are barred by the applicable statutes of limitations, including but not limited to: Civil 15 Code sections 335.1, 337, 338, 338.1, and 340 et. seq.; Civil Code sections 1783 and 1791.1; and/or 16 Commercial Code section 2725. 17 TENTH AFFIRMATIVE DEFENSE 18 (Failure to Mitigate) 19 FCA is informed and believes and thereon alleges that Plaintiffs are barred from recovery because 20 Plaintiffs could have mitigated the amount of their damages by the exercise of reasonable effort but failed 21 to do so. 22 ELEVENTH AFFIRMATIVE DEFENSE 23 (Estoppel/Waiver) 24 FCA is informed and believes and thereon alleges that Plaintiffs’ claims for relief and damages 25 against this Defendant are barred by the doctrines of estoppel and waiver. 26 /// 27 /// 28 /// 3 ANSWER OF DEFENDANT FCA US LLC TO PLAINTIFFS’ UNVERIFIED COMPLAINT ClarkHill\69607\489090\277084368.v1-4/24/24 1 TWELFTH AFFIRMATIVE DEFENSE 2 (Set Off) 3 FCA is informed and believes, and on that basis alleges, that if it is established that FCA is in any 4 manner legally responsible for any of the damages claimed by Plaintiffs, which is denied, FCA is entitled 5 to a set off these damages, if any, that resulted from the wrongful acts of Plaintiffs and/or others. 6 THIRTEENTH AFFIRMATIVE DEFENSE 7 (Compliance with Industry Standards) 8 At all relevant times, this answering Defendant was informed and believes and thereon alleges 9 that it acted in conformity with industry standards based upon the state of knowledge existing at the 10 various time periods alleged in the Complaint, and therefore Plaintiffs are barred from any recovery in 11 this action. 12 FOURTEENTH AFFIRMATIVE DEFENSE 13 (Failure to Perform Conditions Precedent) 14 Plaintiffs failed to perform contractual conditions precedent to Defendant’s performance. This 15 failure excuses any alleged nonperformance by Defendant. 16 FIFTEENTH AFFIRMATIVE DEFENSE 17 (Lack of Notice) 18 This answering Defendant is informed and believes and thereon alleges claims by Plaintiffs for 19 breach of warranty are barred because of Plaintiffs’ failure to give timely and appropriate notice of any 20 claim of breach of warranty. 21 SIXTEENTH AFFIRMATIVE DEFENSE 22 (Comparative Fault) 23 If Plaintiffs sustained any damages as alleged in the Complaint, that damage was proximately 24 caused and contributed to by Plaintiffs in failing to conduct themselves in a manner ordinarily expected 25 of a reasonably prudent person in the conduct of their affairs and business. The contributory negligence 26 and fault of Plaintiffs diminishes any recovery herein. 27 /// 28 /// 4 ANSWER OF DEFENDANT FCA US LLC TO PLAINTIFFS’ UNVERIFIED COMPLAINT ClarkHill\69607\489090\277084368.v1-4/24/24 1 SEVENTEENTH AFFIRMATIVE DEFENSE 2 (Vehicle Fit for Intended Purpose) 3 FCA is informed and believes, and on that basis alleges, that the subject vehicle was fit for 4 providing transportation at all relevant times hereto. Accordingly, Plaintiffs are not entitled to relief for 5 breach of the implied warranty of merchantability. American Suzuki Motor Corporation v. Superior 6 Court (1995) 37 Cal.App.4th 1291. 7 EIGHTEENTH AFFIRMATIVE DEFENSE 8 (Duration of Implied Warranty) 9 FCA is informed and believes, and on that basis alleges, that some of the alleged defects did not 10 arise until more than one year had elapsed since the subject vehicle was sold to Plaintiffs. Accordingly, 11 Plaintiffs are not entitled to relief for such concerns under the breach of the implied warranty of 12 merchantability. Civil Code § 1791.1(c). 13 NINETEENTH AFFIRMATIVE DEFENSE 14 (Civ Code §§1793.2(b)) 15 Defendant is informed and believes delay, if any, in the service or repair of the subject vehicle 16 was caused by conditions beyond the control of the manufacturer pursuant to Section 1793.2(b). 17 TWENTIETH AFFIRMATIVE DEFENSE 18 (Unconstitutionality of the Song-Beverly Act) 19 FCA is informed and believes, and on that basis allege, that the application of the Song-Beverly 20 Act on the facts and theories alleged by Plaintiffs, in whole and in part, on its face and as applied, violates 21 FCA’s rights under the United States Constitution, including but not limited to the Due Process Clause of 22 the Fifth and Fourteenth Amendments, because, among other things, (1) it violates Due Process to the 23 extent Plaintiffs argue that it authorizes punishment absent a finding of intentional or reckless 24 wrongdoing; (2) it violates Due Process to the extent Plaintiffs argue that it authorizes punishment based 25 on a mere preponderance of the evidence; (3) the one-way mandatory fee-shifting provision in Section 26 1794(d) is coercive and creates unfair barriers to litigants exercising their right to defend themselves in 27 court. 28 /// 5 ANSWER OF DEFENDANT FCA US LLC TO PLAINTIFFS’ UNVERIFIED COMPLAINT ClarkHill\69607\489090\277084368.v1-4/24/24 1 TWENTY-FIRST AFFIRMATIVE DEFENSE 2 (Unconstitutionality of Punitive Damages) 3 FCA is informed and believes, and on that basis allege, that an award of punitive or exemplary 4 damages to Plaintiffs would violate FCA’s constitutional rights under the provisions of the United States 5 and California Constitutions, including but not limited to the Due Process Clause of the Fifth and 6 Fourteenth Amendments to the United States Constitution and Article I, Section 7 of the California 7 Constitution because, among other things, (1) there is no legitimate state interest in punishing the alleged 8 wrongful conduct at issue here, or in deterring its possible repetition; (2) the alleged wrongful conduct at 9 issue here is lawful in other jurisdictions; and (3) the criteria for the imposition of punitive or exemplary 10 damage are unconstitutionally vague and uncertain and fail to provide fair notice of what conduct will 11 result in the imposition of such damages. In addition, an award of punitive or exemplary damages that is 12 out of proportion to the alleged wrongful conduct and purported injury at issue here violates due process. 13 TWENTY-SECOND AFFIRMATIVE DEFENSE 14 (Punitive Damages Improperly Pled/Not Recoverable) 15 FCA is informed and believes, and on that basis allege, that Plaintiffs have not properly pled a 16 claim for punitive damages and these damages are not recoverable based on the facts contained in 17 Plaintiffs’ Complaint, or are otherwise barred by the provisions of Civil Code sections 3294, 3295, and 18 3296, or such conduct was adopted, ratified or authorized by FCA under Civil Code section 3294(b). 19 TWENTY-THIRD AFFIRMATIVE DEFENSE 20 (Punitive Damages Impermissible for Extra-Territorial Conduct) 21 Any award of punitive damages based on anything other than FCA’s conduct in connection with 22 the design, manufacture, and sale of the subject vehicle or products that are the subject of this lawsuit 23 would violate the due process clause of the Fourteenth Amendment to the United States Constitution 24 because any other judgment for punitive damages in this case cannot protect FCA against impermissible 25 multiple punishment for the same wrong and against punishment for extra-territorial conduct. 26 /// 27 /// 28 /// 6 ANSWER OF DEFENDANT FCA US LLC TO PLAINTIFFS’ UNVERIFIED COMPLAINT ClarkHill\69607\489090\277084368.v1-4/24/24 1 TWENTY-FOURTH AFFIRMATIVE DEFENSE 2 (Civil Penalties/Punitive Damages – If Any – Must Be Limited) 3 FCA specifically incorporates by reference, as if fully set forth herein, any and all standards or 4 limitations regarding the determination and enforceabilityy of punitive damages awards, as set forth in 5 State Farm Mutual Automobile Insurance Company v. Campbell (2003) 123 S.Ct. 1513, and BMW of 6 North America v. Gore (1996) 116 S. Ct. 1589. 7 TWENTY-FIFTH AFFIRMATIVE DEFENSE 8 (State-of-the-Art) 9 FCA’s acts at the time of design, manufacture, and/or distribution of the subject vehicle were in 10 conformity with the state-of-the-art based upon the mechanical, technical, and scientific knowledge 11 existing at the relevant time, and FCA complied with all industry and government standards. 12 TWENTY-SIXTH AFFIRMATIVE DEFENSE 13 (Economic Loss Rule) 14 Plaintiffs’ causes of action have not accrued because Plaintiffs cannot establish that they suffered 15 injury directly from the subject vehicle or any of its component parts, and therefore, Plaintiffs’ damages 16 are exclusively economic. Plaintiffs’ tort-based causes of action are barred by California’s economic loss 17 rule. 18 TWENTY-SEVENTH AFFIRMATIVE DEFENSE 19 (Business and Professions Code § 17200) 20 As a separate and distinct affirmative defense, Defendant alleges that its business actions or 21 practices were not unfair, unlawful, fraudulent or deceptive within the meaning of California Business 22 and Professions Code section 17200, et seq. Further, Plaintiffs have failed to state a claim under 23 California Business and Professions Code §17200 because Plaintiffs’ claims arise under contract. 24 TWENTY-EIGHTH AFFIRMATIVE DEFENSE 25 (Failure to Plead Fraud Claim with Particularity) 26 Plaintiffs are not entitled to recover punitive or exemplary damages because Plaintiffs have failed 27 to allege facts sufficient to state a claim for punitive or exemplary damages or to show that any of the 28 Defendants engaged in oppressive, fraudulent or malicious conduct. 7 ANSWER OF DEFENDANT FCA US LLC TO PLAINTIFFS’ UNVERIFIED COMPLAINT ClarkHill\69607\489090\277084368.v1-4/24/24 1 TWENTY-NINTH AFFIRMATIVE DEFENSE 2 (Reservation of Defenses) 3 New information or knowledge may require the assertion of unstated affirmative defenses. 4 Defendant reserves the right to assert additional affirmative defenses in the event discovery indicates they 5 are appropriate. 6 PRAYER FOR RELIEF 7 WHEREFORE, FCA prays for relief as follows: 8 1. That Plaintiffs take nothing by way of their Complaint; 9 2. That Plaintiffs’ Complaint be dismissed with prejudice; 10 3. That FCA recover its costs of suit herein; and 11 4. For such other and further relief as the Court may deem just and proper. 12 Dated: April 24, 2024 CLARK HILL LLP 13 14 By: Erin E. Hanson 15 Vanessa Dao Attorneys for Defendants FCA US LLC 16 17 18 19 20 21 22 23 24 25 26 27 28 8 ANSWER OF DEFENDANT FCA US LLC TO PLAINTIFFS’ UNVERIFIED COMPLAINT ClarkHill\69607\489090\277084368.v1-4/24/24 1 PROOF OF SERVICE McCormack et.al. v. FCA US LLC 2 Case No.: 24CV01652 3 I, the undersigned, am an employee of CLARK HILL LLP, located at 555 S. Flower Street, 24th Floor, Los Angeles, California 90071. I am over the age of eighteen (18) and not a party to this matter. 4 On April 24, 2024, I served the document(s) listed below as follows: 5 ANSWER OF DEFENDANT FCA US LLC TO PLAINTIFFS’ UNVERIFIED COMPLAINT 6 to the following party(ies) in this matter: 7 MFS LEGAL INC. Attorney for Plaintiffs, Neal Morrow JOHN MCCORMACK 8 5318 East 2nd Street, #490 Long Beach, CA 90803 9 lawclerk@calemonlawteam.com eservice@calemonlawteam.com 10 11 El BY PERSONAL SERVICE: I caused the foregoing document(s) to be personally delivered to the above addressee(s) by First Legal Network via a registered process server pursuant to C.C.P. § 1011. 12 El BY U.S. MAIL: I enclosed the foregoing document(s) in a sealed envelope to the addressee(s) above 13 and, under the firm’s ordinary course of business, placed said envelope(s) for pick up and mailing pursuant to C.C.P. § 1013. I am readily familiar with the firm’s practice of processing outgoing mail, 14 under which outgoing mail is deposited for pickup by the U.S. Postal Service on the same day stated in the proof of service, with postage fully prepaid, San Diego, California. 15 IZI BY ELECTRONIC SERVICE/EMAIL: I electronically filed the document(s) with this Court using 16 the Court’s designated electronic filing service provider, which sent notification of that filing to the person(s) listed above to accept service by electronic transmission, and/or I caused the document(s) to be 17 transmitted via electronic mail from cfalls@clarkhill.com to the addressees as listed above pursuant to C.C.P. §§ 1010.6 and 1013(g), Cal. Rule of Court 2.251, and/or agreement or stipulation between the 18 parties. 19 El BY ELECTRONIC SERVICE VIA ONE LEGAL: On the interested parties in this action by electronic notification pursuant to C.C.P. §§ 1010.6 (a)(C), Cal Rule of Court 2.251. Based on a court 20 order or the parties’ consent to accept electronic service. I electronically filed the document(s) to be sent to the person(s) at the electronic service address(es) listed for each party through One Legal’s e-serve. 21 I declare under penalty of perjury under the laws of the State of California, that the foregoing is 22 true and correct. Executed on April 24, 2024, at Los Angeles, California. 23 24 _______________________________ Carlyn Falls 25 26 27 28 1 PROOF OF SERVICE ClarkHill\69607\489090\277084368.v1-4/24/24