arrow left
arrow right
  • Hilda Jimenez vs. BMW of North America, LLC06 Unlimited - Breach of Contract/Warranty document preview
  • Hilda Jimenez vs. BMW of North America, LLC06 Unlimited - Breach of Contract/Warranty document preview
  • Hilda Jimenez vs. BMW of North America, LLC06 Unlimited - Breach of Contract/Warranty document preview
  • Hilda Jimenez vs. BMW of North America, LLC06 Unlimited - Breach of Contract/Warranty document preview
  • Hilda Jimenez vs. BMW of North America, LLC06 Unlimited - Breach of Contract/Warranty document preview
  • Hilda Jimenez vs. BMW of North America, LLC06 Unlimited - Breach of Contract/Warranty document preview
  • Hilda Jimenez vs. BMW of North America, LLC06 Unlimited - Breach of Contract/Warranty document preview
  • Hilda Jimenez vs. BMW of North America, LLC06 Unlimited - Breach of Contract/Warranty document preview
						
                                

Preview

1 MORGAN, LEWIS & BOCKIUS LLP Lisa R. Weddle, Bar No. 259050 2 Blake H. Ramsay, Bar No. 300025 300 South Grand Avenue 3 Twenty-Second Floor Los Angeles, CA 90071-3132 4 Tel: +1.213.612.2500 Fax: +1.213.612.2501 5 lisa.weddle@morganlewis.com E-FILED blake.ramsay@morganlewis.com 7/21/2020 4:16 PM 6 Superior Court of California Attorneys for Defendants, County of Fresno 7 BMW OF NORTH AMERICA, LLC; By: J. Nelson, Deputy HERWALDT MOTORSPORTS 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF FRESNO 11 12 HILDA JIMENEZ, in individual, Case No. 20CECG01507 13 Plaintiff, UNLIMITED JURISDICTION 14 vs. DEFENDANT HERWALDT MOTORSPORTS’ ANSWER TO 15 BMW OF NORTH AMERICA, LLC, a limited PLAINTIFF HILDA JIMENEZ’S liability company, HERWALDT UNVERIFIED COMPLAINT FOR 16 MOTORSPORTS, a buisness entity, form DAMAGES unknown; and DOES 1 through 50, inclusive, 17 Dept: 402 Defendants. Judge: Alan Simpson 18 Action Filed: May 22, 2020 Trial Date: TBD 19 20 Defendant Herwaldt Motorsports (“HERWALDT MOTORSPORTS”), by and through its 21 counsel, answers the unverified complaint (“Complaint”) of Plaintiff Hilda Jimenez (“Plaintiff”) as 22 follows: 23 Pursuant to California Code of Civil Procedure section 431.30, HERWALDT 24 MOTORSPORTS denies, generally and specifically, each and every allegation contained in each 25 and every cause of action in Plaintiff’s Complaint, and further denies that Plaintiff sustained any 26 damages as alleged, in any sum or sums, or at all, by reason of any act, breach, or omission on the 27 part of HERWALDT MOTORSPORTS. 28 /// MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES DEFENDANT BMW OF NORTH AMERICA, LLC’S ANSWER TO PLAINTIFF HILDA JIMENEZ’S DB2/ 39229375.1 UNVERIFIED COMPLAINT FOR DAMAGES 1 AFFIRMATIVE DEFENSES 2 FIRST AFFIRMATIVE DEFENSE 3 (Failure to State Cause of Action) 4 1. The Complaint, and each cause of action and claim for relief asserted therein, fails 5 to state facts sufficient to constitute a cause of action or claim for relief against HERWALDT 6 MOTORSPORTS. 7 SECOND AFFIRMATIVE DEFENSE 8 (Agreement to Arbitrate) 9 10 2. Some or all of the claims made in the Complaint must be resolved through 11 arbitration because the purchase agreement and/or warranty and financing agreements to which 12 Plaintiff agreed when leasing the motorcycle, contain an arbitration clause. 13 THIRD AFFIRMATIVE DEFENSE 14 (No Breach of Express Warranty) 15 16 3. Plaintiff cannot prove the claim for Breach of Express Warranty because Plaintiff 17 cannot prove the motorcycle contained a warrantable defect or nonconformity that substantially 18 impaired the motorcycle’s use, value, or safety, and that such alleged defect had persisted despite 19 having been presented for repair a reasonable number times. (Lundy v. Ford Motor Co. (2001) 20 87 Cal. App. 4th 472; Ibrahim v. Ford Motor Company (1989) 214 Cal. App. 3d 878.) 21 FOURTH AFFIRMATIVE DEFENSE 22 (No Breach of Implied Warranty of Merchantability – Motorcycle Fit for Ordinary Use) 23 24 4. Plaintiff cannot prove the claim for Breach of Implied Warranty of 25 Merchantability because the alleged defects were caused by Plaintiff or its agent, and its own 26 damage to the motorcycle is not a defect covered under such implied warranties or by the Song- 27 Beverly Act, therefore HERWALDT MOTORSPORTS is not responsible for any related issues. 28 (American Suzuki Motor Corp. v. Superior Court (1995) 37 Cal. App. 4th 1291). MORGAN, LEWIS & 2 BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES DEFENDANT BMW OF NORTH AMERICA, LLC’S ANSWER TO PLAINTIFF HILDA JIMENEZ’S DB2/ 39229375.1 UNVERIFIED COMPLAINT FOR DAMAGES 1 FIFTH AFFIRMATIVE DEFENSE 2 (No Breach of Implied Warranty of Merchantability – No Defect Within Applicable Period) 3 5. Plaintiff cannot prove the claim for Breach of Implied Warranty of 4 Merchantability because the alleged defects did not exist until after the applicable implied 5 warranty period expired. (Cal. Civ. Code § 1791.1, subd. (c); § 1795.5.) 6 SIXTH AFFIRMATIVE DEFENSE 7 (No Breach of Implied Warranty – Rejection or Revocation Not Within a Reasonable Time) 8 9 6. Plaintiff cannot prove the claim for Breach of Implied Warranty because Plaintiff 10 failed to reject or revoke acceptance within a reasonable time. (Cal. Com. Code §§ 2601, 2602, 11 2608.) 12 SEVENTH AFFIRMATIVE DEFENSE 13 (No Breach of Implied Warranty - Self-Caused Damage is Not a Warrantable Defect) 14 15 7. Plaintiff’s claim of breach of implied warranty of merchantability fails because the 16 alleged defects were caused by Plaintiff or its agent, and its third-party body shop’s failed 17 attempts to repair the damage are not defects as defined by the Song-Beverly Act and 18 HERWALDT MOTORSPORTS is not responsible for any related issues. 19 EIGHTH AFFIRMATIVE DEFENSE 20 (Plaintiff’s Failure to Give Proper Notice of Alleged Defect) 21 22 8. Plaintiff’s claims of breach of express warranty fail because Plaintiff failed to 23 provide HERWALDT MOTORSPORTS with the required notice and opportunity to cure. (Cal. 24 Com. Code § 2607, subd. (3)(A) (buyer must notify seller of nonconformity of goods within 25 reasonable time); Cal. Com. Code § 2508 (seller entitled to reasonable opportunity to cure the 26 nonconformity within given time frame).) 27 /// 28 /// MORGAN, LEWIS & -3- BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES DEFENDANT HERWALDT MOTORSPORTS’ ANSWER TO PLAINTIFF HILDA JIMENEZ’S DB2/ 39229375.1 UNVERIFIED COMPLAINT FOR DAMAGES 1 NINTH AFFIRMATIVE DEFENSE 2 (Unreasonable or Unauthorized Use of Motorcycle) 3 9. Plaintiff’s claims fail because the defects or nonconformities that allegedly exist 4 were caused by unreasonable or unauthorized use of the motorcycle following its purchase. (Civ. 5 Code § 1794.3.) 6 TENTH AFFIRMATIVE DEFENSE 7 (Misuse, Abuse, or Lack of Maintenance) 8 9 10. Plaintiff’s claims fail because the motorcycle was misused, abused, or improperly 10 maintained. (CACI No. 1245.) 11 ELEVENTH AFFIRMATIVE DEFENSE 12 (Voluntary Payment Doctrine) 13 14 11. Plaintiff is barred from recovering money voluntarily paid with full knowledge of 15 the facts. 16 TWELFTH AFFIRMATIVE DEFENSE 17 (Presumption Does Not Apply) 18 19 12. The presumption stated in California Civil Code section 1793.22, subdivision (b), 20 does not apply because Plaintiff failed to participate in HERWALDT MOTORSPORTS’ 21 qualified third-party dispute resolution process after receiving timely written notification of its 22 existence, and the alleged defects and presentations for repair did not meet the requisite 23 presumption elements regardless. 24 THIRTEENTH AFFIRMATIVE DEFENSE 25 (No Civil Penalty Under Song-Beverly Warranty Act) 26 27 13. Plaintiff is barred from recovering a civil penalty in this action because 28 HERWALDT MOTORSPORTS reasonably, and in good faith, believed that the facts did not MORGAN, LEWIS & -4- BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES DEFENDANT HERWALDT MOTORSPORTS’ ANSWER TO PLAINTIFF HILDA JIMENEZ’S DB2/ 39229375.1 UNVERIFIED COMPLAINT FOR DAMAGES 1 require HERWALDT MOTORSPORTS to repurchase or replace the motorcycle. (CACI No. 2 3244 (revised May 2018). 3 FOURTEENTH AFFIRMATIVE DEFENSE 4 (Res Judicata/Collateral Estoppel) 5 6 14. Plaintiff’s claims are, or may become, barred under the res judicata or collateral 7 estoppel doctrines. 8 FIFTEENTH AFFIRMATIVE DEFENSE 9 (Statute of Limitations) 10 11 15. Plaintiff’s Complaint and each purported cause of action alleged therein are barred 12 by the applicable statute of limitations, including, but not limited to, California Code of Civil 13 Procedure section 339, subdivisions 1 and 3, sections 343, and 361, Civil Code sections 1791.1, 14 1795.5, and each of the four provisions of section 2725 of the California Uniform Commercial 15 Code. (See also Mexia v. Rinker Boat Co., Inc. (2009) 174 Cal. App. 4th 1297, 1305 [four-year 16 statute of limitations under Cal. U. Com. Code, § 2725 applies to warranty claims under the 17 Song-Beverly Consumer Warranty Act]; CACI No. 2725 – Model Jury Instructions for Statute of 18 Limitations.) 19 SIXTEENTH AFFIRMATIVE DEFENSE 20 (Equitable Estoppel) 21 22 16. Plaintiff’s Complaint and each purported cause of action alleged therein are barred 23 by the doctrine of equitable estoppel. 24 SEVENTEENTH AFFIRMATIVE DEFENSE 25 (Laches) 26 27 17. Plaintiff is barred from recovery for allegations in the complaint by virtue of the 28 application of the doctrine of laches (inexcusable delay and prejudice to HERWALDT MORGAN, LEWIS & -5- BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES DEFENDANT HERWALDT MOTORSPORTS’ ANSWER TO PLAINTIFF HILDA JIMENEZ’S DB2/ 39229375.1 UNVERIFIED COMPLAINT FOR DAMAGES 1 MOTORSPORTS). EIGHTEENTH AFFIRMATIVE DEFENSE 2 (Business Use) 3 4 18. Plaintiff’s claims fail because the motorcycle is not a “new motor vehicle” as set 5 forth in California Civil Code section 1793.22, subdivision (e). 6 NINETEENTH AFFIRMATIVE DEFENSE 7 (Integration and Parole Evidence Rule) 8 9 19. Plaintiff’s Complaint and each cause of action are barred by the Doctrine of 10 Integration and the Parole Evidence Rule. 11 TWENTIETH AFFIRMATIVE DEFENSE 12 (Satisfaction and Accord) 13 14 20. This action is barred because HERWALDT MOTORSPORTS duly performed, 15 offered to perform, satisfied, and discharged all duties and obligations it allegedly owed, or may 16 have owed, to Plaintiff arising out of any agreements. 17 TWENTY-FIRST AFFIRMATIVE DEFENSE 18 (Lack of Privity Between Plaintiff and Defendant) 19 20 21. Plaintiff’s claims of breach of warranty fail because there is no privity between 21 Defendant and Plaintiff. (Burr v. Sherwin Williams Co. (1954) 42 Cal. 2d 682.) 22 TWENTY-SECOND AFFIRMATIVE DEFENSE 23 (Lack of Standing) 24 25 22. Plaintiff’s claims fail because Plaintiff lacks standing to bring them. 26 /// 27 /// 28 /// MORGAN, LEWIS & -6- BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES DEFENDANT HERWALDT MOTORSPORTS’ ANSWER TO PLAINTIFF HILDA JIMENEZ’S DB2/ 39229375.1 UNVERIFIED COMPLAINT FOR DAMAGES 1 TWENTY-THIRD AFFIRMATIVE DEFENSE 2 (Other Defenses) 3 23. HERWALDT MOTORSPORTS believes it may have additional affirmative 4 defenses that it is not currently aware of. HERWALDT MOTORSPORTS reserves the right to 5 amend its Answer to state other defenses that it may later discover a basis for. 6 WHEREFORE, HERWALDT MOTORSPORTS prays for judgment as follows: 7 1. That Plaintiff take nothing by way of its Complaint in this action; 8 2. That Plaintiff’s Complaint be dismissed in its entirety; 9 3. That HERWALDT MOTORSPORTS be awarded its costs of suit incurred in this 10 action; and 11 4. That HERWALDT MOTORSPORTS be awarded such other and further relief as 12 the court deems just and proper. 13 14 Dated: July 21, 2020 MORGAN, LEWIS & BOCKIUS LLP 15 By 16 Lisa Weddle Brian M. Hom 17 Blake H. Ramsay Attorneys for Defendants 18 BMW OF NORTH AMERICA, LLC and HERWALDT MOTORSPORTS 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & -7- BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES DEFENDANT HERWALDT MOTORSPORTS’ ANSWER TO PLAINTIFF HILDA JIMENEZ’S DB2/ 39229375.1 UNVERIFIED COMPLAINT FOR DAMAGES 1 PROOF OF SERVICE 2 I, Jeremy Gloates, declare: 3 I am a citizen of the United States and employed in the City and County of Los Angeles, California. I am over the age of eighteen years and not a party to the within entitled action. My 4 business address is 300 South Grand Avenue Twenty-Second Floor, Los Angeles, CA 90071- 3132. 5 On July 21, 2020, I served a copy of the within document(s): 6 DEFENDANT HERWALDT MOTORSPORTS’ ANSWER TO PLAINTIFF HILDA 7 JIMENEZ’S UNVERIFIED COMPLAINT FOR DAMAGES 8 9 BY ELECTRONIC SERVICE: the parties listed below were served electronically with the document(s) listed above by e-mailed PDF files on July 21, 2020. The transmission was reported as complete and without error. My electronic notification 10 address is 300 South Grand Avenue, 22nd Floor, Los Angeles, California 90071- 3132. My e-mail address is jeremy.gloates@morganlewis.com. 11 12 Norman F Taylor, Esq. Attorneys for Plaintiff 13 NORMAN TAYLOR & ASSOCIATES Hilda Jimenez 425 West Broadway, Ste. 220 14 Glendale, CA 91204 Tel: +1.818.244-3905 15 Fax: +1.818.244-6052 Email: nft@normantaylor.com 16 17 Executed on July 21, 2020, at Los Angeles, California. 18 I declare under penalty of perjury, under the laws of the State of California and the United 19 States of America, that I am employed in the office of a member of the bar of this court at whose direction the service was made. 20 21 Jeremy Gloates 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW LOS ANGELES DB2/ 39229375.1 PROOF OF SERVICE