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1 Kevin J. Tully, Esq., (SBN 079559)
LAW OFFICES OF KEVIN J. TULLY
2 411 Borel Avenue, Suite 500
San Mateo, CA 94402 E-FILED
3 Tel: (650) 377-0708 7/14/2020 4:46 PM
Fax: (650) 377-0606 Superior Court of California
4 Email: kevin@tullylaw.net County of Fresno
By: J. Nelson, Deputy
5 Attorneys for Defendant
FORD MOTOR COMPANY
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SUPERIOR COURT OF CALIFORNIA
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COUNTY OF FRESNO
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9 XRISISTAL OCEJO, Case No: 20CECG01351
10 Plaintiff, DEFENDANT FORD MOTOR COMPANY’S
ANSWER TO COMPLAINT FOR
11 v. DAMAGES
12 FORD MOTOR COMPANY; and DOES 1-10,
inclusive
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Defendants.
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COMES NOW defendant FORD MOTOR COMPANY answering plaintiff’s unverified
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complaint on file herein, admits, denies, and alleges as follows:
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This answering defendant denies each and every, all and singular, generally and specifically, the
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allegations in said complaint and each cause of action therein contained.
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Further, answering said complaint and each cause of action therein contained, this answering
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defendant denies that plaintiff has sustained damage in any sum or sums, or otherwise, or at all due to
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any act or omission on the part of this answering defendant.
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AS AND FOR A SEPARATE AND DISTINCT ANSWER AND AFFIRMATIVE DEFENSE,
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it is alleged that the complaint and each cause of action therein fails to state facts sufficient to constitute
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a cause of action as against this answering defendant.
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AS AND FOR A SEPARATE AND DISTINCT ANSWER AND AFFIRMATIVE DEFENSE,
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it is alleged that the complaint and each cause of action therein fails to state facts sufficient to constitute
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a cause of action for punitive damages as against this answering defendant.
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ANSWER TO COMPLAINT
1 AS AND FOR A SEPARATE AND DISTINCT ANSWER AND AFFIRMATIVE DEFENSE,
2 it is alleged that each purported cause of action appears to be barred by the applicable statute of
3 limitations, namely Sections 337, 337.1, 337.15, 338, 339 and/or 340 of the California Code of Civil
4 Procedure and/or Section 2725 of the California Comm Code, and Krieger v. Nick Alexander Imports
5 (1991) 234 Cal. App 3d 205, as well as UCC Sec. 2725.
6 AS AND FOR A SEPARATE AND DISTINCT ANSWER AND AFFIRMATIVE DEFENSE,
7 it is alleged that the complaint and each cause of action therein fails to state a cause of action under Civil
8 Code Section 1790, et seq., otherwise known as the "Song-Beverly Consumer Warranty Act", which
9 pertains, inter alia, to warranties accompanying new consumer products and/or new motor vehicles.
10 AS AND FOR A SEPARATE AND DISTINCT ANSWER AND AFFIRMATIVE DEFENSE,
11 it is alleged that plaintiff was guilty of negligence in and about the matters and things complained of in
12 the complaint, and that such negligence on the part of plaintiff contributed directly and proximately to
13 the happening of the accident, and to the damages, if any, sustained by plaintiff. Further, it is prayed
14 that if plaintiff recovers a verdict in this case, that the same shall be reduced proportionately by the
15 percentage of negligence attributed to the plaintiff as a proximate cause of the incident.
16 AS AND FOR A SEPARATE AND DISTINCT ANSWER AND AFFIRMATIVE DEFENSE,
17 it is alleged that the injuries sustained by plaintiff, if any, were either wholly or in part negligently caused
18 by persons, firms, corporations or entities other than defendant, and that said negligence is either imputed
19 to plaintiff by reason of the relationship of said parties to plaintiff and/or said negligence comparatively
20 reduces the percentage of negligence, if any, by this answering defendant.
21 AS AND FOR A SEPARATE AND DISTINCT ANSWER AND AFFIRMATIVE DEFENSE,
22 it is alleged that plaintiff failed, subsequent to the occurrence described in the complaint, to properly
23 mitigate damages and are thereby precluded from recovering those damages which could have reasonably
24 been avoided by the exercise of due care on the part of plaintiff.
25 AS AND FOR A SEPARATE AND DISTINCT ANSWER AND AFFIRMATIVE DEFENSE,
26 it is alleged that no timely or reasonable notice was given to defendant of the alleged breach of warranty.
27 AS AND FOR A SEPARATE AND DISTINCT ANSWER AND AFFIRMATIVE DEFENSE,
28 it is alleged that plaintiff, and/or persons, firms, corporations or entities other than defendant, misused
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ANSWER TO COMPLAINT
1 and abused said product and/or failed to use said product for the purpose for which it was intended, which
2 misuse and abuse is imputed to plaintiff, thereby barring any recovery by plaintiff herein.
3 AS AND FOR A SEPARATE AND DISTINCT ANSWER AND AFFIRMATIVE DEFENSE,
4 it is alleged that any claim for incidental and/or consequential damages are effectively precluded by the
5 reasonable disclaimer set forth in the express warranty and given by defendant FORD MOTOR
6 COMPANY as to such matters at the time of purchase.
7 WHEREFORE, defendant FORD MOTOR COMPANY prays that plaintiff takes nothing by the
8 complaint on file herein, that defendant be hence dismissed with costs, and for such other and further
9 relief as the court may deem just and proper.
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11 DATED: July 2, 2020 LAW OFFICES OF KEVIN J. TULLY
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Kevin J. Tully
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Attorneys for Defendant
15 FORD MOTOR COMPANY
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ANSWER TO COMPLAINT
1 PROOF OF SERVICE
2 Ocejo, Xrisistal v. Ford
Fresno County Superior Court
3 Case No. 20CECG01351
4 I am a citizen of the United States and employed in the County of San Mateo, State of California, where this service
occurs. I am over the age of 18 years and not a party to the within action.
I am an employee of the Law Offices of Kevin J. Tully;
5 my business address is 411 Borel Avenue, Suite 500, San Mateo, California 94402. I am readily familiar with my employer’s
normal business practice for collection and processing of correspondence.
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On the date set forth below, following ordinary business practice, I served the foregoing document(s) described as follows:
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DEFENDANT FORD MOTOR COMPANY’S ANSWER TO PLAINTIFF’S COMPLAINT
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By MAIL on the following party(ies) in said action, in accordance with Code of Civil Procedure Section 1013(a),
by placing a true copy thereof in a sealed envelope, first-class postage fully prepaid, in a designated area for
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outgoing mail, addressed as set forth below. In the ordinary course of business in the firm of Law Offices of Kevin
J. Tully, mail placed in that location is deposited that same day in a U.S. mailbox in the City and County of San
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Mateo.
11 X By ELECTRONIC MAIL on the following party(ies) in said action, in accordance with Code of Civil Procedure
Section 1013(a), by serving the enclosed via e-mail transmission to each of the parties listed on the official service
12 list with an email address.
By PERSONALLY DELIVERING a true and correct copy thereof, in accordance with Code of Civil Procedure
13 Section 1011, to the person(s) and at the address(es) set forth below.
14 BY FACSIMILE TRANSMISSION in accordance with Code of Civil Procedure section 1013(e) to the following
party(ies) at the facsimile number(s) indicated.This transmission was reported as complete and without error, and
15 a copy of the transmission report which was issued by the transmitting facsimile machine is attached to the original
Proof.
16 Addressed to:
17 Kevin Jacobson
QUILL & ARROW, LLP
18 10900 Wilshire Blvd., Suite 300
Los Angeles, CA 90024
19 kjacobson@quillarrowlaw.com
20 Attorney for Plaintiff
Xrisistal Ocejo
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I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
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Executed at San Mateo, California, on July 2, 2020.
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Reanna Sharma
_____________________________
Reanna Sharma
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PROOF OF SERVICE
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1 Kevin J. Tully, Esq., (SBN 079559) LAW OFFICES OF KEVIN J. TULLY 2 411 Borel Avenue, Suite 500 San Mateo, CA 94402 E-FILED 3 Tel: (650) 377-0708 7/14/2020 4:46 PM Fax: (650) 377-0606 Superior Court of California 4 Email: kevin@tullylaw.net County of Fresno By: J. Nelson, Deputy 5 Attorneys for Defendant FORD MOTOR COMPANY 6 SUPERIOR COURT OF CALIFORNIA 7 COUNTY OF FRESNO 8 9 XRISISTAL OCEJO, Case No: 20CECG01351 10 Plaintiff, DEFENDANT FORD MOTOR COMPANY’S ANSWER TO COMPLAINT FOR 11 v. DAMAGES 12 FORD MOTOR COMPANY; and DOES 1-10, inclusive 13 Defendants. 14 15 16 COMES NOW defendant FORD MOTOR COMPANY answering plaintiff’s unverified 17 complaint on file herein, admits, denies, and alleges as follows: 18 This answering defendant denies each and every, all and singular, generally and specifically, the 19 allegations in said complaint and each cause of action therein contained. 20 Further, answering said complaint and each cause of action therein contained, this answering 21 defendant denies that plaintiff has sustained damage in any sum or sums, or otherwise, or at all due to 22 any act or omission on the part of this answering defendant. 23 AS AND FOR A SEPARATE AND DISTINCT ANSWER AND AFFIRMATIVE DEFENSE, 24 it is alleged that the complaint and each cause of action therein fails to state facts sufficient to constitute 25 a cause of action as against this answering defendant. 26 AS AND FOR A SEPARATE AND DISTINCT ANSWER AND AFFIRMATIVE DEFENSE, 27 it is alleged that the complaint and each cause of action therein fails to state facts sufficient to constitute 28 a cause of action for punitive damages as against this answering defendant. 1 ANSWER TO COMPLAINT 1 AS AND FOR A SEPARATE AND DISTINCT ANSWER AND AFFIRMATIVE DEFENSE, 2 it is alleged that each purported cause of action appears to be barred by the applicable statute of 3 limitations, namely Sections 337, 337.1, 337.15, 338, 339 and/or 340 of the California Code of Civil 4 Procedure and/or Section 2725 of the California Comm Code, and Krieger v. Nick Alexander Imports 5 (1991) 234 Cal. App 3d 205, as well as UCC Sec. 2725. 6 AS AND FOR A SEPARATE AND DISTINCT ANSWER AND AFFIRMATIVE DEFENSE, 7 it is alleged that the complaint and each cause of action therein fails to state a cause of action under Civil 8 Code Section 1790, et seq., otherwise known as the "Song-Beverly Consumer Warranty Act", which 9 pertains, inter alia, to warranties accompanying new consumer products and/or new motor vehicles. 10 AS AND FOR A SEPARATE AND DISTINCT ANSWER AND AFFIRMATIVE DEFENSE, 11 it is alleged that plaintiff was guilty of negligence in and about the matters and things complained of in 12 the complaint, and that such negligence on the part of plaintiff contributed directly and proximately to 13 the happening of the accident, and to the damages, if any, sustained by plaintiff. Further, it is prayed 14 that if plaintiff recovers a verdict in this case, that the same shall be reduced proportionately by the 15 percentage of negligence attributed to the plaintiff as a proximate cause of the incident. 16 AS AND FOR A SEPARATE AND DISTINCT ANSWER AND AFFIRMATIVE DEFENSE, 17 it is alleged that the injuries sustained by plaintiff, if any, were either wholly or in part negligently caused 18 by persons, firms, corporations or entities other than defendant, and that said negligence is either imputed 19 to plaintiff by reason of the relationship of said parties to plaintiff and/or said negligence comparatively 20 reduces the percentage of negligence, if any, by this answering defendant. 21 AS AND FOR A SEPARATE AND DISTINCT ANSWER AND AFFIRMATIVE DEFENSE, 22 it is alleged that plaintiff failed, subsequent to the occurrence described in the complaint, to properly 23 mitigate damages and are thereby precluded from recovering those damages which could have reasonably 24 been avoided by the exercise of due care on the part of plaintiff. 25 AS AND FOR A SEPARATE AND DISTINCT ANSWER AND AFFIRMATIVE DEFENSE, 26 it is alleged that no timely or reasonable notice was given to defendant of the alleged breach of warranty. 27 AS AND FOR A SEPARATE AND DISTINCT ANSWER AND AFFIRMATIVE DEFENSE, 28 it is alleged that plaintiff, and/or persons, firms, corporations or entities other than defendant, misused 2 ANSWER TO COMPLAINT 1 and abused said product and/or failed to use said product for the purpose for which it was intended, which 2 misuse and abuse is imputed to plaintiff, thereby barring any recovery by plaintiff herein. 3 AS AND FOR A SEPARATE AND DISTINCT ANSWER AND AFFIRMATIVE DEFENSE, 4 it is alleged that any claim for incidental and/or consequential damages are effectively precluded by the 5 reasonable disclaimer set forth in the express warranty and given by defendant FORD MOTOR 6 COMPANY as to such matters at the time of purchase. 7 WHEREFORE, defendant FORD MOTOR COMPANY prays that plaintiff takes nothing by the 8 complaint on file herein, that defendant be hence dismissed with costs, and for such other and further 9 relief as the court may deem just and proper. 10 11 DATED: July 2, 2020 LAW OFFICES OF KEVIN J. TULLY 12 13 Kevin J. Tully 14 Attorneys for Defendant 15 FORD MOTOR COMPANY 16 17 18 19 20 21 22 23 24 25 26 27 28 3 ANSWER TO COMPLAINT 1 PROOF OF SERVICE 2 Ocejo, Xrisistal v. Ford Fresno County Superior Court 3 Case No. 20CECG01351 4 I am a citizen of the United States and employed in the County of San Mateo, State of California, where this service occurs. I am over the age of 18 years and not a party to the within action. I am an employee of the Law Offices of Kevin J. Tully; 5 my business address is 411 Borel Avenue, Suite 500, San Mateo, California 94402. I am readily familiar with my employer’s normal business practice for collection and processing of correspondence. 6 On the date set forth below, following ordinary business practice, I served the foregoing document(s) described as follows: 7 DEFENDANT FORD MOTOR COMPANY’S ANSWER TO PLAINTIFF’S COMPLAINT 8 By MAIL on the following party(ies) in said action, in accordance with Code of Civil Procedure Section 1013(a), by placing a true copy thereof in a sealed envelope, first-class postage fully prepaid, in a designated area for 9 outgoing mail, addressed as set forth below. In the ordinary course of business in the firm of Law Offices of Kevin J. Tully, mail placed in that location is deposited that same day in a U.S. mailbox in the City and County of San 10 Mateo. 11 X By ELECTRONIC MAIL on the following party(ies) in said action, in accordance with Code of Civil Procedure Section 1013(a), by serving the enclosed via e-mail transmission to each of the parties listed on the official service 12 list with an email address. By PERSONALLY DELIVERING a true and correct copy thereof, in accordance with Code of Civil Procedure 13 Section 1011, to the person(s) and at the address(es) set forth below. 14 BY FACSIMILE TRANSMISSION in accordance with Code of Civil Procedure section 1013(e) to the following party(ies) at the facsimile number(s) indicated.This transmission was reported as complete and without error, and 15 a copy of the transmission report which was issued by the transmitting facsimile machine is attached to the original Proof. 16 Addressed to: 17 Kevin Jacobson QUILL & ARROW, LLP 18 10900 Wilshire Blvd., Suite 300 Los Angeles, CA 90024 19 kjacobson@quillarrowlaw.com 20 Attorney for Plaintiff Xrisistal Ocejo 21 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 22 Executed at San Mateo, California, on July 2, 2020. 23 Reanna Sharma _____________________________ Reanna Sharma 24 25 26 27 28 1 PROOF OF SERVICE