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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Feb-13-2009 10:07 am
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Case Number: CGC-09-484470
Filing Date: Feb-11-2009 10:03
Juke:Box: 001 Image: 02401695
ANSWER
WILLIAM HENRY BISSETT VS, MERCEDES-BENZ USA LLC et al :
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001C02401685
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UNIVERSAL, SHANNON & WHEELER, LLP
JON D. UNIVERSAL, SBN 141255
JOSEPH R. WHEELER, SBN 216721 F
2240 Douglas Blvd, Suite 290 Supstor Cour Court of Caiitomia
Roseville, California 95661 ur
Telephone: (916) 780-4050 FEB 1 1 2009
Facsimile: (916) 780-9070
GORDOP-FARICLI, Clerk
Attorneys for Defendant MERCEDES-BENZ USA, LLC, oY
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
WILLIAM HENRY BISSETT, ) CASENO. CGC-09-484470
)
Plaintiff, ) Action filed: January 29, 2009
)
v. ) ANSWER TO COMPLAINT
)
MERCEDES-BENZ USA, LLC; )
EUROMOTORS, INC. dba MERCEDES- )
BENZ OF SAN FRANCISCO; CHASE AUTO )
FINANCE CORP.; and DOES 1 through30—)
inclusive, y
)
Defendants. )
COMES NOW defendant MERCEDES-BENZ USA, LLC and severing itself from the other
defendant herein, and for answer to plaintiffs Complaint on file herein admits, denies and alleges as
follows:
Defendant denies each and every, all and singular, generally and specifically, all of the
allegations contained in said Complaint and each cause of action thereof; denies that the defendant
are liable under the theories or in the manner set forth in said Complaint, or at all; denies that plaintiff
was damaged as a result of the alleged conduct of the defendant as set forth in said Complaint, and
each cause of action thereof, or at all.
MBI/IIO 1
ANSWER TO COMPLAINTCo eo NAH FF ww &
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AFFIRMATIVE DEFENSES
“oO.
AS A SEPARATE AFFIRMATIVE DEFENSE, defendant alleges that the plaintiff was
negligent in and about the matters set forth in said Complaint, and each cause of action thereof, which
proximately contributed to the damages complained of, if any.
II.
AS A FURTHER SEPARATE AFFIRMATIVE DEFENSE, defendant allege that any injury,
damage, loss, non-conformity, if any, sustained by plaintiff herein was due to and proximately caused
by the misuse, abuse, misapplication, neglect or failure to perform maintenance of the product
described in the Complaint.
Il.
AS AFURTHER SEPARATE AFFIRMATIVE DEFENSE, defendant allege that third parties,
and others, were negligent in and about the matters referred to in said Complaint and that such
negligence bars and/or diminishes plaintiff's recovery.
IV.
AS A FURTHER SEPARATE AFFIRMATIVE DEFENSE, defendant allege that if plaintiff
sustained injuries attributable to the use of any product distributed by the defendant, which allegations
are expressly denied, the injuries were solely caused by the unreasonable, unforeseeable, inappropriate
and improper use made by plaintiff of said product.
Vv.
AS A FURTHER SEPARATE AFFIRMATIVE DEFENSE, defendant allege that neither said
Complaint, nor any cause of action thereof, state facts sufficient to constitute a cause of action against
the appearing defendant.
VI.
AS A FURTHER SEPARATE AFFIRMATIVE DEFENSE, the defendant is informed and
believes, and thereon alleges, that plaintiff's alleged injuries, losses, or damages, if any, were
MBi/I10 2
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ANSWER TO COMPLAINTo
Oo oe NA UW hk WY PP &
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aggravated by plaintiff's failure to use reasonable diligence to mitigate the same,
VIL
AS A FURTHER SEPARATE AFFIRMATIVE DEFENSE, defendant alleges that the co-
defendant, and each of them, named and unnamed in the Complaint, were guilty of negligence, or
other acts or omissions in the matters set forth in the Complaint, which proximately caused or
contributed to the damages or loss complained of, if any, and that the Court is requested to determine
and allocate the percentage of negligence attributable to each of the co-defendant,
VII.
AS A FURTHER SEPARATE AFFIRMATIVE DEFENSE, defendant allege that after the
acceptance of the subject motor vehicle in question, plaintiff did not then, nor has he ever, prior to the
service of the Complaint, given the defendant notice of the alleged breach of warranties set forth in
said Complaint.
IX.
AS AFURTHER SEPARATE AFFIRMATIVE DEFENSE, defendant allege that the plaintiff
herein failed to comply with the written and oral instructions relating to use of said product, and this
failure caused the alleged damages, if any, suffered by the plaintiff.
X.
AS A FURTHER SEPARATE AFFIRMATIVE DEFENSE, defendant allege that plaintiff's
alleged injuries, losses, or damages, if any, were caused by the acts or omissions of third parties and
others.
XI
AS A FURTHER SEPARATE AFFIRMATIVE DEFENSE, defendant allege that since the
time of the purchase of the motor vehicle in questions, plaintiff have had the full use and possession,
use and enjoyment of said vehicle, having driven the vehicle an extensive number of miles. As such,
defendant are entitled to a set-off from plaintiff for such possession, use and enjoyment against any
judgment obtained by plaintiff against this answering defendant.
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XI.
AS A FURTHER SEPARATE AFFIRMATIVE DEFENSE, defendant alleges that any non-
conformities, ifany, sustained by plaintiff herein, does not substantially impair the use, value, safety,
or durability of the subject vehicle described in the Complaint.
WHEREFORE, Defendant pray that nothing be taken by said Complaint, for costs, and for
all other relief as the Court may deem proper.
DATED: February_[(, 2009 UN SHANNON & WHEELER, LLP
_————-
D. UNIVERSAL, ESQ.
JON, >
eys for Defendant MERCEDES-BENZ USA, LLC
MBI/IIO
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PROOF OF SERVICE
BISSETT v. MERCEDES-BENZ USA, LLC
San Francisco County Superior Court, Case No.: CGC-09-484470
Iam employed in the County of Placer, State of California. I am over the age of 18 and not a party
we she within action. My business address is 2240 Douglas Blvd., Suite 290, Sacramento, California
On February fo » 2009, I served the following document described as ANSWER TO
COMPLAINT on all interested parties in this action by placing [x]atruecopy [] the original
thereof enclosed in sealed envelopes addressed as follows:
Bryan Kemnitzer, Esq. Counsel for Plaintiff.
Patricia J, Doran, Esq. Tel: (415) 861-2265
KEMNITZER, ANDERSON, BARRON, OGILVIE | Fax: (415) 861-3151
& BREWER, LLP
445 Bush Street, Sixth Floor
San Francisco, CA 94108
[1 (BY FACSIMILE) The facsimile machine I used complied with Rule 2003(3) and no error
was reported by the machine. Pursuant to Rule 2008(e)(4), I caused the machine to print a
record of the transmission. .
[x] (BY MAIL, 1013a, 2015.5 C.C.P.)
[ \ I deposited such envelope in the mail at Roseville, California. The envelope was
mailed with postage thereon fully prepaid.
[x] I am readily familiar with the firm’s practice for collection and processing
correspondence for mailing. Under that practice, this document will be deposited with the U.S. Postal
Service on this date with postage thereon fully prepaid at Roseville, California in the ordinary course
of business. I am aware that on motion of the party served, service is presumed invalid if postal
cancellation date or postage meter date is more than one day after date of deposit for mailing in
affidavit.
[x] GTATE) I declare under penalty of perjury under the laws of the State of California that the
above is true and correct.
{] (FEDERAL) I declare that I am employed in the office of a member of the bar of this Court
at whose direction the service was made.
Executed on February fo +, 2009, at Roseville, Californi
Jamie Morrison
Preview
RT SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Feb-13-2009 10:07 am + Case Number: CGC-09-484470 Filing Date: Feb-11-2009 10:03 Juke:Box: 001 Image: 02401695 ANSWER WILLIAM HENRY BISSETT VS, MERCEDES-BENZ USA LLC et al : : { f 3 001C02401685 4 Instructions: Please place this sheet on top of the document to be scanned. .v (") “™ | | UNIVERSAL, SHANNON & WHEELER, LLP JON D. UNIVERSAL, SBN 141255 JOSEPH R. WHEELER, SBN 216721 F 2240 Douglas Blvd, Suite 290 Supstor Cour Court of Caiitomia Roseville, California 95661 ur Telephone: (916) 780-4050 FEB 1 1 2009 Facsimile: (916) 780-9070 GORDOP-FARICLI, Clerk Attorneys for Defendant MERCEDES-BENZ USA, LLC, oY SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO WILLIAM HENRY BISSETT, ) CASENO. CGC-09-484470 ) Plaintiff, ) Action filed: January 29, 2009 ) v. ) ANSWER TO COMPLAINT ) MERCEDES-BENZ USA, LLC; ) EUROMOTORS, INC. dba MERCEDES- ) BENZ OF SAN FRANCISCO; CHASE AUTO ) FINANCE CORP.; and DOES 1 through30—) inclusive, y ) Defendants. ) COMES NOW defendant MERCEDES-BENZ USA, LLC and severing itself from the other defendant herein, and for answer to plaintiffs Complaint on file herein admits, denies and alleges as follows: Defendant denies each and every, all and singular, generally and specifically, all of the allegations contained in said Complaint and each cause of action thereof; denies that the defendant are liable under the theories or in the manner set forth in said Complaint, or at all; denies that plaintiff was damaged as a result of the alleged conduct of the defendant as set forth in said Complaint, and each cause of action thereof, or at all. MBI/IIO 1 ANSWER TO COMPLAINTCo eo NAH FF ww & NN eae a i AFFIRMATIVE DEFENSES “oO. AS A SEPARATE AFFIRMATIVE DEFENSE, defendant alleges that the plaintiff was negligent in and about the matters set forth in said Complaint, and each cause of action thereof, which proximately contributed to the damages complained of, if any. II. AS A FURTHER SEPARATE AFFIRMATIVE DEFENSE, defendant allege that any injury, damage, loss, non-conformity, if any, sustained by plaintiff herein was due to and proximately caused by the misuse, abuse, misapplication, neglect or failure to perform maintenance of the product described in the Complaint. Il. AS AFURTHER SEPARATE AFFIRMATIVE DEFENSE, defendant allege that third parties, and others, were negligent in and about the matters referred to in said Complaint and that such negligence bars and/or diminishes plaintiff's recovery. IV. AS A FURTHER SEPARATE AFFIRMATIVE DEFENSE, defendant allege that if plaintiff sustained injuries attributable to the use of any product distributed by the defendant, which allegations are expressly denied, the injuries were solely caused by the unreasonable, unforeseeable, inappropriate and improper use made by plaintiff of said product. Vv. AS A FURTHER SEPARATE AFFIRMATIVE DEFENSE, defendant allege that neither said Complaint, nor any cause of action thereof, state facts sufficient to constitute a cause of action against the appearing defendant. VI. AS A FURTHER SEPARATE AFFIRMATIVE DEFENSE, the defendant is informed and believes, and thereon alleges, that plaintiff's alleged injuries, losses, or damages, if any, were MBi/I10 2 eee ANSWER TO COMPLAINTo Oo oe NA UW hk WY PP & y asa sa a a i BUR RERREBSEewTWRAEESGHR TS (") om aggravated by plaintiff's failure to use reasonable diligence to mitigate the same, VIL AS A FURTHER SEPARATE AFFIRMATIVE DEFENSE, defendant alleges that the co- defendant, and each of them, named and unnamed in the Complaint, were guilty of negligence, or other acts or omissions in the matters set forth in the Complaint, which proximately caused or contributed to the damages or loss complained of, if any, and that the Court is requested to determine and allocate the percentage of negligence attributable to each of the co-defendant, VII. AS A FURTHER SEPARATE AFFIRMATIVE DEFENSE, defendant allege that after the acceptance of the subject motor vehicle in question, plaintiff did not then, nor has he ever, prior to the service of the Complaint, given the defendant notice of the alleged breach of warranties set forth in said Complaint. IX. AS AFURTHER SEPARATE AFFIRMATIVE DEFENSE, defendant allege that the plaintiff herein failed to comply with the written and oral instructions relating to use of said product, and this failure caused the alleged damages, if any, suffered by the plaintiff. X. AS A FURTHER SEPARATE AFFIRMATIVE DEFENSE, defendant allege that plaintiff's alleged injuries, losses, or damages, if any, were caused by the acts or omissions of third parties and others. XI AS A FURTHER SEPARATE AFFIRMATIVE DEFENSE, defendant allege that since the time of the purchase of the motor vehicle in questions, plaintiff have had the full use and possession, use and enjoyment of said vehicle, having driven the vehicle an extensive number of miles. As such, defendant are entitled to a set-off from plaintiff for such possession, use and enjoyment against any judgment obtained by plaintiff against this answering defendant. MBINI10 3 a ANSWER TO COMPLAINToom Yt DH HW F YW YD = RN eee i 28 ™ om XI. AS A FURTHER SEPARATE AFFIRMATIVE DEFENSE, defendant alleges that any non- conformities, ifany, sustained by plaintiff herein, does not substantially impair the use, value, safety, or durability of the subject vehicle described in the Complaint. WHEREFORE, Defendant pray that nothing be taken by said Complaint, for costs, and for all other relief as the Court may deem proper. DATED: February_[(, 2009 UN SHANNON & WHEELER, LLP _————- D. UNIVERSAL, ESQ. JON, > eys for Defendant MERCEDES-BENZ USA, LLC MBI/IIO a ANSWER 10 COMPLAINToD eon nw & wWwN RNR Se ee Se Se Se Se ee ee ” ‘ PROOF OF SERVICE BISSETT v. MERCEDES-BENZ USA, LLC San Francisco County Superior Court, Case No.: CGC-09-484470 Iam employed in the County of Placer, State of California. I am over the age of 18 and not a party we she within action. My business address is 2240 Douglas Blvd., Suite 290, Sacramento, California On February fo » 2009, I served the following document described as ANSWER TO COMPLAINT on all interested parties in this action by placing [x]atruecopy [] the original thereof enclosed in sealed envelopes addressed as follows: Bryan Kemnitzer, Esq. Counsel for Plaintiff. Patricia J, Doran, Esq. Tel: (415) 861-2265 KEMNITZER, ANDERSON, BARRON, OGILVIE | Fax: (415) 861-3151 & BREWER, LLP 445 Bush Street, Sixth Floor San Francisco, CA 94108 [1 (BY FACSIMILE) The facsimile machine I used complied with Rule 2003(3) and no error was reported by the machine. Pursuant to Rule 2008(e)(4), I caused the machine to print a record of the transmission. . [x] (BY MAIL, 1013a, 2015.5 C.C.P.) [ \ I deposited such envelope in the mail at Roseville, California. The envelope was mailed with postage thereon fully prepaid. [x] I am readily familiar with the firm’s practice for collection and processing correspondence for mailing. Under that practice, this document will be deposited with the U.S. Postal Service on this date with postage thereon fully prepaid at Roseville, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. [x] GTATE) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. {] (FEDERAL) I declare that I am employed in the office of a member of the bar of this Court at whose direction the service was made. Executed on February fo +, 2009, at Roseville, Californi Jamie Morrison