Preview
1 Mary Lynn Arens, Esq. (SBN 282459)
Stacey Davis, Esq. (SBN 164116)
2 ERSKINE LAW GROUP, APC 8/18/2020
1576 N. Batavia Street, Suite A
3
Orange, CA 92867
4 Phone: (949) 777-6032
Fax: (714) 844-9035
5 Email: marens@erskinelaw.com
Email: sdavis@erskinelaw.com
6
Attorneys for GENERAL MOTORS LLC
7
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
COUNTY OF BUTTE
10
JOSEPH MALDONADO, an individual, )
11
) Case No.: 20CV00867
Plaintiff, )
12
)
vs. ) GENERAL MOTORS LLC’S ANSWER TO
13
) PLAINTIFF’S UNVERIFIED COMPLAINT
14 GENERAL MOTORS LLC, a Limited Liability )
Company, and DOES ONE through TWENTY, )
) Hon. Tamara L. Mosbarger
15
Defendants. )
)
16
)
17
18 Defendant General Motors LLC (“GM”) answers Plaintiff’s Unverified Complaint as follows:
19 I.
20 GM answers the Unverified Complaint pursuant to California Code of Civil Procedure § 431.30
21 by denying, generally and specifically, each, every, and all of the allegations in the Unverified
22 Complaint and each and every part of it, including each and every cause of action in it, and denies that
23 Plaintiff has sustained or will sustain any damage in the sum referenced in it, or any other sum(s), or at
24 all.
25 II.
26 GM further answers the Unverified Complaint on file and each and every purported cause of
27 action in it by denying that Plaintiff has sustained, or will sustain, any damages in any sum at all by
28 reason of the carelessness, negligence or other fault, act or omission by GM, its agents, servants, or
___________________________________________________________________________________________________
GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT
1
1 employees.
2 AFFIRMATIVE DEFENSES TO THE COMPLAINT
AND EACH ALLEGED CAUSE OF ACTION THEREOF
3
FIRST AFFIRMATIVE DEFENSE
4
(Failure to State a Cause of Action)
5
The Unverified Complaint, and each purported cause of action alleged in it, fails to state facts
6
sufficient to constitute a cause of action against GM.
7
SECOND AFFIRMATIVE DEFENSE
8
(Failure to Allow a Cure)
9
GM is informed and believes, and therefore alleges, that Plaintiff is barred from obtaining the
10
relief sought in the Unverified Complaint because Plaintiff has failed and refused to allow GM a
11
reasonable opportunity to cure any alleged breach by GM.
12
THIRD AFFIRMATIVE DEFENSE
13
(Mitigation)
14
GM is informed and believes, and therefore alleges, that Plaintiff’s alleged damages, if any, are
15
the result, in whole or in part, of Plaintiff’s failure to exercise care to reduce or mitigate damages.
16
FOURTH AFFIRMATIVE DEFENSE
17
(Contributory Negligence, Unclean Hands, Assumption of Risk)
18 GM is informed and believes, and therefore alleges, that Plaintiff is barred in whole or in part by
19 Plaintiff’s negligence, unclean hands, fault, assumption of risk or otherwise from any and all legal or
20 equitable relief against GM, as requested in the Unverified Complaint or otherwise.
21 FIFTH AFFIRMATIVE DEFENSE
22 (Statutes of Limitation)
23 GM is informed and believes, and therefore alleges, that the Unverified Complaint, and each
24 cause of action alleged in it, is barred by application of the statutes of limitation in California Code of
25 Civil Procedure §§ 337(1), 337(2), 337(3), 338(1), 338(2), 338(3), 338(4), 338(7), 339(1), 339(3),
26 340(1), 340(2), 340(3), 342, 343, 344, 348, Commercial Code § 2725 and any other statute of limitation
27 applicable to this action.
28
___________________________________________________________________________________________________
GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT
2
1 SIXTH AFFIRMATIVE DEFENSE
2 (Laches)
3 GM is informed and believes, and therefore alleges, that the Plaintiff waited an unreasonable
4 length of time to complain of the alleged acts or omissions at issue in the Unverified Complaint so as to
5 prejudice GM. Plaintiff is, therefore, guilty of laches and is barred from recovery.
6 SEVENTH AFFIRMATIVE DEFENSE
7 (Failure of Performance)
8 GM is informed and believes, and therefore alleges, that any failure to perform the obligations
9
as described in the Unverified Complaint resulted from Plaintiff’s failure to perform as required by the
10
contract and warranty. Performance by Plaintiff of his obligations was a condition precedent to the
11
performance of GM’s obligations.
EIGHTH AFFIRMATIVE DEFENSE
12
(Apportionment)
13
Any and all injuries, if any, and damages, if any, allegedly sustained or suffered by Plaintiff were
14
proximately caused and contributed to by the superseding, intervening acts or omissions of persons other
15
than GM. Those persons, and each of them, were careless and negligent concerning the matters alleged
16
in the Unverified Complaint, and their negligence and carelessness proximately contributed to the loss,
17
injury, damage or detriment alleged in the Unverified Complaint, with the result that the damages, if
18
any, recoverable by Plaintiff must be diminished in proportion to the fault attributable to those other
19
persons.
20
NINTH AFFIRMATIVE DEFENSE
21
(Misuse of Product)
22
Any and all injuries, if any, and damages, if any, allegedly sustained or suffered by Plaintiff were
23
directly and proximately caused and contributed to by the misuse of and the unreasonable and improper
24
use of GM’s product. The misuse of or failure to use GM’s product properly contributed to the loss,
25
injury, damage, or detriment, if any, alleged in the Unverified Complaint, and the damages, if any,
26
recoverable by Plaintiff must be diminished in proportion to the amount of fault attributable to that
27
misuse or unreasonable or improper use.
28
___________________________________________________________________________________________________
GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT
3
1 TENTH AFFIRMATIVE DEFENSE
2 (Alteration of Product)
3 Any damage to the subject vehicle was caused or created by changes or alterations to the vehicle,
4 after GM manufactured and sold the vehicle, by persons other than GM or any of its agents, servants or
5 employees, barring Plaintiff’s recovery in this action.
6 ELEVENTH AFFIRMATIVE DEFENSE
7 (Disclaimer)
8 GM is informed and believes, and therefore alleges, that before and at the time of the alleged
9
acts, omissions and conduct of GM alleged in the Unverified Complaint, GM had expressly disclaimed,
10
negated, and excluded all warranties of the type alleged by Plaintiff, and of any type, express or implied,
11
whatsoever.
TWELFTH AFFIRMATIVE DEFENSE
12
(Lack of Causation)
13
No act or omission of GM was the cause in fact or the proximate cause of the alleged injuries
14
and damages, if any, sustained by Plaintiff. GM is informed and believes, and therefore alleges, that
15
any breach of warranty of fitness or merchantability, if any, and any other breach of warranty, if any,
16
and any breach of contractual undertakings by GM, if any, were neither the cause in fact nor the
17
proximate cause of Plaintiff’s damages. Rather, any alleged breach was only secondary,
18
inconsequential, indirect and in no way contributed to or caused Plaintiff’s alleged damages.
19
THIRTEENTH AFFIRMATIVE DEFENSE
20
(Unauthorized Use of the Product)
21
GM is informed and believes, and therefore alleges, that any and all damages, if any, allegedly
22
sustained or suffered by Plaintiff were proximately caused and contributed to by Plaintiff’s use of the
23
subject vehicle for a purpose to which the subject vehicle was not intended to be used. Plaintiff knew
24
or should have known that the use to which Plaintiff put the vehicle was not the use for which the vehicle
25
was manufactured or intended and that the unintended use could cause damage to Plaintiff.
26
27
28
___________________________________________________________________________________________________
GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT
4
1 FOURTEENTH AFFIRMATIVE DEFENSE
2 (Estoppel)
3 GM is informed and believes, and therefore alleges, that Plaintiff is estopped from obtaining the
4 relief sought in the Unverified Complaint by virtue of Plaintiff’s acts and conduct in connection with
5 the matters alleged in the Unverified Complaint.
6 FIFTEENTH AFFIRMATIVE DEFENSE
7 (Waiver)
8 GM is informed and believes, and therefore alleges, that Plaintiff has waived Plaintiff’s rights,
9
if any, to obtain the relief sought in the Unverified Complaint.
10
SIXTEENTH AFFIRMATIVE DEFENSE
11
(Comparative Negligence)
GM is informed and believes, and therefore alleges, that Plaintiff’s damages, if any, were the
12
direct and proximate result of the conduct of Plaintiff or Plaintiff’s agents, employees and invitees, in
13
that he or they negligently, carelessly, recklessly, knowingly, and willfully operated, maintained,
14
serviced, directed, and otherwise controlled all operations and maintenance of Plaintiff’s vehicle.
15
Plaintiff’s damages, if any, were directly and proximately caused, in whole or in part, or were
16
contributed to or aggravated by the conduct of Plaintiff or Plaintiff’s agents, employees and invitees,
17
when they negligently, carelessly, recklessly, knowingly, and willfully failed to repair the subject
18
vehicle, knowing that the vehicle needed service, maintenance, or repair, but instead, proceeded to
19
operate, maintain, navigate, direct, and otherwise make use of the vehicle or made improper and
20
inadequate service, maintenance and repairs to it. GM is further informed and believes, and therefore
21
alleges, that the vehicle owner knowingly and willfully authorized these actions and knowingly and
22
willfully assumed the known risk that these actions would cause, compound, or aggravate the known
23
problems with the vehicle and would proximately cause damage to it.
24
SEVENTEENTH AFFIRMATIVE DEFENSE
25
(Assumption of Risk)
26
The risks and dangers in Plaintiff’s conduct were known to Plaintiff, but Plaintiff conducted
27
himself in such a manner as to expose himself and remain exposed to such risks and dangers and, by
28
___________________________________________________________________________________________________
GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT
5
1 doing so, assumed all the risks attendant to that conduct. At the time(s), date(s), and place(s) of the
2 events described in the Unverified Complaint, Plaintiff voluntarily assumed the risks of the activities in
3 which Plaintiff was then and there engaged. Under the circumstances and conditions then and there
4 existing, the resulting injuries, if any, and damages, if any, sustained by Plaintiff were proximately
5 caused by Plaintiff’s own voluntary assumption of risk.
6 EIGHTEENTH AFFIRMATIVE DEFENSE
7 (Qualified Third-Party Dispute Resolution Process)
8 GM maintains a qualified third-party dispute resolution process that substantially complies with
9
California Civil Code § 1793.22. GM is informed and believes, and therefore alleges, that Plaintiff
10
received timely and appropriate notification, in writing, of the availability of GM’s third-party resolution
11
process. Accordingly, since Plaintiff did not avail himself of the third-party dispute resolution process
before filing the Unverified Complaint, § 1794(e)(2) of the California Civil Code affirmatively bars
12
Plaintiff from recovering treble damages (as provided under California Civil Code § 1794(e)) and
13
Plaintiff cannot avail himself of the rebuttable presumption under California Civil Code § 1793.22(e)(1).
14
NINETEENTH AFFIRMATIVE DEFENSE
15
(Good Faith Belief in Legality of Actions)
16
At all times relevant to this action, GM acted in good faith and believes its actions to be legal.
17
TWENTIETH AFFIRMATIVE DEFENSE
18
(Offset for Use)
19
GM intends to avail itself of the reduction authorized by Civil Code § 1793.2(d)(2)(C), if GM is
20
found to be in violation of the Song-Beverly Consumer Warranty Act.
21
TWENTY-FIRST AFFIRMATIVE DEFENSE
22
(Civil Code § 1791.1(c) – Implied Warranty)
23
Each and every cause of action based on breach of implied warranty is barred by virtue of Civil
24
Code § 1791.1(c).
25
TWENTY-SECOND AFFIRMATIVE DEFENSE
26
(Consent)
27
The repair process to Plaintiff’s vehicle was appropriate and proper and is believed to have been
28
___________________________________________________________________________________________________
GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT
6
1 done with Plaintiff’s consent.
2 TWENTY-THIRD AFFIRMATIVE DEFENSE
3 (Failure to Provide Notice)
4 GM is informed and believes, and therefore alleges, that Plaintiff failed to provide notice to GM
5 pursuant to Civil Code § 1794(e)(3). Plaintiff is, therefore, barred from asserting the presumptions in
6 Civil Code § 1793.22 and from recovering civil penalties pursuant to Civil Code § 1794(e).
7 TWENTY-FOURTH AFFIRMATIVE DEFENSE
8 (Failure to State Cause of Action for Civil Penalties)
9 The Complaint fails to state sufficient facts to warrant the imposition of civil penalties if
10 replacement or repurchase of the subject vehicle was not appropriate under the circumstances then
11 known, or if GM offered to repurchase or replace the subject vehicle.
12 TWENTY-FIFTH AFFIRMATIVE DEFENSE
13 (No Entitlement to Punitive Damages)
14 The allegations in Plaintiff’s Unverified Complaint fail to state facts sufficient to support the
15 recovery of punitive damages against GM.
16 TWENTY-SIXTH AFFIRMATIVE DEFENSE
17 (Punitive Damages Are Improper)
18 Plaintiff is not entitled to recover any punitive damages, and any allegations in support of a
19 claim for punitive damages should be stricken, because California’s laws regarding the acts and
20 omissions alleged are too vague to permit the imposition of punitive damages, and because any award
21 of punitive damages in this action would violate GM’s constitutional rights under the due process
22 clauses of the Fifth and Fourteenth Amendments to the United States Constitution, and the excessive
23 fines and cruel and unusual punishment clauses of the Eighth Amendment to the United States
24 Constitution, as well as other provisions of the United States Constitution and the California
25 Constitution.
26 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
27 (Adequate Remedy at Law)
28
GM is informed and believes, and therefore alleges that Plaintiff’s prayer for declaratory or
___________________________________________________________________________________________________
GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT
7
1 injunctive relief is improper on the basis that Plaintiff has an adequate remedy at law.
2 TWENTY-EIGHTH AFFIRMATIVE DEFENSE
3 (Reservation of Rights)
4 GM presently has insufficient knowledge or information on which to form a belief as to whether
5 it may have additional, as yet unstated, affirmative defenses available. GM reserves the right to assert
6 additional affirmative defenses if discovery indicates that they would be appropriate.
7 WHEREFORE, GM prays:
8 1. That Plaintiff take nothing by the Unverified Complaint;
9 2. For cost of suit; and
10 3. For such other and further relief as the Court deems just and proper.
11
Dated: August 18, 2020 ERSKINE LAW GROUP, APC
12
13
___________________________
14 Stacey Davis
Attorneys for Defendant
15 GENERAL MOTORS LLC
16
17
18
19
20
21
22
23
24
25
26
27
28
___________________________________________________________________________________________________
GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT
8
1
2 PROOF OF SERVICE
3 I am employed in the County of Orange and my business address is 1576 N. Batavia Street,
Suite A in Orange, CA, 92867. I am over the age of 18 years and I am not a party to this action. I am
4 readily familiar with the practices of The Erskine Law Group for the collection and processing of
correspondence for mailing with the United States Postal Service. Such correspondence is deposited
5 with the United States Postal Service the same day in the ordinary course of business.
6 On August 18, 2020, I served the foregoing document(s), bearing the title(s):
7 GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT
8 on the interested parties in the action as follows:
9 [X] by placing [] the original [X] a true copy thereof enclosed in a sealed envelope addressed as
follows:
10
Law Offices of Jon Jacobs
11 One Ridgegate Dr., Suite 245
Temecula, CA 92590
12
[] (BY MAIL SERVICE) I placed such envelopes for collection and to be mailed on this date
13
following ordinary business practices.
[] (BY PERSONAL SERVICE) I caused to be delivered such envelope by hand to the office of
14
the addressee.
15 [] (BY FACSIMILE) The document stated herein was transmitted by facsimile transmission and
the transmission was reported as complete and without error. A transmission report was properly
16 issued by the transmitting facsimile machine and a copy of said transmission report is attached to the
original proof of service indicating the time of transmission.
17
[] (BY NEXT DAY DELIVERY) I caused to be delivered such envelope by hand to the office of
18 the addressee.
19 [X] (BY E-MAIL) I served the above-mentioned document via electronic transmission per
agreement of the parties.
20
[X] (State) I declare under penalty of perjury under the laws of the State of California that the
21 foregoing is true and correct.
22 [] (Federal) I declare under penalty of perjury that I am employed by a member of the Bar of this
Court, at whose direction this service is made.
23
Executed on August 18, 2020, at Orange, CA.
24
25
26
Signed:
27
28
___________________________________________________________________________________________________
PROOF OF SERVICE
Preview
1 Mary Lynn Arens, Esq. (SBN 282459) Stacey Davis, Esq. (SBN 164116) 2 ERSKINE LAW GROUP, APC 8/18/2020 1576 N. Batavia Street, Suite A 3 Orange, CA 92867 4 Phone: (949) 777-6032 Fax: (714) 844-9035 5 Email: marens@erskinelaw.com Email: sdavis@erskinelaw.com 6 Attorneys for GENERAL MOTORS LLC 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF BUTTE 10 JOSEPH MALDONADO, an individual, ) 11 ) Case No.: 20CV00867 Plaintiff, ) 12 ) vs. ) GENERAL MOTORS LLC’S ANSWER TO 13 ) PLAINTIFF’S UNVERIFIED COMPLAINT 14 GENERAL MOTORS LLC, a Limited Liability ) Company, and DOES ONE through TWENTY, ) ) Hon. Tamara L. Mosbarger 15 Defendants. ) ) 16 ) 17 18 Defendant General Motors LLC (“GM”) answers Plaintiff’s Unverified Complaint as follows: 19 I. 20 GM answers the Unverified Complaint pursuant to California Code of Civil Procedure § 431.30 21 by denying, generally and specifically, each, every, and all of the allegations in the Unverified 22 Complaint and each and every part of it, including each and every cause of action in it, and denies that 23 Plaintiff has sustained or will sustain any damage in the sum referenced in it, or any other sum(s), or at 24 all. 25 II. 26 GM further answers the Unverified Complaint on file and each and every purported cause of 27 action in it by denying that Plaintiff has sustained, or will sustain, any damages in any sum at all by 28 reason of the carelessness, negligence or other fault, act or omission by GM, its agents, servants, or ___________________________________________________________________________________________________ GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT 1 1 employees. 2 AFFIRMATIVE DEFENSES TO THE COMPLAINT AND EACH ALLEGED CAUSE OF ACTION THEREOF 3 FIRST AFFIRMATIVE DEFENSE 4 (Failure to State a Cause of Action) 5 The Unverified Complaint, and each purported cause of action alleged in it, fails to state facts 6 sufficient to constitute a cause of action against GM. 7 SECOND AFFIRMATIVE DEFENSE 8 (Failure to Allow a Cure) 9 GM is informed and believes, and therefore alleges, that Plaintiff is barred from obtaining the 10 relief sought in the Unverified Complaint because Plaintiff has failed and refused to allow GM a 11 reasonable opportunity to cure any alleged breach by GM. 12 THIRD AFFIRMATIVE DEFENSE 13 (Mitigation) 14 GM is informed and believes, and therefore alleges, that Plaintiff’s alleged damages, if any, are 15 the result, in whole or in part, of Plaintiff’s failure to exercise care to reduce or mitigate damages. 16 FOURTH AFFIRMATIVE DEFENSE 17 (Contributory Negligence, Unclean Hands, Assumption of Risk) 18 GM is informed and believes, and therefore alleges, that Plaintiff is barred in whole or in part by 19 Plaintiff’s negligence, unclean hands, fault, assumption of risk or otherwise from any and all legal or 20 equitable relief against GM, as requested in the Unverified Complaint or otherwise. 21 FIFTH AFFIRMATIVE DEFENSE 22 (Statutes of Limitation) 23 GM is informed and believes, and therefore alleges, that the Unverified Complaint, and each 24 cause of action alleged in it, is barred by application of the statutes of limitation in California Code of 25 Civil Procedure §§ 337(1), 337(2), 337(3), 338(1), 338(2), 338(3), 338(4), 338(7), 339(1), 339(3), 26 340(1), 340(2), 340(3), 342, 343, 344, 348, Commercial Code § 2725 and any other statute of limitation 27 applicable to this action. 28 ___________________________________________________________________________________________________ GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT 2 1 SIXTH AFFIRMATIVE DEFENSE 2 (Laches) 3 GM is informed and believes, and therefore alleges, that the Plaintiff waited an unreasonable 4 length of time to complain of the alleged acts or omissions at issue in the Unverified Complaint so as to 5 prejudice GM. Plaintiff is, therefore, guilty of laches and is barred from recovery. 6 SEVENTH AFFIRMATIVE DEFENSE 7 (Failure of Performance) 8 GM is informed and believes, and therefore alleges, that any failure to perform the obligations 9 as described in the Unverified Complaint resulted from Plaintiff’s failure to perform as required by the 10 contract and warranty. Performance by Plaintiff of his obligations was a condition precedent to the 11 performance of GM’s obligations. EIGHTH AFFIRMATIVE DEFENSE 12 (Apportionment) 13 Any and all injuries, if any, and damages, if any, allegedly sustained or suffered by Plaintiff were 14 proximately caused and contributed to by the superseding, intervening acts or omissions of persons other 15 than GM. Those persons, and each of them, were careless and negligent concerning the matters alleged 16 in the Unverified Complaint, and their negligence and carelessness proximately contributed to the loss, 17 injury, damage or detriment alleged in the Unverified Complaint, with the result that the damages, if 18 any, recoverable by Plaintiff must be diminished in proportion to the fault attributable to those other 19 persons. 20 NINTH AFFIRMATIVE DEFENSE 21 (Misuse of Product) 22 Any and all injuries, if any, and damages, if any, allegedly sustained or suffered by Plaintiff were 23 directly and proximately caused and contributed to by the misuse of and the unreasonable and improper 24 use of GM’s product. The misuse of or failure to use GM’s product properly contributed to the loss, 25 injury, damage, or detriment, if any, alleged in the Unverified Complaint, and the damages, if any, 26 recoverable by Plaintiff must be diminished in proportion to the amount of fault attributable to that 27 misuse or unreasonable or improper use. 28 ___________________________________________________________________________________________________ GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT 3 1 TENTH AFFIRMATIVE DEFENSE 2 (Alteration of Product) 3 Any damage to the subject vehicle was caused or created by changes or alterations to the vehicle, 4 after GM manufactured and sold the vehicle, by persons other than GM or any of its agents, servants or 5 employees, barring Plaintiff’s recovery in this action. 6 ELEVENTH AFFIRMATIVE DEFENSE 7 (Disclaimer) 8 GM is informed and believes, and therefore alleges, that before and at the time of the alleged 9 acts, omissions and conduct of GM alleged in the Unverified Complaint, GM had expressly disclaimed, 10 negated, and excluded all warranties of the type alleged by Plaintiff, and of any type, express or implied, 11 whatsoever. TWELFTH AFFIRMATIVE DEFENSE 12 (Lack of Causation) 13 No act or omission of GM was the cause in fact or the proximate cause of the alleged injuries 14 and damages, if any, sustained by Plaintiff. GM is informed and believes, and therefore alleges, that 15 any breach of warranty of fitness or merchantability, if any, and any other breach of warranty, if any, 16 and any breach of contractual undertakings by GM, if any, were neither the cause in fact nor the 17 proximate cause of Plaintiff’s damages. Rather, any alleged breach was only secondary, 18 inconsequential, indirect and in no way contributed to or caused Plaintiff’s alleged damages. 19 THIRTEENTH AFFIRMATIVE DEFENSE 20 (Unauthorized Use of the Product) 21 GM is informed and believes, and therefore alleges, that any and all damages, if any, allegedly 22 sustained or suffered by Plaintiff were proximately caused and contributed to by Plaintiff’s use of the 23 subject vehicle for a purpose to which the subject vehicle was not intended to be used. Plaintiff knew 24 or should have known that the use to which Plaintiff put the vehicle was not the use for which the vehicle 25 was manufactured or intended and that the unintended use could cause damage to Plaintiff. 26 27 28 ___________________________________________________________________________________________________ GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT 4 1 FOURTEENTH AFFIRMATIVE DEFENSE 2 (Estoppel) 3 GM is informed and believes, and therefore alleges, that Plaintiff is estopped from obtaining the 4 relief sought in the Unverified Complaint by virtue of Plaintiff’s acts and conduct in connection with 5 the matters alleged in the Unverified Complaint. 6 FIFTEENTH AFFIRMATIVE DEFENSE 7 (Waiver) 8 GM is informed and believes, and therefore alleges, that Plaintiff has waived Plaintiff’s rights, 9 if any, to obtain the relief sought in the Unverified Complaint. 10 SIXTEENTH AFFIRMATIVE DEFENSE 11 (Comparative Negligence) GM is informed and believes, and therefore alleges, that Plaintiff’s damages, if any, were the 12 direct and proximate result of the conduct of Plaintiff or Plaintiff’s agents, employees and invitees, in 13 that he or they negligently, carelessly, recklessly, knowingly, and willfully operated, maintained, 14 serviced, directed, and otherwise controlled all operations and maintenance of Plaintiff’s vehicle. 15 Plaintiff’s damages, if any, were directly and proximately caused, in whole or in part, or were 16 contributed to or aggravated by the conduct of Plaintiff or Plaintiff’s agents, employees and invitees, 17 when they negligently, carelessly, recklessly, knowingly, and willfully failed to repair the subject 18 vehicle, knowing that the vehicle needed service, maintenance, or repair, but instead, proceeded to 19 operate, maintain, navigate, direct, and otherwise make use of the vehicle or made improper and 20 inadequate service, maintenance and repairs to it. GM is further informed and believes, and therefore 21 alleges, that the vehicle owner knowingly and willfully authorized these actions and knowingly and 22 willfully assumed the known risk that these actions would cause, compound, or aggravate the known 23 problems with the vehicle and would proximately cause damage to it. 24 SEVENTEENTH AFFIRMATIVE DEFENSE 25 (Assumption of Risk) 26 The risks and dangers in Plaintiff’s conduct were known to Plaintiff, but Plaintiff conducted 27 himself in such a manner as to expose himself and remain exposed to such risks and dangers and, by 28 ___________________________________________________________________________________________________ GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT 5 1 doing so, assumed all the risks attendant to that conduct. At the time(s), date(s), and place(s) of the 2 events described in the Unverified Complaint, Plaintiff voluntarily assumed the risks of the activities in 3 which Plaintiff was then and there engaged. Under the circumstances and conditions then and there 4 existing, the resulting injuries, if any, and damages, if any, sustained by Plaintiff were proximately 5 caused by Plaintiff’s own voluntary assumption of risk. 6 EIGHTEENTH AFFIRMATIVE DEFENSE 7 (Qualified Third-Party Dispute Resolution Process) 8 GM maintains a qualified third-party dispute resolution process that substantially complies with 9 California Civil Code § 1793.22. GM is informed and believes, and therefore alleges, that Plaintiff 10 received timely and appropriate notification, in writing, of the availability of GM’s third-party resolution 11 process. Accordingly, since Plaintiff did not avail himself of the third-party dispute resolution process before filing the Unverified Complaint, § 1794(e)(2) of the California Civil Code affirmatively bars 12 Plaintiff from recovering treble damages (as provided under California Civil Code § 1794(e)) and 13 Plaintiff cannot avail himself of the rebuttable presumption under California Civil Code § 1793.22(e)(1). 14 NINETEENTH AFFIRMATIVE DEFENSE 15 (Good Faith Belief in Legality of Actions) 16 At all times relevant to this action, GM acted in good faith and believes its actions to be legal. 17 TWENTIETH AFFIRMATIVE DEFENSE 18 (Offset for Use) 19 GM intends to avail itself of the reduction authorized by Civil Code § 1793.2(d)(2)(C), if GM is 20 found to be in violation of the Song-Beverly Consumer Warranty Act. 21 TWENTY-FIRST AFFIRMATIVE DEFENSE 22 (Civil Code § 1791.1(c) – Implied Warranty) 23 Each and every cause of action based on breach of implied warranty is barred by virtue of Civil 24 Code § 1791.1(c). 25 TWENTY-SECOND AFFIRMATIVE DEFENSE 26 (Consent) 27 The repair process to Plaintiff’s vehicle was appropriate and proper and is believed to have been 28 ___________________________________________________________________________________________________ GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT 6 1 done with Plaintiff’s consent. 2 TWENTY-THIRD AFFIRMATIVE DEFENSE 3 (Failure to Provide Notice) 4 GM is informed and believes, and therefore alleges, that Plaintiff failed to provide notice to GM 5 pursuant to Civil Code § 1794(e)(3). Plaintiff is, therefore, barred from asserting the presumptions in 6 Civil Code § 1793.22 and from recovering civil penalties pursuant to Civil Code § 1794(e). 7 TWENTY-FOURTH AFFIRMATIVE DEFENSE 8 (Failure to State Cause of Action for Civil Penalties) 9 The Complaint fails to state sufficient facts to warrant the imposition of civil penalties if 10 replacement or repurchase of the subject vehicle was not appropriate under the circumstances then 11 known, or if GM offered to repurchase or replace the subject vehicle. 12 TWENTY-FIFTH AFFIRMATIVE DEFENSE 13 (No Entitlement to Punitive Damages) 14 The allegations in Plaintiff’s Unverified Complaint fail to state facts sufficient to support the 15 recovery of punitive damages against GM. 16 TWENTY-SIXTH AFFIRMATIVE DEFENSE 17 (Punitive Damages Are Improper) 18 Plaintiff is not entitled to recover any punitive damages, and any allegations in support of a 19 claim for punitive damages should be stricken, because California’s laws regarding the acts and 20 omissions alleged are too vague to permit the imposition of punitive damages, and because any award 21 of punitive damages in this action would violate GM’s constitutional rights under the due process 22 clauses of the Fifth and Fourteenth Amendments to the United States Constitution, and the excessive 23 fines and cruel and unusual punishment clauses of the Eighth Amendment to the United States 24 Constitution, as well as other provisions of the United States Constitution and the California 25 Constitution. 26 TWENTY-SEVENTH AFFIRMATIVE DEFENSE 27 (Adequate Remedy at Law) 28 GM is informed and believes, and therefore alleges that Plaintiff’s prayer for declaratory or ___________________________________________________________________________________________________ GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT 7 1 injunctive relief is improper on the basis that Plaintiff has an adequate remedy at law. 2 TWENTY-EIGHTH AFFIRMATIVE DEFENSE 3 (Reservation of Rights) 4 GM presently has insufficient knowledge or information on which to form a belief as to whether 5 it may have additional, as yet unstated, affirmative defenses available. GM reserves the right to assert 6 additional affirmative defenses if discovery indicates that they would be appropriate. 7 WHEREFORE, GM prays: 8 1. That Plaintiff take nothing by the Unverified Complaint; 9 2. For cost of suit; and 10 3. For such other and further relief as the Court deems just and proper. 11 Dated: August 18, 2020 ERSKINE LAW GROUP, APC 12 13 ___________________________ 14 Stacey Davis Attorneys for Defendant 15 GENERAL MOTORS LLC 16 17 18 19 20 21 22 23 24 25 26 27 28 ___________________________________________________________________________________________________ GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT 8 1 2 PROOF OF SERVICE 3 I am employed in the County of Orange and my business address is 1576 N. Batavia Street, Suite A in Orange, CA, 92867. I am over the age of 18 years and I am not a party to this action. I am 4 readily familiar with the practices of The Erskine Law Group for the collection and processing of correspondence for mailing with the United States Postal Service. Such correspondence is deposited 5 with the United States Postal Service the same day in the ordinary course of business. 6 On August 18, 2020, I served the foregoing document(s), bearing the title(s): 7 GENERAL MOTORS LLC’S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT 8 on the interested parties in the action as follows: 9 [X] by placing [] the original [X] a true copy thereof enclosed in a sealed envelope addressed as follows: 10 Law Offices of Jon Jacobs 11 One Ridgegate Dr., Suite 245 Temecula, CA 92590 12 [] (BY MAIL SERVICE) I placed such envelopes for collection and to be mailed on this date 13 following ordinary business practices. [] (BY PERSONAL SERVICE) I caused to be delivered such envelope by hand to the office of 14 the addressee. 15 [] (BY FACSIMILE) The document stated herein was transmitted by facsimile transmission and the transmission was reported as complete and without error. A transmission report was properly 16 issued by the transmitting facsimile machine and a copy of said transmission report is attached to the original proof of service indicating the time of transmission. 17 [] (BY NEXT DAY DELIVERY) I caused to be delivered such envelope by hand to the office of 18 the addressee. 19 [X] (BY E-MAIL) I served the above-mentioned document via electronic transmission per agreement of the parties. 20 [X] (State) I declare under penalty of perjury under the laws of the State of California that the 21 foregoing is true and correct. 22 [] (Federal) I declare under penalty of perjury that I am employed by a member of the Bar of this Court, at whose direction this service is made. 23 Executed on August 18, 2020, at Orange, CA. 24 25 26 Signed: 27 28 ___________________________________________________________________________________________________ PROOF OF SERVICE