Preview
Electronically Filed
1 Mary Lynn Arens, Esq. (SBN 282459) 10/23/2020 11:53 AM
Stacey Davis, Esq. (SBN 164116) Superior Court of California
2 ERSKINE LAW GROUP, APC County of Stanislaus
3 1576 N. Batavia Street, Suite A Clerk of the Court
Orange, CA 92867 By: Mouang Saechao, Deputy
4 Phone: (949) 777-6032
Fax: (714) 844-9035 $435 PAID
5 Email: marens@erskinelaw.com
Email: sdavis@erskinelaw.com
6
7 ATTORNEYS FOR GENERAL MOTORS LLC
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
COUNTY OF STANISLAUS
10
11 JORGE RAMIREZ, an individual, and )
12 PRISCILLA MARQUEZ, an individual, ) Case No.: CV-20-003067
)
13 Plaintiffs, )
) GENERAL MOTORS LLC’S ANSWER TO
14 vs. ) PLAINTIFFS’ UNVERIFIED COMPLAINT
)
15
GENERAL MOTORS LLC, a Delaware )
16 Limited Liability Company, and DOES 1 ) Hon. John D. Freeland
through 10, inclusive, ) Dept. 23
17 )
Defendants. )
18 )
19 Defendant General Motors LLC (“GM”) answers Plaintiffs’ Unverified Complaint as follows:
20 I.
21 GM answers the Unverified Complaint pursuant to California Code of Civil Procedure § 431.30
22 by denying, generally and specifically, each, every, and all of the allegations in the Unverified
23 Complaint and each and every part of it, including each and every cause of action in it, and denies that
24 Plaintiffs have sustained or will sustain any damage in the sum referenced in it, or any other sum(s), or
25 at all.
26 II.
27 GM further answers the Unverified Complaint on file and each and every purported cause of
28 action in it by denying that Plaintiffs have sustained, or will sustain, any damages in any sum at all by
__________________________________________________________________________________
GENERAL MOTORS LLC’S ANSWER TO PLAINTIFFS’ UNVERIFIED COMPLAINT
1
1 reason of the carelessness, negligence or other fault, act or omission by GM, its agents, servants, or
2 employees.
AFFIRMATIVE DEFENSES TO THE COMPLAINT
3 AND EACH ALLEGED CAUSE OF ACTION THEREOF
4
FIRST AFFIRMATIVE DEFENSE
5
(Failure to State a Cause of Action)
6
The Unverified Complaint, and each purported cause of action alleged in it, fails to state facts
7
sufficient to constitute a cause of action against GM.
8
SECOND AFFIRMATIVE DEFENSE
9
(Failure to Allow a Cure)
10
GM is informed and believes, and therefore alleges, that Plaintiffs are barred from obtaining the
11
relief sought in the Unverified Complaint because Plaintiffs have failed and refused to allow GM a
12
reasonable opportunity to cure any alleged breach by GM.
13
THIRD AFFIRMATIVE DEFENSE
14
(Mitigation)
15
GM is informed and believes, and therefore alleges, that Plaintiffs’ alleged damages, if any, are
16
the result, in whole or in part, of Plaintiffs’ failure to exercise care to reduce or mitigate damages.
17
FOURTH AFFIRMATIVE DEFENSE
18
(Contributory Negligence, Unclean Hands, Assumption of Risk)
19
GM is informed and believes, and therefore alleges, that Plaintiffs are barred in whole or in part
20
by Plaintiffs’ negligence, unclean hands, fault, assumption of risk or otherwise from any and all legal
21
or equitable relief against GM, as requested in the Unverified Complaint or otherwise.
22
FIFTH AFFIRMATIVE DEFENSE
23
(Statutes of Limitation)
24
GM is informed and believes, and therefore alleges, that the Unverified Complaint, and each
25
cause of action alleged in it, is barred by application of the statutes of limitation in California Code of
26
Civil Procedure §§ 337(1), 337(2), 337(3), 338(1), 338(2), 338(3), 338(4), 338(7), 339(1), 339(3),
27
340(1), 340(2), 340(3), 342, 343, 344, 348, Commercial Code § 2725 and any other statute of limitation
28
__________________________________________________________________________________
GENERAL MOTORS LLC’S ANSWER TO PLAINTIFFS’ UNVERIFIED COMPLAINT
2
1 applicable to this action.
2 SIXTH AFFIRMATIVE DEFENSE
3 (Laches)
4 GM is informed and believes, and therefore alleges, that the Plaintiffs waited an unreasonable
5 length of time to complain of the alleged acts or omissions at issue in the Unverified Complaint so as
6 to prejudice GM. Plaintiffs are, therefore, guilty of laches and is barred from recovery.
7 SEVENTH AFFIRMATIVE DEFENSE
8 (Failure of Performance)
9 GM is informed and believes, and therefore alleges, that any failure to perform the obligations
10 as described in the Unverified Complaint resulted from Plaintiffs’ failure to perform as required by the
11 contract and warranty. Performance by Plaintiffs of their obligations was a condition precedent to the
12 performance of GM’s obligations.
13 EIGHTH AFFIRMATIVE DEFENSE
14 (Apportionment)
15 Any and all injuries, if any, and damages, if any, allegedly sustained or suffered by
16 Plaintiffs were proximately caused and contributed to by the superseding, intervening acts or omissions
17 of persons other than GM. Those persons, and each of them, were careless and negligent concerning
18 the matters alleged in the Unverified Complaint, and their negligence and carelessness proximately
19 contributed to the loss, injury, damage or detriment alleged in the Unverified Complaint, with the result
20 that the damages, if any, recoverable by Plaintiffs must be diminished in proportion to the fault
21 attributable to those other persons.
22 NINTH AFFIRMATIVE DEFENSE
23 (Misuse of Product)
24 Any and all injuries, if any, and damages, if any, allegedly sustained or suffered by Plaintiffs
25 were directly and proximately caused and contributed to by the misuse of and the unreasonable and
26 improper use of GM’s product. The misuse of or failure to use GM’s product properly contributed to
27 the loss, injury, damage, or detriment, if any, alleged in the Unverified Complaint, and the damages, if
28 any, recoverable by Plaintiffs must be diminished in proportion to the amount of fault attributable to
__________________________________________________________________________________
GENERAL MOTORS LLC’S ANSWER TO PLAINTIFFS’ UNVERIFIED COMPLAINT
3
1 that misuse or unreasonable or improper use.
2 TENTH AFFIRMATIVE DEFENSE
3 (Alteration of Product)
4 Any damage to the subject vehicle was caused or created by changes or alterations to the vehicle,
5 after GM manufactured and sold the vehicle, by persons other than GM or any of its agents, servants or
6 employees, barring Plaintiffs’ recovery in this action.
7 ELEVENTH AFFIRMATIVE DEFENSE
8 (Disclaimer)
9 GM is informed and believes, and therefore alleges, that before and at the time of the alleged
10 acts, omissions and conduct of GM alleged in the Unverified Complaint, GM had expressly disclaimed,
11 negated, and excluded all warranties of the type alleged by Plaintiffs, and of any type, express or
12 implied, whatsoever.
13 TWELFTH AFFIRMATIVE DEFENSE
14 (Lack of Causation)
15 No act or omission of GM was the cause in fact or the proximate cause of the alleged injuries
16 and damages, if any, sustained by Plaintiffs. GM is informed and believes, and therefore alleges, that
17 any breach of warranty of fitness or merchantability, if any, and any other breach of warranty, if any,
18 and any breach of contractual undertakings by GM, if any, were neither the cause in fact nor the
19 proximate cause of Plaintiffs’ damages. Rather, any alleged breach was only secondary,
20 inconsequential, indirect and in no way contributed to or caused Plaintiffs’ alleged damages.
21 THIRTEENTH AFFIRMATIVE DEFENSE
22 (Unauthorized Use of the Product)
23 GM is informed and believes, and therefore alleges, that any and all damages, if any, allegedly
24 sustained or suffered by Plaintiffs were proximately caused and contributed to by Plaintiffs’ use of the
25 subject vehicle for a purpose to which the subject vehicle was not intended to be used. Plaintiffs knew
26 or should have known that the use to which Plaintiffs put the vehicle was not the use for which the
27 vehicle was manufactured or intended and that the unintended use could cause damage to Plaintiffs.
28
__________________________________________________________________________________
GENERAL MOTORS LLC’S ANSWER TO PLAINTIFFS’ UNVERIFIED COMPLAINT
4
1 FOURTEENTH AFFIRMATIVE DEFENSE
2 (Estoppel)
3 GM is informed and believes, and therefore alleges, that Plaintiffs are estopped from obtaining
4 the relief sought in the Unverified Complaint by virtue of Plaintiffs’ acts and conduct in connection
5 with the matters alleged in the Unverified Complaint.
6 FIFTEENTH AFFIRMATIVE DEFENSE
7 (Waiver)
8 GM is informed and believes, and therefore alleges, that Plaintiffs have waived Plaintiffs’ rights,
9 if any, to obtain the relief sought in the Unverified Complaint.
10 SIXTEENTH AFFIRMATIVE DEFENSE
11 (Comparative Negligence)
12 GM is informed and believes, and therefore alleges, that Plaintiffs’ damages, if any, were the
13 direct and proximate result of the conduct of Plaintiffs or Plaintiffs’ agents, employees and invitees, in
14 that they negligently, carelessly, recklessly, knowingly, and willfully operated, maintained, serviced,
15 directed, and otherwise controlled all operations and maintenance of Plaintiffs’ vehicle. Plaintiffs’
16 damages, if any, were directly and proximately caused, in whole or in part, or were contributed to or
17 aggravated by the conduct of Plaintiffs or Plaintiffs’ agents, employees and invitees, when they
18 negligently, carelessly, recklessly, knowingly, and willfully failed to repair the subject vehicle, knowing
19 that the vehicle needed service, maintenance, or repair, but instead, proceeded to operate, maintain,
20 navigate, direct, and otherwise make use of the vehicle or made improper and inadequate service,
21 maintenance and repairs to it. GM is further informed and believes, and therefore alleges, that the
22 vehicle owner knowingly and willfully authorized these actions and knowingly and willfully assumed
23 the known risk that these actions would cause, compound, or aggravate the known problems with the
24 vehicle and would proximately cause damage to it.
25 SEVENTEENTH AFFIRMATIVE DEFENSE
26 (Assumption of Risk)
27 The risks and dangers in Plaintiffs’ conduct were known to Plaintiffs, but Plaintiffs conducted
28 themselves in such a manner as to expose themselves and remain exposed to such risks and dangers
__________________________________________________________________________________
GENERAL MOTORS LLC’S ANSWER TO PLAINTIFFS’ UNVERIFIED COMPLAINT
5
1 and, by doing so, assumed all the risks attendant to that conduct. At the time(s), date(s), and place(s)
2 of the events described in the Unverified Complaint, Plaintiffs voluntarily assumed the risks of the
3 activities in which Plaintiffs were then and there engaged. Under the circumstances and conditions then
4 and there existing, the resulting injuries, if any, and damages, if any, sustained by Plaintiffs were
5 proximately caused by Plaintiffs’ 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 Plaintiffs
10 received timely and appropriate notification, in writing, of the availability of GM’s third-party
11 resolution process. Accordingly, since Plaintiffs did not avail themselves of the third-party dispute
12 resolution process before filing the Unverified Complaint, § 1794(e)(2) of the California Civil Code
13 affirmatively bars Plaintiffs from recovering treble damages (as provided under California Civil Code
14 § 1794(e)) and Plaintiffs cannot avail themselves of the rebuttable presumption under California Civil
15 Code § 1793.22(e)(1).
16 NINETEENTH AFFIRMATIVE DEFENSE
17 (Good Faith Belief in Legality of Actions)
18 At all times relevant to this action, GM acted in good faith and believes its actions to be legal.
19 TWENTIETH AFFIRMATIVE DEFENSE
20 (Offset for Use)
21 GM intends to avail itself of the reduction authorized by Civil Code § 1793.2(d)(2)(C), if GM
22 is found to be in violation of the Song-Beverly Consumer Warranty Act.
23 TWENTY-FIRST AFFIRMATIVE DEFENSE
24 (Civil Code § 1791.1(c) – Implied Warranty)
25 Each and every cause of action based on breach of implied warranty is barred by virtue of Civil
26 Code § 1791.1(c).
27
28
__________________________________________________________________________________
GENERAL MOTORS LLC’S ANSWER TO PLAINTIFFS’ UNVERIFIED COMPLAINT
6
1 TWENTY-SECOND AFFIRMATIVE DEFENSE
2 (Consent)
3 The repair process to Plaintiffs’ vehicle was appropriate and proper and is believed to have been
4 done with Plaintiffs’ consent.
5 TWENTY-THIRD AFFIRMATIVE DEFENSE
6 (Failure to Provide Notice)
7 GM is informed and believes, and therefore alleges, that Plaintiffs failed to provide notice to
8 GM pursuant to Civil Code § 1794(e)(3). Plaintiffs are, therefore, barred from asserting the
9 presumptions in Civil Code § 1793.22 and from recovering civil penalties pursuant to Civil Code §
10 1794(e).
11 TWENTY-FOURTH AFFIRMATIVE DEFENSE
12 (Failure to State Cause of Action for Civil Penalties)
13 The Complaint fails to state sufficient facts to warrant the imposition of civil penalties if
14 replacement or repurchase of the subject vehicle was not appropriate under the circumstances then
15 known, or if GM offered to repurchase or replace the subject vehicle.
16 TWENTY-FIFTH AFFIRMATIVE DEFENSE
17 (No Entitlement to Punitive Damages)
18 The allegations in Plaintiffs’ Unverified Complaint fail to state facts sufficient to support the
19 recovery of punitive damages against GM.
20 TWENTY-SIXTH AFFIRMATIVE DEFENSE
21 (Punitive Damages Are Improper)
22 Plaintiffs are not entitled to recover any punitive damages, and any allegations in support of a
23 claim for punitive damages should be stricken, because California’s laws regarding the acts and
24 omissions alleged are too vague to permit the imposition of punitive damages, and because any award
25 of punitive damages in this action would violate GM’s constitutional rights under the due process
26 clauses of the Fifth and Fourteenth Amendments to the United States Constitution, and the excessive
27 fines and cruel and unusual punishment clauses of the Eighth Amendment to the United States
28 Constitution, as well as other provisions of the United States Constitution and the California
__________________________________________________________________________________
GENERAL MOTORS LLC’S ANSWER TO PLAINTIFFS’ UNVERIFIED COMPLAINT
7
1 Constitution.
2 TWENTY-SEVENTH 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 Plaintiffs 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
12
Dated: October 23, 2020 ERSKINE LAW GROUP, APC
13
14
___________________________
15 Stacey Davis
Attorneys for Defendant
16
GENERAL MOTORS LLC
17
18
19
20
21
22
23
24
25
26
27
28
__________________________________________________________________________________
GENERAL MOTORS LLC’S ANSWER TO PLAINTIFFS’ UNVERIFIED COMPLAINT
8
1
PROOF OF SERVICE
2
I am employed in the County of Orange and my business address is 1576 N. Batavia Street,
3 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
readily familiar with the practices of The Erskine Law Group for the collection and processing of
4 correspondence for mailing with the United States Postal Service. Such correspondence is deposited
with the United States Postal Service the same day in the ordinary course of business.
5
On October 23, 2020, I served the foregoing document(s), bearing the title(s):
6
GENERAL MOTORS LLC’S ANSWER TO PLAINTIFFS’ UNVERIFIED COMPLAINT
7
on the interested parties in the action as follows:
8
[X] by placing [] the original [X] a true copy thereof enclosed in a sealed envelope addressed as
9 follows:
10 Quill & Arrow LLP
10900 Wilshire Boulevard Suite 300
11 Los Angeles, CA 90024
12 [] (BY MAIL SERVICE) I placed such envelopes for collection and to be mailed on this date
following ordinary business practices.
13
[] (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 issued
16 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 October 23, 2020, at Orange, CA.
24
25 Signed:
26
27
28
_______________________________________________________________________________
PROOF OF SERVICE