Preview
JON D. UNIVERSAL, SBN 141255
JAMES P. MAYO, SBN 169897
NEJLA NASSIRIAN, SBN 308730 7/31/2020
BRETT H. WANNER, SBN 314025
UNIVERSAL gs SHANNON, LLP
2240 Douglas Boulevard, Suite 290
4 Roseville, California 95661
Telephone: {916) 780-4050
Facsimile: {916) 780-9070
Attorneys for Defendant FCA US LLC
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF BUTTE
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11 DAVID COLLINS, Case No.: 20CV01210
Assigned to Judge Rober/ A. Glusinan, Dept 10
12 Plaintiff,
Action Filed: June 19, 2020
13 vs.
DEFENDANT FCA VS LLC'S ANSWER
14 FCA US LLC HOBLIT CHRYSLER JEEP TO COMPLAINT
DODGE AND DOES I to 50,
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Defendants.
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18 Defendant FCA US LLC hereby responds to PlaintifFs Complaint herein, as follows:
Is Pursuant to California Code of Civil Procedure $ 431.30, Defendant denies each and every
2o allegation in the Complaint and further denies that Plaintiff has been damaged in any sum
whatsoever.
22 FIRST AFFIRMATIVE DEFENSE
23 (Comnarative Fault)
24 If Plaintiff sustained any damages, as alleged in his Complaint, that damage was
2s proximately caused and contributed to by Plaintiff in failing to conduct himself in a manner
26 ordinarily expected of a reasonably prudent person in the conduct of their affairs and business.
27 Thus, PlaintifFs contributory negligence and fault diminish any recovery sought.
2s ///
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DEFENDANT FCA US LLC'S ANSWER TO COMPLAINT
I SECOND AFFIRMATIVE DEFENSE
2 (Contributorv Neultueuce of Third Parties)
3 If Plaintiff sustained any damages, as alleged in his Complaint, that damage was
4 proximately caused and contributed to by persons and/or parties other than Defendant in failing to
3 conduct himself in a manner ordinarily expected of reasonably prudent persons in the conduct of
6 their affairs and business. Thus, the contributory negligence and fault of persons and/or parties
3 other than Defendant diminishes any recovery sought by Plaintiff.
s THIRD AFFIRMATIVE DEFENSE
9 (Failure to State a Cause of Action)
10 PlaintifF Complaint, and each cause of action and count contained therein, fails to state
sufficient facts to constitute a cause of action against Defendant.
12 FOURTH AFFIRMATIVE DEFENSE
13 (Disclaimer of Warranties)
14 PIainti(F s cause of action for breach of express warranty and incidental and consequential
is damages is barred by the express disclaimers and limitations of liability contained in the alleged
16 express warranties.
17 FIFTH AFFIRMATIVE DEFENSE
1$ (Statute of Limitations)
19 Any cause of action alleged in Plainti(Fs Complaint is barred by the statutes of limitation
3D contained in the Code of Civil Procedure, specifically 8 338 and 338.1, Code of Civil Procedure
31 337, and/or Commercial Code
I'I 2725.
('I
22 SIXTH AFFIRMATIVE DEFENSE
23 (Failure to Mitiuate Damaaes)
24 If Plaintiff sustained any damages, as alleged in his Complaint, that damage was
zs proximately caused and contributed to by Plaintiff in failing to mitigate damages. Thus, PlaintifFs
zs failure to mitigate damages diminishes any recovery herein.
33 ///
3s ///
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DEFENDANT FCA US LLC'S ANSWER TO COMPLAINT
I SEVENTH AFFIRMATIVE DEFENSE
2 IEstonneff
3 Defendant is informed and believes and, thus, alleges that Plaintiff has engaged in conduct
4 and activity sufficient to estop them from asserting all or any part of the claims set forth in his
s Complaint.
6 EIGHTH AFFIRMATIVE DEFENSE
7 fUnclean Hands)
8 Defendant is informed and believes and, thus, alleges that the claims and relief sought by
9 Plaintiffs are barred by the doctrine of unclean hands.
10 NINTH AFFIRMATIVE DEFENSE
fWaiverl
12 Defendant is informed and believes and, thus, alleges that Plaintiff has engaged in conduct
13 and activities sufficient to constitute a waiver of any alleged breach of contract, breach of warranty,
14 negligence, or any other conduct, as set forth in his Complaint.
TENTH AFFIRMATIVE DEFENSE
16 (Laches)
17 Defendant is informed and believes and, thus, alleges that Plaintiff waited an unreasonable
Is period of time to complain of the alleged acts or omissions at issue in their Complaint so as to
prejudice Defendant. Plaintiff is, therefore, guilty of laches and is barred from recovery.
20 ELEVENTH AFFIRMATIVE DEFENSE
21 (Failure of Performance}
22 Defendant is informed and believes and, thus, alleges that any failure to perform the
23 obligations as described in the Complaint resulted from Plaintiff's failure to perform as required
24 by the contract and/or warranty. Performance of Plaintiff s obligations are a condition precedent
23 to the performance of Defendant's obligations.
26 ///
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DEFENDANT FCA US LLC'S ANSWER TO COMPLAINT
I TWELFTH AFFIRMATIVE DEFENSE
2 (Alteration of Product'l
3 The vehicle was not defective or in an unmerchantable condition at any time when itleft
4 the possession, custody, and control of the manufacturer. Any damage to the subject automobile
s was caused and created by changes and alterations made to the vehicle, subsequent to the vehicle's
4 manufacture and/or sale, by persons other than the manufacturer or any of its agents, servants, or
7 employees; thus, barring Plaintiff s recovery.
8 THIRTEKNTHAFFIRMATIVEDKFENSE
9 (Failure to State Cause of Action for Civil Penalties)
PlaintifFs Complaint fails to state sufficient facts to warrant the imposition of civil
penalties because it was believed that replacement or repurchase of the subject vehicle was not
12 appropriate under the circumstances then known.
13 FOURTEENTH AFFIRMATIVE DEFENSE
14 (Civil Penalties)
Any cause of action alleged in Plaintiff s Complaint seeking civil penalties is barred by the
Is statute of limitations contained in the Code of Civil Procedure, specifically (j 340.
17 FIFTEENTH AFFIRMATIVE DEFENSE
18 (Consentj
19 The repair process to PlaintitF s vehicle was appropriate and proper and is believed to have
2o been done with PlaintifFs consent.
21 SIXTEENTH AFFIRMATIVE DEFENSE
22 (Abuse or Failure to Maintain)
23 Plaintiff is barred from recovery by virtue of Civil Code $ 1794.3 since the claimed defect
24 or nonconformity was caused by the unauthorized or unreasonable use of the vehicle following
25 sale.
24 ///
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2s ///
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DEFENDANT FCA US LLC'S ANSWER TO COMPLAINT
I SEVENTEENTH AFFIRMATIVE DEFENSE
2 (Civil Code g I791.1(cJ-Imnlied Warrantv1
3 Each and every cause of action based upon breach of implied warranty is barred by virtue
of Civil Code $ 1791.1(c).
5 EIGHTEENTH AFFIRMATIVE DEFENSE
6 (Failure to Provide Reasonable Onnortnnitv to Renair)
7 Plaintiff is precluded from any recovery pursuant to the Song-Beverly Consumer Warranty
s Act because Plaintiff failed and refused to provide a reasonable opportunity to repair.
9 NINETEENTH AFFIRMATIVE DEFENSE
10 (Imnroner Vennel
II Defendant alleges that venue is improper pursuant to C.C.P. 8 395, 395.5, 396b and 397,
12 among others.
13 WHEREFORE, Defendant FCA US LLC requests the following:
14 1. That Plaintiff recover nothing by way of his Complaint on file herein;
15 2. That judgment be entered in favor of Defendant for attorney's fees and costs of suit;
and,
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3. For such other and further relief as the Court may deem just and proper.
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DATED: July 31,2020 UNIVERSAL & SHANNON, LLP
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22 JON D. IJltiIVERSAL, ESQ.
Attorneys for Defendant FCA US LLC
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DEFENDANT FCA US LLC'S ANSWER TO COMPLAINT
PROOF OF SERVICE
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COLLINS (DAVID) v. FCA US LLC et al.
BUTTE COUNTY SUPERIOR COURT CASE NO. 20CV01210
3
I am employed in the County of Placer, State of California. I am over the age of 18 and
4 not a party to the within action. My business address is 2240 Douglas Boulevard, Suite 290,
Roseville, California 95661.
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On the date below, I served the following document described as DEFENDANT FCA
US LLC'S ANSWER TO COMPLAINT on all interested parties in this action by placing 871
a true copy CJ the original thereof enclosed in sealed envelopes addressed as follows:
7
Jill L. Harris, Esq. Connsel for Plaintiff
HARRIS CONSUMER LAW Tel: (916) 572-9410
1809 S. Street, Ste. 101-174 Fax: (916) 905-3888
Sacramento, CA 95811 iillRharrisconsumerlaw.corn
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(BY OVERNIGHT DELIVERY/COURIER)
I deposited such envelope in a box or facility regularly maintained by the express service
12 earner in an envelope or package designated by the express service carrier with delivery
fees provided for.
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(BY MAIL, 1013a, 2015.5 C.C.P.)
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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
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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.
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(BY PERSONAL SERVICE) I caused to be personally delivered to the offices of the
person(s) at the address(es) above.
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(STATE) I declare under penalty of perjury under the laws of the State of California that
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the above is true and correct.
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Executed on July 31, 2020 at Roseville, California.
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M~ WIIIIAMS
**Courtesy copy cmailed to the person(s) at the email address(cs) as set forth above.
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PROOF OF SERVICE
Preview
JON D. UNIVERSAL, SBN 141255 JAMES P. MAYO, SBN 169897 NEJLA NASSIRIAN, SBN 308730 7/31/2020 BRETT H. WANNER, SBN 314025 UNIVERSAL gs SHANNON, LLP 2240 Douglas Boulevard, Suite 290 4 Roseville, California 95661 Telephone: {916) 780-4050 Facsimile: {916) 780-9070 Attorneys for Defendant FCA US LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF BUTTE 10 11 DAVID COLLINS, Case No.: 20CV01210 Assigned to Judge Rober/ A. Glusinan, Dept 10 12 Plaintiff, Action Filed: June 19, 2020 13 vs. DEFENDANT FCA VS LLC'S ANSWER 14 FCA US LLC HOBLIT CHRYSLER JEEP TO COMPLAINT DODGE AND DOES I to 50, 13 Defendants. 16 17 18 Defendant FCA US LLC hereby responds to PlaintifFs Complaint herein, as follows: Is Pursuant to California Code of Civil Procedure $ 431.30, Defendant denies each and every 2o allegation in the Complaint and further denies that Plaintiff has been damaged in any sum whatsoever. 22 FIRST AFFIRMATIVE DEFENSE 23 (Comnarative Fault) 24 If Plaintiff sustained any damages, as alleged in his Complaint, that damage was 2s proximately caused and contributed to by Plaintiff in failing to conduct himself in a manner 26 ordinarily expected of a reasonably prudent person in the conduct of their affairs and business. 27 Thus, PlaintifFs contributory negligence and fault diminish any recovery sought. 2s /// I DEFENDANT FCA US LLC'S ANSWER TO COMPLAINT I SECOND AFFIRMATIVE DEFENSE 2 (Contributorv Neultueuce of Third Parties) 3 If Plaintiff sustained any damages, as alleged in his Complaint, that damage was 4 proximately caused and contributed to by persons and/or parties other than Defendant in failing to 3 conduct himself in a manner ordinarily expected of reasonably prudent persons in the conduct of 6 their affairs and business. Thus, the contributory negligence and fault of persons and/or parties 3 other than Defendant diminishes any recovery sought by Plaintiff. s THIRD AFFIRMATIVE DEFENSE 9 (Failure to State a Cause of Action) 10 PlaintifF Complaint, and each cause of action and count contained therein, fails to state sufficient facts to constitute a cause of action against Defendant. 12 FOURTH AFFIRMATIVE DEFENSE 13 (Disclaimer of Warranties) 14 PIainti(F s cause of action for breach of express warranty and incidental and consequential is damages is barred by the express disclaimers and limitations of liability contained in the alleged 16 express warranties. 17 FIFTH AFFIRMATIVE DEFENSE 1$ (Statute of Limitations) 19 Any cause of action alleged in Plainti(Fs Complaint is barred by the statutes of limitation 3D contained in the Code of Civil Procedure, specifically 8 338 and 338.1, Code of Civil Procedure 31 337, and/or Commercial Code I'I 2725. ('I 22 SIXTH AFFIRMATIVE DEFENSE 23 (Failure to Mitiuate Damaaes) 24 If Plaintiff sustained any damages, as alleged in his Complaint, that damage was zs proximately caused and contributed to by Plaintiff in failing to mitigate damages. Thus, PlaintifFs zs failure to mitigate damages diminishes any recovery herein. 33 /// 3s /// 2 DEFENDANT FCA US LLC'S ANSWER TO COMPLAINT I SEVENTH AFFIRMATIVE DEFENSE 2 IEstonneff 3 Defendant is informed and believes and, thus, alleges that Plaintiff has engaged in conduct 4 and activity sufficient to estop them from asserting all or any part of the claims set forth in his s Complaint. 6 EIGHTH AFFIRMATIVE DEFENSE 7 fUnclean Hands) 8 Defendant is informed and believes and, thus, alleges that the claims and relief sought by 9 Plaintiffs are barred by the doctrine of unclean hands. 10 NINTH AFFIRMATIVE DEFENSE fWaiverl 12 Defendant is informed and believes and, thus, alleges that Plaintiff has engaged in conduct 13 and activities sufficient to constitute a waiver of any alleged breach of contract, breach of warranty, 14 negligence, or any other conduct, as set forth in his Complaint. TENTH AFFIRMATIVE DEFENSE 16 (Laches) 17 Defendant is informed and believes and, thus, alleges that Plaintiff waited an unreasonable Is period of time to complain of the alleged acts or omissions at issue in their Complaint so as to prejudice Defendant. Plaintiff is, therefore, guilty of laches and is barred from recovery. 20 ELEVENTH AFFIRMATIVE DEFENSE 21 (Failure of Performance} 22 Defendant is informed and believes and, thus, alleges that any failure to perform the 23 obligations as described in the Complaint resulted from Plaintiff's failure to perform as required 24 by the contract and/or warranty. Performance of Plaintiff s obligations are a condition precedent 23 to the performance of Defendant's obligations. 26 /// 27 //I 2s /// 3 DEFENDANT FCA US LLC'S ANSWER TO COMPLAINT I TWELFTH AFFIRMATIVE DEFENSE 2 (Alteration of Product'l 3 The vehicle was not defective or in an unmerchantable condition at any time when itleft 4 the possession, custody, and control of the manufacturer. Any damage to the subject automobile s was caused and created by changes and alterations made to the vehicle, subsequent to the vehicle's 4 manufacture and/or sale, by persons other than the manufacturer or any of its agents, servants, or 7 employees; thus, barring Plaintiff s recovery. 8 THIRTEKNTHAFFIRMATIVEDKFENSE 9 (Failure to State Cause of Action for Civil Penalties) PlaintifFs Complaint fails to state sufficient facts to warrant the imposition of civil penalties because it was believed that replacement or repurchase of the subject vehicle was not 12 appropriate under the circumstances then known. 13 FOURTEENTH AFFIRMATIVE DEFENSE 14 (Civil Penalties) Any cause of action alleged in Plaintiff s Complaint seeking civil penalties is barred by the Is statute of limitations contained in the Code of Civil Procedure, specifically (j 340. 17 FIFTEENTH AFFIRMATIVE DEFENSE 18 (Consentj 19 The repair process to PlaintitF s vehicle was appropriate and proper and is believed to have 2o been done with PlaintifFs consent. 21 SIXTEENTH AFFIRMATIVE DEFENSE 22 (Abuse or Failure to Maintain) 23 Plaintiff is barred from recovery by virtue of Civil Code $ 1794.3 since the claimed defect 24 or nonconformity was caused by the unauthorized or unreasonable use of the vehicle following 25 sale. 24 /// 27 /// 2s /// 4 DEFENDANT FCA US LLC'S ANSWER TO COMPLAINT I SEVENTEENTH AFFIRMATIVE DEFENSE 2 (Civil Code g I791.1(cJ-Imnlied Warrantv1 3 Each and every cause of action based upon breach of implied warranty is barred by virtue of Civil Code $ 1791.1(c). 5 EIGHTEENTH AFFIRMATIVE DEFENSE 6 (Failure to Provide Reasonable Onnortnnitv to Renair) 7 Plaintiff is precluded from any recovery pursuant to the Song-Beverly Consumer Warranty s Act because Plaintiff failed and refused to provide a reasonable opportunity to repair. 9 NINETEENTH AFFIRMATIVE DEFENSE 10 (Imnroner Vennel II Defendant alleges that venue is improper pursuant to C.C.P. 8 395, 395.5, 396b and 397, 12 among others. 13 WHEREFORE, Defendant FCA US LLC requests the following: 14 1. That Plaintiff recover nothing by way of his Complaint on file herein; 15 2. That judgment be entered in favor of Defendant for attorney's fees and costs of suit; and, 17 3. For such other and further relief as the Court may deem just and proper. 18 19 DATED: July 31,2020 UNIVERSAL & SHANNON, LLP 20 21 22 JON D. IJltiIVERSAL, ESQ. Attorneys for Defendant FCA US LLC 23 24 25 26 27 28 5 DEFENDANT FCA US LLC'S ANSWER TO COMPLAINT PROOF OF SERVICE I COLLINS (DAVID) v. FCA US LLC et al. BUTTE COUNTY SUPERIOR COURT CASE NO. 20CV01210 3 I am employed in the County of Placer, State of California. I am over the age of 18 and 4 not a party to the within action. My business address is 2240 Douglas Boulevard, Suite 290, Roseville, California 95661. 5 On the date below, I served the following document described as DEFENDANT FCA US LLC'S ANSWER TO COMPLAINT on all interested parties in this action by placing 871 a true copy CJ the original thereof enclosed in sealed envelopes addressed as follows: 7 Jill L. Harris, Esq. Connsel for Plaintiff HARRIS CONSUMER LAW Tel: (916) 572-9410 1809 S. Street, Ste. 101-174 Fax: (916) 905-3888 Sacramento, CA 95811 iillRharrisconsumerlaw.corn 10 (BY OVERNIGHT DELIVERY/COURIER) I deposited such envelope in a box or facility regularly maintained by the express service 12 earner in an envelope or package designated by the express service carrier with delivery fees provided for. 13 (BY MAIL, 1013a, 2015.5 C.C.P.) 14 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 15 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. 17 (BY PERSONAL SERVICE) I caused to be personally delivered to the offices of the person(s) at the address(es) above. 18 (STATE) I declare under penalty of perjury under the laws of the State of California that 19 the above is true and correct. 20 Executed on July 31, 2020 at Roseville, California. 21 22 23 M~ WIIIIAMS **Courtesy copy cmailed to the person(s) at the email address(cs) as set forth above. 24 25 26 27 28 PROOF OF SERVICE