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1 SPENCER P. HUGRET (SBN: 240424)
shugret@grsm.com
2 HAILEY ROGERSON (SBN: 311918) 3/8/2021
hrogerson@grsm.com
3 GREG GRUZMAN (SBN: 245701)
ggruzman@grsm.com
4 GORDON REES SCULLY MANSUKHANI, LLP
275 Battery Street, Suite 2000
5 San Francisco, CA 94111
Telephone: (415) 875-3193
6 Facsimile: (415) 986-8054
7 Attorneys for Defendant
FCA US LLC
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF BUTTE
11
Gordon Rees Scully Mansukhani, LLP
JOEL M. SILANO ) Case No. 20CV02347
275 Battery Street, Suite 2000
12 ) Unlimited Jurisdiction
San Francisco, CA 94111
Plaintiff )
13 ) DEFENDANT FCA US LLC’S ANSWER
vs. ) TO PLAINTIFF’S FIRST AMENDED
14 COMPLAINT
)
FCA US LLC; RED BLUFF CHRYSLER )
15 DODGE JEEP RAM; and DOES 1 through
10, inclusive ) Complaint Filed: August 2, 2019
16 ) FAC Filed: January 15, 2020
Defendants. ) Trial Date: None set
17 )
)
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Defendant FCA US LLC (“FCA”), for itself alone and for no other parties, hereby
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answers Plaintiff JOEL M. SILANO’S (“Plaintiffs”) First Amended Complaint (“FAC”).
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Under the provisions of section 431.30(d) of the California Code of Civil Procedure, FCA
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denies each and every allegation, both specifically and generally, of each cause of action contained
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in Plaintiff’s FAC on file herein and the whole thereof, and denies that Plaintiff was damaged in any
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sum or sums, or at all.
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FIRST AFFIRMATIVE DEFENSE
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(Failure to State Cause of Action)
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1. Plaintiff’s FAC fails to state facts sufficient to constitute a cause of action against
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FCA.
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DEFENDANT FCA US LLC’S ANSWER TO PLAINTIFF’S FIRST AMENDED
COMPLAINT
1 SECOND AFFIRMATIVE DEFENSE
2 (Unclean Hands)
3 2. FCA is informed and believes, and on that basis alleges, that Plaintiff’s claims
4 against FCA are barred by the doctrine of unclean hands.
5 THIRD AFFIRMATIVE DEFENSE
6 (Estoppel)
7 3. FCA is informed and believes, and on that basis alleges, that Plaintiff’s claims
8 are, in whole or in part, barred by estoppel.
9 FOURTH AFFIRMATIVE DEFENSE
10 (Waiver)
11 4. FCA is informed and believes, and on that basis alleges, that Plaintiff’s claims
Gordon Rees Scully Mansukhani, LLP
275 Battery Street, Suite 2000
12 are, in whole or in part, barred by waiver.
San Francisco, CA 94111
13 FIFTH AFFIRMATIVE DEFENSE
14 (Laches)
15 5. FCA is informed and believes, and on that basis alleges, that Plaintiff’s claims
16 are, in whole or in part, barred by the equitable doctrine of laches.
17 SIXTH AFFIRMATIVE DEFENSE
18 (Statute of Limitations)
19 6. FCA is informed and believes, and on that basis alleges, that Plaintiff’s claims
20 are, in whole or in part, barred by the statute of limitations contained in the Code of Civil
21 Procedure, specifically sections 335.1, 337, 338, 338.1, and 340; Civil Code sections 1783 and
22 1791.1; and/or Commercial Code section 2725.
23 SEVENTH AFFIRMATIVE DEFENSE
24 (Mitigation of Damages)
25 7. FCA is informed and believes, and on that basis alleges, that Plaintiff has made no
26 efforts to attempt to mitigate any damages or protect the value of the subject vehicle, and as
27 such, any damages awarded would be reduced accordingly.
28 //
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DEFENDANT FCA US LLC’S ANSWER TO PLAINTIFF’S FIRST AMENDED
COMPLAINT
1 EIGHTH AFFIRMATIVE DEFENSE
2 (Good Faith Belief)
3 8. FCA is informed and believes, and on that basis alleges, that Plaintiff’s claims as
4 related to allegations of statements published by FCA are barred, in whole or in part, because the
5 statements were true or FCA had a good faith belief that the statement was true.
6 NINTH AFFIRMATIVE DEFENSE
7 (Complete Performance)
8 9. FCA is informed and believes, and on that basis alleges, it has appropriately,
9 completely and fully performed and discharged any and all obligations and legal duties arising
10 out of the matters alleged in the FAC.
11 TENTH AFFIRMATIVE DEFENSE
Gordon Rees Scully Mansukhani, LLP
275 Battery Street, Suite 2000
12 (Set Off)
San Francisco, CA 94111
13 10. FCA is informed and believes, and on that basis alleges, that if it is established
14 that FCA is in any manner legally responsible for any of the damages claimed by Plaintiff, which
15 is denied, FCA is entitled to a set off these damages, if any, that resulted from the wrongful acts
16 of Plaintiff’s and/or others.
17 ELEVENTH AFFIRMATIVE DEFENSE
18 (Preemption)
19 11. Plaintiff’s FAC, and each and every cause of action therein, in whole, or in part,
20 are preempted by the Federal National Traffic and Motor Vehicle Safety Act pursuant to 49
21 U.S.C. sections 30118, et seq.
22 TWELFTH AFFIRMATIVE DEFENSE
23 (State-of-the-Art)
24 12. FCA’s acts at the time of design, manufacture, and/or distribution of the subject
25 vehicle were in conformity with the state-of-the-art based upon the mechanical, technical, and
26 scientific knowledge existing at the relevant time, and FCA complied with all industry and
27 government standards.
28 //
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DEFENDANT FCA US LLC’S ANSWER TO PLAINTIFF’S FIRST AMENDED
COMPLAINT
1 THIRTEENTH AFFIRMATIVE DEFENSE
2 (Economic Loss Rule)
3 13. Plaintiff’s causes of action have not accrued because Plaintiff cannot establish
4 that she suffered injury directly from the subject vehicle or any of its component parts, and
5 therefore Plaintiff’s contention that the subject vehicle or products failed to adequately perform
6 their functions are barred by the economic loss rule.
7 FOURTEENTH AFFIRMATIVE DEFENSE
8 (Failure to Provide Notice of Breach)
9 14. Claims by Plaintiff of breach of warranty are barred because of Plaintiff’s failure
10 to give timely and appropriate notice of any claim of breach of warranty.
11 FIFTHTEENTH AFFIRMATIVE DEFENSE
Gordon Rees Scully Mansukhani, LLP
275 Battery Street, Suite 2000
12 (Arbitration Agreement)
San Francisco, CA 94111
13 15. FCA is informed and believes and on such information and belief alleges that this
14 dispute is subject to an arbitration agreement with Plaintiff such that this matter is properly
15 brought before a qualified arbitrator rather than in the instant court.
16 SIXTEENTH AFFIRMATIVE DEFENSE
17 (Recoupment or Set-Off)
18 16. In the event Plaintiff is entitled to any relief, FCA is entitled to a recoupment right
19 or set-off for the value of Plaintiff’s use of the product, sale of the product or other permissible
20 reductions or offsets and other or further relief to prevent any unjust enrichment.
21 SEVENTHEENTH AFFIRMATIVE DEFENSE
22 (Comparative Fault)
23 17. If Plaintiff sustained any damages as alleged in the FAC, that damage was
24 proximately caused and contributed to by Plaintiff in failing to conduct themselves in a manner
25 ordinarily expected of a reasonably prudent person in the conduct of their affairs and business.
26 The contributory negligence and fault of Plaintiff diminishes any recovery herein.
27 //
28 //
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DEFENDANT FCA US LLC’S ANSWER TO PLAINTIFF’S FIRST AMENDED
COMPLAINT
1 EIGHTEENTH AFFIRMATIVE DEFENSE
2 (Vehicle Fit for Intended Purpose)
3 18. FCA is informed and believes, and on that basis alleges, that the subject vehicle
4 was fit for providing transportation at all relevant times hereto. Accordingly, Plaintiff is not
5 entitled to relief for breach of the implied warranty of merchantability. American Suzuki Motor
6 Corporation v. Superior Court (1995) 37 Cal.App.4th 1291.
7 NINETEENTH AFFIRMATIVE DEFENSE
8 (Duration of Implied Warranty)
9 19. FCA is informed and believes, and on that basis alleges, that some of the alleged
10 defects did not arise until more than three months had elapsed since the subject vehicle was sold
11 to Plaintiff. Accordingly, Plaintiff is not entitled to relief for such concerns under the breach of
Gordon Rees Scully Mansukhani, LLP
275 Battery Street, Suite 2000
12 the implied warranty of merchantability. Civil Code § 1795.5(c).
San Francisco, CA 94111
13 TWENTIETH AFFIRMATIVE DEFENSE
14 (Disclaimer of Incidental and Consequential Damages)
15 20. FCA is informed and believes, and on that basis alleges, that by the terms of the
16 limited warranty for the subject vehicle at issue, FCA is not liable for incidental or consequential
17 damages.
18 TWENTY-FIRST AFFIRMATIVE DEFENSE
19 (Punitive Damages Improperly Pled/Not Recoverable)
20 21. FCA is informed and believes, and on that basis allege, that Plaintiff has not
21 properly pled a claim for punitive damages and these damages are not recoverable based on the
22 facts contained in Plaintiff’s Complaint, or are otherwise barred by the provisions of Civil Code
23 sections 3294, 3295, and 3296, or such conduct was not adopted, ratified or authorized by FCA
24 under Civil Code section 3294(b).
25 TWENTY-SECOND AFFIRMATIVE DEFENSE
26 (Punitive Damages – If Any – Must Be Limited)
27 22. FCA specifically incorporates by reference, as if fully set forth herein, any and all
28 standards or limitations regarding the determination and enforceability of punitive damages
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DEFENDANT FCA US LLC’S ANSWER TO PLAINTIFF’S FIRST AMENDED
COMPLAINT
1 awards, as set forth in State Farm Mutual Automobile Insurance Company v. Campbell (2003)
2 123 S.Ct. 1513, and BMW of North America v. Gore (1996) 116 S. Ct. 1589.
3 THIRTY-THIRD AFFIRMATIVE DEFENSE
4 (Spoliation of Evidence)
5 23. The subject vehicle and/or products identified in the Complaint that were
6 allegedly defectively designed, manufactured and distributed by FCA are missing, have been
7 modified or altered and/or are no longer available for FCA’s inspection, which impacts FCA’s
8 defense in this case. FCA is therefore entitled to relief from this spoliation, including
9 appropriate jury instructions, admonitions and any other relief afforded by the Court.
10 TWENTY-FOURTH AFFIRMATIVE DEFENSE
11 (Unconstitutionality of the Song-Beverly Act)
Gordon Rees Scully Mansukhani, LLP
275 Battery Street, Suite 2000
12 24. FCA is informed and believes, and on that basis allege, that the application of the
San Francisco, CA 94111
13 Song-Beverly Act on the facts and theories alleged by Plaintiff, in whole and in part, on its face
14 and as applied, violates FCA’s rights under the United States Constitution, including but not
15 limited to the Due Process Clause of the Fifth and Fourteenth Amendments, because, among
16 other things, (1) it violates Due Process to the extent Plaintiff argues that it authorizes
17 punishment absent a finding of intentional or reckless wrongdoing; (2) it violates Due Process to
18 the extent Plaintiff argues that it authorizes punishment based on a mere preponderance of the
19 evidence; (3) the one-way mandatory fee-shifting provision in Section 1794(d) is coercive and
20 creates unfair barriers to litigants exercising their right to defend themselves in court.
21 TWENTY-FIFTH AFFIRMATIVE DEFENSE
22 (Unconstitutionality of Punitive Damages)
23 25. FCA is informed and believes, and on that basis allege, that an award of punitive
24 or exemplary damages to Plaintiffs would violate FCA’s constitutional rights under the
25 provisions of the United States and California Constitutions, including but not limited to the Due
26 Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution and
27 Article I, Section 7 of the California Constitution because, among other things, (1) there is no
28 legitimate state interest in punishing the alleged wrongful conduct at issue here, or in deterring
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DEFENDANT FCA US LLC’S ANSWER TO PLAINTIFF’S FIRST AMENDED
COMPLAINT
1 its possible repetition; (2) the alleged wrongful conduct at issue here is lawful in other
2 jurisdictions; and (3) the criteria for the imposition of punitive or exemplary damage are
3 unconstitutionally vague and uncertain and fail to provide fair notice of what conduct will result
4 in the imposition of such damages. In addition, an award of punitive or exemplary damages that
5 is out of proportion to the alleged wrongful conduct and purported injury at issue here violates
6 due process.
7 TWENTY-SIXTH AFFIRMATIVE DEFENSE
8 (Additional Defenses)
9 26. FCA alleges that it may have additional affirmative defenses available to it of
10 which it is not now fully aware. FCA reserves the right to assert affirmative defenses after the
11 same shall have been ascertained.
Gordon Rees Scully Mansukhani, LLP
275 Battery Street, Suite 2000
12
San Francisco, CA 94111
13 WHEREFORE, FCA prays as follows:
14 1. For dismissal of Plaintiff’s FAC with prejudice;
15 2. For judgment in favor of FCA against Plaintiff;
16 3. For the costs of suit herein; and,
17 4. For such other and further relief as the Court may deem just and proper.
18
19 Dated: March 8, 2021 GORDON REES SCULLY MANSUKHANI, LLP
20
By:
21 Spencer P. Hugret
Hailey M. Rogerson
22 Greg Gruzman
Attorneys for Defendant
23 FCA US LLC
24
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DEFENDANT FCA US LLC’S ANSWER TO PLAINTIFF’S FIRST AMENDED
COMPLAINT
1 PROOF OF SERVICE
Joel M. Silano v. FCA US LLC, et al.
2 Butte County Superior Court Case No. 20CV02347
3 I am a resident of the State of California, over the age of eighteen years, and not a party
to the within action. My business address is: Gordon Rees Scully Mansukhani, LLP, 275 Battery
4 Street, Suite 2000, San Francisco, CA 94111. On the date below, I served the within documents:
5 DEFENDANT FCA US LLC’S ANSWER TO PLAINTIFF’S FIRST AMENDED
COMPLAINT
6
7 by transmitting via facsimile the document(s) listed above to the fax number(s) set
forth below on this date before 5:00 p.m.
8 by transmitting VIA ELECTRONIC MAIL the document(s) listed above to the email
address(es) set forth below on this date before 5:00 p.m. (Per agreement of the
9 parties.)
10 by having Nationwide PERSONALLY DELIVER the document(s) listed above to the
person(s) at the address(es) set forth below.
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by placing the document(s) listed above in a sealed envelope with postage thereon
Gordon Rees Scully Mansukhani, LLP
fully prepaid, in United States mail in the State of California at San Francisco,
275 Battery Street, Suite 2000
12 addressed as set forth below.
San Francisco, CA 94111
13
Tionna Dolin
14 STRATEGIC LEGAL PRACTICES, APC
1840 Century Park East, Suite 430
15 Los Angeles, CA 90067
Tel.: (310) 929-4900
16 Fax: (310) 943-3838
Email: tdolin@slpattorney.com
17 Email: ezkim@slpattorney.com
Email: crlee@slpattorney.com
18 Email: emailservices@slpattorney.com
Attorney for Plaintiff
19
I am readily familiar with the firm’s practice of collection and processing correspondence
20 for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same
day with postage thereon fully prepaid in the ordinary course of business. I am aware that on
21 motion of the party served, service is presumed invalid if postal cancellation date or postage
meter date is more than one day after the date of deposit for mailing in affidavit.
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I declare under penalty of perjury under the laws of the State of California that the above
23 is true and correct.
24 Executed on March 8, 2021 at San Francisco, California.
25
26 Jesica Cortez
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1193253/56984216v.1
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DEFENDANT FCA US LLC’S ANSWER TO PLAINTIFF’S FIRST AMENDED
COMPLAINT