Preview
Electronically Filed
1 WILSON TURNER KOSMO LLP 1/8/2021 12:16 PM
ROBERT A. SHIELDS (206042) Superior Court of California
2 JAMES P. LEONARD II (255575)
402 West Broadway, Suite 1600 County of Stanislaus
3 San Diego, California 92101 Clerk of the Court
Telephone: (619) 236-9600 By: Erin Barnett, Deputy
4 Facsimile: (619) 236-9669
Email: rshields@wilsonturnerkosmo.com
5 Email: jleonard@wilsonturnerkosmo.com
Email: warrantyeservice@wilsonturnerkosmo.com
6
7 Attorneys for Defendant
NISSAN NORTH AMERICA, INC.
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF STANISLAUS
11 CITY TOWERS COURTHOUSE
12 JAMES BOND, an individual, Case No. CV-19-005526
13 Plaintiff, DEFENDANT NISSAN NORTH
AMERICA, INC.’S ANSWER TO
14 v. PLAINTIFF’S UNVERIFIED FIRST
AMENDED COMPLAINT
15 NISSAN NORTH AMERICA, INC., A
California Corporation; and DOES 1 through 20, FAC Filed: October 8, 2020
16 inclusive,
Dept.: 22
17 Defendants. Judge: Hon. Stacy Speiller
Trial Date: Not set
18
19 Defendant, NISSAN NORTH AMERICA, INC. (“Defendant”), answers the unverified First
20 Amended Complaint on file herein as follows:
21 Defendant answers the unverified First Amended Complaint on file herein pursuant to
22 California Code of Civil Procedure section 431.30 by denying, generally and specifically, each, and
23 every and all of the allegations contained in the First Amended Complaint and each and every part
24 thereof, including each and every cause of action purportedly contained therein, and denies that
25 Plaintiff has or will sustain damages in the sum or sums referred to therein, or in any other sum or
26 sums, or at all.
27 Defendant further answers the unverified First Amended Complaint on file herein and each
28 and every purported cause of action contained therein by denying that Plaintiff has sustained, or will
1
DEFENDANT NISSAN NORTH AMERICA, INC.’S ANSWER TO PLAINTIFF’S UNVERIFIED FIRST AMENDED
COMPLAINT
1 sustain, any damage in any sum at all by reason of the carelessness, negligence or other fault, act or
2 omission on the part of the answering Defendant, its agents, servants or employees.
3 AFFIRMATIVE DEFENSES TO THE FIRST AMENDED COMPLAINT
AND EACH ALLEGED CAUSE OF ACTION THEREOF
4
5 FIRST AFFIRMATIVE DEFENSE
6 (Failure to State a Claim)
7 The First Amended Complaint, and each purported cause of action alleged therein, fails to
8 state facts sufficient to constitute a cause of action against this Defendant.
9 SECOND AFFIRMATIVE DEFENSE
10 (No Opportunity to Cure)
11 Defendant is informed and believes and thereon alleges that Plaintiff is barred from obtaining
12 the relief sought in the First Amended Complaint on the grounds that Plaintiff has failed and refused
13 to allow Defendant a reasonable opportunity to cure any alleged breach by Defendant.
14 THIRD AFFIRMATIVE DEFENSE
15 (Failure to Mitigate Damages)
16 Defendant is informed and believes and thereon alleges that Plaintiff’s alleged damages, if
17 any, are the result in whole or in part, of Plaintiff’s failure to exercise reasonable care to reduce or
18 mitigate damages.
19 FOURTH AFFIRMATIVE DEFENSE
20 (Equitable Defenses)
21 Defendant is informed and believes and thereon alleges that Plaintiff is barred in whole or in
22 part by his negligence, unclean hands, fault, assumption of the risk or otherwise from any and/or all
23 legal or equitable relief against Defendant, as requested in the First Amended Complaint or
24 otherwise.
25 FIFTH AFFIRMATIVE DEFENSE
26 (Statute of Limitations)
27 Defendant is informed and believes and thereon alleges that the First Amended Complaint,
28 and each cause of action thereof, is barred by application of the statutes and limitation set forth in
2
DEFENDANT NISSAN NORTH AMERICA, INC.’S ANSWER TO PLAINTIFF’S UNVERIFIED FIRST AMENDED
COMPLAINT
1 California Code of Civil Procedure Sections 337(a), 337(b), 337(c), 338.1, 338(d), 338(h), 339(1),
2 339(3), 343, and Commercial Code section 2725(1), California Civil Code Section 1791.1(c), and/or
3 any other statute of limitation applicable to the present action.
4 SIXTH AFFIRMATIVE DEFENSE
5 (Intervening/Superseding Cause)
6 Any and all damages, if any, sustained or suffered by Plaintiff was proximately caused and
7 contributed to by the superseding, intervening acts or omission of persons other than Defendant in
8 that said persons, and each of them, were careless and negligent concerning the matters alleged in
9 the First Amended Complaint, and such negligence and carelessness proximately contributed to the
10 loss, damage or detriment alleged in the First Amended Complaint with the result that the damages,
11 if any, recoverable by Plaintiff herein must be diminished in proportion to the fault attributable to
12 such other persons.
13 SEVENTH AFFIRMATIVE DEFENSE
14 (Misuse/Improper Use)
15 Any and all damages, if any, sustained or suffered by Plaintiff were directly and proximately
16 caused and contributed to by the misuse of and the unreasonable and improper use of Defendant’s
17 product. Further, the misuse or failure to properly use Defendant’s product contributed to the loss,
18 damages or detriment, if any, alleged in the First Amended Complaint and the damages, if any,
19 recoverable by Plaintiff herein must be diminished in proportion to the amount of fault attributable
20 to such misuse or unreasonable or improper use.
21 EIGHTH AFFIRMATIVE DEFENSE
22 (Unintended Use)
23 Defendant is informed and believes and thereon alleges that any and all damages, if any,
24 sustained or suffered by Plaintiff, was proximately caused and contributed to by Plaintiff’s use of the
25 vehicle which is the subject of this lawsuit, for a purpose to which said product was not intended to
26 be so used. Plaintiff knew, or should have known, that the use to which Plaintiff put the vehicle was
27 not the use for which the vehicle was manufactured or intended and that such unintended use could
28 cause damage to Plaintiff.
3
DEFENDANT NISSAN NORTH AMERICA, INC.’S ANSWER TO PLAINTIFF’S UNVERIFIED FIRST AMENDED
COMPLAINT
1 NINTH AFFIRMATIVE DEFENSE
2 (Not Defective or Unmerchantable)
3 The vehicle was not in a defective or unmerchantable condition at any time when it left
4 possession, custody, and control of Defendant. Any damage to the subject vehicle was caused and
5 created by changes and alterations made to the vehicle, subsequent to the time of the vehicle’s
6 manufacture and/or sale, by persons other than Defendant or any of its agents, servants or
7 employees, barring Plaintiff’s recovery herein.
8 TENTH AFFIRMATIVE DEFENSE
9 (No Proximate Cause)
10 No act or omission of Defendant was the cause in fact or the proximate cause of the damages,
11 if any, sustained by the Plaintiff. Defendant is informed and believes and thereon alleges that any
12 breach of warranty of fitness or merchantability, if any, and any other breach of warranty, if any, and
13 any breach of contractual undertakings of Defendant, if any, were neither the cause in fact nor the
14 proximate cause of Plaintiff’s damages. Rather, any said breaches, if any, were only secondary,
15 inconsequential, indirect and in no way contributed to or caused the alleged damages of Plaintiff.
16 ELEVENTH AFFIRMATIVE DEFENSE
17 (Estoppel)
18 Defendant is informed and believes and thereon alleges that Plaintiff is estopped from
19 obtaining the relief sought in the First Amended Complaint by virtue of his acts and conduct in
20 connection with the matters alleged in the First Amended Complaint.
21 TWELFTH AFFIRMATIVE DEFENSE
22 (Waiver)
23 Defendant is informed and believes and thereon alleges that Plaintiff has waived his rights, if
24 any, to obtain the relief sought in the First Amended Complaint.
25 THIRTEENTH AFFIRMATIVE DEFENSE
26 (Plaintiffs’ Negligence)
27 Defendant is informed and believes and thereon alleges that Plaintiff’s damages, if any, were
28 the direct and proximate result of the conduct of Plaintiff and/or Plaintiff’s agents, employees and
4
DEFENDANT NISSAN NORTH AMERICA, INC.’S ANSWER TO PLAINTIFF’S UNVERIFIED FIRST AMENDED
COMPLAINT
1 invitees, in that they negligently, carelessly, recklessly, knowingly and willfully operated,
2 maintained, serviced, directed and otherwise controlled all operations and maintenance of Plaintiff’s
3 vehicle. Said damages, if any, were directly and proximately caused, in whole or in part and/or was
4 contributed to or aggravated by the conduct of Plaintiff and or Plaintiff’s agents, employees and
5 invitees, when they so negligently, carelessly, recklessly, knowingly and willfully failed to repair
6 said vehicle, knowing that said vehicle needed repair, but instead proceeded to operate, maintain,
7 navigate, direct and otherwise make use of the vehicle and/or make improper and inadequate repairs
8 to such vehicle. Defendant is further informed and believes and thereon alleges that the owner of
9 said vehicle knowingly and willfully assumed the known risk that such actions would cause,
10 compound, and/or aggravate the known problems with the vehicle and would proximately cause
11 damage to said vehicle.
12 FOURTEENTH AFFIRMATIVE DEFENSE
13 (Assumption of Risk)
14 The risks and dangers in Plaintiff’s conduct were known to the Plaintiff. Plaintiff
15 nevertheless conducted himself in such a manner so as to expose himself and remain exposed to said
16 risks and damages and by doing so assumed all the risks attendant thereto. At said time, date and
17 place of the incidents described in the First Amended Complaint, Plaintiff voluntarily assumed the
18 risks of the activities in which he was then and there engaged and under the circumstances and
19 conditions then and there existing, and the resultant damages, if any, sustained by Plaintiff were
20 proximately caused by Plaintiff’s own voluntary assumption of risk.
21 FIFTEENTH AFFIRMATIVE DEFENSE
22 (Failure to Exhaust Administrative Remedies)
23 Defendant maintains a qualified third party dispute resolution process which substantially
24 complies with section 1793.2 of the California Civil Code. Defendant is informed and believes and
25 thereon alleges Plaintiff received timely and appropriate notification, in writing, of the availability of
26 the third party resolution process. Accordingly, since Plaintiff did not avail himself of the third party
27 dispute resolution process prior to filing this litigation, section 1794(e)(2) of the California Civil
28 Code affirmatively bars Plaintiff from recovering damages for (i) attorney’s fees, (ii) costs, and (iii)
5
DEFENDANT NISSAN NORTH AMERICA, INC.’S ANSWER TO PLAINTIFF’S UNVERIFIED FIRST AMENDED
COMPLAINT
1 treble damages (as provided under California Civil Code section 1794(e)) and Plaintiff cannot avail
2 himself of the rebuttable presumption pursuant to California Civil Code section 1793.2(e)(1).
3 SIXTEENTH AFFIRMATIVE DEFENSE
4 (Good Faith)
5 Defendant alleges that at all times relevant to this action, Defendant acted in good faith and
6 believes its actions to have been legal. In addition, all acts of Defendant were motivated by
7 legitimate, lawful reasons, and/or as a result of business necessity.
8 SEVENTEENTH AFFIRMATIVE DEFENSE
9 (No Obligation to Repurchase or Replace)
10 Defendant alleges that at all times relevant to this action, Defendant honestly and in good
11 faith believed that a statutory obligation to repurchase or replace Plaintiff’s vehicle did not exist.
12 EIGHTEENTH AFFIRMATIVE DEFENSE
13 (Mileage Offset)
14 Defendant alleges that it intends to take advantage of the reduction authorized by Civil Code
15 section 1793.2(d)(2)(C) if Defendant is found in violation of the Song-Beverly Consumer Warranty
16 Act.
17 NINETEENTH AFFIRMATIVE DEFENSE
18 (Improper Venue)
19 Defendant hereby raises, asserts, and preserves its defense of improper venue.
20 TWENTIETH AFFIRMATIVE DEFENSE
21 (Inconvenient Forum)
22 Plaintiff’s claims are barred in whole or part because they have been filed in an inconvenient
23 forum or forum non conveniens.
24 TWENTY-FIRST AFFIRMATIVE DEFENSE
25 (No Breach)
26 Defendant is informed and believes and thereon alleges that any breach of warranty of fitness
27 or merchantability, if any, and any other breach of warranty, if any, and any breach of contractual
28 undertakings of defendant, if any, were neither the cause in fact nor the proximate cause of
6
DEFENDANT NISSAN NORTH AMERICA, INC.’S ANSWER TO PLAINTIFF’S UNVERIFIED FIRST AMENDED
COMPLAINT
1 Plaintiff’s damages. Rather, any said breaches, if any, were only secondary, inconsequential,
2 indirect and in no way contributed to or caused the alleged damages of the Plaintiff.
3 TWENTY-SECOND AFFIRMATIVE DEFENSE
4 (Subject Vehicle Conforms to Warranty)
5 Defendant is informed and believes and thereon alleges that if it is determined that the
6 subject vehicle failed to conform at any time with any applicable warranty extended by defendant,
7 defendant alleges that the vehicle is now fully in conformity with such warranty.
8 TWENTY-THIRD AFFIRMATIVE DEFENSE
9 (No Substantial Impairment)
10 Defendant is informed and believes and thereon alleges that the condition of the subject
11 vehicle, as described in the First Amended Complaint, did not and does not substantially impair the
12 vehicle’s use, value or safety.
13 TWENTY-FOURTH AFFIRMATIVE DEFENSE
14 (No Material Defects/Workmanship Defects)
15 Defendant is informed and believes and thereon alleges that the condition of the Subject
16 Vehicle, as described in the First Amended Complaint, does not constitute material defects and/or
17 workmanship defects.
18 TWENTY-FIFTH AFFIRMATIVE DEFENSE
19 (No Civil Penalties)
20 Plaintiff’s First Amended Complaint does not state sufficient facts to support an award of
21 civil penalties under the applicable law.
22 TWENTY-SIXTH AFFIRMATIVE DEFENSE
23 (Limited Damages)
24 Defendant, in response to the First Amended Complaint and each of its cause of action, states
25 that Plaintiff’s claims for certain damages are specifically barred by the terms of the warranty in
26 question and applicable law.
27 ///
28 ///
7
DEFENDANT NISSAN NORTH AMERICA, INC.’S ANSWER TO PLAINTIFF’S UNVERIFIED FIRST AMENDED
COMPLAINT
1 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
2 (Res Judicata/Collateral Estoppel)
3 Defendant alleges, on information and belief, that Plaintiff’s claim(s) against this answering
4 Defendant are barred by the doctrines of collateral estoppel, issue preclusion and/or res judicata.
5 TWENTY-EIGHTH AFFIRMATIVE DEFENSE
6 (Other Defenses)
7 Defendant presently has insufficient knowledge or information upon which to form a belief
8 as to whether it may have additional, as yet unstated, affirmative defenses available. Defendant
9 reserves herein the right to assert additional affirmative defenses in the event discovery indicates that
10 they would be appropriate.
11 WHEREFORE, this answering Defendant prays:
12 1. That Plaintiff takes nothing by the First Amended Complaint;
13 2. For costs of suit;
14 3. For such attorney’s fees as may be allowed by law; and
15 4. For such other and further relief as the court deems just and proper.
16
17 Dated: January 8, 2021 WILSON TURNER KOSMO LLP
18
19
20 By:
21 Robert A. Shields
James P. Leonard II
22
Attorneys for Defendant
23 NISSAN NORTH AMERICA, INC.
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DEFENDANT NISSAN NORTH AMERICA, INC.’S ANSWER TO PLAINTIFF’S UNVERIFIED FIRST AMENDED
COMPLAINT
1 PROOF OF SERVICE
2 James Bond v. Nissan North America, Inc.
3 Case No.: CV-19-005526
4 I, the undersigned, declare as follows:
5 I am employed with the law firm of WILSON TURNER KOSMO LLP, whose address is 402
West Broadway, Suite 1600, San Diego, California 92101. I am readily familiar with the business
6 practices of this office for collection and processing of correspondence for mailing with the United
States Postal Service; I am over the age of eighteen and I am not a party to this action.
7
On January 8, 2021, I served the following document(s), bearing the title(s):
8
1. DEFENDANT NISSAN NORTH AMERICA, INC.’S ANSWER TO
9 PLAINTIFF’S UNVERIFIED FIRST AMENDED COMPLAINT
10 2. CASE MANAGEMENT STATEMENT
11 3. DECLARATION OF ROBERT A. SHIELDS IN RESPONSE TO ORDER TO
SHOW CAUSE RE: WHY SANCTIONS SHOULD NOT BE IMPOSED FOR
12 FAILURE TO APPEAR AT THE CONTINUED CASE MANAGEMENT
CONFERENCE
13
by placing the original a true copy thereof enclosed in a sealed envelope(s) addressed
14 as follows:
15 David N. Barry Attorney for Plaintiff,
The Barry Law Firm James Bond
16 11845 W. Olympic Boulevard, Suite 1270
Los Angeles, California 90064 Telephone: (310) 684-5859
17 Facsimile: (310) 862-4539
dbarry@mylemonrights.com
18 jdaniels@mylemonrights.com
ahernandez@mylemonrights.com
19 vsalazar@mylemonrights.com
vwalls@mylemonrights.com
20 asmith@mylemonrights.com
mbennett@mylemonrights.com
21 dmacioce@mylemonrights.com
22 (By MAIL SERVICE) I placed such envelope for collection, deposit and mailing with the
United States Postal Service following ordinary business practices at my place of business. I
23 am readily familiar with the business practice of my place of business for collection and
processing of correspondence for mailing with the United States Postal Service.
24
(By PERSONAL SERVICE) I prepared such documents to be delivered personally upon
25 the party, the receptionist or person authorized to receive process for the party to the parties
listed above. Personal service to be accomplished by attorney service First Legal on
26 ****.
27 (By FACSIMILE) I transmitted the documents by facsimile machine, pursuant to California
Rules of Court, Rule 2.306. The facsimile machine I used complied with Rule 2.301 and no
28 error was reported by the machine. Pursuant to Rule 2.306 I caused the machine to print a
transmission record of the transmission, a copy of which is attached to this declaration.
1
PROOF OF SERVICE
1 (By E-MAIL OR ELECTRONIC TRANSMISSION) Based on a court order or an
agreement of the parties to accept service by e-mail, I caused the documents to be sent to the
2 persons as listed above. I did not receive, within a reasonable time after the transmission, any
electronic message or other indication that the transmission was unsuccessful.
3
(By ELECTRONIC SERVICE) Based upon California Rule of Court 2.251(C), I caused
4 the above documents to be served through One Legal (www.onelegal.com) on all parties as
maintained on the electronic service list for the above captioned case. A copy of the Filing
5 Receipt will be maintained with the original document(s).
6 (By ELECTRONIC SERVICE) Based upon California Rule of Court 2.251(C), I caused
the above documents to be served through Nationwide Legal
7 (https://nationwidelegal.legalconnect.com) on all parties as maintained on the electronic
service list for the above captioned case. A copy of the Filing Receipt will be maintained
8 with the original document(s).
9 (By OVERNIGHT CARRIER – NEXT DAY DELIVERY) I enclosed the documents in
an envelope or package provided by an overnight delivery carrier and addressed it to the
10 person listed above. I placed the envelope or package for collection and overnight delivery at
an office or a regularly utilized drop box of the overnight delivery carrier.
11
I declare under penalty of perjury under the laws of the State of California that the foregoing
12 is true and correct.
13 Executed on January 8, 2021 at San Diego, California.
14
15
16
Jenny Gonzalez
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PROOF OF SERVICE
Preview
Electronically Filed 1 WILSON TURNER KOSMO LLP 1/8/2021 12:16 PM ROBERT A. SHIELDS (206042) Superior Court of California 2 JAMES P. LEONARD II (255575) 402 West Broadway, Suite 1600 County of Stanislaus 3 San Diego, California 92101 Clerk of the Court Telephone: (619) 236-9600 By: Erin Barnett, Deputy 4 Facsimile: (619) 236-9669 Email: rshields@wilsonturnerkosmo.com 5 Email: jleonard@wilsonturnerkosmo.com Email: warrantyeservice@wilsonturnerkosmo.com 6 7 Attorneys for Defendant NISSAN NORTH AMERICA, INC. 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF STANISLAUS 11 CITY TOWERS COURTHOUSE 12 JAMES BOND, an individual, Case No. CV-19-005526 13 Plaintiff, DEFENDANT NISSAN NORTH AMERICA, INC.’S ANSWER TO 14 v. PLAINTIFF’S UNVERIFIED FIRST AMENDED COMPLAINT 15 NISSAN NORTH AMERICA, INC., A California Corporation; and DOES 1 through 20, FAC Filed: October 8, 2020 16 inclusive, Dept.: 22 17 Defendants. Judge: Hon. Stacy Speiller Trial Date: Not set 18 19 Defendant, NISSAN NORTH AMERICA, INC. (“Defendant”), answers the unverified First 20 Amended Complaint on file herein as follows: 21 Defendant answers the unverified First Amended Complaint on file herein pursuant to 22 California Code of Civil Procedure section 431.30 by denying, generally and specifically, each, and 23 every and all of the allegations contained in the First Amended Complaint and each and every part 24 thereof, including each and every cause of action purportedly contained therein, and denies that 25 Plaintiff has or will sustain damages in the sum or sums referred to therein, or in any other sum or 26 sums, or at all. 27 Defendant further answers the unverified First Amended Complaint on file herein and each 28 and every purported cause of action contained therein by denying that Plaintiff has sustained, or will 1 DEFENDANT NISSAN NORTH AMERICA, INC.’S ANSWER TO PLAINTIFF’S UNVERIFIED FIRST AMENDED COMPLAINT 1 sustain, any damage in any sum at all by reason of the carelessness, negligence or other fault, act or 2 omission on the part of the answering Defendant, its agents, servants or employees. 3 AFFIRMATIVE DEFENSES TO THE FIRST AMENDED COMPLAINT AND EACH ALLEGED CAUSE OF ACTION THEREOF 4 5 FIRST AFFIRMATIVE DEFENSE 6 (Failure to State a Claim) 7 The First Amended Complaint, and each purported cause of action alleged therein, fails to 8 state facts sufficient to constitute a cause of action against this Defendant. 9 SECOND AFFIRMATIVE DEFENSE 10 (No Opportunity to Cure) 11 Defendant is informed and believes and thereon alleges that Plaintiff is barred from obtaining 12 the relief sought in the First Amended Complaint on the grounds that Plaintiff has failed and refused 13 to allow Defendant a reasonable opportunity to cure any alleged breach by Defendant. 14 THIRD AFFIRMATIVE DEFENSE 15 (Failure to Mitigate Damages) 16 Defendant is informed and believes and thereon alleges that Plaintiff’s alleged damages, if 17 any, are the result in whole or in part, of Plaintiff’s failure to exercise reasonable care to reduce or 18 mitigate damages. 19 FOURTH AFFIRMATIVE DEFENSE 20 (Equitable Defenses) 21 Defendant is informed and believes and thereon alleges that Plaintiff is barred in whole or in 22 part by his negligence, unclean hands, fault, assumption of the risk or otherwise from any and/or all 23 legal or equitable relief against Defendant, as requested in the First Amended Complaint or 24 otherwise. 25 FIFTH AFFIRMATIVE DEFENSE 26 (Statute of Limitations) 27 Defendant is informed and believes and thereon alleges that the First Amended Complaint, 28 and each cause of action thereof, is barred by application of the statutes and limitation set forth in 2 DEFENDANT NISSAN NORTH AMERICA, INC.’S ANSWER TO PLAINTIFF’S UNVERIFIED FIRST AMENDED COMPLAINT 1 California Code of Civil Procedure Sections 337(a), 337(b), 337(c), 338.1, 338(d), 338(h), 339(1), 2 339(3), 343, and Commercial Code section 2725(1), California Civil Code Section 1791.1(c), and/or 3 any other statute of limitation applicable to the present action. 4 SIXTH AFFIRMATIVE DEFENSE 5 (Intervening/Superseding Cause) 6 Any and all damages, if any, sustained or suffered by Plaintiff was proximately caused and 7 contributed to by the superseding, intervening acts or omission of persons other than Defendant in 8 that said persons, and each of them, were careless and negligent concerning the matters alleged in 9 the First Amended Complaint, and such negligence and carelessness proximately contributed to the 10 loss, damage or detriment alleged in the First Amended Complaint with the result that the damages, 11 if any, recoverable by Plaintiff herein must be diminished in proportion to the fault attributable to 12 such other persons. 13 SEVENTH AFFIRMATIVE DEFENSE 14 (Misuse/Improper Use) 15 Any and all damages, if any, sustained or suffered by Plaintiff were directly and proximately 16 caused and contributed to by the misuse of and the unreasonable and improper use of Defendant’s 17 product. Further, the misuse or failure to properly use Defendant’s product contributed to the loss, 18 damages or detriment, if any, alleged in the First Amended Complaint and the damages, if any, 19 recoverable by Plaintiff herein must be diminished in proportion to the amount of fault attributable 20 to such misuse or unreasonable or improper use. 21 EIGHTH AFFIRMATIVE DEFENSE 22 (Unintended Use) 23 Defendant is informed and believes and thereon alleges that any and all damages, if any, 24 sustained or suffered by Plaintiff, was proximately caused and contributed to by Plaintiff’s use of the 25 vehicle which is the subject of this lawsuit, for a purpose to which said product was not intended to 26 be so used. Plaintiff knew, or should have known, that the use to which Plaintiff put the vehicle was 27 not the use for which the vehicle was manufactured or intended and that such unintended use could 28 cause damage to Plaintiff. 3 DEFENDANT NISSAN NORTH AMERICA, INC.’S ANSWER TO PLAINTIFF’S UNVERIFIED FIRST AMENDED COMPLAINT 1 NINTH AFFIRMATIVE DEFENSE 2 (Not Defective or Unmerchantable) 3 The vehicle was not in a defective or unmerchantable condition at any time when it left 4 possession, custody, and control of Defendant. Any damage to the subject vehicle was caused and 5 created by changes and alterations made to the vehicle, subsequent to the time of the vehicle’s 6 manufacture and/or sale, by persons other than Defendant or any of its agents, servants or 7 employees, barring Plaintiff’s recovery herein. 8 TENTH AFFIRMATIVE DEFENSE 9 (No Proximate Cause) 10 No act or omission of Defendant was the cause in fact or the proximate cause of the damages, 11 if any, sustained by the Plaintiff. Defendant is informed and believes and thereon alleges that any 12 breach of warranty of fitness or merchantability, if any, and any other breach of warranty, if any, and 13 any breach of contractual undertakings of Defendant, if any, were neither the cause in fact nor the 14 proximate cause of Plaintiff’s damages. Rather, any said breaches, if any, were only secondary, 15 inconsequential, indirect and in no way contributed to or caused the alleged damages of Plaintiff. 16 ELEVENTH AFFIRMATIVE DEFENSE 17 (Estoppel) 18 Defendant is informed and believes and thereon alleges that Plaintiff is estopped from 19 obtaining the relief sought in the First Amended Complaint by virtue of his acts and conduct in 20 connection with the matters alleged in the First Amended Complaint. 21 TWELFTH AFFIRMATIVE DEFENSE 22 (Waiver) 23 Defendant is informed and believes and thereon alleges that Plaintiff has waived his rights, if 24 any, to obtain the relief sought in the First Amended Complaint. 25 THIRTEENTH AFFIRMATIVE DEFENSE 26 (Plaintiffs’ Negligence) 27 Defendant is informed and believes and thereon alleges that Plaintiff’s damages, if any, were 28 the direct and proximate result of the conduct of Plaintiff and/or Plaintiff’s agents, employees and 4 DEFENDANT NISSAN NORTH AMERICA, INC.’S ANSWER TO PLAINTIFF’S UNVERIFIED FIRST AMENDED COMPLAINT 1 invitees, in that they negligently, carelessly, recklessly, knowingly and willfully operated, 2 maintained, serviced, directed and otherwise controlled all operations and maintenance of Plaintiff’s 3 vehicle. Said damages, if any, were directly and proximately caused, in whole or in part and/or was 4 contributed to or aggravated by the conduct of Plaintiff and or Plaintiff’s agents, employees and 5 invitees, when they so negligently, carelessly, recklessly, knowingly and willfully failed to repair 6 said vehicle, knowing that said vehicle needed repair, but instead proceeded to operate, maintain, 7 navigate, direct and otherwise make use of the vehicle and/or make improper and inadequate repairs 8 to such vehicle. Defendant is further informed and believes and thereon alleges that the owner of 9 said vehicle knowingly and willfully assumed the known risk that such actions would cause, 10 compound, and/or aggravate the known problems with the vehicle and would proximately cause 11 damage to said vehicle. 12 FOURTEENTH AFFIRMATIVE DEFENSE 13 (Assumption of Risk) 14 The risks and dangers in Plaintiff’s conduct were known to the Plaintiff. Plaintiff 15 nevertheless conducted himself in such a manner so as to expose himself and remain exposed to said 16 risks and damages and by doing so assumed all the risks attendant thereto. At said time, date and 17 place of the incidents described in the First Amended Complaint, Plaintiff voluntarily assumed the 18 risks of the activities in which he was then and there engaged and under the circumstances and 19 conditions then and there existing, and the resultant damages, if any, sustained by Plaintiff were 20 proximately caused by Plaintiff’s own voluntary assumption of risk. 21 FIFTEENTH AFFIRMATIVE DEFENSE 22 (Failure to Exhaust Administrative Remedies) 23 Defendant maintains a qualified third party dispute resolution process which substantially 24 complies with section 1793.2 of the California Civil Code. Defendant is informed and believes and 25 thereon alleges Plaintiff received timely and appropriate notification, in writing, of the availability of 26 the third party resolution process. Accordingly, since Plaintiff did not avail himself of the third party 27 dispute resolution process prior to filing this litigation, section 1794(e)(2) of the California Civil 28 Code affirmatively bars Plaintiff from recovering damages for (i) attorney’s fees, (ii) costs, and (iii) 5 DEFENDANT NISSAN NORTH AMERICA, INC.’S ANSWER TO PLAINTIFF’S UNVERIFIED FIRST AMENDED COMPLAINT 1 treble damages (as provided under California Civil Code section 1794(e)) and Plaintiff cannot avail 2 himself of the rebuttable presumption pursuant to California Civil Code section 1793.2(e)(1). 3 SIXTEENTH AFFIRMATIVE DEFENSE 4 (Good Faith) 5 Defendant alleges that at all times relevant to this action, Defendant acted in good faith and 6 believes its actions to have been legal. In addition, all acts of Defendant were motivated by 7 legitimate, lawful reasons, and/or as a result of business necessity. 8 SEVENTEENTH AFFIRMATIVE DEFENSE 9 (No Obligation to Repurchase or Replace) 10 Defendant alleges that at all times relevant to this action, Defendant honestly and in good 11 faith believed that a statutory obligation to repurchase or replace Plaintiff’s vehicle did not exist. 12 EIGHTEENTH AFFIRMATIVE DEFENSE 13 (Mileage Offset) 14 Defendant alleges that it intends to take advantage of the reduction authorized by Civil Code 15 section 1793.2(d)(2)(C) if Defendant is found in violation of the Song-Beverly Consumer Warranty 16 Act. 17 NINETEENTH AFFIRMATIVE DEFENSE 18 (Improper Venue) 19 Defendant hereby raises, asserts, and preserves its defense of improper venue. 20 TWENTIETH AFFIRMATIVE DEFENSE 21 (Inconvenient Forum) 22 Plaintiff’s claims are barred in whole or part because they have been filed in an inconvenient 23 forum or forum non conveniens. 24 TWENTY-FIRST AFFIRMATIVE DEFENSE 25 (No Breach) 26 Defendant is informed and believes and thereon alleges that any breach of warranty of fitness 27 or merchantability, if any, and any other breach of warranty, if any, and any breach of contractual 28 undertakings of defendant, if any, were neither the cause in fact nor the proximate cause of 6 DEFENDANT NISSAN NORTH AMERICA, INC.’S ANSWER TO PLAINTIFF’S UNVERIFIED FIRST AMENDED COMPLAINT 1 Plaintiff’s damages. Rather, any said breaches, if any, were only secondary, inconsequential, 2 indirect and in no way contributed to or caused the alleged damages of the Plaintiff. 3 TWENTY-SECOND AFFIRMATIVE DEFENSE 4 (Subject Vehicle Conforms to Warranty) 5 Defendant is informed and believes and thereon alleges that if it is determined that the 6 subject vehicle failed to conform at any time with any applicable warranty extended by defendant, 7 defendant alleges that the vehicle is now fully in conformity with such warranty. 8 TWENTY-THIRD AFFIRMATIVE DEFENSE 9 (No Substantial Impairment) 10 Defendant is informed and believes and thereon alleges that the condition of the subject 11 vehicle, as described in the First Amended Complaint, did not and does not substantially impair the 12 vehicle’s use, value or safety. 13 TWENTY-FOURTH AFFIRMATIVE DEFENSE 14 (No Material Defects/Workmanship Defects) 15 Defendant is informed and believes and thereon alleges that the condition of the Subject 16 Vehicle, as described in the First Amended Complaint, does not constitute material defects and/or 17 workmanship defects. 18 TWENTY-FIFTH AFFIRMATIVE DEFENSE 19 (No Civil Penalties) 20 Plaintiff’s First Amended Complaint does not state sufficient facts to support an award of 21 civil penalties under the applicable law. 22 TWENTY-SIXTH AFFIRMATIVE DEFENSE 23 (Limited Damages) 24 Defendant, in response to the First Amended Complaint and each of its cause of action, states 25 that Plaintiff’s claims for certain damages are specifically barred by the terms of the warranty in 26 question and applicable law. 27 /// 28 /// 7 DEFENDANT NISSAN NORTH AMERICA, INC.’S ANSWER TO PLAINTIFF’S UNVERIFIED FIRST AMENDED COMPLAINT 1 TWENTY-SEVENTH AFFIRMATIVE DEFENSE 2 (Res Judicata/Collateral Estoppel) 3 Defendant alleges, on information and belief, that Plaintiff’s claim(s) against this answering 4 Defendant are barred by the doctrines of collateral estoppel, issue preclusion and/or res judicata. 5 TWENTY-EIGHTH AFFIRMATIVE DEFENSE 6 (Other Defenses) 7 Defendant presently has insufficient knowledge or information upon which to form a belief 8 as to whether it may have additional, as yet unstated, affirmative defenses available. Defendant 9 reserves herein the right to assert additional affirmative defenses in the event discovery indicates that 10 they would be appropriate. 11 WHEREFORE, this answering Defendant prays: 12 1. That Plaintiff takes nothing by the First Amended Complaint; 13 2. For costs of suit; 14 3. For such attorney’s fees as may be allowed by law; and 15 4. For such other and further relief as the court deems just and proper. 16 17 Dated: January 8, 2021 WILSON TURNER KOSMO LLP 18 19 20 By: 21 Robert A. Shields James P. Leonard II 22 Attorneys for Defendant 23 NISSAN NORTH AMERICA, INC. 24 25 26 27 28 8 DEFENDANT NISSAN NORTH AMERICA, INC.’S ANSWER TO PLAINTIFF’S UNVERIFIED FIRST AMENDED COMPLAINT 1 PROOF OF SERVICE 2 James Bond v. Nissan North America, Inc. 3 Case No.: CV-19-005526 4 I, the undersigned, declare as follows: 5 I am employed with the law firm of WILSON TURNER KOSMO LLP, whose address is 402 West Broadway, Suite 1600, San Diego, California 92101. I am readily familiar with the business 6 practices of this office for collection and processing of correspondence for mailing with the United States Postal Service; I am over the age of eighteen and I am not a party to this action. 7 On January 8, 2021, I served the following document(s), bearing the title(s): 8 1. DEFENDANT NISSAN NORTH AMERICA, INC.’S ANSWER TO 9 PLAINTIFF’S UNVERIFIED FIRST AMENDED COMPLAINT 10 2. CASE MANAGEMENT STATEMENT 11 3. DECLARATION OF ROBERT A. SHIELDS IN RESPONSE TO ORDER TO SHOW CAUSE RE: WHY SANCTIONS SHOULD NOT BE IMPOSED FOR 12 FAILURE TO APPEAR AT THE CONTINUED CASE MANAGEMENT CONFERENCE 13 by placing the original a true copy thereof enclosed in a sealed envelope(s) addressed 14 as follows: 15 David N. Barry Attorney for Plaintiff, The Barry Law Firm James Bond 16 11845 W. Olympic Boulevard, Suite 1270 Los Angeles, California 90064 Telephone: (310) 684-5859 17 Facsimile: (310) 862-4539 dbarry@mylemonrights.com 18 jdaniels@mylemonrights.com ahernandez@mylemonrights.com 19 vsalazar@mylemonrights.com vwalls@mylemonrights.com 20 asmith@mylemonrights.com mbennett@mylemonrights.com 21 dmacioce@mylemonrights.com 22 (By MAIL SERVICE) I placed such envelope for collection, deposit and mailing with the United States Postal Service following ordinary business practices at my place of business. I 23 am readily familiar with the business practice of my place of business for collection and processing of correspondence for mailing with the United States Postal Service. 24 (By PERSONAL SERVICE) I prepared such documents to be delivered personally upon 25 the party, the receptionist or person authorized to receive process for the party to the parties listed above. Personal service to be accomplished by attorney service First Legal on 26 ****. 27 (By FACSIMILE) I transmitted the documents by facsimile machine, pursuant to California Rules of Court, Rule 2.306. The facsimile machine I used complied with Rule 2.301 and no 28 error was reported by the machine. Pursuant to Rule 2.306 I caused the machine to print a transmission record of the transmission, a copy of which is attached to this declaration. 1 PROOF OF SERVICE 1 (By E-MAIL OR ELECTRONIC TRANSMISSION) Based on a court order or an agreement of the parties to accept service by e-mail, I caused the documents to be sent to the 2 persons as listed above. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. 3 (By ELECTRONIC SERVICE) Based upon California Rule of Court 2.251(C), I caused 4 the above documents to be served through One Legal (www.onelegal.com) on all parties as maintained on the electronic service list for the above captioned case. A copy of the Filing 5 Receipt will be maintained with the original document(s). 6 (By ELECTRONIC SERVICE) Based upon California Rule of Court 2.251(C), I caused the above documents to be served through Nationwide Legal 7 (https://nationwidelegal.legalconnect.com) on all parties as maintained on the electronic service list for the above captioned case. A copy of the Filing Receipt will be maintained 8 with the original document(s). 9 (By OVERNIGHT CARRIER – NEXT DAY DELIVERY) I enclosed the documents in an envelope or package provided by an overnight delivery carrier and addressed it to the 10 person listed above. I placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight delivery carrier. 11 I declare under penalty of perjury under the laws of the State of California that the foregoing 12 is true and correct. 13 Executed on January 8, 2021 at San Diego, California. 14 15 16 Jenny Gonzalez 17 18 19 20 21 22 23 24 25 26 27 28 2 PROOF OF SERVICE