Preview
SUTTON 4 MURPHY
Thomas M. Murphy, SBN 132283
tmurohv(Rsuttonmurnhv.corn
Krisann K. Aquino, SBN 252890 9/2/2020
kaouinoRsuttonmumhv.corn
26056 Acero
Mission Viejo, CA 92691
Telephone: (949) 206-0550
Facsimile: (949) 206-0560
Attorneys for Defendant, TOYOTA MOTOR SALES, U.S.A., INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THK COUNTY OF BUTTE
10
ALEX MARIE TURCOTTE, Case No. 20CV01505
12 Plaintiff, ANS%ER TO COMPLAINT
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Defendants. Complaint Filed: July 31, 2020
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16 Case Management Conf.: January 27, 2021
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17 Defendant, TOYOTA MOTOR SALES, U.S.A., INC., answers the unverified Complaint
18 on file herein as follows:
19 Under the provision of Code of Civil Procedure, Section 431.30(d), all and each of the
20 material allegations of the unverified complaint are denied, alleged, or otherwise.
21 AFFIRMATIVE DEFENSES
22 FIRST AFFIRVCATIVK DEFENSE
23 (Failure to State a Cause of Action)
24 The Complaint, and each purported cause of action alleged therein, fails to state facts
25 sufficient to constitute a cause of action against this Defendant.
26
27
28
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AN8%ER TO COMPLAINT
SECOND AFFIRMATIVE DEFENSE
(Mitigation)
Defendant is informed and believes and thereon alleges that Plaintiff s alleged damages, if
any, are the result, in whole or in part, of Plaintiff s failure to exercise reasonable care to reduce or
mitigate her damages.
THIRD AFFIRMATIVE DEFENSE
(Statutes of Limitation)
Defendant is informed and believes and thereon alleges that the Complaint, and each cause
of action thereof, is barred by application of the statute of limitations set forth in California Code
10 of Civil Procedure sections 337(1), 337(3), 338(a), 339(1), 339(3), 340(a), 343, Commercial Code
section 2725 and/or any other statute of limitation applicable to the present action.
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12 FOURTH AFFIRMATIVE DEFENSE
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14 Any and all injuries, if any, and damages, if any, sustained or suffered by Plaintiff was
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17 vehicle contributed to the loss, injury, damage or detriment, if any, alleged in the Complaint and
the damages, if any, recoverable by Plaintiff herein must be diminished in proportion to the
19 amount of fault attributable to such misuse or unreasonable or improper use.
20 FIFTH AFFIRMATIVE DEFENSE
21 (Alteration of Subject Vehicle)
22 The subject vehicle was not in a defective or unmerchantable condition at any time when it
23 left the possession, custody and control of Defendant. Any damage to the subject vehicle was
24 caused and created by changes and alterations made to the subject vehicle, subsequent to the time
25 of the subject vehicle's manufacturer and/or sale, by persons other than Defendant or any of its
26 agents, servants or employees, barring Plaintiff s recovery herein.
27
28
-2-
ANSWER TO COMPLAINT
SIXTH AFFIRMATIVE DEFENSE
(Disclaimer)
Defendant is informed and believes and thereon alleges that prior to and at the time of the
alleged acts, omissions and conduct of Defendant as alleged in the Complaint, Defendant
expressly disclaimed, negated and excluded all warranties of the type herein alleged by Plaintiff,
and or any type, express or implied, whatsoever.
7 SEVENTH AFFIRMATIVE DEFENSE
(Failure to Comply With Statutory Requirements)
Defendant is informed and believes, and thereon alleges, that the claims alleged against
10 Defendant in the Complaint are barred by the failure of Plaintiff to comply with the applicable
statutory requirements before filing this action.
12 EIGHTH AFFIRMATIVE DEFENSE
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16 used. Plaintiff knew, or should have known, that the subject vehicle was not used in a manner for
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17 which the subject vehicle was manufactured or intended, and that such unintended use could cause
18 damage to Plaintiff. Plaintiff s recovery must be barred or reduced in proportion to the amount
19 attributable to the Plaintiff s use of the subject vehicle in an unintended manner.
20 NINTH AFFIRMATIVE DEFENSE
21 (Failure to Perform Maintenance)
22 Plaintiff s damages, if any, were the direct and proximate result of the conduct of Plaintiff
23 and/or Plaintiff s agents, employees or representative, in that she negligently, carelessly,
24 recldessly, knowingly, and willfully operated, maintained, and serviced the subject vehicle which
25 is the subject of this lawsuit and/or directed and controlled all operations and maintenance of said
26 subject vehicle. Plaintiff s damages, if any, were directly and proximately caused, in whole or in
27 part and/or were contributed to or aggravated by the conduct of Plaintiff and/or Plaintiff s agents,
28 employees or representatives, when they so negligently, carelessly, recklessly, knowingly and
-3-
ANSWER TO COMPLAINT
willfully failed to repair the said subject vehicle, knowing that said subject vehicle needed repair,
but, instead proceeded to operate, and otherwise make use of the subject vehicle and/or make
improper and inadequate repairs to said subject vehicle. Plaintiff s right to recovery should be
barred or reduced by an amount equivalent to such percentage of fault.
TENTH AFFIRMATIVE DEFENSE
(No Consequential Damages)
Defendant, in response to the Complaint and each of its causes of actiori, states that
Plaintiff's claims for consequential damages are specifically barred by the terms of the warranty in
question and applicable law.
10 ELEVENTH AFFIRMATIVE DEFENSE
(Privity)
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Plaintiff and Defendant were not in privity of contract wherefore Plaintiff may not obtain
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aa Defendant is informed and believes, and thereon alleges that Plaintiff has released
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Defendant f'rom any and all claims, including those raised in the Complaint.
18 THIRTEENTH AFFIRMATIVE DEFENSE
19 (Qualified Third-Party Dispute Resolution Process)
20 Defendant maintains a qualified third-party dispute resolution process, which substantially
21 complies with section 1793.22 of the California Civil Code. Defendant is informed and believes
22 and thereon alleges Plaintiff received timely and appropriate notification of the availability of the
23 third-party resolution process. Accordingly, since Plaintiff did not avail herself of the third-party
24 dispute resolution process prior to filing this litigation, section 1794(e)(2) of the California Civil
25 Code affirmatively bars Plaintiff from recovering damages for (i) attorney's fees, (ii) costs, and
26 (iii) treble damages (as provided under California Civil Code section 1794(e)) and Plaintiff cannot
27 avail herself of the rebuttable presumption pursuant to California Civil Code section 1793.22(b).
28 Defendant's qualified third-party dispute resolution process also complies with 15 U.S.C. 2310(a),
4
ANSWER TO COMPLAINT
and Plaintiff s failure to participate in the process precludes relief under the Magnuson-Moss
Warranty Act.
3 FOURTEENTH AFFIRMATIVE DEFENSE
(Reservation of Rights)
Defendant presently has insufficient knowledge or information upon which to form a belief
as to whether it may have additional, as yet unstated, affirmative defense available. De'fendant
reserved herein the right to assert additional affirmative defenses in the event discovery indicates
that they would be appropriate.
WHEREFORE, Defendant prays:
10 That Plaintiff takes nothing by the Complaint;
For cost of suit;
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For such other and further relief as the Court deems just and proper.
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DATED: September 2, 2020 SUTTON lg: MURPHY
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Thomas M,~hy
Krisann K, Aquino
17 Attorneys for Defendant,
TOYOTA MOTOR SALES, V.S,A„ INC.
18
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20
21
23
24
25
26
27
28
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ANSWER TO COMPLAINT
PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF ORANGE
I am employed in the County of Orange, State of California. I am over the age of 18 and
not a part to the within action; my business address: 26056 Acero, Mission Viejo, CA 92691.
On September 2, 2020, I served the foregoing document described as:
ANSWER TO COMPLAINT
by placing the [ ] original [X] copy thereof enclosed in sealed envelopes addressed as stated on
the attached mailing list.
[X] By Mail I am "readily familiar" with the firm's practice of collection and processing
correspondence for mailing. Under that practice it would be deposited with the U.S. postal
service on that same day with postage thereon fully prepaid at Mission Viejo, CA 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.
[ ] By Overnight Delivery I caused such envelope to be picked up by Federal Express
at the firm's address listed above. Such envelope was marked "Overnight Delivery" and had a
prepaid, addressed slip.
[ ] By Personal Service I caused to be delivered such envelope by hand to the offices of
the addressee.
[ ] By Facsimile I caused to be delivered such document by facsimile and envelopes via
U.S. Mail to the offices of the addressees.
[X] By Electronic Service I caused to be delivered such document by electronic service
via e-mail to the offices of the addressees.
[X] (State) I declare under penalty of perjury under the laws of the State of California
that the above is true and correct.
[ ] (Federal) I declare that I am employed in the office of a member of the bar of the
court at whose direction the service was made.
Executed on September 2, 2020, at Mission Viejo,
e ra A. Beyer
PROOF OF SERVICE —
(08724/20)
RE: ALEX MARIE TURCOTTK VS. TOYOTA iNOTOR SALES. U.S.A.. INC.
Butte County Superior Court Case Pto. 20CV01505
Patrea R. Bullock, Esq. Attorneys for Plaintiff
LAW OFFICES OF PATREA R. BULLOCK. ALEX MARK TURCOTTE
1420 East Roseville Parkway, Suite 140-335
Roseville, CA 95661
Telephone: (916) 878-0161
Facsimile: (855) 520-1690
Attornev(RCaliforniaLemonLawKxpert.corn
Preview
SUTTON 4 MURPHY Thomas M. Murphy, SBN 132283 tmurohv(Rsuttonmurnhv.corn Krisann K. Aquino, SBN 252890 9/2/2020 kaouinoRsuttonmumhv.corn 26056 Acero Mission Viejo, CA 92691 Telephone: (949) 206-0550 Facsimile: (949) 206-0560 Attorneys for Defendant, TOYOTA MOTOR SALES, U.S.A., INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THK COUNTY OF BUTTE 10 ALEX MARIE TURCOTTE, Case No. 20CV01505 12 Plaintiff, ANS%ER TO COMPLAINT 0 13 Z ' vs. 0 0N I 14 TOYOTA MOTOR SALES, U.S.A., INC.; ZN Zo -O 0Z E and DOES I through 10 inclusive, Assigned to Judge Tamara L. Mosbarger 0Z 15 Dept.: 0 p III 1 F ZIU Defendants. Complaint Filed: July 31, 2020 0 IU III 16 Case Management Conf.: January 27, 2021 Eo ID 17 Defendant, TOYOTA MOTOR SALES, U.S.A., INC., answers the unverified Complaint 18 on file herein as follows: 19 Under the provision of Code of Civil Procedure, Section 431.30(d), all and each of the 20 material allegations of the unverified complaint are denied, alleged, or otherwise. 21 AFFIRMATIVE DEFENSES 22 FIRST AFFIRVCATIVK DEFENSE 23 (Failure to State a Cause of Action) 24 The Complaint, and each purported cause of action alleged therein, fails to state facts 25 sufficient to constitute a cause of action against this Defendant. 26 27 28 -1- AN8%ER TO COMPLAINT SECOND AFFIRMATIVE DEFENSE (Mitigation) Defendant is informed and believes and thereon alleges that Plaintiff s alleged damages, if any, are the result, in whole or in part, of Plaintiff s failure to exercise reasonable care to reduce or mitigate her damages. THIRD AFFIRMATIVE DEFENSE (Statutes of Limitation) Defendant is informed and believes and thereon alleges that the Complaint, and each cause of action thereof, is barred by application of the statute of limitations set forth in California Code 10 of Civil Procedure sections 337(1), 337(3), 338(a), 339(1), 339(3), 340(a), 343, Commercial Code section 2725 and/or any other statute of limitation applicable to the present action. Z 12 FOURTH AFFIRMATIVE DEFENSE 0 0 13 (Misuse of Subject Vehicle) 00 zs E 14 Any and all injuries, if any, and damages, if any, sustained or suffered by Plaintiff was 0 .. zZ s 0 Z E 7 ZOZ 15 directly and proximately caused and contributed to by the misuse of and the unreasonable and c C s z. III Z 0 III 16 improper use of the subject vehicle. Further, the misuse or failure to use properly the subject Z M I0 17 vehicle contributed to the loss, injury, damage or detriment, if any, alleged in the Complaint and the damages, if any, recoverable by Plaintiff herein must be diminished in proportion to the 19 amount of fault attributable to such misuse or unreasonable or improper use. 20 FIFTH AFFIRMATIVE DEFENSE 21 (Alteration of Subject Vehicle) 22 The subject vehicle was not in a defective or unmerchantable condition at any time when it 23 left the possession, custody and control of Defendant. Any damage to the subject vehicle was 24 caused and created by changes and alterations made to the subject vehicle, subsequent to the time 25 of the subject vehicle's manufacturer and/or sale, by persons other than Defendant or any of its 26 agents, servants or employees, barring Plaintiff s recovery herein. 27 28 -2- ANSWER TO COMPLAINT SIXTH AFFIRMATIVE DEFENSE (Disclaimer) Defendant is informed and believes and thereon alleges that prior to and at the time of the alleged acts, omissions and conduct of Defendant as alleged in the Complaint, Defendant expressly disclaimed, negated and excluded all warranties of the type herein alleged by Plaintiff, and or any type, express or implied, whatsoever. 7 SEVENTH AFFIRMATIVE DEFENSE (Failure to Comply With Statutory Requirements) Defendant is informed and believes, and thereon alleges, that the claims alleged against 10 Defendant in the Complaint are barred by the failure of Plaintiff to comply with the applicable statutory requirements before filing this action. 12 EIGHTH AFFIRMATIVE DEFENSE 00 & N ' 13 (Not Intended Use) 0 14 Any and all damages, if any, sustained or suffered by Plaintiff was proximately caused and 0-0.. 000E Q I N 0 15 contributed to by the use of the subject vehicle for a purpose for which it was not intended to be & IL 0NUl 0 0 III 16 used. Plaintiff knew, or should have known, that the subject vehicle was not used in a manner for M 0 17 which the subject vehicle was manufactured or intended, and that such unintended use could cause 18 damage to Plaintiff. Plaintiff s recovery must be barred or reduced in proportion to the amount 19 attributable to the Plaintiff s use of the subject vehicle in an unintended manner. 20 NINTH AFFIRMATIVE DEFENSE 21 (Failure to Perform Maintenance) 22 Plaintiff s damages, if any, were the direct and proximate result of the conduct of Plaintiff 23 and/or Plaintiff s agents, employees or representative, in that she negligently, carelessly, 24 recldessly, knowingly, and willfully operated, maintained, and serviced the subject vehicle which 25 is the subject of this lawsuit and/or directed and controlled all operations and maintenance of said 26 subject vehicle. Plaintiff s damages, if any, were directly and proximately caused, in whole or in 27 part and/or were contributed to or aggravated by the conduct of Plaintiff and/or Plaintiff s agents, 28 employees or representatives, when they so negligently, carelessly, recklessly, knowingly and -3- ANSWER TO COMPLAINT willfully failed to repair the said subject vehicle, knowing that said subject vehicle needed repair, but, instead proceeded to operate, and otherwise make use of the subject vehicle and/or make improper and inadequate repairs to said subject vehicle. Plaintiff s right to recovery should be barred or reduced by an amount equivalent to such percentage of fault. TENTH AFFIRMATIVE DEFENSE (No Consequential Damages) Defendant, in response to the Complaint and each of its causes of actiori, states that Plaintiff's claims for consequential damages are specifically barred by the terms of the warranty in question and applicable law. 10 ELEVENTH AFFIRMATIVE DEFENSE (Privity) « « Plaintiff and Defendant were not in privity of contract wherefore Plaintiff may not obtain a aI i« the requested relief from Defendant. 50 asa « E g as ao TWELFTH AFFIRMATIVE DEFENSE « a..sI gaa oa III « 0 rà -X Q « 15 (Release) J Ill i 0 III aa Defendant is informed and believes, and thereon alleges that Plaintiff has released M s Defendant f'rom any and all claims, including those raised in the Complaint. 18 THIRTEENTH AFFIRMATIVE DEFENSE 19 (Qualified Third-Party Dispute Resolution Process) 20 Defendant maintains a qualified third-party dispute resolution process, which substantially 21 complies with section 1793.22 of the California Civil Code. Defendant is informed and believes 22 and thereon alleges Plaintiff received timely and appropriate notification of the availability of the 23 third-party resolution process. Accordingly, since Plaintiff did not avail herself of the third-party 24 dispute resolution process prior to filing this litigation, section 1794(e)(2) of the California Civil 25 Code affirmatively bars Plaintiff from recovering damages for (i) attorney's fees, (ii) costs, and 26 (iii) treble damages (as provided under California Civil Code section 1794(e)) and Plaintiff cannot 27 avail herself of the rebuttable presumption pursuant to California Civil Code section 1793.22(b). 28 Defendant's qualified third-party dispute resolution process also complies with 15 U.S.C. 2310(a), 4 ANSWER TO COMPLAINT and Plaintiff s failure to participate in the process precludes relief under the Magnuson-Moss Warranty Act. 3 FOURTEENTH AFFIRMATIVE DEFENSE (Reservation of Rights) Defendant presently has insufficient knowledge or information upon which to form a belief as to whether it may have additional, as yet unstated, affirmative defense available. De'fendant reserved herein the right to assert additional affirmative defenses in the event discovery indicates that they would be appropriate. WHEREFORE, Defendant prays: 10 That Plaintiff takes nothing by the Complaint; For cost of suit; U U 12 For attorneys'ees; and eU Z 'C U ZN ZNU For such other and further relief as the Court deems just and proper. g 5 II 0(!N U N s II .. S DATED: September 2, 2020 SUTTON lg: MURPHY . Ul S UIZ IY. U NUIU Z IU SU, ZN M UI Ul IU N Thomas M,~hy Krisann K, Aquino 17 Attorneys for Defendant, TOYOTA MOTOR SALES, V.S,A„ INC. 18 19 20 21 23 24 25 26 27 28 -5- ANSWER TO COMPLAINT PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the County of Orange, State of California. I am over the age of 18 and not a part to the within action; my business address: 26056 Acero, Mission Viejo, CA 92691. On September 2, 2020, I served the foregoing document described as: ANSWER TO COMPLAINT by placing the [ ] original [X] copy thereof enclosed in sealed envelopes addressed as stated on the attached mailing list. [X] By Mail I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. postal service on that same day with postage thereon fully prepaid at Mission Viejo, CA 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. [ ] By Overnight Delivery I caused such envelope to be picked up by Federal Express at the firm's address listed above. Such envelope was marked "Overnight Delivery" and had a prepaid, addressed slip. [ ] By Personal Service I caused to be delivered such envelope by hand to the offices of the addressee. [ ] By Facsimile I caused to be delivered such document by facsimile and envelopes via U.S. Mail to the offices of the addressees. [X] By Electronic Service I caused to be delivered such document by electronic service via e-mail to the offices of the addressees. [X] (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. [ ] (Federal) I declare that I am employed in the office of a member of the bar of the court at whose direction the service was made. Executed on September 2, 2020, at Mission Viejo, e ra A. Beyer PROOF OF SERVICE — (08724/20) RE: ALEX MARIE TURCOTTK VS. TOYOTA iNOTOR SALES. U.S.A.. INC. Butte County Superior Court Case Pto. 20CV01505 Patrea R. Bullock, Esq. Attorneys for Plaintiff LAW OFFICES OF PATREA R. BULLOCK. ALEX MARK TURCOTTE 1420 East Roseville Parkway, Suite 140-335 Roseville, CA 95661 Telephone: (916) 878-0161 Facsimile: (855) 520-1690 Attornev(RCaliforniaLemonLawKxpert.corn