Case 2:15-cv GW-SS Document 35 Filed 11/02/15 Page 1 of 23 Page ID #:523

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1 Case :-cv-0-gw-ss Document Filed /0/ Page of Page ID #: 0 0 STEPHEN T. WAIMEY (SBN ) stephen.waimey@lhlaw.com YVONNE DALTON (SBN ) yvonne.dalton@lhlaw.com ANIKA S. PADHIAR (SBN ) anika.padhiar@lhlaw.com LEE, HONG, DEGERMAN, KANG & WAIMEY 0 Jamboree Road, Suite 000 Newport Beach, California 0 Telephone:.0. Facsimile:.0. WILLIAM F. KINIRY, JR. (Admitted Pro Hac Vice) william.kiniry@dlapiper.com MATTHEW A. GOLDBERG (Admitted Pro Hac Vice) matthew.goldberg@dlapiper.com DLA PIPER LLP (US) 0 Market Street, Suite 00 Philadelphia, Pennsylvania 0-00 Telephone:..00 Facsimile:..0 Attorneys for Defendant, Porsche Cars North America, Inc. ROY JONES and ALYCE RUBINFELD, individually, and on behalf of a class of similarly situated individuals, v. Plaintiffs, PORSCHE CARS NORTH AMERICA, INC., a Delaware corporation, and DOES -0, inclusive, Defendants. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Civil Action No.: :-CV-0-GW-SS Assigned to the Hon. George H. Wu PORSCHE CARS NORTH AMERICA, INC. S ANSWER AND AFFIRMATIVE DEFENSES TO THE FIRST AMENDED CLASS ACTION COMPLAINT By and through its undersigned counsel, Porsche Cars North America, Inc. ( PCNA ), for its Answer and Affirmative Defenses to Plaintiffs First Amended Class Action Complaint ( FAC ), states as follows:

2 Case :-cv-0-gw-ss Document Filed /0/ Page of Page ID #: 0 0 PRELIMINARY STATEMENT Although Plaintiffs refer to other non-party entities throughout the FAC, including, but not limited to, authorized Porsche dealerships, this Answer is provided on behalf of PCNA only. PCNA does not purport to speak on behalf of any other person or entity. ANSWER TO PLAINTIFFS ALLEGATIONS. PCNA need not respond to the allegations in this paragraph because they do not assert claims against it. To the extent that the allegations in this paragraph are deemed factual and directed to PCNA, PCNA denies that any of the claims set forth in the FAC are appropriate for class certification.. To the extent that the allegations in this paragraph concern an unreasonable safety risk associated with Luxor Beige, Sand Beige, or any other beige dashboard (collectively, Beige Dashboards ), those allegations are conclusions of law to which no response is required by the Federal Rules of Civil Procedure. To the extent that the allegations in this paragraph (including footnote ) are deemed factual, they are. PCNA denies the existence of an actionable defect and any allegation that Beige Dashboards suffer from a Windshield Glare problem. Further, PCNA does not design or manufacture motor vehicles, and it does not sell or lease motor vehicles directly to consumers; therefore, allegations in this paragraph related to design, manufacture, sale, and lease of motor vehicles are PCNA admits that it distributed and marketed motor vehicles in the United States that were equipped with various colored dashboards but has been denied the opportunity to inspect Plaintiffs dashboards, and it thus lacks information sufficient to form a belief as to the accuracy of Plaintiffs allegations.. Denied. To the extent the allegations in this paragraph relate to a redacted document attached as Exhibit to the FAC, that document is in writing and the available portions of it speak for themselves. PCNA denies any --

3 Case :-cv-0-gw-ss Document Filed /0/ Page of Page ID #: 0 0 characterization of this document by Plaintiffs that is inconsistent with its express terms, any representations by Plaintiffs regarding to whom that document was transmitted, and any characterization of the redacted portions of that document.. PCNA is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph, concerning Plaintiffs expectations. Therefore, such allegations are By way of further answer, PCNA denies that it sold any product to Plaintiffs or any other consumers. PCNA further denies any implication that PCNA sold vehicles to anyone that it knew to cause an unsafe reflection of sunlight into the drivers eyes or that were equipped with windshields that could not be clearly seen through under normal and routine driving conditions.. PCNA is without knowledge or information sufficient to form a belief as to the truth of the allegations regarding the knowledge of Plaintiffs or any other persons. Therefore, these allegations are PCNA further denies any allegation that the vehicles at issue had a Dashboard Glare problem.. PCNA denies that the vehicles at issue are defective and unreasonably dangerous. To the extent the allegations in this paragraph rely on unverified hearsay comments recorded on the National Highway Traffic Safety Administration ( NHTSA ) website, PCNA is without knowledge or information sufficient to form a belief as to the truth or accuracy of those comments. Therefore, any such allegations are PCNA specifically denies that such comments describe a defective condition in the vehicles at issue or are sufficient to place PCNA on notice of a supposed defect, and it avers that NHTSA has confirmed the absence of any identified defect because it has not initiated a safety recall or found a basis on which to conduct a Preliminary Evaluation of such reports as a safety issue.. Denied. Specifically, PCNA denies the existence of the defect at issue, and it further denies it knew of, concealed, or failed to disclose the alleged defect. --

4 Case :-cv-0-gw-ss Document Filed /0/ Page of Page ID #: 0 0. Denied. Specifically, PCNA denies that the vehicles at issue are defective, and it further denies that it knew of or failed to disclose the alleged defect to Plaintiffs or anyone else. PCNA also herein incorporates its response to Paragraph of the FAC as it relates to Exhibit. 0. This paragraph contains conclusions of law to which no response is required by the Federal Rules of Civil Procedure. Therefore, such allegations are PCNA further denies that the vehicles at issue suffer from a Windshield glare problem. To the extent that the allegations in this paragraph rely on a foreign language sales brochure from a company other than PCNA, PCNA lacks knowledge or information sufficient to form a belief as to the truth of the allegations therein, and they are PCNA admits that it neither reviews German language documents as part of the ordinary course of its business nor puts German-language information on North American sales brochures.. PCNA does not sell or lease motor vehicles directly to consumers; therefore, it lacks knowledge or information sufficient to form a belief about the contents of the referenced purchase and lease agreements, and those allegations are Moreover, PCNA is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph of the FAC, concerning Plaintiffs purchase decisions. Therefore, they are PCNA further denies that the vehicles at issue suffer from a Windshield Glare problem or that the reflective qualities of sunlight and glass are conditions concealed from Plaintiffs or to which they did not have or could not have reasonably gained access. Indeed, the condition complained of throughout the FAC is open and obvious to anyone who has ever operated an automobile.. PCNA denies that the vehicles at issue are defective or that a Windshield Glare problem exists, and it therefore denies engaging or having any duty to engage in the actions described in this paragraph based on its notice and knowledge of a supposed defect or problem. --

5 Case :-cv-0-gw-ss Document Filed /0/ Page of Page ID #: 0 0. Denied.. Denied.. Denied.. Denied.. PCNA is without knowledge or information sufficient to form a belief. PCNA is without knowledge or information sufficient to form a belief. PCNA is without knowledge or information sufficient to form a belief 0. PCNA is without knowledge or information sufficient to form a belief. PCNA is without knowledge or information sufficient to form a belief. PCNA is without knowledge or information sufficient to form a belief PCNA specifically denies the existence of a Windshield Glare problem and that it had a duty to disclose an open, obvious, and naturally occurring phenomenon (i.e., the reflective properties of light and glass) to Plaintiff Jones or anyone else.. PCNA is without knowledge or information sufficient to form a belief --

6 Case :-cv-0-gw-ss Document Filed /0/ Page of Page ID #: 0 0. PCNA is without knowledge or information sufficient to form a belief. PCNA is without knowledge or information sufficient to form a belief. PCNA is without knowledge or information sufficient to form a belief. PCNA is without knowledge or information sufficient to form a belief. PCNA is without knowledge or information sufficient to form a belief. PCNA is without knowledge or information sufficient to form a belief deemed PCNA specifically denies the existence of a Windshield Glare problem and that it had a duty to disclose an open, obvious, and naturally occurring phenomenon (i.e., the reflective properties of light and glass) to Plaintiff Rubinfeld or anyone else. 0. PCNA is without knowledge or information sufficient to form a belief. PCNA admits that it is a Delaware corporation with corporate headquarters located in Atlanta, Georgia, and it admits that it is registered to do business in the State of California. PCNA also admits that it markets, distributes (to independent and authorized dealers), and warrants Porsche-brand vehicles in the --

7 Case :-cv-0-gw-ss Document Filed /0/ Page of Page ID #: 0 0 United States. PCNA denies that it designs, manufactures, services, or repairs passenger vehicles. PCNA also denies that it sells or leases passenger vehicles to consumers.. PCNA admits that it markets Porsche-brand vehicles throughout the United States. PCNA also admits that it sells and distributes vehicles and component parts to a network of independent, authorized dealers throughout the United States. PCNA denies the remaining allegations in this paragraph.. The allegations in this paragraph are conclusions of law to which no response is required by the Federal Rules of Civil Procedure.. The allegations in this paragraph are conclusions of law regarding venue to which no response is required by the Federal Rules of Civil Procedure.. The allegations in this paragraph are conclusions of law to which no response is required by the Federal Rules of Civil Procedure. To the extent they are deemed factual, PCNA is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph. Therefore, they are PCNA further denies any assertion in Exhibit to the FAC that it designs, manufactures, constructs, or assembles Porsche-brand vehicles.. PCNA admits that it has sold or distributed vehicles with various colored dashboards to independent authorized dealers in California. PCNA denies that it sells or leases vehicles directly to consumers, or that it designs or manufactures motor vehicles.. Denied.. Denied.. Denied. 0. Denied.. PCNA is without knowledge or information sufficient to form a belief Plaintiffs and all other persons are obligated under the law to conduct a --

8 Case :-cv-0-gw-ss Document Filed /0/ Page of Page ID #:0 0 0 reasonable inspection of a product prior to purchase to make themselves aware of the properties of the product they are purchasing, especially an expensive product which affords the purchaser numerous options. PCNA thus denies that it had a duty to make disclosures regarding the color of a dashboard because it is open and obvious, and its reflectivity is a naturally occurring phenomenon. PCNA further avers that it provided prospective buyers of Porsche vehicles with information regarding all of the available options, including color, that these were available on websites and in dealer showrooms, and that the vehicles themselves were available at the authorized dealerships as well as available for viewing from many other sources.. To the extent that the allegations in this paragraph rely on a foreign language sales brochure from a company other than PCNA, PCNA lacks knowledge or information sufficient to form a belief as to the truth of the allegations therein and they are PCNA admits that it neither reviews German language documents as part of the ordinary course of its business nor puts German-language information on North American sales brochures.. Denied.. Denied.. Denied.. The allegations in this paragraph are conclusions of law to which no response is required by the Federal Rules of Civil Procedure. To the extent they are deemed factual and directed to PCNA, they are PCNA further denies that California Vehicle Code section 0(a)() applies either to PCNA or the alleged glare problem described in the FAC.. The allegations in this paragraph are conclusions of law to which no response is required by the Federal Rules of Civil Procedure. To the extent they are deemed factual and directed to PCNA, they are. PCNA denies that the vehicles at issue are defective and unreasonably --

9 Case :-cv-0-gw-ss Document Filed /0/ Page of Page ID #: 0 0 dangerous. To the extent the allegations in this paragraph rely on unverified hearsay comments recorded on the NHTSA website, PCNA is without knowledge or information sufficient to form a belief as to the truth or accuracy of those comments. Therefore, any such allegations are PCNA specifically denies that such comments describe a defective condition in the vehicles at issue or are sufficient to place PCNA on notice of a supposed defect, and avers that NHTSA has confirmed the absence of any identified defect since it has not initiated a safety recall nor has it even found a basis on which to conduct a Preliminary Evaluation of such reports as a safety issue.. PCNA denies that the subject vehicles, if operated properly and in conformity with all applicable laws, pose an unreasonable safety risk or unlawful safety hazard to drivers, passengers or bystanders. PCNA further denies that the vehicles at issue were defectively manufactured or designed in the manner alleged by Plaintiffs. PCNA need not respond to the remaining allegations in this paragraph because they constitute Plaintiffs (or their attorneys ) opinions on various issues related to motor vehicle safety and do not attempt to state claims against PCNA. 0. Denied.. PCNA denies that the vehicles at issue are defective or suffer from a Windshield Glare problem, or that it ever had notice of the alleged defect. PCNA further denies that the materials and information described in this paragraph placed PCNA on notice of a defect and imposed a duty to disclose to Plaintiffs, especially because the reflective properties of light and glass are open, obvious, and generally known.. To the extent that the allegations in this paragraph rely on a foreign language sales brochure from a company other than PCNA, PCNA lacks knowledge or information sufficient to form a belief as to the truth of the allegations therein and they are PCNA admits that it neither reviews --

10 Case :-cv-0-gw-ss Document Filed /0/ Page 0 of Page ID #: 0 0 German-language documents as part of the ordinary course of its business nor puts German-language information on North American sales brochures. PCNA denies the remaining allegations in this paragraph, and specifically denies that the German-language sales brochure placed PCNA or anyone else on notice of a defect or problem with the vehicles at issue.. Denied.. The allegations in this paragraph are conclusions of law to which no response is required by the Federal Rules of Civil Procedure. To the extent they are deemed factual and directed to PCNA, PCNA is without knowledge of what information would have impacted the purchase decisions of Plaintiffs or others. They are therefore This is a function of consumer demand and of each individual purchaser s personal preference.. PCNA denies that the vehicles at issue pose a safety hazard or are defective in the manner alleged by Plaintiffs. PCNA is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations contained in this paragraph. Therefore, they are. Denied.. PCNA denies that the vehicles at issue are defective in the manner described by Plaintiffs. PCNA does not purport to speak on behalf of any authorized dealer, and therefore, is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations contained in this paragraph. Therefore, they are. PCNA denies that the vehicles at issue are defective in the manner described by Plaintiffs, and it denies that it owes a duty to disclose a naturally occurring, open, and obvious condition to Plaintiffs or anyone else.. Denied. 0. Denied.. Denied. -0-

11 Case :-cv-0-gw-ss Document Filed /0/ Page of Page ID #: 0 0. Denied. PCNA specifically denies that the vehicles at issue are defective in the manner alleged by Plaintiffs and that it concealed or failed to alert owners and lessees of the alleged defect.. The allegations in this paragraph are conclusions of law to which no response is required by the Federal Rules of Civil Procedure. To the extent these allegations are deemed factual and directed to PCNA, they are. The allegations in this paragraph are conclusions of law to which no response is required by the Federal Rules of Civil Procedure. Moreover, the allegations in this paragraph do not assert claims against PCNA. To the extent these allegations are deemed factual and directed to PCNA, they are PCNA specifically denies that any aspect of the above-captioned litigation is suitable for class treatment.. The allegations in this paragraph are conclusions of law to which no response is required by the Federal Rules of Civil Procedure. Moreover, the allegations in this paragraph do not assert claims against PCNA. To the extent these allegations are deemed factual and directed to PCNA, they are PCNA specifically denies that any aspect of the above-captioned litigation is suitable for class treatment.. The allegations in this paragraph are conclusions of law to which no response is required by the Federal Rules of Civil Procedure. Moreover, the allegations in this paragraph do not assert claims against PCNA. To the extent these allegations are deemed factual and directed to PCNA, they are PCNA specifically denies that any aspect of the above-captioned litigation is suitable for class treatment.. The allegations in this paragraph are conclusions of law to which no response is required by the Federal Rules of Civil Procedure. Moreover, the allegations in this paragraph do not assert claims against PCNA. To the extent these allegations are deemed factual and directed to PCNA, they are PCNA --

12 Case :-cv-0-gw-ss Document Filed /0/ Page of Page ID #: 0 0 specifically denies that any aspect of the above-captioned litigation is suitable for class treatment.. The allegations in this paragraph are conclusions of law to which no response is required by the Federal Rules of Civil Procedure. Moreover, the allegations in this paragraph do not assert claims against PCNA. To the extent these allegations are deemed factual and directed to PCNA, they are PCNA specifically denies that any aspect of the above-captioned litigation is suitable for class treatment.. The allegations in this paragraph are conclusions of law to which no response is required by the Federal Rules of Civil Procedure. To the extent these allegations are deemed factual and directed to PCNA, they are PCNA specifically denies that it engaged in misconduct and caused damage to Plaintiffs or any other person with respect to the claims set forth in the FAC. PCNA also specifically denies that any aspect of the above-captioned litigation is suitable for class treatment. 0. The allegations in this paragraph are conclusions of law to which no response is required by the Federal Rules of Civil Procedure. Moreover, the allegations in this paragraph do not assert claims against PCNA. To the extent these allegations are deemed factual and directed to PCNA, they are PCNA specifically denies that any aspect of the above-captioned litigation is suitable for class treatment.. The allegations in this paragraph are conclusions of law to which no response is required by the Federal Rules of Civil Procedure. Moreover, the allegations in this paragraph do not assert claims against PCNA. To the extent these allegations are deemed factual and directed to PCNA, they are PCNA specifically denies that any aspect of the above-captioned litigation is suitable for class treatment.. The allegations in this paragraph are conclusions of law to which no --

13 Case :-cv-0-gw-ss Document Filed /0/ Page of Page ID #: 0 response is required by the Federal Rules of Civil Procedure. To the extent these allegations are deemed factual and directed to PCNA, they are PCNA specifically denies that it engaged in misconduct, wrongful conduct, or unlawful conduct, or that it caused damage to Plaintiffs or any other person with respect to the claims set forth in the FAC. PCNA also specifically denies that any aspect of the above-captioned litigation is suitable for class treatment.. The allegations in this paragraph are conclusions of law to which no response is required by the Federal Rules of Civil Procedure. Moreover, the allegations in this paragraph do not assert claims against PCNA. To the extent these allegations are deemed factual and directed to PCNA, they are PCNA specifically denies that any aspect of the above-captioned litigation is suitable for class treatment.. The allegations in this paragraph are conclusions of law to which no response is required by the Federal Rules of Civil Procedure. Moreover, the allegations in this paragraph do not assert claims against PCNA. To the extent these allegations are deemed factual and directed to PCNA, they are PCNA specifically denies that any aspect of the above-captioned litigation is suitable for class treatment. ANSWER TO THE FIRST CAUSE OF ACTION 0. Each of the foregoing paragraphs of this Answer are incorporated as if fully re-written here.. The allegations in this paragraph are legal conclusions to which no response is required under the Federal Rules of Civil Procedure. To the extent these allegations are deemed factual and against PCNA, they are PCNA specifically denies that any aspect of the above-captioned litigation is suitable for The paragraph numbering set forth here mirrors the numbering set forth in the FAC. --

14 Case :-cv-0-gw-ss Document Filed /0/ Page of Page ID #: 0 0 class treatment.. The allegations in this paragraph are conclusions of law to which no response is required by the Federal Rules of Civil Procedure.. The allegations in this paragraph are conclusions of law to which no response is required by the Federal Rules of Civil Procedure. To the extent these allegations are deemed factual, PCNA is without knowledge or information sufficient to form a belief as to their truth. Therefore, they are. Denied.. Denied. 0. Denied.. Denied.. Denied.. Denied.. Denied.. PCNA denies that it concealed or failed to disclose facts to Plaintiffs or anyone else about open and obvious characteristics of the vehicles at issue. PCNA is without knowledge or information sufficient to form a belief as to the truth of the allegations concerning Plaintiffs purchase decisions, which are a function of consumer demand and of each individual purchaser s personal preference. Therefore, these allegations are. PCNA need not respond to the allegations in this paragraph because they do not assert claims against it. Moreover, the allegations in this paragraph are legal conclusions to which no response is required under the Federal Rules of Civil Procedure. To the extent these allegations are deemed factual and against PCNA, they are. Denied.. Denied.. Denied. --

15 Case :-cv-0-gw-ss Document Filed /0/ Page of Page ID #: Denied. ANSWER TO THE SECOND CAUSE OF ACTION. Each of the foregoing paragraphs of this Answer are incorporated as if fully re-written here.. The allegations in this paragraph are legal conclusions to which no response is required under the Federal Rules of Civil Procedure. To the extent these allegations are deemed factual and against PCNA, they are. Denied.. The allegations in this paragraph are legal conclusions to which no response is required under the Federal Rules of Civil Procedure.. PCNA need not respond to the allegations in this paragraph because they do not assert claims against it. Moreover, the allegations in this paragraph are legal conclusions to which no response is required under the Federal Rules of Civil Procedure. To the extent these allegations are deemed factual and against PCNA, they are. Denied.. Denied.. Denied.. Denied. 00. PCNA denies that it concealed or failed to disclose facts to Plaintiffs or anyone else about open and obvious characteristics of the vehicles at issue. PCNA specifically denies that the vehicles at issue pose a significant safety hazard. PCNA is without knowledge or information sufficient to form a belief as to the truth of the allegations concerning Plaintiffs purchase decisions, which are a function of consumer demand and of each individual purchaser s personal preference. Therefore, these allegations are 0. Denied. 0. Denied. --

16 Case :-cv-0-gw-ss Document Filed /0/ Page of Page ID #: Denied. 0. Denied. 0. Denied. 0. Denied. 0. Denied. ANSWER TO THE THIRD CAUSE OF ACTION 0. Each of the foregoing paragraphs of this Answer are incorporated as if fully re-written here. 0. PCNA denies that any aspect of the above-captioned litigation is suitable for class treatment. 0. PCNA admits only that it provided a limited warranty for the vehicles at issue and distributed/sold them to independent authorized dealers. PCNA denies the remaining allegations in this paragraph.. The allegations in this paragraph are legal conclusions to which no response is required under the Federal Rules of Civil Procedure. To the extent the allegations in this paragraph are deemed factual and directed to PCNA, PCNA admits only that it provided a limited warranty for the vehicles at issue and denies any allegation by Plaintiffs that is inconsistent with or beyond the limited warranty coverage provided. PCNA specifically denies that the vehicles at issue are not fit for the ordinary or particular purpose of providing reasonably reliable and safe transportation.. The allegations in this paragraph are legal conclusions to which no response is required under the Federal Rules of Civil Procedure. To the extent the allegations in this paragraph are deemed factual and directed to PCNA, PCNA admits only that it provided a limited warranty for the vehicles at issue and denies any allegation by Plaintiffs that is inconsistent with or beyond the limited warranty coverage provided.. Denied. --

17 Case :-cv-0-gw-ss Document Filed /0/ Page of Page ID #: 0 0. Denied. ANSWER TO THE FOURTH CAUSE OF ACTION. Each of the foregoing paragraphs of this Answer are incorporated as if fully re-written here.. PCNA denies that any aspect of the above-captioned litigation is suitable for class treatment.. The allegations in this paragraph are legal conclusions to which no response is required under the Federal Rules of Civil Procedure.. The allegations in this paragraph are legal conclusions to which no response is required under the Federal Rules of Civil Procedure.. The allegations in this paragraph are legal conclusions to which no response is required under the Federal Rules of Civil Procedure. To the extent these allegations are deemed factual, PCNA denies any averment by Plaintiffs that is inconsistent with or beyond the limited warranty coverage provided. 0. Denied.. Denied.. The allegations in this paragraph are legal conclusions to which no response is required under the Federal Rules of Civil Procedure. To the extent these allegations are deemed factual and direct to PCNA, PCNA denies that it caused any damages to Plaintiffs.. Denied.. Denied.. Denied.. Denied. ANSWER TO THE FIFTH CAUSE OF ACTION. Each of the foregoing paragraphs of this Answer are incorporated as if fully re-written here.. PCNA denies that any aspect of the above-captioned litigation is --

18 Case :-cv-0-gw-ss Document Filed /0/ Page of Page ID #:0 0 0 suitable for class treatment.. Denied. 0. Denied.. Denied. ANSWER TO THE RELIEF REQUESTED. PCNA need not respond to the allegations in this paragraph because they contain conclusions of law and do not assert claims against it. To the extent the allegations in this paragraph are deemed factual and directed to PCNA, PCNA denies that plaintiffs are entitled to any of the requested forms of relief. DEMAND FOR JURY TRIAL PCNA demands a jury trial on all issues in this action that may properly be presented to a jury. AFFIRMATIVE DEFENSES In addition to its answers to paragraphs through, PCNA sets forth the following affirmative defenses to the claims raised in the FAC:. Plaintiffs claims are barred because the subject vehicles contain no actionable defect.. Plaintiffs claims are barred, in whole or in part, because of PCNA s status as a non-manufacturing distributor of the subject vehicles.. Plaintiffs claims are barred, in whole or in part, based on expiration of applicable statutes of limitations.. Plaintiffs claims are barred in whole or in part, by the provisions of California Civil Procedure Code because they arose in another state or foreign country and by the laws thereof an action cannot be maintained against this answering Defendant.. Plaintiffs claims are barred, in whole or in part, based on expiration of applicable statutes of repose.. Plaintiffs claims are barred, in whole or in part, to the extent that they --

19 Case :-cv-0-gw-ss Document Filed /0/ Page of Page ID #: 0 0 purchased their vehicles used and/or as is from their respective sellers.. Plaintiffs claims are barred, in whole or in part, because all applicable implied warranties have been disclaimed in writing, using conspicuous language, or appropriately limited in accordance with applicable law.. Plaintiffs claims are barred, in whole or in part, because they lack standing to assert the causes of action set forth in the FAC.. Plaintiffs claims are barred, in whole or in part, because the alleged defect, if established in a given vehicle, is the result of a modification to the vehicle, abuse or neglect of the vehicle, failure to properly maintain the vehicle, and/or damage due to products applied to the dashboard and/or windshield after the vehicle was purchased or leased by the consumer. 0. Plaintiffs claims are barred, in whole or in part, by the equitable doctrines of waiver, ratification, estoppel, laches, and/or unclean hands.. Plaintiffs claims are barred, in whole or in part, by PCNA s satisfaction of all warranty obligations.. Plaintiffs claims are barred or released, in whole or in part, based on an agreement between Plaintiffs and the immediate seller or lessor of the subject vehicles.. Plaintiffs claims are barred, in whole or in part, by the economic loss doctrine.. Plaintiffs claims are barred, in whole or in part, by their inability to prove actual damages.. Any damages allegedly sustained by Plaintiffs were caused or contributed to by persons, firms, corporations, municipalities, or entities other than PCNA, and their actions bars recovery or reduces the percentage of fault, if any, of PCNA.. Any damages allegedly sustained by Plaintiffs were directly and proximately caused by the superseding, intervening acts and/or omissions of third --

20 Case :-cv-0-gw-ss Document Filed /0/ Page 0 of Page ID #: 0 0 parties over whom PCNA had no control, and for whom PCNA is neither responsible nor liable.. Any damages allegedly sustained by Plaintiffs were legally and proximately caused or contributed to by the negligence, comparative fault, assumption of risk, consent, negligence per se, or other culpable conduct of Plaintiffs.. Plaintiffs claims are barred, in whole or in part, because the subject vehicles complied with industry standards, the state of the art, and/or any applicable government codes, standards, or regulations.. Plaintiffs claims fail, in whole or in part, because PCNA s conduct is subject to and complies with the rules and regulations of the Federal Trade Commission and/or other departments, divisions, commissions, or agencies of the United States government, including NHTSA. 0. Plaintiffs claims are barred, in whole or in part, because they are preempted by federal law.. To the extent Plaintiffs/putative class members seek injunctive relief for a recall and/or repair of the subject vehicles, such relief is preempted by the Federal Motor Vehicle Safety Act and authority delegated to NHTSA.. Plaintiffs claims for damages are barred by the terms of applicable express warranties.. Plaintiffs claims are barred because the alleged defects in the subject vehicles do not substantially impair their use, value, and/or safety.. Plaintiffs claims are barred to the extent that their vehicles were not bought or used primarily for personal, family, or household purposes.. Plaintiffs claims fail because PCNA possessed a business justification for the conduct alleged in the FAC.. Plaintiffs claims fail because they had access to information regarding the alleged defect from sources other than PCNA. -0-

21 Case :-cv-0-gw-ss Document Filed /0/ Page of Page ID #: 0 0. Plaintiffs claims are barred because they did not exercise reasonable care to discover information allegedly concealed or withheld from them and/or they did not rely on any alleged representation and/or omission by PCNA.. The Plaintiffs alleged damages are barred, in whole or in part, because Plaintiffs have failed to mitigate.. Plaintiffs prayer for exemplary or punitive damages pursuant to California Civil Code Section violates PCNA s right to procedural due process under the Fourteenth Amendment of the United States Constitution, and Article I, Section of the Constitution of the State of California, and therefore fails to state a cause of action upon which either punitive or exemplary damages can be awarded. 0. Plaintiffs prayer for exemplary or punitive damages pursuant to California Civil Code Section violates the Eighth Amendment of the United States Constitution and similar state constitutional provisions as they seek to impose excessive fines that are penal in nature and are based on unconstitutionally vague standards.. Plaintiffs claims are barred, in whole or in part, by the sophisticated user and/or sophisticated purchaser defense.. To the extent that the laws of another state apply to the action of an individual plaintiff or class member, PCNA asserts any and all defenses available under the laws of that state, including any defenses arising under that state s constitution or similar charter.. Plaintiffs claims are barred, in whole or in part, because the reflective properties of light and glass do not constitute an actionable product defect. If a circumstance arises where the windscreen develops a level of opacity, momentarily denying a reasonable operator the ability to safely see through reflections, such a condition is the result of overwhelming and unpreventable forces of nature i.e., an Act of God. They are not the fault or responsibility of the vehicle distributor. --

22 Case :-cv-0-gw-ss Document Filed /0/ Page of Page ID #: 0 0. Plaintiffs claims are barred, in whole or in part, because the product characteristics at issue constitute open, obvious, and naturally occurring phenomena (i.e., the reflective properties of light and glass). They do not give rise to causes of action under the Consumer Legal Remedies Act, Unfair Competition Law, Song- Beverly Consumer Warranty Act, and Magnuson-Moss Warranty Act.. Plaintiffs claims are barred, in whole or in part, because PCNA did not enter into a transaction for the sale of one or more passenger vehicles to either Plaintiffs or other consumers.. Plaintiffs claims are barred, in whole or in part, by their failure to provide PCNA with adequate notice of their complaints and/or an opportunity to cure their complaints before filing suit, including under California Civil Code Section.. Plaintiffs claims are barred, in whole or in part, because PCNA did not have knowledge of the alleged defect.. Plaintiffs claim for legal damages under the Consumer Legal Remedies Act is barred by their failure to provide PCNA the opportunity that it requested to inspect their vehicles, to determine the appropriateness of repairs or replacements.. Plaintiffs Unfair Competition Law claim is barred because they have failed to plead actionable predicate offenses, as pleaded, under the Consumers Legal Remedies Act and Song-Beverly Consumer Warranty Act. 0. Plaintiffs Unfair Competition Law claim is barred because they have failed to plead the predicate actionable, fraudulent conduct.. Plaintiffs Unfair Competition Law claim is barred because they have not pleaded the predicate unfair conduct.. Plaintiffs prayer for injunctive relief under the Unfair Competition Law is barred because they have failed to plead an intent to purchase Porsche products in the future. --

23 Case :-cv-0-gw-ss Document Filed /0/ Page of Page ID #:. Plaintiffs Magnuson-Moss Warranty Act claim is barred because they have failed to plead an actionable state-law warranty claim.. Plaintiffs unjust enrichment claim is barred because it is not recognized as a valid cause of action under California law.. Plaintiffs/putative class members cannot satisfy elements necessary for class certification. 0 0 Dated: November, 0 Respectfully submitted, LEE, HONG, DEGERMAN, KANG & WAIMEY By: /s/ Stephen T. Waimey Stephen T. Waimey Yvonne Dalton Anika S. Padhiar and Admitted Pro Hac Vice William F. Kiniry, Jr. Matthew A. Goldberg DLA PIPER LLP (US) Attorneys for Defendant, Porsche Cars North America, Inc. --