City of Santa Clara'S Answer To Nevada Deanza Family Limited Partnership'S First Amended Cross-Complaint

Response

Cal. Super. - 6th Dist.July 10, 2017

© 0 9 D Y W n B s W N = N o N o N o N o D o N o [ N S N o N Y J p - - J k - - - - _ - p t o o ~ J A N w n 4 W o D o - < \ O o C ~ J N N W n ES N W w N o - o o Kathryn C. Klaus, Esq. - SBN 205923 Mahmoud A. Fadli, Esq. - SBN 280607 CODDINGTON, HICKS & DANFORTH A Professional Corporation, Lawyers 555 Twin Dolphin Drive, Suite 300 Redwood City, CA 94065-2133 Tel: 650.592.5400 Fax: 650.592.5027 ATTORNEYS FOR ross-Defendant CITY OF SANTA CLARA IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA Case No. 17CV312781 LARRY RINEK, CITY OF SANTA CLARA’S ANSWER TO Plaintiff, NEVADA DEANZA FAMILY LIMITED PARTNERSHIP'S FIRST AMENDED CROSS- Vs. COMPLAINT NEVADA DEANA FAMILY LIMITED Action Filed: July 10, 2017 PARTNERSHIP; BRIGHT HORIZONS Trial Date: None Set FAMILY SOLUTIONS, LLC; CITY OF SANTA CLARA, and DOES 1 through 50, inclusive, Defendants. NEVADA DEANA FAMILY LIMITED PARTNERSHIP, Cross-Complainant, vs. BRIGHT HORIZONS FAMILY SOLUTIONS, LLC; CITY OF SANTA CLARA, and DOES 1 through 10, inclusive, Cross-Defendants. COMES NOW the City of Santa Clara (“Defendant”), and in response to the unverified cross-complaint of cross-complainant Nevada Deanza Family Limited Partnership on file herein, herewith denies each and every, all and singular, the allegations therein contained, and in 1 City of Santa Clara’s Answer to Nevada Deanza Family Limited Partnership’s First Amended Cross-ComplaintCase No: 17CV312781 468444 W w © © 9 O N w n B b this connection, Defendant denies that cross-complainant has been injured or damaged in any of the sums mentioned in the cross-complaint, or in any sum whatsoever or at all, as a result of any act or omission of Defendant. AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE CROSS- COMPLAINT ON FILE HEREIN, Defendantalleges that cross-complainant’s cross- complaint, and each cause of action thereof, fails to state facts sufficient to constitute a cause of action against Defendant. AS A SECOND, SEPARATE AND AFFIRMATIVE DEFENSE TO THE CROSS- COMPLAINT ON FILE HEREIN, Defendantalleges that cross-complainant wasitself careless and negligent in and about the matters alleged in the cross-complaint; that the carelessness and negligence on cross-complainant’s own part proximately contributed to the happening of the incident and to the injuries, loss and damage complained of,if any there were; that should cross-complainant recover damages, Defendant is entitled to have the amount thereof abated, reduced or eliminated to the extent that cross-complainant’s negligence caused or contributed to its injuries, if any. AS A THIRD, SEPARATE AND AFFIRMATIVE DEFENSE TO THE CROSS- COMPLAINT ON FILE HEREIN, Defendant alleges that cross-complainant acted with full knowledge of all the facts and circumstances surrounding its injury and assumed the risk of the matters causing its injury, and that the matters of which cross-complainant assumed the risk proximately contributed to the happening of the incident at bar and proximately caused its injuries,if any. AS A FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE CROSS- COMPLAINT ON FILE HEREIN, Defendant alleges that named and/or unnamed third parties were careless and negligent in and about the matters alleged in the cross-complaint; that the carelessness and negligence of such named and/or unnamed third patties proximately contributed to the happening of the incident and to the injuries, loss and damage complained of by cross-complainant, if any there were; that should cross-complainant recover damages, Defendantis entitled to have the amount thereof abated, reduced or eliminated to the extent 2 City of Santa Clara’s Answer to Nevada Deanza Family Limited Partnership’s First Amended Cross-ComplaintCase No: 17CV312781 468444 that the named and/or unnamed third patties’ negligence caused or contributed to cross- complainant’s injuries, if any. AS A FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE CROSS- COMPLAINT ON FILE HEREIN, Defendant alleges that cross-complainant failed subsequent to the occurrence described in the cross-complaint properly to mitigate its damages and therebyis precluded from recovering those damages which could have reasonably been avoided by the exercise of due cate on cross-complainant’s patt. AS A SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE CROSS- COMPLAINT ON FILE HEREIN, Defendant alleges that cross-complainant’s cross- complaint, and each cause of action thereof, is barred by the applicable period of limitations including, but not limited to, limitations codified in Code of Civil Procedure Section 335.1. AS A SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE CROSS- COMPLAINT ON FILE HEREIN, Defendant alleges that cross-complainant’s cross- complaint is barred by the doctrine of unclean hands. AS AN EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE CROSS- COMPLAINT ON FILE HEREIN, Defendant alleges that cross-complainant’s cross- complaint is barred by the doctrine oflaches. AS A NINTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE CROSS- COMPLAINT ON FILE HEREIN, Defendant alleges that cross-complainant’s cross- complaint is barred by the doctrines of waiver and estoppel. AS A TENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE CROSS- COMPLAINT ON FILE HEREIN, Defendant alleges that it has incurred damages by reason of cross-complainant’s conduct and that it has the right of offset of any amount of monies owed to cross-complainant, if any, by way of damages. AS AN ELEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE CROSS-COMPLAINT ON FILE HEREIN, Defendantallegesthat it is informed and believes, and on such information and belief, alleges that cross-complainant is engaged in 3 City of Santa Clara’s Answer to Nevada Deanza Family Limited Partnership’s First Amended Cross-ComplaintCase No: 17CV312781 468444 a A W n A W ~ conduct that constitutes waiver ofits rights. By reason of such waiver, Defendant is excused from the performance of the obligation or obligations, if any, of the alleged contract. AS A TWELFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE CROSS- COMPLAINT ON FILE HEREIN, Defendant alleges that on information and belief, and on such information and belief, alleges that by reason of cross-complainant’s conduct which constitutes a breach of contract, tortious conduct, waiver, unclean hands, and laches, cross- complainant is estopped to assert any right of relief. AS A THIRTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE CROSS-COMPLAINT ON FILE HEREIN, Defendant alleges that on information and belief, and on such information and belief, alleges that cross-complainant breached its his contract, if any, with Defendant and by reason of such breach of contract, Defendant has been excused of any duty it may have had to perform any obligation set forth in any agreement with cross- complainant, if there be such an agreement. AS A FOURTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE CROSS-COMPLAINT ON FILE HEREIN, Defendant alleges that cross-complainant’s actions constituted a full release by cross-complainant of any and all claims which he may have had against Defendant. AS A FIFTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE CROSS-COMPLAINT ON FILE HEREIN, Defendant alleges that that cross-complainant herein, and each and every cause of action contained in the unverified cross-complaint, is barred because cross-complainant has engaged in acts and courses of conduct which renderit in pari delicto. AS A SIXTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE 10 THE CROSS-COMPLAINT ON FILE HEREIN, Defendant alleges that cross-complainant herein, and each and every cause of action contained in the unverified cross-complaint, is barred by reason ofacts, omissions, representations, and courses of conduct by cross-complainant, by which Defendant was led to rely on to its detriment, thereby barring each and every cause of action under the Doctrine of Equitable Estoppel. 4 City of Santa Clara’s Answer to Nevada Deanza Family Limited Partnership’s First Amended Cross-Complaint Case No: 17CV312781 468444 AS A SEVENTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE CROSS-COMPLAINT ON FILE HEREIN, Defendant alleges thatits full performance of any agreement or act required ofit,if there be such agreements or acts, fulfills all its duties and obligations to cross-complainant, if any there be, contractual, fiduciary, or other, and no other duty or obligation to cross-complainant remains on behalf of Defendant. AS AN EIGHTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE CROSS-COMPLAINT ON FILE HERE, Defendant alleges cross-complainant, by its acts, conduct and/or omissions, has ratified the acts, conduct and omissions, if any, of Defendant; therefore, cross-complainant is barred from seeking any relief from Defendant. AS ANINETEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, Defendantalleges that cross-complainant did not reasonably rely upon any alleged misrepresentations or nondisclosures of material facts made by Defendant; therefore, cross-complainant is barred from seeking any affirmative relief against Defendant. AS A TWENTIETH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, Defendant alleges allege that the unverified cross- complaint, and each and every cause of action therein,is barred by the Doctrine of Integration and the Parole Evidence Rule. AS A TWENTY-FIRST, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, Defendant alleges that any and all acts or omissions of defendant, its agents or employees, which allegedly caused the injuries or damages claimed in the Complaint, were the result of the exercise of discretion vested in them pursuant to Government Code Sections 815.2 and 820.2; defendant, therefore,is not liable for the alleged injuries and damages complained of. AS A TWENTY-SECOND, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, Defendant alleges that any and all acts or omissions of defendant,its agents ot employees, relative to the condition of the property at the time and place alleged in the Complaint, were reasonable. Pursuant to Government Code Sections 5 City of Santa Clara’s Answer to Nevada Deanza Family Limited Partnership’s First Amended Cross-ComplaintCase No: 17CV312781 468444 O O 0 0 9 O N w n B s W N a e e a e w m B R A W N = O 1 1 835.4(b), defendant, therefore, is notliable for any of the alleged injuries or damages complained of. AS TWENTY-THIRD, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, Defendantalleges that any and all acts or omissions of defendant, its agents or employees, which allegedly created a dangerous condition ofthe property at the time and place of the incident alleged in the Complaint, were in accordance with a plan and design for the construction of an improvement of public property, which plan and design had been approved in advance of construction and improvement by the proper legislative body and public employees exercising discretionary authority to give such approval; this plan and design were prepared in conformity with standards previously so approved; and these approvals were reasonable. Pursuant to Government Code Section 830.6, defendant, therefore, is not liable for any ofthe alleged injuries or damages complained of. AS ATWENTY-FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, defendant alleges that the injuries and damages alleged by plaintiff were caused by acts or omissions of a third party or parties, and not by acts or omissions of defendant,its agents or employees. Pursuant to Government Code Section 820.8, defendant, therefore, is not liable for any ofthe alleged injuries or damages complained of. AS A TWENTY-FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, Defendant alleges, without admitting liability or that plaintiff has suffered or will suffer any loss, damage or injury, in the alternative, that anyloss, damage or injury which plaintiff has suffered or will suffer, as alleged in the Complaint or otherwise,is the direct and proximate result of the unforeseen/unforeseeable negligent, grossly negligent or criminal acts or omissions of an intervening third party or parties, or other acts or omissions for which such party or parties may be strictly liable, and that such acts or omissions completely bar any recovery against defendant. Pursuant to California Government Code Section 820.8, defendantis, therefore, not liable for any such alleged injuries or damages complained of. 6 City of Santa Clara’s Answer to Nevada Deanza Family Limited Partnership’s First Amended Cross-Complaint Case No: 17CV312781 468444 O O 0 0 3 O N w n h s W N - p d m d p t e m m d e d pe d p e d 0 N N N N n n R W = O 19 AS A TWENTY-SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, Defendant alleges that the condition of property alleged in the Complaint did not constitute a substantial risk of injuries, but rather a minor,trivial or insignificant risk which did not create a dangerous condition of property. Pursuant to Government Code Section 830.2, defendant, therefore, is not liable for any ofthe alleged injuries or damages complained of. AS A TWENTY-SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, Defendant alleges that the Complaint fails to set forth any statutory basis for the causes of actions purportedly contained therein. The condition of the property as alleged in the Complaint did not constitute a substantial risk of injuries, but rather a minor, trivial, or insignificant risk which did not create a dangerous condition ofthe property and, therefore, those causes of action are barred. In particular, plaintiff failed to identify and allege a dangerous condition as required by Government Code Sections 830.2, 835, 835.2 et. seq. AS AN TWENTY-EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, Defendant alleges that it cannot be held vicariously liable for any other patties actions, pursuant to the Court’s holding in John R. v. Oakland Unified School District. AS ATWENTY-NINTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ONFILE HEREIN, Defendant alleges that to the extent the allegations ofthe Complaint attempt to enlarge upon the facts and/or contentions set forth in a claim,if any, filed by the plaintiff, the Complaint fails to state a cause of action, and violates the provisions of California Government Code, Chapter 1 (commencing with Section 900), and Chapter 2 (commencing with Section 910). Defendant reserves its right to strike any such allegations and objects to any evidence directed to prove them. AS A THIRTIETH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, Defendant alleges plaintiff failed to comply with the requirements of the California Tort Claims Act. 7 City of Santa Clara’s Answer to Nevada Deanza Family Limited Partnership’s First Amended Cross-ComplaintCase No: 17CV312781 468444 w h S H O W N o O o 0 3 O N 10 11 12 13 14 15 16 17 18 19 20 21 22 24 23 26 Zz] 28 AS A THIRTY-FIRST, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, Defendant alleges that plaintiff had the last clear chance to avoid the alleged defect complained of her Complaint. AS A THIRTY-SECOND, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, Defendant alleges that plaintiff unreasonably delayed providing notice to defendant of her claim and that such delay substantially prejudiced defendant and, therefore, plaintiff's complaint is barred by the doctrine of laches. AS A THIRTY-THIRD, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINTON FILE HEREIN, Defendant alleges that it has not yet fully investigated the facts of this case and so cannotfully anticipate all affirmative defendants which may be applicable and, accordingly, defendant reserves the right to assert any and all such additional affirmative defendants as are applicable in this action. WHEREFORE, Defendant prays that cross-complainant take nothing againstit by its cross-complaint; that Defendant have judgment for its costs of suit herein incurred, together with such other and further relief as may be just and proper. Dated: March 9, 2018 CODDINGTON, HICKS & DANFORTH "MahmoudA, Fadli’ Attorneys for Defendant's Attorney Cityof Santa Clarai’ 8 City of Santa Clara’s Answer to Nevada Deanza Family Limited Partnership’s First Amended Cross-Complaint Case No: 17CV312781 468444 N o PROOF OF SERVICE California Code of Civil Procedure sections 1011, 1013, 1013a, 2015.5 California Rule of Court rule 2.251 Federal Rule of Civil Procedure Rule 5(b) I, the undersigned, declare that I am employed in the County of San Mateo, State of California. I am over the age of eighteen (18) years and not a party to the within action. My business address is 555 Twin Dolphin Drive, Suite 300, Redwood City, California 94065. My electronic mail address is Eva@chdlawyers.com. I am readily familiar with my employer’s business practice for collection and processing of correspondence and documents for mailing with the United States Postal Service, mailing via overnight delivery, transmission by facsimile machine, and delivery by hand. On March 14, 2018, I served a copy of each of the documents listed below by placing said copies for processing as indicated herein. CITY OF SANTA CLARA’S CROSS-COMPLAINT FOR INDEMNITY, CONTRIBUTION, AND DECLARATORY RELIEF X United States Mail: The correspondence or documents were placed in sealed, labeled envelopes with postage thereon fully prepaid on the above date placed for collection and mailing at my place of business to be deposited with the U.S. Postal Service at Redwood City, California on this same date in the ordinary course of business. Overnight Delivery: The correspondence or documents were placed in sealed, labeled packaging for overnight delivery, with Federal Express, with all charges to be paid by my employer on the above date for collection at my place of business to be deposited in a facility regularly maintained by the overni ht delivery carrier, or delivered to a courier or driver authorized by the overnight delivety carrier to receive such packages, on this date in the ordinary course of business. Hand Delivery: The correspondence or documents were placed in sealed, labeled envelopes and served by personal delivery to the party or attorney indicated herein, or if upon attorney, by leaving the labeled envelopes with a receptionist or other person having charge of the attorney’s office. Facsimile Transmission: The correspondence or documents wete placed for transmission from (650) 592-5027 at Redwood City, California, and were transmitted to a facsimile machine maintained by the party or attorney to be served at the facsimile machine telephone number provided by said party or attorney, on this same date in the ordinary course of Ee The transmission was reported as complete and without error, and a record of the transmission was propertly issued by the transmitting facsimile machine. Electronic Transmission: The correspondence or documents wete transmitted electronically to the electronic address set forth below. a N ~ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 26 27 28 State. The recipient has filed and served notice that he or she accepts electronic service; the recipient has electronically filed a document with the court; and/or the Court has mandated that the parties serve documents through its Court approved vendor. The printed form of this document bearing the original signature is on file and available for inspection at the request of the court or any party to the action or proceeding in which it 1s filed, in the manner provided in California Rule of Court Rule 2.257(a). Federal. The recipient of this electronic service has consented to this method of service in writing, a copy of which is on file and available for inspection in my employer’s office. I have received no indication the electronic transmission did not reach the recipient. PERSONS OR PARTIES SERVED: Attorneys for Plaintiff Scott H.Z. Sumner, Esq. Sumner Law 1299 Newell Hill Place, Suite 202 Walnut Creek, CA 94596 Telephone: (925) 278-6170 Facsimile: E-mail: (925) 278-6174 ssumnet@sumnetlawyers.com Attorneys for Bright Horizons Family Solutions Mark E. Lowary, Esq. Berman Berman Bertman Schneider & Lowary, LLP 3890 Tenth Street Riverside, CA 92501 Telephone: (951) 682-8300 Facsimile: E-mail: (951) 682-8331 melowaty@b3law.com Attorneys for Nevada Deanza FamilyLimited Partnership Richard B. Gullen, Esq. Missy M. Cornejo, Esq. Rossi, Hamerslough, Reischl & Chuck 1960 The Alameda, Suite 200 San Jose, CA 95126-1493 Telephone: (408) 261-4252 Facsimile: E-mail: (408) 261-4292 Rick@rhtc.net Missy(@thtc.net r o Ww ) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 26 27 28 I certify (or declare) under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration was executed on March 14, 2018. Lo Eva Oliveira Court: Superior Court ofCalifornia, Santa Clara County Action No: 17CV312781 Case Name: Rinek v. Nevada Deanza Family Limited Partnership