Answer To First Amended Complaint

Response

Cal. Super. - 6th Dist.August 7, 2017

C o o o a 3 O N n n B R A W N p t p d e d f d pe ed pe ed w m R A W N = O H. Gregory Nelch, Esq. - SBN 118258 Kathryn C. Klaus, Esq. - SBN 205923 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 Defendant Dominic Maurice Lopez IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA JUAN JOSE IBARRA, Case No. 17CV314162 Plaintiff, ANSWER TO FIRST AMENDED COMPLAINT VS. KAITLIN BROWNELL, MYRNA BROWNELL, DOMINIC MAURICE LOPEZ, and DOES 1 through 10, inclusive, Defendants. COMES NOW defendant Dominic Maurice Lopez and in response to the unverified first amended complaint of plaintiff Juan Jose Ibarra on file herein, herewith denies each and every, all and singular, the allegations therein contained, and in this connection, defendant denies that plaintiff has been injured or damaged in any of the sums mentioned in the complaint, or in any sum whatsoever or at all, as a result of any act or omission of this answering defendant. SEPARATE AND AFFIRMATIVE DEFENSE TO THEAS A FURTHER COMPLAINT ON FILE HEREIN, this answering defendant alleges that said complaint, and each cause of action thereof, fails to state facts sufficient to constitute a cause of action against this defendant. [ S - Answer to First Amended ComplaintCase No: 17CV314162 463217 W I ~ o N w n ~ © AS A SECOND, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN,this answering defendant alleges that plaintiff was herself careless and negligent in and about the matters alleged in the complaint; that said carelessness and negligence on said plaintiffs 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 plaintiff recover damages, defendantis entitled to have the amount thereof abated, reduced or eliminated to the extent that plaintiff's negligence caused or contributed to his injuries, if any. AS A THIRD, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN; this answering defendant alleges that named and/or unnamed third parties were careless and negligent in and about the matters alleged in the complaint; that said carelessness and negligence of said named and/or unnamed third parties proximately contributed to the happening of the incident and to the injuries, loss and damage complained of by plaintiff, if any there were; that should plaintiff recover damages, this answering defendant is entitled to have the amount thereof abated, reduced or eliminated to the extent that said named and/or unnamed third parties’ negligence caused or contributed to plaintiff's injuries, if any. AS A FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges that plaintiff failed subsequent to the occurrence described in the complaint properly to mitigate his damages and thereby is precluded from recovering those damages which could have reasonably been avoided by the exercise of due cate on the part of plaintiff. AS A FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges that plaintiffs 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. AS A SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN,this answering defendant alleges plaintiff knew about the Answer to First Amended Complaint Case No: 17CV314162 463217 W w O O 0 9 A N W n B A risk, and voluntarily undertook the risk that led to the accident or injuries complained of in this case. AS A SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges plaintiff's complaint is barred by the doctrine of estoppel. AS AN EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ONFILE HEREIN, this answering defendant alleges defendant is entitled to an offset for all monies received by plaintiff from payments received from any source. AS A NINTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant has insufficient knowledge or information on which to form a belief as to whether additional affirmative defenses are available. Defendant reserves the right to assert additional affirmative defenses as appropriate. AS A TENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN,this answering defendant alleges said complaint, and each cause of action thereof, fails to state facts sufficient to support a claim/prayer for recovery of punitive or exemplary damages. WHEREFORE, defendant prays that plaintiff take nothing against said defendant by his said complaint; that defendant have judgmentfor his costs of suit herein incurred, together with such other and further relief as may be just and proper. Dated: February 8, 2018 CODDINGTON, HICKS & DANFORTH Dominic Maurice Lopez Answer to First Amended ComplaintCase No: 17CV314162 463217 S w N D 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 February 9, 2018, I served a copy of each of the documents listed below by placing said copies for processing as indicated herein. ANSWER TO FIRST AMENDED COMPLAINT 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 oy place of business to be deposited in a facility regularly maintained by the orang t delivery carrier, or delivered to a courtier or driver authorized by the overnight delivery 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 ofthe attorney’s office. Facsimile Transmission: The correspondence or documents were 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 ry The transmission was reported as complete and without error, and a record of the transmission was properly issued by the transmitting facsimile machine. Electronic Transmission: The correspondence or documents were transmitted electronically to the electronic address set forth below. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 itis 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 setvice 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: Michael Martinovsky, Esq. Law Offices of Michael Martinovsky 1925 Francisco Boulevard Suite 17 San Rafael, CA 94901 Telephone: (415) 230-5360 Facsimile: (415) 230-5361 E-mail: michael@mattinovskylaw.com 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 February 9, 2018. Eva Oliveira Court: Superior Court of California, Santa Clara County Action No: 77CV73714162 Case Name: Ibarra v. Brownell