To Complaint Atty Johns

Response

Cal. Super. - 6th Dist.December 8, 2017

L a OO c e 9 O v W h d s 17CV320196 Santa Clara - Civil Electronically Filed i. Gregory ye Esq. - SBN 118258 by Superior Court of CA, ouglas E. Johns, Esq. - SBN 314798 County of Santa Clara, CODDINGTON, HICKS & DANFORTH on 6/27/2018 12:30 PM A Professional Corporation, Lawyers ; 555 Twin Dolphin Brive, Suite 300° Reviewed By: A. Hwang Redwood City, CA 94065-2133 Case #17CV320196 Tel: 650.592.5400 Envelope: 1667759 Fax: 650.592.5027 ATTORNEYS FOR Defendant Tyler Acosta IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA NSHARRA SPENCER, Case No. 17CV320196 Plaintiff, = ANSWER OF DEFENDANT TYLER ACOSTA TO COMPLAINT TYLER ACOSTA and RICHARD MORELLI, and DOES 1 to 10, Defendants. COME NOW defendant, Tyler Acosta, and in response to the unverified complaint of plaintiff, Nsharta Spencer, on file herein, hetewith denies each and every, all and singulat, 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. AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges that said complaint, and | this answering defendant. /17 /1/ //7 Answer of Defendant Tyler Acosta to Complaint Case No: 17CV320196 501765 A. Hwang ~N O N a Ba W N jo <] AS A SECOND, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges that plaintiff was herself carcless and negligent in and about the matters alleged in the complaint, that said carelessness and negligence on 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, defendant is entitled to have the amount thereof abated, reduced or eliminated to the extent that plaintiff's negligence caused or contributed to het injuries, if any. AS A THIRD, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges that plaintiff acted with full knowledge of all the facts and circumstances surrounding her injuries and assumed the risk of the matters causing her injuties, and that said matters of which plaintiff assumed the risk proximately contributed to the happening of the incident at bar and proximately caused her injuries, if any. AS A FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges that named 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 or unnamed third parties proximately contributed to the happening of the incident and to the injuties, 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 or unnamed third parties’ negligence caused or contributed to plaindff’s injuties, if any. AS A FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN; this answering defendant alleges that plaindff failed bsequent to the occurrence described in the complaint properly to mitigate her damages and thereby is preciuded from recovering those damages which could have reasonably been avoided by the exercise of due care on the part of plaintiff. /1/ /1/ Answer of Defendant Tyler Acosta to Complaint Case No: 17CV320196 501765 WI ~N O N Wn RA o o AS A SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answeting defendant alleges that plaintiffs complaint, and cach cause of action thereof, is barred by the applicable period of limitations including, but not limited to, limitations codified in California Code of Civil Procedure § 335.1 and California Code of Civil Procedure § 338. AS A SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answeting defendant alleges that at the time of the injuries alleged in the complaint, plaintiff was employed and was entitled to, and did receive, workers’ compensation benefits. Defendant is informed and thereon believes that if the conditions as alleged in plaintiff’s complaint are found to exist, plaintiff's employer was negligent and careless in and about the matters refetred to in said complaint and that said negligence on the part of the employer proximately caused or contributed to the injuries and damages, if any, complained of by plaintiff and by that reason thereof, defendant is entitled to set-off any compensation benefits received or to be received by plaintiff against any judgment which may be rendered in favor of plaintiff herein. AS AN EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answeting defendant alleges that said complaint is barred by the doctrine of unclean hands. AS A NINTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges that said complaint is barred by the doctrine of laches. | & AS ATENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO TH COMPLAINT ON FILE HEREIN, this answering defendant alleges that said complaint is barred by the doctrines of waiver and estoppel. AS AN ELEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges that she is entitled to an offset for all monies received by plaintiff from payments received from any source. //7 Answer of Defendant Tyler Acosta to Complaint Case No: 17CV320196 501765 OO Re Nd O h Wn BR W N - ee em e m e m e m p d he e ee «0 1 O N Un B W ND = O [\ ] B NS wh 26 27 28 AS A TWELFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answeting defendant alleges the damages that the plaintiff claims to have suffered were caused or made worse by an intervening or superseding cause of circumstances. AS A THIRTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges that plaintiff has failed to propetly name or join an indispensable ot necessaty party or patties to the present action; as a result of such failure to join, complete relief cannot be accorded to those already parties to the action and result in prejudice to the defendant, in any possible future litigation. AS A FOURTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges that plaintiff's claims are batred, in whole or in part, because some or all of the patties have been improperly joined in this action. AS A FIFTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges on information and belief that plaintiff failed to carry health insurance on the day of the incident alleged in the complaint, or after the incident, and therefore failed to properly mitigate her 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 SIXTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE laims the 2. O COMPLAINT ON FILE HEREIN, this answering defendant is entitled to, an law or statute benefit of, all defenses and presumptions set forth in or atising from any rule of in this state. SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges that if plaintiff recovers damages from this answering defendant, this answering defendant is entitled to indemnification, either in whole or in part, from all persons ot entities whose negligence, fault, or conduct proximately caused or contributed to the damages allegedly incurred by plaintiff. 4 Answer of Defendant Tyler Acosta to Complaint Case No: 17CV320196 501765 ~ an w h WW - oe AS AN EIGHTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answeting defendant alleges that if this answering defendant is found to be liable for any of plaintiff's losses and damages, which defendant denies any and all liability, plaintiff should be limited to seek and recover from this answering defendant only that proportion of alleged damages and losses for which this answering defendant is liable and responsible under any applicable theory. AS A NINETEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant acknowledges that she may have insufficient knowledge or information on which to form a belief as to whether additional affirmative defenses are available; therefore, this answering defendant reserves the right to assert additional affirmative defenses as appropriate. WHEREFORE, defendant prays that plaintiff takes nothing against said defendant by her said complaint, and that defendant has judgment for her costs of suit herein incurred, together with such other and further relief as may be just and proper. Dated: June 27,2018 CODDINGTON, HICKS & DANFORTH by: LY USA, fr par Sofa t i. Johns Attorneys for Defendant Tyler Acosta Answer of Defendant Tyler Acosta to Complaint Case No: 17CV320196 501765 AN O 0 0 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 undersigried, declare that I am employed in the County of San Mateo, State of California. T am over the age of eighteen (18) years and not a party to the within action. My ~ A. 20. 1V p= pt Jom wy ND $a GC C Cn - S e d electronic mail address is kratto@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 June 27, 2018, I served a copy of each of the documents listed below by placing said copies for processing as indicated herein. ANSWER OF DEFENDANT TYLER ACOSTA TO COMPLAINT 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 i delivery cartier, or delivered to a courier 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 of the 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 business. 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. ON S O vw 11 12 13 14 15 16 17 18 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 otiginal signature is on file and available for inspection at the request of the court ot any patty to the action or proceeding in which it is 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 employet’s office. I have received no indication the electronic transmission did not reach the recipient. PERSONS OR PARTIES SERVED: Attorneys for Plaintiff Albie B. Jachimowicz, Esq. Joshua Jachimowicz, Esq. Jachimowicz Law Group 1530 The Alameda, Suite 115 + San Jose, CA 95126 Telephone: (408) 246-5500 Facsimile: (408) 246-1051 E-mail: 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 June 27, 2018. Kim Ratto Court: Superior Court of California, Santa Clara Connty Action No: 77CV3207196 Case Name: Spencer v. Acosta