Answerresponsedenialdemurrer First AppearanceResponseCal. Super. - 6th Dist.February 23, 2018w e EBs WwW ND \O o o ~ J S n ELECTRONICALLY FILED Superior Court of California oug as E. ohns, Esq. - SBN 314798 BDINGTON, HICKS & DANFORTH ei ae iD, LCI i Professional Corporation, Lawyers Lr 1 IngstEng ep d 555 Twin Dolphin Drive, Suite 300 N- Redwood City, CA 94065-2133 Tel: 650.592.5400 Fax: 650.592.5027 ATTORNEYS FOR Defendants Diana Carolina Gomez and Lamberto M. Gomez IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CRUZ OMAR GALICIA JIMENEZ, Case No. 18CV00937 Plaintiff, ANSWER TO UNVERIFIED vs. COMPLAINT DIANA CAROLINA GOMEZ; LAMBERTO M. GOMEZ and DOES 1 - 50, Defendants. COME NOW defendants, Diana Carolina Gomez and Lamberto M. Gomez, and in response to the unverified complaint of plaintiff, Omar Galicia Jimenez, on file herein, herewith deny each and every, all and singular, the allegations therein contained, and in this connection, defendants deny 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 these answering defendants. AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, these answering defendants allege that said complaint, and each cause of action thereof, fails to state facts sufficient to constitute a cause of action against these answering defendants. AS A SECOND, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, these answering defendants allege that plaintiff was 1 Answer to Unverified Complaint Case No: 18CV00937 480274 N Y = NO 0 N N O Y wn se Ww N Y DN = =m e m e m md e m pe d ed p e d pe O N D 0 N N A W N = himself careless and negligent in and about the matters alleged in the complaint; that said carelessness and negligence on plaintiff'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 plaintiff recover damages, defendants are entitled to have the amount thereof abated, reduced or eliminated to the extent that plaintiffs negligence caused or contributed to his injuries, if any. AS A THIRD, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, these answeting defendants allege that plaintiff acted with full knowledge of all the facts and circumstances surrounding his injuries and assumed the risk of the matters causing his injuties, and that said matters of which plaintiff assumed the risk proximately contributed to the happening of the incident at bat and proximately caused his injuries, if any. AS AFOURTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, these answeting defendants allege 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 injuries, loss and damage complained of by plaintiff, if any there were; that should plaintiff tecover damages, these answering defendants are entitled to have the amount thereof abated, reduced or eliminated to the extent that said named or unnamed third parties’ negligence caused or conttibuted to plaintiff’s injuries, if any. AS A FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, these answering defendants allege that plaintiff failed subsequent to the occurrence described in the complaint propetly to mitigate his damages and thereby is precluded from recovering those damages which could have reasonably been avoided by the exercise of due care on the patt of plaintiff. AS A SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, these answering defendants allege that plaintiffs 2 Answer to Unverified Complaint Case No: 18CV00937 489274 w o Oo 0 0 NN un a 10 11 12 13 14 15 16 17 I8 19 20 21 23 24 25 26 27 28 complaint, and each 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, these answeting defendants allege that at the time of the injuries alieged in the complaint, plaintiff was employed and was entitled to and did receive workers’ compensation benefits. Defendants are informed and thereon believe that if the conditions as alleged in plaintiffs complaint ate found to exist, plaintiffs employer was negligent and careless in and about the matters referred to in said complaint and that said negligence on the part of plaintiff's employer proximately caused or contributed to the injuries and damages, if any, complained of by plaintiff and by that reason thereof, defendants are 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, these answering defendants allege that said complaint is barred by the doctrine of unclean hands. AS A NINTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, these answering defendants allege that said complaint is barred by the doctrine of laches. AS A TENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, these answering defendants allege 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, these answering defendants allege that they are entitled to an offset for all monies received by plaindff from payments received from any source. AS ATWELFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, these answering defendants allege the damages that the Answer to Unverified Complaint Case No: 18CV00937 489274 AN wn EE N Wo © 00 = plaintiff claims to have suffered were caused or made worse by an intervening or superseding cause or circumstances. AS A THIRTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, these answering defendants allege that plaintiff has failed to properly name or join an indispensable ot necessary party or parties to the present action; as a result of such failure to join, complete relief cannot be accorded to those already patties to the action and result in prejudice to the defendants, in any possible future litigation. AS A FOURTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, these answering defendants allege that plaintiffs claims are barred, in whole or in part, because some ot all of the parties have been improperly joined in this action. AS A FIFTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, these answering defendants are entitled to, and claim the benefit of, all defenses and presumptions set forth in or arising from any rule of law or statute in this state. AS A SIXTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, these answeting defendants allege that if plaintiff recovers damages from these answering defendants, these answering defendants are entitled to indemnification, either in whole or in part, from all persons or entities whose negligence, fault, or conduct proximately caused or contributed to the damages allegedly incurred by plaintiff. AS A SEVENTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, these answering defendants allege that if these answering defendants are found to be liable for any of plaintiffs losses and damages, which defendants deny any and all liability, plaintiff should be limited to seek and recover from these answering defendants only that proportion of alleged damages and losses for which these answering defendants are liable and responsible under any applicable theory. AS AN EIGHTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, these answering defendants allege that said complaint is 4 Answer to Unverified Complaint Case No: 18CV00937 489274 wm As W N \ O o o ~ [o x barred because plaintiff was not licensed to operate the motorcycle that he was operat ing on the day of the occurrence described in the complaint. AS A NINETEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, these answering defendants acknowledg e that they may have insufficient knowledge or information on which to form a belief as to whethe r additional affirmative defenses are available; therefore, these answering defendants re serve the right to assert additional affirmative defenses as approptiate. WHEREFORE, defendants pray that plaintiff take nothing against said defendan ts by his said complaint, and that defendants have judgment for their costs of suit her ein incurred, together with such other and further relief as may be just and propet. Dated: June 6, 2018 CODDINGTON, HICKS & D ANFORTH B ! Douglas E. Johns Attorneys for Defendants Diana Carolina Gomez and Lamberto M. Gomez Answer to Unverified Complaint Case No: 18CV00937 489274 \O - oo 11 12 13 14 15 16 17 18 19 21 22 23 24 25 26 27 28 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 ernployed in the County of San Mateo, Stat e of California. T am over the age of eighteen (18) years and not a patty to the within action. My business address is 555 Twin Dolphin Drive, Suite 300, Redwood City, California 94065. My electronic mail address is 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 Servi ce, mailing via overnight delivery, transmission by facsimile machine, and delivery by hand. On June 6, 2018, I served a copy of each of the documents listed below by p lacing said copies for processing as indicated hetein. ANSWER TO UNVERFIED 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. Pos tal pervice at Redwood City, California on this same date in the ordinaty course of usiness. Overnight Delivery: The correspondence or documents were placed in s ealed, labeled packaging for overnight delivery, with Federal Express, with all charg es to be paid by my employer on the above date for collection at my place of bus iness to be deposited in a facility regulatly maintained by the ovetnig t delivery car rier, ot delivered to a coutier of driver authorized by the overnight delivery carrier to receive such packages, on this date in the ordinary course of business. Hand Delivery: The cotrespondence or documents were placed in sealed, la beled envelopes and served by personal delivery to the party ot 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 Re wood City, California, and we re transmitted to a facsimile machine maintained by the party ot attorney to be served a t the facsimile machine telephone number provided by said party or attorney, on this same date in the ordinary course of business. The transmission was repo rted as complete and without etror, and a record of the transmission was properly issu ed by the transmitting facsimile machine. Electronic Transmission: The cotrtespondence or docume nts were transmitted electronically to the electronic address set forth below. OO ce NN po as k oO 12 13 14 15 16 17 18 19 20 21 22 23 23 26 27 28 State. The recipient has filed and served notice that he or she accepts electronic service; the recipient has electronically filed 2 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 sig nature is on file and available for inspection at the request of the court ot any party to the action ot 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 thod of ice 1 iti : f which i file and available for 1 i method of setvic in writ ng, a copy of w ch is on fil nd avatlable for inspectio n 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 Thanos Simoudis, Esa. Shaun Bauman, Esq. Bauman Law, APLC 6800 Owensmouth Avenue Suite 410 Canoga Park, CA 91303 Telephone: (818) 285-0222 Facsimile: (818) 285-0224 E-mail: info@thela-lawyer.com I certify (or declare) under penalty of petjury under the laws of the State o f California that the foregoing is true and correct and that this declaration was executed on June 6, 2018. J Kim Ratto Coutt; Superior Court of California,Santa Cruz, County Action No: 718CV00237 Case Name: Jimenez v. Gomez,
