Answer_to_complaint_on_behalf_of_merritt_hospitality_llc

Response

Cal. Super. - 6th Dist.July 2, 2018

ES N Oo 0 N a O Y Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ELECTRONICALLY FILED Superior Court of California County of Santa Cruz 8/8/2018 3:13 PM Todd A. Fischer — State Bar No. 142771 Alex Calvo, Clerk Bryan P. Kerney — State Bar No. 208767 BY! ReclanAalsedo, Deputy FISCHER KERNEY LLP 2600 Garden Road, Suite 222 Monterey, CA 93940 Telephone: (831) 372-9200 Facsimile: (831) 372-9220 Attorneys for Defendant, MERRITT HOSPITALITY, LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CRUZ WEIYANG LIN, Case No. 18CV01901 Plaintiff, DEFENDANT, MERRITT Vs. HOSPITALITY, LLC’S ANSWER TO COMPLAINT HILTON SANTA CRUZ/SCOTTS VALLEY, et al. and DOES 1-20, inclusive, Defendants. COMES NOW defendant, MERRITT HOSPITALITY, LLC (hereinafter “Defendant”™), for itself alone and for no other party, individual, corporation or entity and answers the Complaint of WEIYANG LIN as follows: GENERAL DENIAL 1. This answering defendant denies both generally and specifically each and every allegation, and each and every part of each and every allegation contained in the complaint, and the whole thereof, and further denies that it is liable to plaintiff in any sum whatsoever, or at all, for special, compensatory, punitive or any other type of damage. FIRST AFFIRMATIVE DEFENSE 2. As a first, separate and distinct affirmative defense, this answering defendant alleges that the complaint and each cause of action stated therein, fails to state facts sufficient to constitute a cause of action as against this answering defendant. SECOND AFFIRMATIVE DEFENSE Lin v. Hilton Santa Cruz/Scotts Valley, et al. Case No. 18CV01901 Answer to Complaint Bo 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. As a second, separate and distinct affirmative defense, this answering defendant contends that neither the complaint, nor any of the alleged causes of action stated therein, state facts sufficient to constitute a cause of action against this answering defendant. THIRD AFFIRMATIVE DEFENSE 4, As a third, separate and distinct affirmative defense, this answering defendant contends that the applicable statutes of limitations, including but not limited to, C.C.P. Sections 335.1, and/or C.C.P. Sections 337, 337.1, 337.15, 338, 339, 340.3 and 343 bars the complaint and each cause of action stated therein. FOURTH AFFIRMATIVE DEFENSE 5. As a fourth, separate and distinct affirmative defense this answering defendant contends that the complaint, and each cause of action stated therein, is ambiguous and uncertain, FIFTH AFFIRMATIVE DEFENSE 6. As a fifth, separate and distinct affirmative defense, this answering defendant contends that during the relevant times, this answering defendant did not own, control, maintain, lease, rent, occupy, or otherwise exercise control over the subject premises. SIXTH AFFIRMATIVE DEFENSE 7. As an sixth, separate and distinct affirmative defense this answering defendant contends that during the relevant time and/or times, this answering defendant did not supervise or exercise control over plaintiff and/or the premises. SEVENTH AFFIRMATIVE DEFENSE 8. As a seventh, separate and distinct affirmative defense, this answering defendant contends that plaintiff has unreasonably delayed the commencement of this action and prejudiced this answering defendant such that the doctrine of laches bars the complaint and each cause of action therein. EIGHTH AFFIRMATIVE DEFENSE 9, As a eighth, separate and distinct affirmative defense, this answering defendant contends that plaintiff’s damages, if any, are completely or in part the result of plaintiffs’ failure to mitigate as required by law. Lin v. Hilton Santa Cruz/Scotts Valley, et al. Case No. 18CV01901 Answer to Complaint O o o 0 Oy 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NINTH AFFIRMATIVE DEFENSE 10. As an ninth, separate and distinct affirmative defense, this answering defendant contends that if plaintiff suffered injuries attributable to the use of the premises referred to in plaintiff’s complaint, which injuries are expressly denied, the injuries were solely caused and attributable to the unreasonable, unforeseeable and inappropriate and improper use that was made of the premises. TENTH AFFIRMATIVE DEFENSE 11. Asa tenth, separate and distinct affirmative defense, this answering defendant contends that parties to this action and non-parties, other than this answering defendant, were negligently or legally responsible, or otherwise at fault for damages alleged in the complaint, which damages are herein denied and therefore, in the event of any liability, whether by settlement or judgment in favor of any other party against this answering defendant, the court or jury should apportion fault as to all parties. Furthermore, this answering defendant requests a judgment and declaration of indemnification and contribution against all other parties or persons in accordance with the apportionment of fault between the parties. ELEVENTH AFFIRMATIVE DEFENSE 12. As a eleventh, separate and distinct affirmative defense, this answering defendant contends that at the time and place of the incident, happening or matter set forth in the complaint on file herein, and at all times herein mentioned, plaintiff was guilty of carelessness and negligence in and about the matters and things set forth in said complaint on file herein; that the carelessness and negligence on the part of the plaintiff actually and proximately caused and contributed to plaintiff's alleged injuries and/or damages. This answering defendant further contends that plaintiff’s alleged injuries, which are herein denied, were actually and proximately caused solely by the contributory and/or comparative negligence of plaintiff and each of the claims stated therein are barred by reason of such comparative negligence. This answering defendant further contends that should plaintiff recover damages against this answering defendant, said defendant is entitled to have the amount abated, reduced or eliminated to Lin v. Hilton Santa Cruz/Scotts Valley, et al. Case No, 18CV01901 Answer to Complaint NO 0 N d O N 10 11 12 13 14 15 16 IZ 18 19 20 21 22 23 24 25 26 27 28 the extent plaintiff's negligence caused or contributed to the alleged injuries and damages, if any. TWELFTH AFFIRMATIVE DEFENSE 13. Asa twelfth, separate and distinct affirmative defense, this answering defendant contends that plaintiff knowingly assumed the risk of any injury or damage alleged in the complaint. THIRTEENTH AFFIRMATIVE DEFENSE 14. As a thirteenth, separate and distinct affirmative defense, this answering defendant contends that the subject products, and their component parts, were not used as instructed and intended, but were subjected to unforeseeable and unanticipated misuse, abuse, alteration and/or modification by those other than this answering defendant. Said misuse, abuse, alteration, and/or modification was the proximate cause of the injuries and damages, if any, allegedly sustained by plaintiff. FOURTEENTH AFFIRMATIVE DEFENSE 15. As a fourteenth, separate and distinct affirmative defense, this answering defendant contends that these answering defendants are liable, if at all, only for their proportionate share of liability/damages as set forth by CC § 1431 er seq. FIFTEENTH AFFIRMATIVE DEFENSE 16. As a fifteenth, separate and distinct affirmative defense, this answering defendant contends that any loss, injury or damage incurred by plaintiff, if any, was proximately caused by the negligent or willful acts or omissions of parties or non-parties whom these answering defendants did not control, and was not proximately caused by any acts, omissions or other conduct of these answering defendants. DEMAND FOR JURY TRIAL Defendant herein hereby demands a trial by jury in this matter. WHEREFORE, this answering defendant prays as follows: 1. That plaintiff take nothing by way of her complaint; 2. For this answering defendants costs of suit incurred herein; 3. That if this answering defendant is found liable, that the degree of responsibility and liability for the resulting damages be determined, and that this answering defendant be liable only for Lin v. Hilton Santa Cruz/Scotts Valley, et al. Case No. 18CV01901 Answer to Complaint PL N ~ l a W a 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that portion of total damages in proportion to its total responsibility for same; and 4. For such other and further relief as the court may deem just and proper. Dated: & / 7 ,2018 Lin v. Hilton Santa Cruz/Scotts Valley, et al. Case No. 18CV01901 Answer to Complaint FISCHER KERNEY LLP hy Bryan P. Kerney Attorneys for Defendant, MERRITT HOSPITALITY, LLC NO 0 2 On 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I am a resident of and employed in the County of Monterey, California; my business address is 2600 Garden Road, Suite 222, Monterey, California 93940. I am over the age of 18 years and not a party to the within action. On August 8, 2018, I served a copy of the following document(s): ANSWER TO COMPLAINT ON BEHALF OF MERRITT HOSPITALITY, LLC on the following persons addressed as follows: Cody Christiansen Harris Personal Injury Lawyers, Inc. 55 S. Market St., Ste. 1010 San Jose, CA 95113 Tel. 408-512-3600 Fax 408-320-0092 Plaintiff ( X ) FIRST CLASS MAIL: I placed each such sealed envelope, with postage fully prepaid for first-class mail, for collection and processing for mailing at Monterey, California, following this business’s ordinary business practice with which I am readily familiar. On the same day correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service. ( ) VIAFACSIMILE: I caused each such document to be transmitted by facsimile to the number indicated after the address(es) noted above. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. EXECUTED at Monterey, California, on August 8, 2018. Hillary Wheeler