Answerresponsedenialdemurrer First AppearanceResponseCal. Super. - 6th Dist.September 27, 2018[ ) NO C o 9 O N Wn ha ELECTRONICALLY FILED Superior Court of California County of Santa Cruz H. Gregory Nelch, Esq. - SBN 118258 pi aa018 2:09 PM Douglas E. Johns, Esq. -- SBN 314798 1 CODDINGTON, HICKS & DANFORTH Hglena Hapson Deputy 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 Defendants Alejandra Nolasco and Marco Atempa IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CRUZ YOLANDA GONZALEZ, Case No. 18CV02829 Plaintiff, vs. ANSWER OF ALEJANDRA NOLASCO AND MARCO ATEMPA TO COMPLAINT YAZMIN BENITEZ, ALEJANDRA OF PLAINTIFF YOLANDA GONZALEZ NOLASCO, MARCO ATEMPA and DOES 1 to 100, Defendants. COMES NOW defendants, Alejandra Nolasco and Marco Atempa (collectively, “defendants”), and in response to the unverified complaint of plaintiff, Yolanda Gonzalez, 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, ot in any sum whatsoever or at all, as a result of any act or omission of these answeting defendants. AS A FIRST, 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 defendants. /// 1 Answer of Alejandra Nolasco and Marco Atempa to Complaint of Plaintiff Yolanda Gonzalez Case No: 18CV02829 543908 o N W h IS N Wd NO ce AS A SECOND, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, these answering defendants allege that plaintiff was herself careless and negligent in and about the matters alleged in the complaint; that said carelessness and negligence on said 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 plaintiff's negligence caused or contributed to her injuries, if any. AS A THIRD, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, these answering defendants allege that plaintiff acted with full knowledge of all the facts and circumstances suttounding her injury and assumed the risk of the matters causing her injury, and that said matters of which plaintiff assumed the risk proximately contributed to the happening of the incident at bat and proximately caused her injury, if any. AS A FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, these answering defendants allege 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, these answering defendants are 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 plaintiffs 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 her damages and thereby is precluded from recovering those damages which could have reasonably been avoided by the exercise of due care on the part of plaintiff. 2 Answer of Alejandra Nolasco and Marco Atempa to Complaint of Plaintiff Yolanda Gonzalez Case No: 18CV02829 543908 ON wn EE N wo c o AS A SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINTON FILE HEREIN, these answering defendants allege 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 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 answering defendants allege that at the time of the injuties alleged in the complaint, plaintiff was employed, and was entitled to and did receive worker's compensation benefits. Defendants are informed and thereon believe 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 mattets referred to in said complaint and that said negligence on the part of the employer proximately caused ot 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. //7 /1/ /1/ 3 Answer of Alejandra Nolasco and Marco Atempa to Complaint of Plaintiff Yolanda Gonzalez Case No: 18CV02829 543908 ~1 Sh wh on wo oo 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 plaintiff from payments received from any source. AS A TWELFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, these answering defendants allege the damages that the plaintiff claims to have sutfered 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 propetly name or join an indispensable or necessary 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 defendants, in any possible future litigation. AS A FOURTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, these answering defendants allege that plaintiff's claims are barred, in whole or in part, because some or 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 ate 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 TQ 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. /1/ /17 /1/ 4 Answer of Alejandra Nolasco and Marco Atempa to Complaint of Plaintiff Yolanda Gonzalez Case No: 18CV02829 543908 ~N S N nm Ww oo 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 answ ering 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 they are not strictly liable to plaintiff under any law of the State of California including, but not limited to, California Civil Code § 3342, because these answering defendants did not own the dog referenced in plaintiffs complaint and at issue in this lawsuit. AS A NINETEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, these answering defendants allege that plaintiffs complaint is barred because these answering defendants did not allow a dangerous dog to be kept at the premises at issue, and, in fact, these answering defendants did not have notice of the dog despite diligently and regularly investigating the premises. AS A TWENTIETH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, these answering defendants acknowledge that they may have insufficient knowledge or information on which to form a belief as to whether additional affirmative defenses are available; therefore, these answering defendants reserve the right to assert additional affirmative defenses as appropriate. /17 /77 / 77 / 77 //7 /// /// /17 5 Answer of Alejandra Nolasco and Marco Atempa to Complaint of Plaintiff Yolanda Gonzalez Case No: 18CV02829 543908 W a Oo c o Na O N wn A WHEREFORE, defendants pray that plaintiff takes nothing against said defendants by her said complaint, and that defendants have judgment for their costs of suit herein incurred, together with such other and further relief as may be just and proper. Dated: December 12, 2018 CODDINGTON, HICKS & DANFORTH By: doves ben NS H. Gregory Nelch 6 Case No: 18CV02829 Douglas E. Johns Attorneys for Defendants Alejandra Nolasco and Marco Atempa ~ Answer of Alejandra Nolasco and Marco Atempa to Complaint of Plaintiff Yolanda Gonzalez R N NN wn B A W NO 10 11 12 13 14 15 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 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 employet’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 December 12, 2018, I setved a copy of each of the documents listed below by placing said copies for processing as indicated herein. ANSWER OF ALEJANDRA NOLASCO AND MARCO ATEMPA TO COMPLAINT OF PLAINTIFF YOLANDA GONZALEZ 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 otdinaty course of usiness. Overnight Delivery: The cotfespofidence 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 regulatly maintained by the overni he delivery carrier, ot delivered to a courier or driver authorized by the overnight delivery cartier to receive such packages, on this date in the otdinaty coutse of business. Hand Delivery: The correspondence or documents wete placed in sealed, labeled envelopes and served by personal delivery to the party or attorney indicated herein, ot 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 propetly issued by the transmitting facsimile machine. Electronic Transmission: The correspondence or documents were transmitted electronically to the electronic address set forth below. 0 N N wn bs W N \D 10 11 12 13 14 15 16 17 18 19 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 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 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: Steven R. Smith, Esq. Law Office of Steven R. Smith 11 Alexander Street Suite H Watsonville, CA 95076 Telephone: (831) 688-9997 Facsimile: (831) 228-1249 E-mail: stevenrsmithlaw(@aol.com I certify (or declare) under penalty of petjury under the laws of the State of California that the foregoing is true and correct and that this declaration was.executed on December 12, 2018. ) NLA 1 AP WX L / / ( Kim Ratto ~~ Court: Superior Court of California, Sania Cruz Connty Action No: 718C1702829 Case Name: Gonzales, Yolanda v. Benitez,
