Answer Unlimited Fee AppliesCal. Super. - 6th Dist.January 3, 2018\DOONO‘UI-QDJNH NNNNH-Hp-HHt-‘t-‘HH WNHOOOOQOM-BWNHO 24 FILED H. Gregog Nelch, Esq. -SBN 118258 lla FEB - l P 3: l3 onathan Harfiman, Es .-SBN 250943 ., r: (I: a 'r JDou las E. ohns, Es . - SIBN 314798 8%II’E‘3llBrlGQR‘ Clgfih?%up CO DIN TON, CKS & DANFORTH COUi‘l-I‘Y OF SANTA , , A Professional Corporation, Lawyers BY IFGZ r . -. . 555 Twin Dolphin Drive, Suite 300 3- “ll Redwood City, CA 94065-2133 Tel: 650.592.5400 Fax: 650.592.5027 ATTORNEYS FOR Defendant Domingo Ramirez IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA ANA CERVANTES, ELICEO Case No. 18CV321369 CERVANTES, EUTIMA CISNEROS, HERIBETO GARCIA, RAMIRO GARCIA, SR, AND RAMIRO GARCIA, JR. ANSWER OF DEFENDANT DOMINGO RAMIREZ TO COMPLAINT Plaintiffs, VS. DOMINGO RAMIREZ, and DOES 1-10, . BY FAX inclusive, Defendant. Defendant, DOMINGO RAMIREZ (hereinafter referred to as “Defendant” , answers the Complaint of Plaintiffs, ANA CERVANTES, ELICEO CERVANTES, EUTIMA CISNEROS, HERIBETO GARCIA, RAMIRO GARCIA, SR., AND RAMIRO GARCIA, JR. (hereinafter collectively referred to as ‘Tlaindffs”), by alleging the following: /// /// /// /// /// /// 1 Answer of Defendant Domingo Ramirez to Complaint Case No: 18C\’321369 461603 \OoofloxurAwN... NNNNNNNNNfi-‘i-‘r-ib-‘i-fib-‘h-ti-Ir-It-I mNOMAwNHooocqoxma~o I. GENERAL DENIAL 1. Pursuant to the provisions of California Code of Civil Procedure section 431.30’(d), Defendant denies generally and specifically, conjunctively and disiunctively, each and every allegation, and purported cause of action contained in the Complaint, and further denies that the Complaint, and each and every purported cause of action thereof states facts sufficient to constitute a cause of action against the Defendant, and further denies that the answering Defendant is in any way responsible in any respect for the damagesthat Plaintiffs allegedly have sustained or will allegedly sustain, and denies that Plaintiffs have sustained or will sustain any injuries, or are otherwise entitled to the relief requested in the Complaint or any other relief, or at all, by reason of any act, omission or breach on the part of Defendant or his agents. II. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE (FAILURE TO STATE A CAUSE OF ACTION) 2. Defendant alleges that neither Plaintiffs’ Complaint, nor any cause of action asserted therein, states facts sufficient to constitute a cause of action against Defendant. SECOND AFFIRMATIVE DEFENSE (FAILURE TO MITIGATE) 3. Defendant is informed and believes, and upon that basis alleges, that the Plaintiffs failed to take all proper measures and remedies to mitigate their alleged damages, said actions or inactions working as a complete bar or diminishing any recovery herein. /// /// /// /// /'// / / / /// /// 7 Answer of Defendant Domingo Ramirez to Complaint- Case No: 18CV321369 461603 \DOOQQUI-DUJNv-u N N N h) N N N N N v- >-. u- p... v- t-fi _. 1-- »- b-l 00 \l 0" UI h b) N r- 0 O 00 \l O\ U] A U) N H O THIRD AFFIRMATIVE DEFENSE (BARRED BY STATUTE OF LIMITATIONS) 4. Plaintiffs’ Complaint, and each and every cause of action therein, and claim for relief contained therein, is barred in whole or in part by the applicable Statute of Limitations, including but not limited to, Code of Civil Procedure sections 335.1, 337, 337.1, 337.15, 337.2, 338, 339, 340, or 343, and California Commercial Code section 2725(1)(2), and Business and Professions Code Sections 7071.11, and all other applicable provisions of the California Code of Civil Procedure, California Civil Code, California Health and Safety Code, and any other applicable code, ordinance, or regulation promulgated by the City of San Jose or the County of Santa Clara. FOURTH AFFIRMATIVE DEFENSE (PLAINTIFFS’ COMPARATIVE NEGLIGENCE) 5. Defendant alleges that any and all injuries, if any, sustained or suffered by the Plaintiffs were proximately and substantially caused and contributed to by the negligence of the Plaintiffs, in that Plaintiffs failed to exercise ordinary care and reasonable care or caution for their own well-being. FIFTH AFFIRMATIVE DEFENSE (INDEMNIFICATION FROM OTHERS) 6. If Plaintiffs recover damages from Defendant, Defendant is entitled to indemnification, either in whole or in part, from all persons or entities whose negligence or fault proximately caused or contributed to the damages, if any, allegedly incurred by Plaintiffs. SIXTH AFFIRMATIVE DEFENSE (LACK OF CAUSATION) 7. Plaintiffs are barred from relief in that Defendant’s conduct neither actually not proximately caused any of the damages allegedly sustained by Plaintiffs. /// /// /// 3 Answer of Defendant Domingo Ramirez to Complaint Case No: 18CV321369 461603 \oooqcseniswm.‘ NNNNNNNNND-‘D-‘D-lb-Ib-‘v-‘b-Ib-‘b-nl-I mflOfiwli-WNHOWOONOMAUJNHO SEVENTH AFFIRMATIVE DEFENSE (LACK OF STANDING) 8. Defendant is informed and, believes that with respect to matters alleged in the Complaint, Plaintiffs lack standing to assert claims against Defendant. EIGHTH AFFIRMATIVE DEFENSE (LITIGATION PRIVILEGE) 9. Defendant alleges that Plaintiffs’ Complaint, and every cause of action therein, is barred by the litigation privilege. NINTH AFFIRMATIVE DEFENSE (EQUITABLE ESTOPPEL) 10. Plaintiffs are barred from relief by the principles of equitable estoppel. TENTH AFFIRMATIVE DEFENSE OUDICIAL ESTOPPEL) 11. Plaintiffs are barred from relief under the doctrine of Judicial Estoppel. ELEVENTH AFFIRMATIVE DEFENSE (WAIVER) 12. Plaintiffs are barred from relief in that they have either impliedly and/ or expressly waived and released any and all claims they have made against this answering Defendant. TWELFTH AFFIRMATIVE DEFENSE (INTERVENING ACTIONS) 13. Defendant is informed and believes, and upon that basis, alleges, that the losses, injuries, or damages, if any, incurred by Plaintiffs was the result of superseding intervening causes arising from negligent or willful acts or omissions by third parties that Defendant neither controlled nor had the right to control, and thereby Plaintiffs’ claims against Defendant are barred. /// /// 4 Answer of Defendant Domingo Ramirez to Complaint Case No: 18CV321369 461603 \OOOQGUt-BWND-I NNNNNNNNND-‘HD-‘h-lb-‘D-lb-li-‘D-‘b-l DO \I 0 UI 4-1 W-N '- O \O 00 \l G’\ U! 4k 03 N t-‘ O T HIRTEENTH AFFIRMATIVE DEFENSE (UNCLEAN HANDS) 14. Plaintiffs filed their Complaint with “unclean hands,” and are in some manner responsible for the alleged circumstances described in the Complaint, and therefore should be estopped from obtaining any relief by virtue of this action. FOURTEENTH AFFIRMATIVE DEFENSE (DOCTRINE OF LACHES) 15. Plaintiffs" claims are barred by the doctrine of laches. Plaintiffs have delayed in initiating and/ or prosecuting this action and each and every cause of action therein, and such delay has caused serious and unreasonable prejudice to this answering Defendant. FIFTEENTH AFFIRMATIVE DEFENSE (ACTIVE NEGLIGENCE AS A BAR) 16. At all times and places alleged in the Complaint, Plaintiffs were actively careless and negligent in the matters alleged, and Defendant’s negligence, if any, was passive and based solely upon the derivative form of liability, not resulting from Defendant’s conduct, but only from an obligation imposed upon Plaintiffs by law; and such active negligence on Plaintiffs’ part proximately caused and contributed to the injuries alleged in the Complaint; therefore, said active negligence on the part of Plaintiffs bars any right to indemnity from Defendant. SIXTEENTH AFFIRMATIVE DEFENSE (CONSENT) 17. Plaintiffs and/or their agents and representatives had full knowledge of the true facts and consented to, approved, and ratified all acts and omissions complained of as against this answering Defendant in the Complaint, by their supervision, inspection and acceptance of this answering Defendant’s actions or conduct, thereby barring Plaintiffs from recovering any damages or relief from this answering Defendant. /// /// /// 5 Answer of Defendant Domingo Ramirez to Complaint Case No: 18CV321369 461603 \OooflO‘Uu-bUJNH N N N N N N N M N >- ._. s-n )- »-- >- >-- 5-- »- ._‘ 00 \l O\ U! -l>~ m N H O \O 00 \l 0\ U1 A b) N -- O SEVENTEENTH AFFIRMATIVE DEFENSE (EXEMPTION) 18. Plaintiffs are barred from relief because Defendant conduct is exempted by statute. EIGHTEENTI-I AFFIRMATIVE DEFENSE (OFFSET AND SET-OFF) 19. Should Defendant be found to have liability for any damages alleged by Plaintiffs in the instant action, answering Defendant alleges that he is entitled to the rights of offset and set-off. NINETEENTH AFFIRlVIATIVE DEFENSE (N O DAMAGES) 20. Plaintiffs suffered no recoverable damages. TWENTIETH AF FIRMATIVE DEFENSE (ESTOPPEL - ACTION OF PLAINTIFF) 21. Defendant is informed and believes, and upon that basis, alleges that Plaintiffs, by their own conduct, are estopped from complaining of any damage or loss allegedly arising as a result of any breach of any obligation alleged in the Complaint. TWENTY-FIRST AFFIRMATIVE DEFENSE (ACCEPTANCE AND RATIFICATION) 22. Defendant is informed and believes, and upon that basis alleges that Plaintiffs are barred from any recovery against Defendant by reason of their inspection, acceptance and ‘ ratification of any work to the property, premises, or unit performed by Defendant. /// , /// ‘ /// /// /// /// 6 Answer of Defendant Domingo Ramirez to Complaint Case No: 18CV321369 461603 \OOOQmM-tt-n NNNNNMNNNHHHHHH_HH~ OaxlmtwNHowooqoxu-AmNt-to TVVENTY-SECOND AFFIRMATIVE DEFENSE (UNWARRANTED CLAIM) 23. Defendant is informed and believes, and upon that basis alleges, that the Complaint filed by Plaintiffs was brought without reasonable cause and without a good faith belief that there was a justifiable controversy under the facts or the law which warranted the filing of the Complaint. Plaintiffs should therefore be responsible for all of Defendant’s necessary and reasonable defense costs, as more particularly set forth in California Code of Civil Procedure section 1038. TWENTY-THIRD AFFIRMATIVE DEFENSE (APPORTIONMENT) 24. Defendant denies any and all liability to the Plaintiffs, but if Defendant is found liable, the responsibility of Defendant is small in proportion to the alleged liability and responsibility of the Plaintiffs and other parties, and the Plaintiffs should be limited to seek and recover from Defendant only that proportion of alleged injuries and damages for which. Defendant is liable and responsible under any applicable theory. TWENTY-FOURTH AFFIRMA'ITVE DEFENSE (LACK OF PRIVITY) 25. Plaintiffs’ claims are barred because they lack privity with this Defendant TWENTY-FIFTH AFFIRMATIVE DEFENSE (FAILURE OF CONSIDERATION) 26. Plaintiffs’ claims are barred because of the failure of consideration. TWENTY-SIXTH AFFIRMATIVE DEFENSE (EXCUSE) 27. Plaintiffs’ prior breaches of the agreement excused Defendant’s performance. /// / / / /// // / 7 Answer of Defendant Domingo Ramirez to Complaint Case No: 18CV321369 461603 UJ ©W\JO\M4> 10 11 12 13 14 15 16 17 18 19 20 22 23 24 25 26 27 28 TWENTY-SEVENTH AFFIRMATIVE DEFENSE (LACK OF NOTICE) 28. Defendant is informed and believes that Plaintiffs failed to provide statutory notice pursuant to the California Civil Code and any other applicable code, ordinance, or regulation promulgated by the City of San Jose or the County of Santa Clara. TWENTY-EIGHTH AFFIRMATIVE DEFENSE (NECESSITY) 29. Defendant is informed and believes that if he breached any duties owed to , Plaintiffs, that the breach was necessary to prevent a greater harm from occurring. TWENTY-NINTH AFFIRMATIVE DEFENSE (CONDUCT REASONABLE) 30. Plaintiffs’ claims are barred because Defendant’s conduct with respect to the matters alleged in the Complaint was reasonable relative to the standards, customs, knowledge, and practices at the time of the original approval of any work performed by this answering Defendant. THIRTIETH AFFIRMATIVE DEFENSE (PERFORMANCE OF OBLIGATIONS) 31. Defendant is informed and believes and thereon alleges that prior to the commencement of this action, this answering Defendant duly performed, satisfied, and discharged all duties and obligations he may have owed to Plaintiffs, if any, arising out of any and all agreements, representations, or contracts made by them or on their behalf and that this action is therefore barred by the provisions of Civil Code section 1473. THIRTY-FIRST AFFIRMATIVE DEFENSE (STATUTE OF FRAUDS) 32. Defendant is informed and believes and thereon alleges that the Complaint is barred by the Statute of Frauds. /// /// 8 Answer of Defendant Domingo Ramirez to Complaint Case No: 18CV321369 461603 \DOOVQUI-tp-n NNNNNNNb-‘i-‘D-‘I-Ih-Ib-Ib-Ap-Ah-lh-i ggmmAwNn-owmuombmmwo T HIRTY-SECOND AFFIRMATIVE DEFENSE (DISCHARGE BY OPERATION OF LAW) 33. Defendant is informed and believes and thereon alleges that the obligation of the parties, if any, and in particular the answering Defendant has been discharged by operation of law. THIRTY-THIRD AFFIRMATIVE DEFENSE (N O DUTY OW'ED) 34. Defendant is informed and believes and thereon alleges that the Defendant did not owe a duty to Plaintiffs with regards to the allegations in the Complaint and that Plaintiffs are barred from recovering from this answering Defendant. THIRTY-FOURTH AFFIRMATIVE DEFENSE (FAILURE TO EXERCISE DUE CARE) 35. This answering Defendant alleges that Plaintiffs failed to exercisereasonable and ordinary care, caution, or prudence in order to avoid the alleged incident and any resulting injuries and damages. THIRTY-FIFTH AFFIRMATIVE DEFENSE (BREACH OF CONTRACT BY PLAINTIFF) 37. Defendant alleges that Plaintiffs’ Complaint is barred because Plaintiffs breached any and all agreements, representations, or contracts consummated, or alleged to be consummated, by Plaintiffs and this answering Defendant and that breached excused this answering Defendant’s performance. THIRTY-SIXTH AFFIRMATIVE DEFENSE ’ .(UNJUST ENRICHMENT) 38. The Defendant asserts that the Plaintiffs are seeking to recover more than Plaintiffs are entitled to recover in this case, and an award of the judgement sought by Plaintiffs would unjustly enrich Plaintiffs. /// /// 9 Answer of Defendant Domingo Ramirez to Complaint Case No: 18CV321369 461603 \DOONOXUI-tNp-t NNNNMNNNNh-‘v-‘b-‘u-ni-‘t-‘n-HHH OQQONM-tV-‘OOOOQQM-bWNI-IO THIRTY-SEVENTH AFFIRMATIVE DEFENSE (COMPARATIVE FAULT OF THIRD PARTIES) 39. 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 Plaintiffs, if any there were; that should Plaintiffs recover damages, 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 Plaintiffs’ injuries, if any. THIRTY-EIGHTH AFFIRMATIVE DEFENSE (ASSUMPTION OF THE RISK) 40. Defendant, on information and belief, alleges that Plaintiffs acted with full knowledge of all the facts and circumstances surrounding their injuries, losses, and claims and assumed the risk of the matters causing their injuries and losses, and that said matters of which Plaintiffs assumed the risk proximately contributed to the happening of the incident or incidents at bar and proximately caused their injuries, if any. THIRTY-NINTH AFF IRMAT IVE DEFENSE (FAILURE TO MAINTAIN HABITABLE CONDITION) 41. Defendant, on information and belief, alleges that said Complaint is barred because Plaintiffs did not maintain the premises in a habitable condition FORTIETH AFFIRMATIVE DEFENSE (IMPROPER jOINDER) 42. Defendant alleges that Plaintiffs’ claims are barred, in whole or in part, because some or all of the parties have been improperly joined in this action. //'/ /// /// /// 10 Answer of Defendant Domingo Ramirez to Complaint Case No: 18CV321369 461603 meadow-hum... NNNNNNNNNHi-It-tu-nv-p-nv-np-A-nu-n OOHOM-m-‘OOOONONUI-h-WNHO FORTY-FIRST AFFIRMATIV'E DEFENSE (ADDITIONAL AFFIRMATIVE DEFENSES) 43. Defendant acknowledges that he 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 Plaintiffs take nothing against Defendant by their Complaint, and that Defendant has judgment for his costs of suit herein incurred, together with such other and further relief as may be just and proper. Dated: February 1, 2018 CODDINGTON, HICKS & DANFORTI-l By W19] HTGre ory elch Attorne or Defendant Domingo Ramirez ll Answer of Defendant Domingo Ramirez [0 Complaint Case N o: 13CV321369 461603 \DOONQM-bww- NNNNNHHHHMWHHHH AWNHOOOONONm-h-WN-‘O 26 27 28 W California Code of Civil Procedure sections 1011, 1013,2gwfi3015513 3: l 3 California Rule of Court rule 2.251 Federal Rule of Civil Procedure Rule 5(b) CLEPV OF THE COU‘é‘T u‘ T \ SUPERlGR COUR. OF C COUN Y 0F ‘4 HIA CL 1, the undersigned, declare that I am employed in the County ea; California. I am over the age of eighteen (18) years and not a party to the within business address is 555 Twin Dolphin Drive, Suite 300, Redwood City, Calif nia 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 Service, mailing via overnight delivery, transmission by facsimile machine, and delivery by hand. On February 1, 2018, I served a copy of each of the dowments listed below by placing said copies for processing as indicated herein. ANSWER OF DEFENDANT DOMINGO RAMIREZ TO COMPLAINT X United States Mail: The correspondence or documents were placed in sealed, labeled envelopes with postage thereon fully prepaid on the above date laced for collection and mailing at my place of business to be deposited with the .8. 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 ackaging for overni ht de 'very, with Federal Express, with all charges to be paid y my employer on $16 above date for collection at m place of business to be deposited in a facility regularly maintained by the overni t delivery carrier, or delivered to a courier or driver authorized by the overnight de "very 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 corres ondence or documents were placed for transmission from (650) 592-5027 at Re wood City, California, and were transmitted to a facsimile machine maintained by the arty or attorney to be served at the facsimile machine telephone number rovidhd b said party or attorney, on this same date in the ordinary course of gusiness. he 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. 1/1t \OOONO‘ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 State. The reci ient has filed and served notice that he or she accepts electronic service; the reelpient 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 tinted form of this document bearing the original signature is on file and available or inspection at the request of the court or any party to the action or roceeding in which it is filed, in the manner provided in California Rule of Court Ruiz 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 ins ection in my employer’s office. 1 have received no indication the electronic transmission did not reach the recipient. PERSONS OR PARTIES SERVED: Robert]. Anderson Attorney at Law 1565 The Alameda Suite 100 San Jose, CA 95126 Telephone: (408) 293-8400 Facsnnile: 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 February 1, 2018. Eva Oliveira Court: Superiar Conn ofCa/{farnizy J'anla Clara Camry Action No: 78CV321369 Case Name: Cmmtm 1/. Ramirez;