To Complaint Atty GrotchResponseCal. Super. - 6th Dist.February 5, 2018Ww oOo o e 3 O v wn A 18CV322928 Santa Clara - Civil Electronically Filed Richard G. Grotch, Esq. - SBN 127713 by Superior Court of CA, Mahmoud A. Fadli, Esq. - SBN 280607 County of Santa Clara, CODDINGTON, HICKS & DANFORTH on 3/16/2018 11:56 AM A Professional Corporation Lawyers : : 555 Twin Dolphin Drive, Suite 300 Reviewed By: A. Hwang Redwood City VY, CA 94065- 2133 Case #18CV322928 Tel: 650.592.5400 Envelope: 1319151 Faxz 650.592.5027 ATTORNEYS FOR Defendants Alaska Airlines, Inc., Horizon Air Industries, Inc. and City of San Jose IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA DAVID BARKMAN, Case No. 18CV322928 Plaintiff, ANSWER OF DEFENDANT CITY OF SAN Vs. JOSE TO UNVERIFIED COMPLAINT FOR PERSONAL INJURY DAMAGES CITY OF SAN JOSE, ALASKA AIRLINES, INC., HORIZON AIR INDUSTRIES, INC., and DOES 1 to 20, Defendants. COMES NOW defendant City of San Jose (hereinafter referred to as “San Jose”), and in response to the unverified complaint for personal injury damages of plaintiff David Barkman, in accordance with Section 431.30 of the Code of Civil Procedure, herewith generally denies each and every, all and singular, the allegations therein contained, and in this connection, San Jose 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 San jose. AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TOC THE COMPLAINT ON FILE HEREIN, San Jose alleges that the complaint, and each cause of action thereof, fails to state facts sufficient to constitute a cause of action against San Jose. /1/ /1/ 1 Answer to Unverified Complaint for Personal Injury Damages Case No: 18CV322928 471161 .H wang ~J SN Wn EE w ro © o e bo = N a ny 27 28 AS A SECOND, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, San Jose alleges that plaintiff was himself careless and negligent in and about the matters alleged in the complaint; that the 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, San Jose is entitled to have the amount thereof abated, reduced ot eliminated to the extent that plaintiffs negligence caused ot contributed to his injuries, if any. AS A THIRD, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, San Jose alleges that the propetty described in plaintiff's complaint was not being used with due cate by plaintiff and, therefore, no dangerous condition can be found under Government Code § 830(a). AS A FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, San Jose alleges that plaintiff acted with full knowledge of all the facts and circumstances surrounding his injury and assumed the risk of the matters causing his injury, and that such matters of which plaintiff assumed the risk proximately contributed to the happening of the incident at bar and proximately caused his injury, if any. AS A FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, San Jose alleges that named and/or unnamed third parties were careless and negligent in and about the matters alleged in the complaint; that the carelessness and negligence of these 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, San Jose is entitled to have at +l t the avmnd a d/ Poe Hemi a+, the amount thereof abated, reduced or eliminate that the named and/or unnamed third parties” negligence caused or contributed to plaintiff's injuries, if any. /1/ /1/ 2 Answer to Unverified Complaint for Personal Injury Damages Case No: 18CV322928 471161 2 \O o o ~ SN wn ~~ AS A SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, San Jose alleges that plaintiff failed subsequent to the occurrence described in the complaint properly 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 part of plaintff. AS A SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, San Jose alleges that plaintiff's complaint, and each cause of action thereof, is barred by the applicable petiod of limitations including, but not limited to, limitations codified in Code of Civil Procedure Section 335.1. AS AN EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, San jose alleges that the injuries and damages plaintiff alleges he sustained were due to the negligence or other wrongful acts ot omissions of persons or entities other than San Jose; however, in the event a finding is made that acts or omissions on the part of San Jose proximately contributed to the damages alleged in the complaint, San Jose’s liability should be reduced in accordance with applicable law. AS A NINTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, San Jose alleges that to the extent that plaintiffs complaint seeks damages for alleged personal injury or property damage based upon principles of comparative fault, pursuant to the provisions of California Civil Code § 1431, ef seq., the liability of San Jose, if any, for non-economic damages, if any, shall be several only and shall not be joint. AS ATENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, San Jose alleges th of action thereof, may be preempted by federal law, including, but not limited to, the provisions of the Federal Aviation Act of 1958, 49 U.S.C. Section 40101, ez. seq. and its regulations promulgated pursuant thereto. /1/ /17 3 Answer to Unverified Complaint for Personal Injury Damages Case No: 18CV322928 471161 Ww OO o e 3 a nn A AS AN ELEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, San Jose alleges that in the management of its propetty, it acted reasonably. Prior to the happening of this alleged accident, San Jose did not have actual ot constructive knowledge of the alleged dangerous condition and discovery of such condition could not have been made in the exercise of reasonable cate. AS A TWELFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, San Jose alleges that if plaintiff suffered or sustained any loss, damage or injury at or about the time and place alleged, the loss, damage or injury, if any, were the direct and proximate result of the tisk, if any risk there was, knowingly assumed by plaintiff in that the condition of the premises was open and obvious. AS A THIRTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, San Jose alleges that it did not have actual ot constructive notice of the condition alleged by plaintiff and, as such, had no duty to plaintiff, the lack of such duty being a bar to plaintiff's recovery. AS A FOURTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, San Jose alleges that that any and all acts or omissions of San Jose, its agents or employees, which allegedly caused the injuties or damages claimed in the complaint, were the result of the exercise of discretion vested in them pursuant to Government Code Sections 815.2 and 820.2; San Jose, therefore, is not liable for the alleged injuries and damages about which plaintiff complains. AS A FIFTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, San Jose alleges that any and all acts or omissions of San Jose or its agents or employees, which allegedly created a condition of property at the time an place alleged in the complaint, were reasonable. Pursuant to Government Code Section 835.4(a), San Jose, therefore, is not liable for any of the alleged injuries or damages about which plaintiff complains. /// /// 4 Answer to Unverified Complaint for Personal Injury Damages Case No: 18CV322928 471161 Ww wn A o \O oo ~ lo x) AS A SIXTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, San Jose alleges that any and all acts or omissions of San Jose, its agents or employees, relative to the condition of the property at the time and place alleged in the complaint, were reasonable. Pursuant to Government Code Sections 835.4(b), San Jose, therefore, is not liable for any of the alleged injuries or damages about which plaintiff complains. AS A SEVENTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, San Jose alleges that any and all acts or omissions of San Jose, its agents or employees, which allegedly created a dangerous condition of the property at the time and place of the incident alleged in the complaint, were in accordance with a plan and design for the construction of an improvement of public property, which plan and design had been approved in advance of construction and improvement by the proper legislative body and public employees exercising discretionaty authority to give such approval; this plan and design wete prepared in conformity with standards previously so approved; and these approvals were reasonable. Pursuant to Government Code Section 830.6, San Jose, therefore, is not liable for any of the alleged injuries or damages about which plaintiff complains. AS AN EIGHTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, San jose alleges that the injuries and damages alleged by plaintiff were caused by acts or omissions of a third party or parties, and not by acts or omissions of San Jose, its agents or employees. Pursuant to Government Code Section 820.8, San Jose, therefore, is not liable for any of the alleged injuries or damages about which plaintiff complains. AS ANINTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, San Jose alleges, without admitting liability or that plaintiff has suffered or will suffer any loss, damage or injury, in the alternative, that any loss, damage or injury which plaintiff has suffered or will suffer, as alleged in the complaint or otherwise, is the direct and proximate result of the unforeseen/unforeseeable negligent, grossly negligent or criminal acts or omissions of an intervening third party or parties, or other acts or 5 Answer to Unverified Complaint for Personal Injury Damages Case No: 18CV322928 471161 \ O le ] ~J MN w h = Ww No - t o rN N o [\ o] -_ - p t p e t p- = p t f t - - W d N o - o \ O o Q ~ J AN w n =~ w o [N S] b- oo bo Ea D N D N c o 3 O N Wn omissions for which such party or parties may be strictly liable, and that such acts or omissions completely bars any recovery against San Jose. Pursuant to California Government Code Section 820.8, San Jose is, therefore, not liable for any such alleged injuties or damages about which plaintiff complains. AS ATWENTIETH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, San Jose alleges that the condition of property alleged in the complaint did not constitute a substantial risk of injuries, but rather a minor, trivial or insignificant risk which did not create a dangerous condition of property. Pursuant to Government Code Section 830.2, San Jose, therefore, is not liable for any of the alleged injuries or damages about which plaintiff complains. AS A TWENTY FIRST, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, San Jose alleges that the complaint fails to set forth any statutory basis for the causes of actions purportedly contained therein. The condition of the property as alleged in the complaint did not constitute a substantial risk of injuties, but rather a minot, trivial, or insignificant risk which did not create a dangerous condition of the property and, therefore, those causes of action ate barred. In particular, plaintiff fails to identify and allege a dangerous condition as required by Government Code Sections 830.2, 835, 835.2 ez. seg. San Jose is not liable for any injury and is immune from suit except as provided by statute. AS A TWENTY SECOND, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, San Jose alleges that it cannot be held vicariously liable for any other parties’ actions, pursuant to the Court’s holding in John R. v. Oakland Unified School District. S A YENTY T™™ HIRD, SEPARATE AND AFFIRMATIVE DEFENSE TO THE 3 ANA 1 AL 111g COMPLAINT ON FIL, td HEREIN, San Jose alleges that to the extent the allegations of the complaint attempt to enlarge upon the facts and/or contentions set forth in a claim, if any, filed by plaintiff, the complaint fails to state a cause of action, and violates the provisions of California Government Code, Chapter 1 (commencing with Section 900), and Chapter 2 (commencing with Section 910). San Jose reserves its right to strike any such allegations and 6 Answer to Unverified Complaint for Personal Injury Damages Case No: 18CV322928 471161 Ww NO 0 9 O n nn objects to any evidence directed to prove them. AS A TWENTY FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, San Jose alleges it maintained and operated a reasonably adequate inspection system relating to the public propetty, if there be any, in question, and that system could not detect the alleged dangerous condition on the ptoperty under Government Code {§ 835.2(b)(1) and 835.2(b)(2). AS ATWENTY FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, San Jose is not liable for failures to maintain propetty that does not belong to the City and is not liable for failures to inspect property that does not belong to the City pursuant to Government Code § 818.6. AS ATWENTY SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, San Jose asserts the affirmative defenses provided by Government Code §§ 800 to 1000, including, but not limited to, §§ 815, 815.2, 815.6, 818.2, 818.8, 820.2, 820.4, 820.8, 822.2, and 844.6, to the extent that subsequently discovered facts show that these immunities apply to this case. WHEREFORE, defendant San Jose prays that plaintiff take nothing against it by his complaint; that San Jose have judgment for its costs of suit herein incurred, together with such other and further relief as may be just and propet. Dated: March 16, 2018 CODDINGTON, HICKS & DANFORTH - by News k | ~~ Richard G. Grotch Mahmoud A. Fadi Attorneys for Defendants Alaska Ridtines, Inc., Horizon Air Industries, 7 Answer to Unverified Complaint for Personal Injury Damages Case No: 18CV322928 471161 [Ne ] Oo 0 9 N n B A W 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 party 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 March 16, 2018, I served a copy of each of the documents listed below by placing said copies for processing as indicated herein. ANSWER OF DEFENDANT CITY OF SAN JOSE TO UNVERIFIED COMPLAINT FOR PERSONAL INJURY DAMAGES 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 eryice at Redwood City, California on this same date in the ordinary course of usiness. 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 overni ft delivery carrier, or delivered to a courier or driver authorized by the overnight delta 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, 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 cotrespondence 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 patty 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. Ww N d EN OO 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 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 or procecding 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: G. Dana Scruggs, Esq. Cartwright, Scruggs, Fulton & Walther 716 Ocean Street Suite 100 Santa Cruz, CA 95060 Telephone: (831) 457-1700 Facsimile: ~~ (831) 457-3788 E-mail: dana@csfwlaw.com 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 March 16, 2018. Kim Ratto Court: Superior Court of California,Santa Clara County Action No: 18C17322928 Case Name: Barkman v. City of San Jose, et al.
