Answer Unlimited Fee Applies

Cal. Super. - 6th Dist.November 9, 2018

Electronically Filed by Superior Court of CA, County of Santa Clara, on 1/4/2019 5:37 PM Reviewed By: R. Tien Case #18CV337412 Envelope: 2339500 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LAW OFFICES OF SANTANA & VIERRA David A. Harris - SBN: 129837 255 California Street, Suite 900 San Francisco, CA 94105 Telephone: 41 5-777-1 308 Facsimile: 603-430-05 1 3 Email: @idflarfiso 1 {u Liberty Mutua1.com Attorpey for Defendant CAFE VENETIA, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA STEPHANIE R. POLIS, CASE NO. 18CV337412 Plaintiff, ANSWER TO COMPLAINT VS. Complaint filed: November 9, 2018 CAFE VENETIA, INC., DE MATTEI CONSTRUCTION, 1N0, DONALD FERRANDO, SEE ATTACHMENT 1 FOR LIST 0F ADDITIONAL DEFENDANTS AND DOES 1 To 75, Defendants. Defendant Café Venetia, Inc. (“Defendant”) answers the unverified Complaint 0f Plaintiff Stephanie R. Polis (“Plaintiff”) as follows: Pursuant to Code of Civil Procedure §431.30 Defendant denies generally and specifically each and every allegation contained in the Complaint, and denies that the Plaintifl‘ sustained any damages as alleged in any sum or sums, or at all, by reason ofany act, breach or omission on the part ofthis answering Defendant. FIRST AFFIRMATIVE DEFENSE (Failure to State Sufficient Facts) 3. Defendant alleges the Complaint, and each purported cause of action therein, fails to state 1 ANSWER TO COMPLAINT OO\]O\UI4>WN \O 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [facts sufficient to constitute a cause of action against Defendant. SECOND AFFIRMATIVE DEFENSE (Contributory Negligence) 4. Defendant alleges that the subject accident was caused or contributed to by the negligence of Plaintiff, in that she failed to exercise ordinary and reasonable care in her conduct at the subj ect premises. THIRD AFFIRMATIVE DEFENSE (Liability in Proportion to Fault) 5. Defendant alleges that it is not legally responsible in any fashion with respect t0 damages claimed by the Plaintiff in his pleadings. If Defendant is found to be legally responsible, then Defendant alleges its legal responsibility is not the sole and proximate cause of the injuries alleged by the Plaintiff, and damages awarded to Plaintiff, if any, are to be apportioned according to the respective fault and legal responsibility of all parties, persons and entities, or the agents, servants and employees who contributed to and/or caused Plaintiff s injuries, according to proof presented at the time of trial. FOURTH AFFIRMATIVE DEFENSE (Statute of Limitations) 6. Defendant alleges the Complaint and each purported cause of action therein is barred by the applicable statute oflimitations. FIFTH AFFIRMATIVE DEFENSE (Unclean Hands) 7. Defendant alleges Plaintiff” s conduct relative t0 Defendant and the relationship between Plaintiff and Defendant was such as to bring the Plaintiff into this lawsuit with unclean hands, and as such Plaintiff is estopped from pursuing her claims. 2 ANSW'ER TO COMPLAINT OOQQ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SIXTH AFFIRMATIVE DEFENSE (Assumption 0f Risk) 8. Plaintiffwas aware 0f the inherently dangerous nature 0fthe activities which she engaged, and as such she is barred fiom seeking recovery fiom Defendant. SEVENTH AFFIRMATIVE DEFENSE (Estoppel) 9. A11 claims against Defendant are balred, in whole or in part, by estoppel. EIGHTH AFFIRMATIVE DEFENSE (Bad Faith) 10. Defendant alleges the Complaint was brought without reasonable care and Without a good faith belief that there was a justifiable controversy under the facts and the law which warranted the Ifiling ofthe Complaint against Defendant and that Plaintiff should therefore be responsible for )efendant’s necessary and reasonable defense costs, including attorneys' fees, as more particularly set orth in Code 0f Civil Procedure Section 1038. NINTH AFFIRMATIVE DEFENSE (Waiver 0f Liability) 11. 0n information and belief, Defendant alleges the conduct of Plaintiff acted as a waiver barring Plaintiff fiom seeking damages. TENTH AFFIRMATIVE DEFENSE (Failure to Use Ordinary Care) 12. Defendant is informed and believes and based thereon allege that Plaintiff failed to exercise ordinary care, caution or prudence to avoid the incidents alleged therefore barring Plaintiff from seeking damages. 3 ANSWER T0 COMPLAINT 4; \OOOQOKUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ELEVENTH AFFIRMATIVE DEFENSE (Failure to Use Reasonable Care) 13. Defendant is informed and believe and based thereon allege that at all times mentioned herein, Plaintiff failed to use reasonable care to reduce and minimize as much as reasonably possible, the subj ect accident, and that her failure was the direct and proximate cause of all damages sustained by Plaintiff, if any, and therefore, Defendant is not liable t0 Plainfifi for any damages. TWELFI‘H AFFIRMATIVE DEFENSE (Negligence) 14. Defendant is informed and believe and based thereon allege recovery by Plaintiff is diminished, barred and/or reduced by the active, primary and affirmative negligence, caIelessness and recklessness ofPlaintiff, and that Plaintiff is not entitled to indemnity against Defendant, whether the same be deemed negligence or strict liability in tort, in that the conduct of Defendant, if any, was passive, derivative and secondary in nature, while the conduct ofPlajntiff was active and primary. THIRTEENTH AFFIRMATIVE DEFENSE (Modification) 15. Plaintiff’ s n'ght to recovery is reduced or eliminated as a result of the conduct of Plaintiff and his agents to the extent the subject accident was caused in whole or in part by the modification of the aremises by others. FOURTEENTH AFFIRMATIVE DEFENSE (Prior Knowledge) 16. Plaintiff s right to recovery is reduced 0r eliminated to the extent Plaintiff or his agents knew of any issues with the subject property. 4 ANSWER T0 COMPLAINT \OOOflQUI-b 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FlFTEENTH AFFIRMATIVE DEFENSE (Waiver) 17. A11 claims against Defendants were waived, in whole or in part, by the conduct of Jlaintiff or her agents. SIXTEENTH AFFIRMATIVE DEFENSE (N0 Duty) 18. Plaintiff’s claims are baned to the extent Defendant did not owe a duty to Defendant. SEVENTEENTH AFFIRMATIVE DEFENSE (No Causation) 19. Defendant exercised due care and diligence in all of the matters alleged in the Complaint, and no act or omission by Defendant was the proximate, or actual, cause of any of the injuries Jr damages complained 0f, if any there were. EIGHTEENTH AFFIRMATIVE DEFENSE (Comparative Fault - Proximate Cause) 20. Defendant is informed and believe and thereon allege that the damages complained ofby ?laintiff, if any, were caused by persons or entities other than Defendant and said conduct is either mputed to Plaintiff by reason of the relationship between Plaintiff and said persons or entities, 0r comparatively reduces the proportion of liability of Defendant. NINETEENTH AFFIRMATIVE DEFENSE (Reservation) 2 1. Defendant presently has insufficient knowledge or information on which to for'm a belief as to whether it may have additional, as yet, unstated defenses available. Defendant, therefore, reserves the right to assert additional defenses in the event that discovery indicates they would be appropriate. 5 ANSWER TO COMPLAINT \OWQQUI-h 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WHEREFORE, Defendant prays for judgment as follows: 1. Plaintifftakes nothing by way of her Complaint on file herein; 2. For attomey’s fees, pursuant to the applicable Code ofCivil Procedure. 3. For costs of suit incurred herein; and 4. For such other and further relief as the Court may deem just and proper. Dated: JanuaIy 4, 2019 SANTANA & VIERRA ,J ‘ m fl) n1.“ JBy ' £ k David A. Han‘is Attorney for Defendant CAFE’ VENETIA, INC. 6 ANSWER TO COMPLAINT Polis v. Café Venetia. Inc., et al. COUNTY OF SANTA CLARA - SAN JOSE Superior Court Case N0. 18CV337412 DECLARATION 0F SERVICE [C.C.P. § 1013A, C.R.C‘ §§ 2003, 2008] At the time 0f service I was over 18 years 0f age and not a party to this action. I am an employee 0f Law Offices 0f Santana and Vierra. My business address is 255 California Street, Suite 900, San Francisco, CA 94111. On this date I served the following document(s) by the following means: E DDDDD Answer t0 Complaint U.S. MAIL: I enclosed the documents in a sealed envelope or package addressed t0 the persons at the addresses as set forth below and placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar With this business’s practice for collecting and processing correspondence for mailing. 011 the same day that correspondence 1s placed for collection and mailing, it is deposned in the ordinary course of business with the United States Postal Service at San Francisco, California, in a sealed envelope with posta e fillly prepaid. OVERNIGHT DELIVERY (UPS): I encased the documents in an envelope 0r package and addressed t0 the persons at the addresses stated below. l laced the envelope 0r ackage for collection and overnight delivery at an office or a regular utilized drop%ox 0f the overnight de ivery carrier. UPS DELIVERY : I enclosed the documents in an envelope 0r package and addressed t0 the persons at the addresses stated below. I placed the envelope 0r package for collection and delivery at an office 0r a regular utilized drop box 0f the delivery carrier. MESSENGER SERVICE: I served the documents by placing them in an envelope 0r package addressed t0 the persons at the addresses listed set forth below and providing them to a professional messenger service for service. (A declaration by the messenger must accompan this proofofservice.) FAX TRANSMISSION: I faxed the documents t0 the ersons at tl'):e fax numbers listed below. N0 error was reported by the fax machine that I used. A copy ofPthe record 0f the fax transmission, Which I printed out, is attached. EMAIL or ELECTRONIC TRANSMISSION: Based 0n a court order 0r an agreement 0f the parties t0 accept service by e-mail or electronic transmission, l caused the documents t0 be sent t0 the person at the e-mail addresses listed below. I did not receive, Within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. Altomeysfor Plaintiff Attorneysfbr Def, De Mattei Michael J. Appel, Esq. Construction, Inc. Joseph J. Appel, Esq. Christopher E. Brumfiel, Esq. Appel Law Firm, LLP Boomazian, Jensen & Garthe 100 Pringle Avenue, Suite 730 P.O. Box 12925 Walnut Creek, CA 94596 Oakland, CA 94604-2925 (925) 938-2000 (510) 834-4350; (510) 839-1 897 - fax (925) 938-2728 - fax cbrumfiel b' .com Courtesy Fax g State: I declare under penalty of perjury under the laws 0f the State of California that the foregoing is true and correct. EXECUTED 0n January 4, 2019, at San Francisco, CA. U O Joanna Jhanda