Answer of Defendant Csaa Insurance Exchange To Complaint of Plaintiffs

Response

Cal. Super. - 6th Dist.April 29, 2019

oO 0 3 NN h h BR Ww W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 7 28 ELECTRONICALLY FILED BY Superior Court of California, County of Monterey On 3/21/2019 10:16 AM R. Wardell Loveland, Esq. - SBN 127736 By: Carol Melber, Deputy c las E. Johns, Esq. - SBN 314798 DINGTON. HICKS & DANFORTH i Professions, Cotporation, Lawyers 555 Twin Dolphin Drive, Suite 300 Redwood City, CA 94065-2133 Tel.: 650.592.5400 Fax: 650.592.5027 ATTORNEYS FOR Defendant CSAA Insurance Exchange IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF MONTEREY JULIAN Z. LOPEZ, an individual; ESTATE | Case No. 19CV000645 OF JULIAN Z. LOPEZ; Heirs of JULIAN LOPEZ; RENE HERNAN DEZ, an individual; ROBERTO HERNANDEZ, an individual, ANSWER OF DEFENDANT CSAA - INSURANCE EXCHANGE TO ainatts, COMPLAINT OF PLAINTIFFS VS. CSAA INSURANCE EXCHANGE, a licensed California Reciprocal Insurer; CSAA Insurance Services, Inc., a California Corporation; and DOES 1-50, inclusive, Defendants. COMES NOW defendant, CSAA Insurance Exchange (“defendant”), and in response to the unverified complaint of plaintiffs on file hetein, herewith denies each and every, all and singular, the allegations thetein contained, and in this connection, defendant denies that plaintiffs have 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 this answering defendant. AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges that said complaint, and each cause of action thereof, fails to state facts sufficient to constitute a cause of action against this defendant. i Answer of Defendant CSAA Insurance Exchange to Complaint of Plaintiffs Case No: 19CV000645 574260 NO 0 I AN BR W N ) ND N D N N N N ® 2 3 L E L O R = 3S 0% x 9 a an R S D C S E AS A SECOND, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges that said complaint is barred because defendant did not owe a duty to plaintiffs with regards to any of the allegations set forth in said complaint and therefore plaintiffs are barred from recovering from this answering defendant because such duty was owed including, but not limited to, a fiduciary duty. AS A THIRD, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges that plaintiffs were themselves careless and negligent in and about the matters alleged in the complaint; that said carelessness and negligence on said plaintiffs’ own patt proximately contributed to the happening of the incident and to the injuries, loss and damage complained of, 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 plaintiffs’ negligence caused or contributed to their injuries, if any. AS A FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges that plaintiffs acted with full knowledge of all the facts and circumstances surrounding their injury and assumed the risk of the matters causing their injury, and that said matters of which plaintiffs assumed the risk proximately contributed to the happening of the incident at bar and proximately caused their injury, if any. AS A FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answeting defendant alleges that named 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 or unnamed third patties proximately contributed to the happening of the incident and to the injuties, loss and damage complained of by plaintiffs, if any there were; that should plaintiffs recover damages, this answering defendant 1s entitled to have the amount thereof abated, reduced or eliminated to the extent that said named or unnamed third parties’ negligence caused ot contributed to plaintiffs’ injuries, if any. /17 2 Answer of Defendant CSAA Insurance Exchange to Complaint of Plaintiffs Case No: 19CV000645 574260 Oo 0 N N A N W h RR W N D N D N D N D N NY = AS A SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges that plaintiffs failed subsequent to the occurrence described in the complaint properly to mitigate their damages and thereby are precluded from recovering those damages which could have reasonably been avoided by the exercise of due care on the part of plaintiffs. AS A SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges 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 sections 335.1, 337, 338, 339, 340, and 343. AS AN EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges that said complaint is barred by the doctrine of unclean hands. AS A NINTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges that said complaint is barred by the doctrine of laches. AS A TENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges that said complaint is barred by the doctrines of waiver and estoppel. AS AN ELEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges that to permit recovery in respect of the matters herein alleged would violate the provisions of California Const. Art. I, §§1,7,9, 15, and 16. AS A TWELFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges that to permit recovery in respect of the matters herein alleged would violate the provisions of United States Const. Art. 1, § 10. /// 3 Answer of Defendant CSAA Insurance Exchange to Complaint of Plaintiffs Case No: 19CV000645 574260 NO 0 0 O N Wh BR W N ) R O N N N N N N N ® N N U L E W N =~ SS 0 ® a9 a E n D E E AS A THIRTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges that to permit recovery in respect of the matters herein alleged would violate the provisions of United States Const., Amend. V, VII, VIII, and XIV. AS A FOURTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges that plaintiffs or their attorneys were themselves guilty of “bad faith” in and about the matters alleged in the complaint; that said “bad faith” on said plaintiffs’ or their attorneys’ 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 plaintiffs tecover damages, defendant is entitled to have the amount thereof abated, reduced or eliminated to the extent that plaintiffs’ or their attorneys’ “bad faith” caused or contributed to their injuries, if any. AS A FIFTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges that there has been no final determination of the liability of the tortfeasor, of the tortfeasors, in the underlying proceedings and the lawsuit thereof is batred. AS A SIXTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges that the damages the plaintiffs claim to have suffered were caused or made worse by an intetvening or superseding cause or circumstances. AS A SEVENTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answeting defendant alleges that plaintiffs have failed to properly name or join an indispensable ot necessary party or parties to the present action; as a result of such failure to join, complete relief cannot be accorded to those alteady parties to the action and result in prejudice to the defendant, in any possible future litigation. /17/ /// /1/ 4 Answer of Defendant CSAA Insurance Exchange to Complaint of Plaintiffs Case No: 19CV000645 574260 © 0 a ON WU BA W N em ID N N N N N N N N ® 2 L E WO RN = 3S 0% x» 9 5 a a E O D D SB AS AN EIGHTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges that plaintiffs’ claims are batted, in whole or in part, because some or all of the parties have been imptopetly joined in this action. AS A NINETEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges that plaintiffs’ complaint, and each cause of action thereof, is barred by the applicable contractual limitations period stated in the policy for actions against the insurer. AS ATWENTIETH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges that plaintiffs’ complaint, and each cause of action thereof, is barred, in whole or in part because this answering defendant complied with all provisions of the California Insurance Code pertaining to the cancellation and renewal of personal automobile insurance policies. AS A TWENTY-FIRST, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges that plaintiffs’ complaint, and each cause of action thereof, is barted, in whole ot in patt, by the exclusions, definitions, policy provisions, endorsements, and other terms and conditions contained in the policy of insurance issued by and through this defendant as identified in plaintiffs’ complaint. AS A TWENTY-SECOND, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges that the performance of its duties under the subject policy of insurance was excused by plaintiffs. AS A TWENTY-THIRD, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges that there is no coverage under the subject policy for the claim(s) asserted as a result of the policy’s provisions, limitations, conditions, or endorsements contained in or incorporated by reference, expressly or impliedly, in such policy. /// /// 5 Answer of Defendant CSAA Insurance Exchange to Complaint of Plaintiffs Case No: 19CV000645 574260 NO 0 YN BR W N ) DD N N N N N N N ) ® N N G E WO RN = 3S 0% ®» 9 a E > D Z S AS A TWENTY-FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges that plaintiffs breached the subject policy of insurance, thus relieving defendant of any duty to perform. AS A TWENTY-FIFTH SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges that plaintiffs failed to petform all conditions, covenants, and promises tequited by them, to be performed in accordance with the terms and conditions of the written policy of insurance at issue. AS A TWENTY-SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges that it is entitled to set- off for payments made to or on behalf of plaintiffs for which there was no coverage under the subject policy of insurance or for which was available from collateral sources. AS A TWENTY-SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answeting defendant alleges that it is entitled to set-off for all amounts paid, payable under the subject policy of insurance for which there was coverage or for which was available from collateral sources. AS A TWENTY-EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges that if at the time of trial, the court or jury determines that there was some degree of responsibility on the part of this answering defendant and that defendant’s conduct was a proximate cause of plaintiffs’ alleged damages, this answering defendant alleges and contends that such injuries and damages, if any, were proximately caused by the concurrent negligence of plaintiffs or other as yet unknown petson or entities, and that this answer defendant’s liability, if any, is limited to the extent of this answering defendant’s proportionate responsibility. //7 /1/ /1/ /1/ /// 6 Answer of Defendant CSAA Insurance Exchange to Complaint of Plaintiffs Case No: 19CV000645 574260 OO 0 9 AN BR W N ID N N N N N N Y D N ® N S h E W N =~ SS 0 ® 9 a E D D Z B AS A TWENTY-NINTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges that plaintiffs’ complaint, and each cause of action thereof, is barred, in whole of in patt because plaintiffs’ complaint, and each cause of action thereof must be adjudicated and resolved by arbitration pursuant to the terms of the policies referenced and mentioned throughout plaintiffs’ complaint, and defendant reserves the right to institute or compel arbitration, and defendant does not waive the right to institute or compel arbitration by answeting plaintiffs’ complaint. AS A THIRTIETH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant is entitled to, and claims the benefit of, all defenses and presumptions set forth in or arising from any rule of law or statute in this state and any other state whose law is deemed to apply in this case. This answering defendant reserves the right to assert any additional defenses which may be disclosed during the course of additional investigation and discovety. WHEREFORE, defendant prays that plaintiffs take nothing against said defendant by the complaint, and that defendant has judgment for its costs of suit hetein incurred, together with such other and further relief as may be just and proper. Dated: March 21, 2019 CODDINGTON, HICKS & DANFORTH By: Doogha Jobo R. Wardell I"oveland Douglas E. Johns Attorneys for Defendant CSAA Insurance Exchange 7 Answer of Defendant CSAA Insurance Exchange to Complaint of Plaintiffs Case No: 19CV000645 574260 oO 0 NN O N wn ha 10 1 12 13 14 15 16 17 18 19 20 21 i) 23 24 25 26 27 28 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. 1 am over the age of eighteen (18) yeats 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 hpotter@chdlawyers.com. I am teadily familiar with my employet’s business practice for collection and processing of cortespondence and documents for mailing with the United States Postal Service, mailing via overnight delivery, transmission by facsimile machine, and delivery by hand. On March 21, 2019, I served a copy of each of the documents listed below by placing said copies for processing as indicated herein. ANSWER OF DEFENDANT CSAA INSURANCE EXCHANGE TO COMPLAINT OF PLAINTIFFS XX 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 Setvice 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 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 SwErTR t delivery carrier, or delivered to a courier or driver authorized by the overnight delivery carrier to receive such packages, on this date in the ordinaty 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 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 patty ot attotney 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. NO 0 Na On 10 11 12 13 14 15 16 17 18 19 20 9] 22 23 24 26 27 28 State. The recipient has filed and served notice that he ot 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 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: Attorneys for Plaintiffs Paul Hart, Esq. Dennis Lewis, Esq. Linda N. Sunde, Esq. Monctrief & Hart, PC 16 West Gabilan Street Salinas, CA 93901 Telephone: (831) 759-0900 Facsimile: (831) 759-0902 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 March 21, 2019. Helen Porter Court: Superior Court of California, Monterey Connty Action No: 79C1 000645 Case Name: Lopez, Julian v. CSAA IE