Answer Unlimited Fee Applies

Cal. Super. - 6th Dist.February 21, 2019

I&athryn C. Iolaus, Esq. - SBN 205923 Thomas Yen, Esq. - SBN 168355 2 CODDINGTON, HICKS 8t DANFORTH A Professional Corporation, Lawyers 555 Twin Dolphin Drive, Suite 300 Redwood City, CA 94065-2133 Telu 650.592.5400 Fax: 650.592.5027 5 ATTORNEYS FOR Defendant Myhanh Le Nguyen IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA 10 ESPERANZA LO, 11 Plaintiff, 12 vs. 13 VIVIAN MINHHANH NGUYEN; 14 MYHANH LE NGUYEN; and DOES 1 to 10, 15 Defendants. 16 Case No. 19CV343431 DEFENDANT MYHANH LE NGUYEN'S ANSWER TO PLAINTIFFS COMPLAINT 17 20 21 22 COMES NOW defendant, Myhanh Le Nguyen and in response to the unverified complaint of plaintiff, Esperanza Lo, on file herein, herewith denies each and every, all and singular, the allega.iioiis tllerein containted, and in this connection, defendant detues that. plaintiff has been injured or damaged in any of the sums mentioned in the complaint, or in any sum xvhatsoever o» a. all, as a result of any act or omission of !='s answerin- defendann AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE 23 COMPLAINT ON FILE HEREIN, this answering defendant alleges that said complaint, and 24 each cause of action thereof, fails to state facts sufficient to constitute a cause of action against 25 this answering defendant. 26 /// 27 /// 28 Answer of Complaint Case No: 19CV343431 Electronically Filed by Superior Court of CA, County of Santa Clara, on 9/11/2019 2:34 PM Reviewed By: M Vu Case #19CV343431 Envelope: 3378808 10 12 13 14 AS A SECOND, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges that plaintiff was herself careless and negligent ir. and about the r.".atters alleged in the complaint; that said carelessness and negligence on plainuff'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, defendant is entided to have the amount thereof abated, reduced or eliminated to the extent that plaintiff's negligence caused or contributed to her injuries, if any. A.S A THIRD, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges that plaintiff acted with full knowledge of all the facts and circumstances surrounding her injuries and assumed the risk of the matters causing her injuries, and that said matters of which plaintiff assumed the risk proximately contributed to the happening of the incident at bar and proximately caused her injuries, if any. AS A FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE 15 16 17 20 21 22 23 24 25 26 27 COMPLAINT ON FILE HEREIN, this answering defendant alleges that named or unnamed third parries were careless and negligent in and about the matters alleged in the complaint; that said carelessness and negligence of said named 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, this answering defendant is entitled to have the amount thereof abated, reduced or eliminated to the extent that said named or unnamed third parties'egligence caused or contributed to plaintiff's injuries, if any. AS A FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN riis answering defendant al!eges that p!aindff faued subsequent to the occurrence described in the complaint properly to mitigate her damages and I thereby is precluded trotss recovering those dairrages which couici have reasonably been avoided by the exercise of due care on the part of plaintiff. 28 Anssver of Complaint Case No: 19CV343431 I AS A SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE 2 COMPLAINT ON FILE HEREIN, this answering defendant alleges that plaintiffs complaint, 3 and each cause of acion thereof, is ba red by the apphcable period of h'nitai1ons iilcluding, but 4 not limited to, limitations codified in California Code of Civil I rocedure ) 335.1 and California 5 Code of Civil Procedure ( 338. 6 AS A SEVENTH, SEI'ARATE AND AFFIRMATIVE DEFENSE TO THE 7 COMPLAINT ON FILE HEREIN, this answering defendant alleges that at the time of the 8 injuries alleged in the complaint, plaintiff was employed and was entitled tn, and did receive, 9 workers'ompensation benefits. Defendant is informed and thereon believes that if the 10 conditions as alleged in plaintiff's complaint ate found to exist, plaintiff's employer was 11 negligent and careless in and about the matters referred to in said complaint and that said 12 negligence on the part of the employer proximately caused or. contributed to the injuries and 13 damages, if any, complained of by plaintiff and by that reason thereof, defendant is entitled to 14 set-off any compensation benefits received or to be received by plaintiff against any judgment 15 which may be rendered in favor of plaintiff herein. 16 AS AN EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE 17 COMPLAINT ON FILE HEREIN, this answering defendant alleges that said complaint is 18 barred by the doctrine of unclean hands. 19 AS A NINTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE 20 COMPLAINT ON FILE HEREIN, this answering defendant alleges that said complaint is 21 barred by the doctrine of laches. 22 AS A TENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE 23 COMPLAINT ON FILE HERELiN this answering defendant a!!e es that sa.'d corn-laint is 24 barred by the doctrines of waiver and estoppel. zo AS AN ELE vENTH, St'PARATE AND AFFIRMA'I'IVE DEFENSE TO THE 26 COMPLAINT ON FILE HEREIN, this answering defendant alleges that she is entitled to an 27 offset for all monies received by plaintiff from payments received from any source. 28 /// Answer of Complaint Case No; 19CV343431 AS A TWELFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges the damages that the plaindff claims to have suffered were caused or made worse by an intervening or superseding cause or circumstances. 10 12 13 AS A THIRTEENTI I, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges that plaintiff has failed to properly name or join an indispensable or necessary party or parties 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 defendant, in any possible future litigation. AS A FOURTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering 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. 14 15 17 19 20 21 22 23 AS A FIFTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges on information and belief that plaintiff failed to carry health insurance on the day of the incident alleged in the complaint, or after the incident, and therefore failed to properly 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. AS A SIXTEENTH, 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 tlds state 24 AS A SEVENTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE 25 " COtMPLAItNT ON FiLE HEREIN, dus answering defendant alleges that if plaintiff recovers 26 27 28 damages from this answering defendant, this answering defendant is 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. 4 Answer of Complaint Case No: 19CV343431 AS AN EIGHTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLA.INT ON FILE HEREIN, this answering defendant alleges that if this answering 3 ~ defendant is found to be liable for any of plaintiff's losses anu damages, wh'ch defendant decdes 4 any and all liability, plaintiff should be limited to seek and recover from this answering defendant only that proportion of alleged damages and losses for which this answering defendant is liable and responsible under any applicable theory. AS A NINETEENTH, SEPARATE AND A.FFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant acknowledges that shc may have insufficient knowledge or information on which to form a belief as to whether additional 10 12 13 15 affirmative defenses are available; therefore, this answering defendant reserves the right to assert additional affirmative defenses as appropriate. WHEREFORE, defendant prays that plaintiff takes nothing against said defendant by her. said complaint, and that defendant has judgment for her costs of suit herein incurred, together with such other and further relief as may be just and proper.. 16 Dated: September 10, 2019 17 CODDINGTON, HICKS Bc DANFORTH 20 21 Thomas Yen Attorneys for Defendant Myhanh Le Nguyen 22 24 25 27 28 Answer of Complaint Case No: 19CV343431 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 oE 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 aprasad@chdlawycrs.corn. I am readily fantiliar with my employer's business practice for collecuon and processing of correspondence and documents for mailing with the United States Postal Service, mailing via 10 overnight delivery, transmission by facsimile machine, and dehvery by hand. On September 11, 2019, I served a copy of each of the documents listed below by placing said copies for processing as indicated herein. 13 DEFENDANT'S ANSWER TO COMPLAINT 14 15 United States Mail:The correspondence or documents were placed in sealed, labeled envelopes with postage thereon Eully 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 ordinary comse of business. 17 18 20 21 22 23 24 25 26 Overnight Delivery: The correspondence or documents were placed in sealed, labeled packaging for overnight delivery, with Federal Express, with all chatges 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 overnight 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, or if upon attorney, by leaving the labeled envelopes with a receptionist ot other person having charge of the attorney's office. Facsimile Transmission: The correspondence or documents were placed for transntission from t650) 592-5027 at Reawood City, California, and were transmitted to a Eacsimile machine maintained by the party or attorney to be served at the Facsimile machine telephone number provided gb said party or attorney, on thissame date in the oruinaiy course oi uusiness. rhe transmission was reported as complete and without error, and a record of the transmission was properly issued bythe transmitting facsimile machine. Electronic Transnlission: The corresponclence or documents were transmitted electronically to the electronic address set Eorth below. 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 proceeding in which it is filed, in the manner provided in Calitornia 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 electt'onic transmission ~md not reach the recipient. PERSONS OR PARTIES SERVED: 9 10 11 Reuben J. Donig, Esq. Law Offices nf Reuben J, Donig 177 Bovet Road, Suite 600 San Mateo, CA 94401 12 13 14 15 17 18 Telephone: (650) 638-2336 Facsimile: (650) 638-2536 E-mail:rjdoniglaw@aol.corn 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 vras executed ort September 11, 2019. AnitWrasad 19 20 21 Court: Saporior Conn'fCalifotnia,Santa Clara Conn19 Aeuou No. 19CV943431 Case Name: Lo, Esperanto t. Ngn9on 22 23 24 25 26