Answer Unlimited Fee Applies

Cal. Super. - 6th Dist.September 27, 2019

Electronically Filed by Superior Court of CA, County of Santa Clara, on 10/30/2019 9:04 AM Reviewed By: L Del Mundo Case #19CV355792 Envelope: 3585393 10 ll 12 13 .14 15 16 l7 18 l9 20 21 22 23 24 25 26 27 28 SPINELLI, DONALD & NOTT A Professional Corporation J. SCOTT DONALD, SBN: 158338 601 University Avenue, Suite 225 Sacramento, CA 95825 Telephone: (916) 448-7888 Facsimile: (916) 448-6888 scottd@sdn1aw.com Attorneys for Defendant GOD’S LITTLE ACRE NURSERY SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA KATHLEEN DAY and WILLIAM DAY, Plaintiffs, Case No.2 19CV355792 DEFENDANT GOD’S LITTLE NURSERY’S ANSWER TO PLAINTIFFS KATHLEEN v. DAY AND WILLIAM DAY’S COMPLAINT GOD’S LITTLE ACRE NURSERY t I and DOES 1 through 10, inclusive, Defendants. Complaint Filed: September 27, 201 9 Trial Date: Not Set VVVVVVVVVVVVV COMES NOW Defendant GOD’S LITTLE ACRE NURSERY (“Defendant”), and in answering the Complaint of Plaintiffs KATHLEEN DAY and WILLIAM DAY (“Plaintiffs”) on file herein, admits, denies and alleges as follows: GENERAL DENIAL Under the provisions 0f Section 43 1 .30 of the California Code 0f Civil Procedure, Defendant denies, generally and specifically, each and all of the allegations contained in Plaintiffs’ Complaint 0n file herein, and in each and every cause of action therein contained, and further denies that Plaintiffs were damaged in any sum or sums at all, as alleged in said Complaint or otherwise. AFFIRMATIVE DEFENSES As and for separate and affirmative defenses, Defendant alleges as follows: ANSWER TO'COMPLAINT - l lO ll 12 l3 l4 15 16 l7 18 19 20 21 22' 23 24 ,25 26 27 28 ' FIRST AFFIRMATIVE DEFENSE Failure to State Cause of Action That said Complaint does not state facts sufficient to constitute a cause of action .against this answering Defendant. SECOND AFFIRMATIVE DEFENSE Comparative Negligence That Plaintiffwas negligent in some percentage compared to that 0f Defendant, and said negligence contributed proximately to Plaintiff’ s injuries 0r damages. THIRD AFFIRMATIVE DEFENSE Comparative Fault ‘ That Plaintiffs and others were guilty of negligence or other legal fault in some percentage compared to that of Defendant and said negligence or other legal fault contributed proximately t0 Plaintiffs’ injuries 0r damages. FOURTH AFFIRMATIVE DEFENSE Statute of Limitations That this pleading and each alleged cause of action thereof is barred in Whole or in part by the applicable statute of limitations in Code of Civil Procedure sections 335 through 343. FIFTH AFFIRMATIVE DEFENSE Mitigation of Damages At all times here relevant, Plaintiffs failed to mitigate their injuries and damages. SIXTH AFFIRMATIVE DEFENSE Assumption of the Risk That Plaintiffs acted With full knowledge 0f all of the facts and circumstances surrounding the alleged injury, that with full knowledge of all attendant risks, Plaintiffs voluntarily assumed the risk of any injuries sustained, and that said matters of whichPlaintiffs assumed the risk proximately contributed to, and proximately caused, the alleged injury, if any, by their own actions 0r inactions. // // ANSWER TO COMPLAINT - 2 10 ll l2 l3 l4 15 16 l7 18 19 20 21 22 23 24 25 26 27- 28 SEVENTH AFFIRMATIVE DEFENSE Apportionment of Fault This answering Defendant is informed and believes, and thereon alleges, that the incidents alleged in the Complaint and the resulting damages, if any, sustained by Plaintiffs Were proximately caused and/or contributed to by the negligence or strict liability of other parties, named 0r unnamed, and if it is found that this Defendant was negligent herein, then any recovery as against this Defendant should be reduced by the amount 0f negligence 01' stn'ct liability 0f said other parties. EIGHTH AFFIRMATIVE DEFENSE Willful Misconduct That the Plaintiffs by their acts and/or omissions engaged in willful misconduct and/or misuse of the premises and that Willful misconduct precludes this action and, fufiher, that Willful misconduct and/or misuse was a proximate cause ofthe incident and damages, if any, sustained by Plaintiffs. NINTH AFFIRMATIVE DEFENSE Open and Obvious Conditions This answering Defendant is informed and believes, and thereon alleges, that any defective or unreasonably dangerous conditions 0n the premises at issue in this case were open and obvious to the Plaintiffs; therefore, any recovery by Plaintiffs against this answering Defendant is barred. RESERVE DEFENSES This answering Defendant alleges that Defendant presently has insufficient knowledge and information upon which to form a belief as t0 whether Defendant may have additional, as yet unstated, affirmative defenses to Plaintiffs’ Complaint. Accordingly, this answering Defendant reserves the right t0 assert additional defenses in the eventthat discovery and/or investigation reveal a factual and/or legal basis for such additional affirmative defenses. // // // // ANSWER T0 COMPLAINT - 3 10 ll 12 13 l4 15 16 l7 18 l9 20 21 22 23 24 25 26 27 28 herein; proper. Dated: WHEREFORE, Defendant prays that Plaintiffs take nothing by reason 0f the Complaint 0n file for costs of suit incurred herein, and for such other and further relief as the Court deems just and October 30 ,2019 SPINELLI, DONALD‘Vgc-“NOT f / // J. SCOTT D9” Li) i Attorneysff’ér Defendant GODySITTLE ACRE NURSERY ANSWER TO COMPLAINT - 4 NOMéWN 10 11 12 13 14 15 16 17 18 1'9 20 21 22 23 24 25 26 27 28 COURT: State of California, County of Santa Clara CASE NO.: 19CV355792 CASE NAME: Day v. God ’s Little Acre Nursery PROOF 0F SERVICE I am a citizen 0f the United States, employed in the County of Sacramento, State of California. My business address is 601 University Avenue, Suite 225, Sacramento, CA 95825. I am over the age of 18 and not a party to the above-entitled action. I am readily familiar with Spinelli, Donald & Nott’s practice for collection and processing of correspondence for mailing with the United States Postal Service. Pursuant t0 said practice, each document is placed in an envelope, the envelope is sealed, the appropriate postage is placed thereon and the sealed envelope is placed in the office mail receptacle. Each day’s mail is collected and deposited in a U.S. mailbox at 0r before the close of each day’s business. (Code CiV. Proc., § 1013a(3) or Fed.R.CiV.P. Rule 5(a) and 4.1.) On the date set forth below, I caused the following document t0 be served: DEFENDANT GOD’S LITTLE NURSERY’S ANSWER TO PLAINTIFFS KATHLEEN DAY AND WILLIAM DAY’S COMPLAINT E BY MAIL-- Placed in the United States Mail at Sacramento, California in an envelope With postage thereon fully prepaid addressed as follows: Daniel G. Herns Attorneys for Plaintiffs LAW OFFICES OF DANIEL G. HERNS 50597 Cereza, Suite 100 La Quinta, CA 92253 Ph: 408-398-2334 dhems@aol.com I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on October 30, 2019, at Sacramento, California.P Gisele Mitsuk SPINELLI, DONALD 8c Non PROOF OF SERVICE - 1