Answer To Complaint

Response

Cal. Super. - 5th Dist.May 22, 2020

© 00 3 a Wn B A W ND = NN N N N N N N N N = mm e m e m e m e m e m e m e m co NN O N L n A W N R O D I Y N W N = O Hyon M. Kientzy, Esq. - SBN 209579 Jaime Y. Ritton, Esq. - SBN 303483 CODDINGTON, HICKS & DANFORTH A Professional Corporation, 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 E-FILED 7/7/2020 10:02 AM Superior Court of California County of Fresno By: C. York, Deputy IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF FRESNO ARTASHES and MARINE GRIGORIAN AVAKIAN, individuals, Plaintiffs, VS. CSAA INSURANCE EXCHANGE, AND DOES 1 THROUGH 25, INCLUSIVE, Defendants. COMES NOW defendant, CSAA Insurance Exchange, and in response to the unverified complaint of plaintiffs on file herein, herewith deny each and every, all and singular, the allegations therein 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 Case No. 20CECGO01504 ANSWER TO COMPLAINT whatsoever or at all, as a result of any act or omission of this answering defendant. AS A FIRST, 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 answering defendant. AS A SECOND, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges that said complaint, and 1 Answer to Complaint Case No: 20CECGO01504 © 00 3 a Wn B A W ND = NN N N N N N N N N = mm e m e m e m e m e m e m e m co NN O N L n A W N R O D I Y N W N = O each cause of action thereof, fails to state facts sufficient to constitute a cause of action for punitive or exemplary damages. AS A THIRD, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges that plaintiffs were careless and negligent in and about the matters alleged in the complaint; that said carelessness and negligence on said 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 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 injuries 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 answering defendant alleges that named and/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 and/or unnamed third patties proximately contributed to the happening of the incident and to the injuries, loss and damage complained of by plaintiffs, if any there were; that should plaintiffs recover damages, this answering defendant is entitled to have the amount thereof abated, reduced or eliminated to the extent that said named and/or unnamed third parties' negligence caused or contributed to plaintiffs’ injuries, if any. 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 Answer to Complaint Case No: 20CECGO01504 683606 © 00 3 a Wn B A W ND = NN N N N N N N N N = mm e m e m e m e m e m e m e m co NN O N L n A W N R O D I Y N W N = O 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 Code of Civil Procedure Section 337, 338, and 339. 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., Amend. V, VII, VIII and XIV. 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. Att. 1, § 10. Answer to Complaint Case No: 20CECGO01504 683606 © 00 3 a Wn B A W ND = NN N N N N N N N N = mm e m e m e m e m e m e m e m co NN O N L n A W N R O D I Y N W N = O AS A FOURTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges that the injuries and damages alleged by plaintiffs were caused by acts or omissions of a third party or parties, and not by acts or omissions of this answering defendant. AS A FIFTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges that plaintiffs have 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 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 intervening or superseding cause ot circumstances. AS AN SEVENTEENTH, 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 and/or other as yet unknown person or entities, and that this answering defendant’s liability, if any, is limited to the extent of this answering defendant’s proportionate responsibility. AS A EIGHTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges that plaintiffs failed to perform all conditions, covenants and promises required by them to be performed in accordance with the terms and conditions of the written policy of insurance at issue. AS A NINETEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges that plaintiffs breached Answer to Complaint Case No: 20CECGO01504 683606 © 00 3 a Wn B A W ND = NN N N N N N N N N = mm e m e m e m e m e m e m e m co NN O N L n A W N R O D I Y N W N = O the subject policy of insurance, thus relieving defendant of any duty to perform under the policy. AS A TWENTIETH 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-FIRST, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges that the complaint, and each cause of action thereof, is barred, in whole or in part, 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 the complaint. AS A TWENTY-SECOND, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant is informed and believes and thereon alleges that said defendant did not owe a duty to plaintiffs with regard to the allegations in the complaint and that plaintiffs are barred from recovering from said answering defendant. 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, exclusions, conditions or endorsements contained in or incorporated by reference, expressly or impliedly, in such policy. AS A TWENTY-FOURTH, 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 A TWENTY-FIFTH, 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 5 Answer to Complaint Case No: 20CECG01504 683606 © 00 3 a Wn B A W ND = NN N N N N N N N N = mm e m e m e m e m e m e m e m co NN O N L n A W N R O D I Y N W N = O defendant reserves the right to assert any additional defenses which may be disclosed during the course of additional investigation and discovery. AS A TWENTY-SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges that if plaintiffs recover damages from defendant, defendant is entitled to indemnification, either in whole or in part, from all persons or entities whose negligence or fault proximately caused or contributed to the damages, if any, allegedly incurred by plaintiffs. AS A TWENTY-SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges that at all times and places alleged in the complaint, plaintiffs were actively careless and negligent in the matters alleged, and defendant’s negligence, if any, was passive and based solely upon the derivative form of liability, not resulting from defendant’s conduct, but only from an obligation imposed upon plaintiffs by law; and such active negligence on plaintiffs’ part proximately caused and contributed to the injuries alleged in the complaint; therefore, said active negligence on the part of plaintiffs bars any right to indemnity from defendant. AS A TWENTY-EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges that plaintiffs and/or their agents and representatives had full knowledge of the true facts and consented to, approved, and ratified all acts and omissions complained of as against this answering defendant in the complaint, by their supervision, inspection and acceptance of this answering defendant’s conduct, thereby barring plaintiffs from recovering any damages or relief from said answering defendant. AS A TWENTY-NINTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges that said answering defendant alleges that plaintiffs failed to exercise reasonable and ordinary care, caution, or prudence in order to avoid the alleged incident and any resulting injuries and damages. AS A THIRTIETH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges that should defendant be 6 Answer to Complaint Case No: 20CECGO01504 683606 © 00 3 a Wn B A W ND = NN N N N N N N N N = mm e m e m e m e m e m e m e m co NN O N L n A W N R O D I Y N W N = O found to have liability for any damages alleged by plaintiffs in the instant action, answering defendant alleges it is entitled to the rights of offset and set-off. AS A THIRTY-FIRST, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges that plaintiffs suffered no recoverable damages. AS A THIRTY-SECOND, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, this answering defendant alleges that defendant is informed and believes, and upon that basis, alleges that plaintiffs, by their own conduct, is estopped from complaining of any damage or loss allegedly arising as a result of any breach of any obligation alleged in the complaint. WHEREFORE, defendant prays that plaintiffs take nothing against said defendant by their said complaint; that defendant have judgment for their costs of suit herein incurred, together with such other and further relief as may be just and proper. Dated: July 7, 2020 CODDINGTON, HICKS & DANFORTH (ol Jaime UY. Titlon By: Jaime Y. Ritton Attorneys for Defendant CSAA Insurance Exchange Answer to Complaint Case No: 20CECGO01504 683606 10 11 12 13 14 15 16 17 18 19 20 21 22 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. 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 sheri@chdlawyers.com. 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 July 7, 2020, I served a copy of each of the documents listed below by placing them for processing as indicated herein. /1/ /1/ Answer to Complaint 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 Service 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 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 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, or 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 party or attorney to be served at the facsimile machine telephone number rovided by said party 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. NO 0 I N nn BR W N N D N N N N N N N N mm e k a e m e m e m e m e m a WO N N nn R W = O Y N N N RA W N m=, o o X Electronic Transmission: The correspondence or documents wete transmitted electronically to the electronic address set forth below. State. The recipient has filed and setved 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 Lr 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 setvice 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: James H. Wilkins, Esq. Wilkins, Drolshagen & Czeshinski LLP 6785 N. Willow Avenue Fresno, CA 93710 Telephone: (559) 438-2390 Facsimile: ~~ (559) 438-2393 E-mail: j-wilkins@wdcllp.com I certify (or declare) under penalty of petjuty under the laws of the State of California that the foregoing is true and correct and that this declaration was executed on July 7, 2020. hu Sheri Darbonne Court: Superior Court of California, Fresno County Action No: 20CECG01504 Case Name: Avakian v. CSAA IE