Answer Unlimited Fee AppliesCal. Super. - 6th Dist.March 16, 2020LEWIS BRISBOIS BISGAARD &SMnH UP A'ITORNEYS AT LAW 4; flaw 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Electronically Filed LEWIS BRISBOIS BISGAARD & SMITH LLP - BRADLEY J. VORNHOLT, ESQ. (SBN 245382) by S”'°e”°r cw” °f CA’ E-Mail: Brad.Vomholt@lewisbrisbois.com county Of santa Clara’ JESSICA N. WAHL, ESQ. (SBN 321887) 0n 11/19/2020 10=09 AM E-Mail: Jessica.Wahl@lewisbrisb0is.com Reviewed By: R. Tien 2185 North California Boulevard, Suite 300 Case #20CV36571 9 Walnut Creek, California 94596 Enve|ope; 5327321 (925) 357-3456 - FAX (925) 478-3260 Attorneys for Defendant APPLIED MATERIALS, INC.; APPLIED MATERIALS KOREA, LTD. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA YANG-CHIEN TIEN, Case N0. 20cv365719 Plaintiff, APPLIED MATERIALS KOREA, LTD.’S ANSWER TO COMPLAINT VS. APPLIED MATERIALS, INC., a California corporation; SUNG JIN KWON, individually; DOES 1 to 10, Action Filed: 03/16/20 Trial Date: None Defendant. COMES NOW Defendant APPLIED MATERIALS KOREA, LTD. (“AMK”), in answer to the Complaint by PlaintiffYANG-CHIEN TIEN (“Plaintiff’), denies and alleges as follows: GENERAL DENIAL Under the provisions of California Code of Civil Procedure § 43 1 .30, Defendant AMK generally and specifically denies each and every allegation in Plaintiff s Complaint, and the whole thereof. AMK further denies that Plaintiffhas sustained any injury, damage, 0r loss, by reason 0f any negligent act 0r omission by AMK or its agents or employees. SEPARATE AND AFFIRMATIVE DEFENSES AMK hereby asserts the following separate and affirmative defenses. By alleging the separate and affirmative defenses set forth below, AMK does not intend to shift the burden ofproof 4847-4859-0034.1 1 APPLIED MATERIALS KOREA, LTD.’S ANSWER TO COMPLAINT LEWIS BRISBOIS BISGAARD &SMnH LLP ATI'ORNEYS AT LAW 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that otherwise exists with respect t0 any particular issue at law or in equity. Furthermore, all such defenses are pleaded in the alternative, and d0 not constitute an admission of liability 0r entitlement to any relief whatsoever. FIRST AFFIRMATIVE DEFENSE (Voluntary Assumption 0f Risk) As a first affirmative defense t0 each cause of action of the Complaint, Plaintiff’s action is barred under the doctrine of primary assumption of risk because the decedent voluntarily participated in the activities alleged in the Complaint and knew 0f and appreciated the specific risk which resulted in Plaintiff‘s injury, thereby relieving AMK of any legal duty t0 protect Plaintiff from that risk. SECOND AFFIRMATIVE DEFENSE (Secondary Assumption 0f Risk) As a second affirmative defense t0 each cause of action of the Complaint, the decedent voluntarily encountered the danger, known t0 decedent, Which is alleged as a basis for the Complaint, knew 0fand appreciated the risks involved, and assumed the risk of said injuries, legally causing 0r contributing to the damages alleged, and therefore Plaintiff” s recovery should be reduced by decedent’s proportional share of any negligence or fault. THIRD AFFIRMATIVE DEFENSE (Comparative Negligence (0f Decedent) As a fourth affirmative defense to each cause of action 0f the Complaint, decedent was partially, if not Wholly, negligent 0r otherwise at fault for the injury alleged in the Complaint pursuant to the doctrine of comparative negligence, and should be limited t0 the portion of the damages directly attributable t0 decedent’s proportionate share 0f the negligence 0r fault. FOURTH AFFIRMATIVE DEFENSE (Comparative Negligence (0f Plaintiff’s Agents, Etc.) As a fifth affirmative defense to each cause of action 0f the Complaint, Plaintiff’s agents, 2 APPLIED MATERIALS KOREA, LTD.’S ANSWER TO COMPLAINT LEWIS BRISBOIS BISGAARD &SMnH LLP ATI'ORNEYS AT LAW 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 employees, servants and representatives were partially, ifnot wholly, negligent or otherwise at fault 0n their own part pursuant t0 the doctrine of comparative negligence, and should be barred from recovery 0f that portion 0f the damages directly attributable to their proportionate share of the negligence or fault. FIFTH AFFIRMATIVE DEFENSE (Negligence 0f Others) As a sixth affirmative defense t0 each cause of action 0f the Complaint, the damages sustained by Plaintiff, if any, were caused, in Whole or in part, by the negligence or fault 0f others for which this AMK is not liable 0r responsible. SIXTH AFFIRMATIVE DEFENSE (Statute 0f Limitations - Standard) As a seventh affirmative defense t0 each cause of action of the Complaint, Plaintiff’s Complaint and causes 0f action therein are barred by the applicable statute of limitations, including but not limited to, California Code of Civil Procedure, sections 335.1 et seq. SEVENTH AFFIRMATIVE DEFENSE (Seatbelt Defense) As an eighth affirmative defense t0 each cause of action 0f the Complaint, the collision and any alleged damages 0r injuries resulting therefrom were legally caused by the failure of the decedent t0 exercise ordinary care for decedent’s own safety in that the automobile in Which said decedent was riding was equipped With seat belts; and further alleges that, at the time 0fthe accident therein involved, said decedent had neglected t0 fasten said seat belt around himself and that the injuries and damages allegedly sustained by plaintiff and decedent, if any there were, were legally caused by decedent’s own negligence in this regard. T0 the extent that such negligent conduct contributed to the alleged damages, if any there were, Plaintiff s right to recover is proportionately diminished. 3 APPLIED MATERIALS KOREA, LTD.’S ANSWER TO COMPLAINT LEWIS BRISBOIS BISGAARD &SMnH LLP ATI'ORNEYS AT LAW 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EIGHTH AFFIRMATIVE DEFENSE (Failure t0 Mitigate Damages) As a ninth affirmative defense to each cause of action of the Complaint, Plaintiff failed to mitigate his own damages. NINTH AFFIRMATIVE DEFENSE (Prop. 51 Defense, Misjoinder 0f Parties) As a tenth affirmative defense t0 each cause of action 0f the complaint, there is a defect 0r misjoinder 0f parties pursuant to Code of Civil Procedure section 430.10(d). Specifically, Plaintiff failed t0 join all parties necessary for final determination of this action. TENTH AFFIRMATIVE DEFENSE (Proposition 51, Fair Responsibility Act 0f 1986) As an eleventh affirmative defense to each cause of action of the complaint, the provisions of the “Fair Responsibility Act 0f 1986" (commonly known as Proposition 5 1, Civil Code sections 1430, 1431, 1431.1, 1431.2, 1431.3, 1431.4, 1431.5 and 1432) are applicable to this action t0 the extent that Plaintiff’s injuries and damages, if any, were legally caused or contributed to by the negligence or fault 0f persons or entities other than this answering Defendant. ELEVENTH AFFIRMATIVE DEFENSE (Witt v. Jackson (Death)) As a twelfth affirmative defense to each cause 0f action 0f the Complaint, at the time and place of the happening of the incident alleged in the Complaint, decedent was employed by various employers, the names 0f which are presently unknown to the AMK, and was working within the course and scope of decedent’s employment and/or employments. Decedent’s employer and/or employers were subj ect t0 provisions of the Workers’ Compensation Act of the State of California, and certain sums have been 0r Will be paid t0 or on behalf of decedent under the applicable provisions of the Labor Code of the State of California. Decedent’s employer and/or employers and 4 APPLIED MATERIALS KOREA, LTD.’S ANSWER T0 COMPLAINT LEWIS BRISBOIS BISGAARD &SMnH UP A'ITORNEYS AT LAW A QGUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 each 0f them, were negligent 0r otherwise at fault and this negligence 0r fault legally contributed to 0r caused the injuries t0 decedent, and, any award made t0 decedent herein must be reduced by the payments to decedent made on behalf 0f decedent’s employer or employer’s Workers’ Compensation insurance carrier. TWELFTH AFFIRMATIVE DEFENSE (Unknown Defenses) As a thirteenth affirmative defense t0 each cause 0f action 0f the Complaint, AMK presently has insufficient knowledge 0r information on Which t0 form a belief as t0 Whether AMK may have additional, as yet unstated, defenses available. AMK reserves herein the right t0 assert additional defenses in the event discovery indicates that they would be appropriate. PRAYER FOR RELIEF WHEREFORE, APPLIED prays for judgment, as follows: 1. That Plaintiff take nothing by way of his Complaint herein; 2. That judgment 0f dismissal be entered in favor 0fAMK; and 3. That AMK be granted any such other and further relief as the Court deems just and proper. DATED: November 19, 2020 LEWIS BRISBOIS BISGAARD & SMITH LLP By; WM Bradley J. Vomholt, Esq. Jessica N. Wahl, Esq. Attorneys for Defendants APPLIED MATERIALS, INC.; APPLIED MATERIALS KOREA, LTD. 5 APPLIED MATERIALS KOREA, LTD.’S ANSWER TO COMPLAINT PROOF 0F SERVICE (CCP §§ 1013(a) and 2015.5; FRCP 5) State of California ) ) )County of Contra Costa I am employed in the County 0fContra Costa. At the time 0f service, I was over 18 years 0fage and not a party t0 the action. My business address is 21 85 North California Boulevard, Suite 300, Walnut Creek, CA 94596. On this date, I served the following document(s) described as APPLIED MATERIALS KOREA, LTD.’S ANSWER TO COMPLAINT on the interested parties in this action Via email, addressed as follows: SEE ATTACHED SERVICE LIST The documents were served by the following means: E (BY ELECTRONIC TRANSMISSION ONLY) Only by e-mailing the document(s) t0 the persons at the e-mail address(es) listed above based 0n notice provided on March 16, 2020 that, during the Coronavirus COVID-19 pandemic, this office will be working remotely, not able t0 send physical mail as usual, and is therefore using only electronic mail. No electronic message 0r other indication that the transmission was unsuccessful was received within a reasonable time after the transmission. E (BY E-MAIL OR ELECTRONIC TRANSMISSION) Based on a court order or an agreement ofthe parties to accept service by e- mail or electronic transmission, I caused the documents to be sent from e-mail address Pamela.Kassoff@lewisbrisbois.com to the persons 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. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on November 19, 2020, at Walnut Creek, California. Pamela Kassoff SERVICE LIST Tien v. Applied Materials Santa Clara Superior Court; Case No. 20CV365719 John C. Stein, Esq. James P. Collins, Esq. THE BOCCARDO LAW FIRM, INC. 111 W. St. John Street, Suite 400 San Jose, CA 95 1 13 (408) 298-5678 - FAX (408) 298-7503 jstein@boccardo.com jcollins@boccardo.com Jen@boccardo.com Attorney(s) for PLAINTIFF Jennifer J. Capabianco, Esq. Jillian R. Harvey, Esq. SELMAN BREITMAN LLP 33 New Montgomery, Sixth Floor San Francisco, CA 94105-4537 icapabianco@selmanlaw.com ihawev@selmanlaw.com Attorney(s) for Defendant SUNG JIN KWON Harvey Ziff, Esq. ZIFF & COHN 4962 El Camino Real #126 Los Altos, CA 94022 (650) 329-0851 - FAX (650) 691-9040 hzifflaw ail.com Attorney(s) for PLAINTIFF