To_unverified_complaint__atty_storey

Response

Cal. Super. - 6th Dist.April 1, 2020

© 00 J O N Un BA W N = N N N N N N N N N mm em e m e R e m e m em e m c o JI O N Ln BA W N = D VV N N N N R W ND = O Electronically Filed by Superior Court of CA, County of Santa Clara, on 7/22/2020 12:27 PM Reviewed By: L Del Mundo Case #20CV365897 Envelope: 4641047 LAW OFFICES OF JOHN A. HAUSER By: ANGELA F. STOREY (217942) One Pointe Drive, 6th Floor, Brea, CA 92821 Mailing Address: P.O. Box 2282, Brea, CA 92822-2282 Phone: (714) 571-0407 / Fax: (877) 369-5799 Direct Line: (714) 371-2319 E-Mail: angela.storey @thehartford.com Attorneys for Defendants, QLM, INC. and LIZANDRO NERIN SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA VICKI WICKWARE, CASE NO. 20CV365897 Plaintiff, ANSWER OF DEFENDANTS QLM, INC. AND LIZANDRO NERIN TO VS. UNVERIFIED COMPLAINT QLM, INC.; LIZANDRO NERIN; and Date Action Filed: 4/1/2020 DOES 1 to 50, Inclusive. Defendants. Defendants QLM, INC. and LIZANDRO NERIN admit, deny, and allege as follows: GENERAL DENIAL Pursuant to section 431.30(d) of the California Code of Civil Procedure, Defendants deny all of the allegations in Plaintiff's Complaint; and deny that Plaintiff sustained the injuries and damages alleged or any injuries or damages as a result of any conduct of Defendants. FIRST AFFIRMATIVE DEFENSE Failure to State a Cause of Action The Complaint, and each purported cause of action therein, fails to state facts sufficient to| constitute a cause of action against this Defendants. 1 ANSWER OF DEFENDANTS QLM, INC. AND LIZANDRO NERIN TO THE UNVERIFIED COMPLAINT oO 0 J A N Un kA W N = N N N N N N N N N = e m e m e m e m e m e m p m e m c o NN A N Un RA W N D = O 0 0 N N Y N R E W I N D = O SECOND AFFIRMATIVE DEFENSE Plaintiff’s Comparative Negligence Plaintiff’s own negligence was a substantial factor in causing Plaintiff’s alleged harm and damages. THIRD AFFIRMATIVE DEFENSE Apportionment of Fault The negligence or fault of others contributed to Plaintiff’s alleged harm and damages. If Defendants are found to be legally responsible, then damages awarded to Plaintiff, if any, are to be apportioned according to the respective fault and legal responsibility of any and all others. FOURTH AFFIRMATIVE DEFENSE Proportionate Share of General Damages Pursuant to Civil Code section 1431.2 (Proposition 51), Defendants are liable only for non-economic damages directly proportionate to Defendants’ percentage of fault, if any. FIFTH AFFIRMATIVE DEFENSE Statute of Limitations Defendants allege that the Complaint and each purported cause of action therein is barred by the applicable statute of limitations, including but not limited to sections 335.1, 337, 337.1, 337.15, 338, 339, 340.8, 343 and 366.1 of the Code of Civil Procedure. SIXTH AFFIRMATIVE DEFENSE Failure to Mitigate Plaintiff is not entitled to recover damages for harm that Plaintiff could have avoided with reasonable efforts or expenditures. SEVENTH AFFIRMATIVE DEFENSE No non-economic damages under Civil Code § 3333.4 (Proposition 213) Pursuant to Civil Code section 3333.4 (Proposition 213), Plaintiff shall not recover non- economic losses. 2 ANSWER OF DEFENDANTS QLM, INC. AND LIZANDRO NERIN TO THE UNVERIFIED COMPLAINT oO 0 J A N Un kA W N = N N N N N N N N N = e m e m e m e m e m e m p m e m c o NN A N Un RA W N D = O 0 0 N N Y N R E W I N D = O EIGHTH AFFIRMATIVE DEFENSE Seatbelt Defense Plaintiff unreasonably failed to properly use a working seatbelt available to Plaintiff. Plaintiff’s injuries would have been avoided or less severe if Plaintiff had used the seatbelt. NINTH AFFIRMATIVE DEFENSE Unavoidable Accident The damages allegedly sustained by Plaintiff, if any, were the result of an unavoidable accident insofar as Defendants are concerned and occurred without any negligence, want of care, default or other breach of duty to Plaintiff on the part of Defendants. TENTH AFFIRMATIVE DEFENSE Third Party Conduct As Superseding Cause The damages allegedly sustained by Plaintiff, if any, were caused by the acts, omissions, negligence or breach of obligations by persons other than Defendants and beyond Defendants’ supervision and control. ELEVENTH AFFIRMATIVE DEFENSE Equitable Defenses Plaintiff’s Complaint is barred on the grounds of waiver, estoppel, laches or unclean hands. PRAYER WHEREFORE, Defendants QLM, INC. and LIZANDRO NERIN pray that Plaintiff takes nothing in this action and that Defendants recover judgment herein against Plaintiff for costs incurred herein, and for such other relief as this court may deem just and proper. Dated: July 22, 2020 LAW OFFICES OF JOHN A. HAUSER O23 ANGELA F. STOREY Attorneys for Defendants QLM, INC. and LIZANDRO NERIN BY: 3 ANSWER OF DEFENDANTS QLM, INC. AND LIZANDRO NERIN TO THE UNVERIFIED COMPLAINT oO 0 J A N Un kA W N = N N N N N N N N N = e m e m e m e m e m e m p m e m c o NN A N Un RA W N D = O 0 0 N N Y N R E W I N D = O PROOF OF ELECTRONIC SERVICE I am at least 18 years old. My business address is: Law Offices of John A. Hauser, One Pointe Drive, 6th Floor, Brea, CA 92821. My electronic service address is: Cindy.Donlin @thehartford.com For purposes of serving documents on the Law Offices of John A. Hauser, please use the email address for the attorney of record angela.storey @thehartford.com and LawOfficesHauser @thehartford.com. On July 22, I served ONLY BY ELECTRONIC TRANSMISSION a copy of ANSWER OF DEFENDANTS QLM, INC. AND LIZANDRO NERIN TO UNVERIFIED COMPLAINT by emailing the document(s) to the persons at the e-mail address(es) below pursuant to Cal. Rules of Court, Emergency Rule 12, adopted 4/6/20 as follows: Louis S. Abronson, Esq. ABRONSON LAW OFFICES 332 N. Second Street San Jose, CA 95112 T: 408-687-9155 / F: 408-352=5595 E: louis @redhouselawyer.com; ariah@redhouselawyer.com Attorneys for Plaintiff, VICKI WICKWARE I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on July 22, 2020. CINDY DONLIN 1 PROOF OF ELECTRONIC SERVICE