Answer Unlimited Fee Applies

Cal. Super. - 6th Dist.August 3, 2020

H. Gregory Nelch, Esq. - SBN 118258 Kathryn C. Klaus, Esq. - SBN 205923 CODDINGTON, HICKS & DANFORTH A Professional Corporation, Lawyers 3 555 Twin Dolphin Drive, Suite 300 Redwood City, CA 94065-2133 Telephone: 650.592.5400 Facsimile: 650.592.5027 5 ATTORNEYS FOR Defendants David G. Weinstein and Shoshana L. Weinstein IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA 10 ARIE LITMAN and MONA LITMAN, 12 Plaintiffs, 13 vs. 14 DAVID G. WEINSTEIN, SHOSHANA L. WEINSTEIN, and DOES 1 to 50, Defendants, 17 18 Case No. 20CV368981 ANSWER TO COMPLAINT 28 COME NOW David G. Weinstein and Shoshana L. Weinstein 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, defendants deny that plaintiffs have been injured or damaged in any of the sums mentioned in the complaint, or in any sum whatsoever or at all, as a result of any act or omission of these answering defendants. AS A FIRST, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, these answering defendants allege that said complaint, and each cause of action thereof, fails to state facts sufficient to constitute a cause of action against these defendants. Answer to Unveri6ed Complaint Case No: 20CV368981 707328 Electronically Filed by Superior Court of CA, County of Santa Clara, on 10/15/2020 2:59 PM Reviewed By: Y. Chavez Case #20CV368981 Envelope: 5116794 20CV368981 Santa Clara - Civil Y. Chavez 1 AS A SECOND, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, these answering defendants allege that plaintiff was careless and negligent in and about the matters alleged in the complaint; that said carelessness and negligence on said decedent'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 plaintiffs recover damages, defendants are entitled to have the amount theteof abated, reduced or eliminated to the extent that plaintiff's negligence caused or contributed to his injuries. AS A THIRD, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, these answering defendants allege that plaintiff acted with 10 12 13 14 15 17 18 19 20 21 22 23 24 26 27 full knowledge of all the facts and circumstances surrounding his injury and assumed the risk of the matters causing his injmies, and that said matters of which decedent assumed the risk proximately contributed to the happening of the incident at bar and proximately caused his injuries. AS A FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, these answering defendants allege 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 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 plaintiffs recover damages, these answering defendants are entitled to have the amount thereof abated, reduced or eliminated to the extent that said named and/or unnamed third parties'egligence caused or contributed to plaintiffs'njuries, if any. AS A FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, these answering defendants allege that plaintiff failed subsequent to the occurrence described in the complaint properly to mitigate their damages and thereby are precluded from recovering those damages which could have reasonably been avoided by the exercise of due care on the part of plaintiff. 28 Answer to Unverified Complaint Case No: 20CV368981 707328 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AS A SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINTON FILE HEREIN, these answering defendants allege 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 California Code of Civil Procedure Ij 335.1 and California Code of Civil Procedure Ij 338. AS AN EIGTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, these answering defendants allege that the action or lack thereof, taken by the defendants through their agents or employees, to protect against the risk of injury allegedly created by the condition of the property was reasonable, and therefore the defendants are not liable for the alleged injuries and damages, pursuant to Government Code Sections 835.4(b) and 840.6(b). AS A TENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, these answering defendants allege that said complaint is barred by the doctrine of laches. AS AN ELEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, these answering defendants allege that said complaint is barred by the doctrines of waiver and estoppel. AS A TWELFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, these answering defendants allege that they are entitled to an offset for all monies received by plaintiffs from payments received from any source. AS A THIRTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, these answering defendants allege the damages that the plaintiffs claim to have suffered wete caused or made worse by an intervening or superseding cause or circumstances. AS A FOURTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, these answering defendants allege that plaintiffs have failed to properly name or join an indispensable or necessary party or parties to the present action; as a Answet to Unverihed Complaint Case No; 20CV368981 707328 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 FIFTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, these answering defendants allege that plaintiffs claims are barred, in whole or in part, because some or all of the parties have been improperly joined in this action. 10 12 13 14 15 17 18 19 20 21 22 23 24 25 27 AS A SIXTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, these answering defendants are entitled to, and claim the beneftt of, all defenses and presumptions set forth in or arising from any rule of law or statute in this state. AS A SEVENTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, these answering defendants age that if plaintiff recovers damages from these answering defendants, these answering defendants ate 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 plaintiffs. AS AN EIGHTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, these answering defendants allege that if these answering defendants are found to be liable for any of plaintiffs losses and damages, which defendants deny any and all liability, plaintiff should be limited to seek and recover from these answering defendants only that proportion of alleged damages and losses for which these answering defendants are liable and responsible under any applicable theory. AS A NINETEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, these answering defendants allege that plaintiffs complaint is barred by the doctrine of res judicata. AS A TWENTIETH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, these answering defendants allege that plaintiff's complaint is barred by the doctrine of collateral estoppel. 28 Answer to Unverified Complaint Case No: 20CV368981 707328 1 AS A TWENTY-FIRST, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, these answering defendants acknowledge that they may 3 have insufficient knowledge or information on which to form a belief as to whether additional 4 affirmative defenses are available; therefore, these answering defendants reserve the right to assert additional affirmative defenses as appropriate. 6 AS A TWENTY-SECOND, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, these answering defendants age that said complaint, and each cause of action thereof, fails to state facts sufficient to support a claim for recovery of 9 punitive damages against these defendants. 10 WHEREFORE, defendants pray that plaintiff take nothing against said defendants by their said complaint; that defendants have judgment for its costs of suit herein incurred, together with such other and further relief as may be just and proper. 13 14 Dated: October 2, 2020 CODDINGTON, HICKS & DANFORTH 15 16 17 18 19 By: iV. ~o~~ H. Gregory"Neich, Esq. Kathryn C. Klaus, Esq. Attorneys for Defendants David G. Weinstein and Shoshana L. Weinstein 20 21 22 23 24 25 26 27 28 Answer to Unverified Complaint Case No: 20CV368981 707328 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 aprasad(@chdlawyers.corn. 10 I am readily familiar with my employer'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 October 2, 2020, I served a copy of each of the documents listed below by placing 12 them for processing as indicated herein. 13 ANSWER TO COMPLAINT 14 15 16 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. 17 18 19 20 21 22 23 24 25 26 28 Overnight Delivery: The correspondence or documents were placed in sealed, labeled packay'ng 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 dehvery 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, Califonua, and were transmitted to a facsimile machine maintained by the party or attorney to be served at the facsimile machine telephone number provided 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 propedy issued by the transmitting facsimile machine. Electronic Transmission: The correspondence or documents were transmitted electronically to the electronic address set forth 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 California Rule of Court RuIe 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 electronic transmission did not reach the recipient. 8 PERSONS OR PARTIES SERVED: 9 10 11 12 13 David W. Wessel Law Offices of Boris Efron 130 Portola Road Portola VaHey, CA 94028 Telephone: (650) 851-8880 Facsmule: (650) 851-3001 E-mail:DWessel(Refronlawfirm.corn 14 I certify (or declare) under penalty of perjury under the laws of the State of California that 15 the foregoing is true and correct and that this declaration was executed on October 2, 2020. 16 17 18 Anita Prasad 19 20 21 Court: S»J»reor Co»rt ofCatefor»ta, Sa»ta Clara Co»»13t Action No: 20CV368981 Case Name; Lite»a» o. IPei »etei » 22 23 24 25 26 27 28