Answer Unlimited Fee Applies

Cal. Super. - 6th Dist.September 24, 2020

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 200V371 1 51 Santa Clara - Civil Electronicall Filed Nick Heimlich (SBN 233232) b Superior gourt of CA Law Offices ofNicholas D. Heimlich y ’ County of Santa Clara, 5595 Winfield Blvd. Suite 110 San Jose, California 95123 0n 3/8/2021 3:03 PM Te]; (408) 457-9364 ReVIewed By: R. Aragon Fax: (408) 841-7630 Case #20cv371 1 51 E1111: nick@nickheimlichlaw.com Envelope: 5986404 Attorneys for Defendant ANGELO CRUZ SUPERIOR COURT OF THE STATE OF CALIFORNIA THE COUNTY OF SANTA CLARA JOHN PHUNG, an individual, CASE NO.: 20CV371 151 Plaintiff, DEFENDANT ANGELO CRUZ’S VS. ANSWER TO COMPLAINT MELISSA NGUYEN, an individual, EDOUARD NGUYEN, an individual, ANGELO CRUZ, an individual, and DOES 1- 100, Action Filed: September 24, 2020D - 'efendants Trlal Date: None Set Defendant ANGELO CRUZ (CRUZ) hereby responds t0 the unverified complaint filed by JOHN PHUNG (PHUNG) 0n September 24, 2020 (the Complaint) as follows: GENERAL DENIAL Pursuant t0 Code 0f Civil Procedure Section 43 1 .30(d), CRUZ generally denies each and every allegation made in the Complaint and denies that PHUNG has suffered 0r will suffer any harm as a result 0f the allegations contained in PHUNG’S Complaint in this matter, 0r that PHUNG is entitled t0 any relief at all from CRUZ. Answering further, CRUZ submits the following affirmative defenses: AFFIRMATIVE DEFENSES: 1. AS A FIRST AND SEPARATE AFFIRMATIVE DEFENSE, CRUZ alleges that the Complaint fails t0 state facts sufficient t0 constitute a cause 0f action against CRUZ. Calif. Code 0f Civil Proc. §430.10(e). DEFENDANT ANGELO CRUZ’S ANSWER TO COMPLAINT - 1/3- R. Aragon 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2. AS A SECOND AND SEPARATE AFFIRMATIVE DEFENSE, CRUZ alleges the pleading is uncertain, ambiguous and unintelligible. Calif. Code 0f Civil Proc. §430.10(f). 3. AS A THIRD AND SEPARATE AFFIRMATIVE DEFENSE, CRUZ alleges that the Complaint fails t0 state a claim upon which reliefmay be granted. 4. AS A FOURTH AND SEPARATE AFFIRMATIVE DEFENSE, CRUZ asserts that PHUNG’S own conduct 0r failures caused his damages, if any damages are suffered. 5. AS A FIFTH AND SEPARATE AFFIRMATIVE DEFENSE, CRUZ alleges that the purported causes 0f action alleged in the Complaint are barred, in whole 0r in part, by the applicable statutes 0f limitations, including, but not limited t0, Code 0f Civil Procedure §§335.1, 337, 338, 338(d), 339, 340, 343. 6. AS A SIXTH AND SEPARATE AFFIRMATIVE DEFENSE, CRUZ alleges that the purported causes 0f action alleged in the Complaint are barred, in whole 0r in part, by the doctrine 0f estoppel 0r equitable estoppel. 7. AS A SEVENTH AND SEPARATE AFFIRMATIVE DEFENSE, CRUZ alleges that the purported causes 0f action alleged in the Complaint are barred, in whole 0r in part, by the doctrine 0f waiver. 8. AS AN EIGHTH AND SEPARATE AFFIRMATIVE DEFENSE, CRUZ alleges that the purported causes 0f action alleged in the Complaint are barred, in whole 0r in part, by the doctrine 0f laches. 9. AS A NINTH AND SEPARATE AFFIRMATIVE DEFENSE, CRUZ alleges that the purported causes 0f action alleged in the Complaint are barred, in whole 0r in part, because PHUNG failed t0 mitigate his damages and did not uphold his duty t0 mitigate. 10. AS A TENTH AND SEPARATE AFFIRMATIVE DEFENSE, CRUZ alleges that the purported causes 0f action alleged in the Complaint are barred due t0 PHUNG’S fault 0r comparative fault, 0r the fault 0r comparative fault 0f CRUZ’S co-defendants 0r third parties. 11. AS AN ELEVENTH AND SEPARATE AFFIRMATIVE DEFENSE, CRUZ alleges 0n information and belief that he was an invited guest 0f the adult daughter 0fKEY and NGUYEN at the KEY and NGUYEN residence 0n the night in question, and it was PHUNG DEFENDANT ANGELO CRUZ’S ANSWER TO COMPLAINT - 2/3- 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 who was uninvited; that CRUZ was acting in defense 0f the adult daughter 0fKEY and NGUYEN at her request when the incident occurred. PHUNG was belligerent and threatening and physically aggressive toward CRUZ first. 12. AS A TWELFTH AND SEPARATE AFFIRMATIVE DEFENSE, CRUZ alleges on information and belief that PHUNG was not not injured; that PHUNG spent the night at the KEY and NGUYEN residence; and was scene 0n social media shortly thereafter engaged in activity. 13. AS A THIRTEENTH AND SEPARATE AFFIRMATIVE DEFENSE, CRUZ alleges that prior t0 filing suit, PHUNG had never notified CRUZ 0f his alleged injuries, never provided CRUZ with copies 0f his medical invoices, and never asked CRUZ for assistance with his expenses. 14. AS A FOURTEENTH AND SEPARATE AFFIRMATIVE DEFENSE, CRUZ reserves the right t0 add further defenses as facts warrant and the law allows. WHEREFORE, CRUZ prays for judgment as follows: 1. That PHUNG take nothing by way 0f his Complaint; 2. For attorney’s fees in defense 0f this action; 3. For costs incurred in defense 0f this action; 4. For such other and further relief as the Court may deem proper. Date: March 8, 2021 Nick Heimlich Attorney for ANGELO CRUZ DEFENDANT ANGELO CRUZ’S ANSWER TO COMPLAINT - 3/3-