Answer Unlimited Fee AppliesCal. Super. - 6th Dist.November 3, 202020CV373024 Santa Clara - Civil Y. Chava Electronically Filed 1 LEWIS BRISBOIS BISGAARD & SMITH LLP by Superior Court of CA,ERIC S. WONG, ESQ. (SBN 197310) 2 E-Mail: Eric.Wong(a)lewisbrisbois.com county Of santa Clara’ ALICYN B. WHITLEY, ESQ. (SBN 325927) 0n 1/3/2021 1:54 PM 3 E-Mail: Alicvn.Whitlev@lewisbrisbois.com ReViewed By: Y. Chavez 2185 North California Boulevard, Suite 300 Case #20CV373024 Walnut Creek, California 94596 Enve|ope; 5605733 (925) 357-3456 - FAX (925) 478-3260 4; Attorneys for Defendant PAMELA KRAFTQGUI SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA 1 0 JOHN CALHOUN, Case N0. 20CV373024 1 1 Plaintiff, DEFENDANT PAMELA KRAFT’S 12 ANSWER TO PLAINTIFF’S VS. COMPLAINT 1 3 14 PAMELA KRAFT, DOES 1 to 25, inclusive, Action Filed: 11/03/20 Trial Date: None 15 Defendants. 16 17 Defendant PAMELA KRAFT (“Defendant”) hereby answers the Complaint 0f Plaintiff 18 JOHN CALHOUN (“Plaintiff’), as follows: 19 GENERAL DENIAL 20 Pursuant t0 Code of Civil Procedure § 431.30(d), Defendant generally and specifically 21 denies each and every allegation contained in Plaintiff” s Complaint, and further denies that Plaintiff 22 is entitled t0 equitable 0r injunctive relief, compensatory damages, restitution, attorney fees, 23 prejudgment interest, costs of suit, or any other relief of any kind whatsoever. 24 AFFIRMATIVE DEFENSES 25 Defendant further asserts the following affirmative defenses. By asserting these defenses, 26 Defendant does not concede that she has the burden of production or proof as to any affirmative 27 defense asserted below. Moreover, Defendant does not presently know all the factors concerning LEWIS 28 BRISBOIS BISGAARD 1& SMHH LIP AWORNEYS ATLAW DEFENDANT PAMELA KRAFT’S ANSWER TO COMPLAINT LEWIS BRISBOIS BISGAARD &SMrrH LLP ATTORNEYS AT LAW 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the conduct 0f Cross-Complainant sufficient to state all affirmative defenses at this time. Accordingly, Defendant Will seek leave to amend this Answer should it later discover facts demonstrating the existence of additional affirmative defenses. FIRST AFFIRMATIVE DEFENSE (Failure t0 State a Cause 0f Action) 1. Defendant is informed and believes and thereon alleges that the Complaint, and each and every cause 0f action set forth therein alleged against Defendant, fails t0 state facts sufficient t0 constitute a cause 0f action against Cross-Defendant. The Cross-Complaint fails t0 state a prima facie case on each and every cause of action contained therein. SECOND AFFIRMATIVE DEFENSE (N0 Damages) 2. The Complaint, and each purported action therein, is barred to the extent that Plaintiff was not damaged. THIRD AFFIRMATIVE DEFENSE (Comparative Negligence) 3. Defendant alleges that Plaintiff were partially, if not wholly, negligent or otherwise at fault on his own part and therefore should be barred from recovery of that portion 0f the damages directly attributable to his proportionate share of the negligence or fault, pursuant to the doctrine 0f comparative negligence. FOURTH AFFIRMATIVE DEFENSE (Failure t0 Mitigate) 4. Damages sustained by Plaintiff, if any, were proximately caused by and/or contributed to by Plaintiff” s own acts, omissions, negligence and/or failure to take reasonable and necessary actions t0 eliminate, mitigate, lessen, reduce and minimize such damages. In accordance, the extent of any damages should be reduced in proportion to such comparative and contributory negligence. /// /// 2 DEFENDANT PAMELA KRAFT’S ANSWER TO PLAINTIFF’S COMPLAINT LEWIS BRISBOIS BISGAARD &SMrrH LLP ATTORNEYS AT LAW 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FIFTH AFFIRMATIVE DEFENSE (Intervening Actions) 5. Defendant alleges that any damages or injuries suffered by Plaintiff were proximately caused by the intervening and superseding actions on the part 0f other parties, and not this answering Defendant, and that such intervening and superseding actions on the part of other parties bars recovery herein by Plaintiff against this answering Defendant. SIXTH AFFIRMATIVE DEFENSE (Comparative Negligence 0f Others) 6. Defendant alleges that the damages sustained by Plaintiff, if any, were caused, in whole or in part, by the negligence 0r fault 0f others for which this answering Defendant is not liable 0r responsible. SEVENTH AFFIRMATIVE DEFENSE (Statute 0f Limitations) 7. Defendant alleges that the Complaint and all causes of 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., 337, 337.1, 337.15, 338, 339, and 343. EIGHTH AFFIRMATIVE DEFENSE (Proposition 51 Defense, Misjoinder 0f Parties) 8. Defendant alleges that there is a defect 0r misjoinder of parties pursuant t0 Code 0f Civil Procedure section 430.10(d). Specifically, Plaintiff failed t0 join all parties necessary for a final determination 0f this action. NINTH AFFIRMATIVE DEFENSE (Proposition 51, Fair Responsibility Act 0f 1986) 9. Defendant alleges that the provisions of the “Fair Responsibility Act of 1986” (commonly known as Proposition 51, Civil Code sections 1430, 1431, 1431.1, 1431.2, 1431.3, 1431.4, 1431.5, and 1432), are applicable to this action to the extent that Plaintiff’s injuries and damages, if any, were legally caused or contributed to by the negligence or fault of persons 0r entities other than this answering Defendant. 3 DEFENDANT PAMELA KRAFT’S ANSWER TO PLAINTIFF’S COMPLAINT LEWIS BRISBOIS BISGAARD &SMrrH LLP ATTORNEYS AT LAW 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TENTH AFFIRMATIVE DEFENSE (Assumption Of The Risk) 10. Plaintiff is barred from asserting any claim against this answering Defendant by reason of Plaintiff s assumption of the risk of the matters causing the injuries and damages incurred, if any. ELEVENTH AFFIRMATIVE DEFENSE (Failure T0 Use Reasonable Diligence) 11. Defendant is informed and believes and thereon alleges that the Plaintiff injuries, loss, and/or damages, if any, were aggravated by Plaintiff s own failure to use reasonable diligence. TWELFTH AFFIRMATIVE DEFENSE (Comparative Liability) 12. While at all times denying any liability whatsoever to Plaintiff, any alleged liability 0r responsibility 0f this Defendant is small in proportion to the alleged liability and responsibility 0f other persons 0r entities, including other persons and entities Who have not been named in this suit, and Plaintiff should be limited to seeking recovery from this Defendant for the proportion 0f alleged injuries and damages for which this answering Defendant is allegedly liable 0r responsible, all such alleged liability and responsibility being expressly denied. THIRTEENTH AFFIRMATIVE DEFENSE (N0 Causation) 13. The acts alleged by Plaintiff to have been committed by this Defendant were not the cause in fact or the proximate or legal cause of Plaintiff s alleged damages, if any. FOURTEENTH AFFIRMATIVE DEFENSE (Estoppel) 14. By Virtue ofhis own acts and conduct, Plaintiffhas waived the right to or is estopped to assert his causes of action against Defendant as asserted in the Complaint. FIFTEENTH AFFIRMATIVE DEFENSE Waiver) 15. Plaintiff’s Complaint and each cause of action contained therein is barred by the 4 DEFENDANT PAMELA KRAFT’S ANSWER TO PLAINTIFF’S COMPLAINT LEWIS BRISBOIS BISGAARD &SMHH LIP ATTORNEYS AT LAW A QGUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 equitable doctrine of waiver. SIXTEENTH AFFIRMATIVE DEFENSE (Additional Affirmative Defenses) 16. Defendant presently has insufficient knowledge 0r information upon Which to form a belief as t0 Whether there are additional, as yet unstated, affirmative defenses Which are available. Defendant therefore reserves the right t0 assert additional affirmative defenses in the event that discovery or investigation indicates that such additional defenses would be appropriate. PRAYER FOR RELIEF WHEREFORE, Defendant prays for judgment as follows: 1. That Plaintiff take nothing by way 0f the Complaint; 2. That the Complaint be dismissed in its entirety, with prejudice, and thatjudgment be entered for Defendant; 3. That Defendant be awarded its attorney’s fees and the costs incurred in defending this suit; and 4. For such other and further relief as this court deems just and proper. DATED: January 8, 2021 LEWIS BRISBOIS BISGAARD & SMITH LLP 73...;5M?7- ERIC S. WONG ALICYN B. WHITLEY Attorneys for Defendant PAMELA KRAFT 5 DEFENDANT PAMELA KRAFT’S ANSWER TO PLAINTIFF’S 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 of service, I was over 18 years ofage and not a party to 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 DEFENDANT PAMELA KRAFT’S ANSWER TO PLAINTIFF’S COMPLAINT on the interested parties in this action Via email, addressed as follows: Trevor J. Zink, Esq. OMNI LAW GROUP, LLP 1940 Hamilton Avenue San Jose, CA 95125 (408) 879-8500 - FAX (408) 879-8501 tzink@omnilawgroup.com Attorney(s) for PlaintiffJOHN CALHOUN The documents were served by the following means: E (BY ELECTRONIC TRANSMISSION ONLY) Only by e-mailing the document(s) to the persons at the e-mail address(es) listed above based 0n notice provided 0n March 16, 2020 that, during the Coronavirus COVID-19 pandemic, this office Will be working remotely, not able to send physical mail as usual, and is therefore using only electronic mail. No electronic message or other indication that the transmission was unsuccessful was received within a reasonable time after the transmission. E (BY E-MAIL OR ELECTRONIC TRANSMISSION) Based 0n a court order 0r 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 January 8, 2021, at Walnut Creek, California. Pamela Kassoff