Answer Unlimited Fee AppliesCal. Super. - 6th Dist.November 20, 202010 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MV Paul V. Samoni (SBN 240184) LAW OFFICES 0F JOHN A. BIARD E'ectronically Filed P.O_ BOX 64093 by superior court Of CA, St. Paul, Minnesota 55164-0093 County of Santa Clara, Physical Address: on 3/1 9/2021 10:18 AM 401 Lennon Lane, Suite 125 Reviewed By: M Vu Walnut Creek, California 94598 case #zocv373875 Telephone: (925) 746-3957 . Facsimile: (855) 668-5559 EnveloPe' 6070167 E-Mail: psamoni@travelers.com Attorneys for Defendant DICK J. PORRAS PEREZ SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA LIDIA RODRIGUEZ CRUZ, Case No.2 20CV373875 Plaintiffs, ANSWER TO COMPLAINT V. SANDMAN, INC; STAR QUALITY CONCRETE; DICK J. PORRAS PEREZ; and DOES 1 t0 100, Defendants. Defendant DICK J. PORRAS PEREZ (“this answering Defendant”) hereby answers the unverified Complaint 0f Plaintiff LIDIA RODRIGUEZ CRUZ as follows: GENERAL DENIAL Pursuant to the provisions 0f Code 0f Civil Procedure §43 1 .30, this answering Defendant denies generally and specifically each and every allegation contained in each cause 0f action 0f the Complaint and further denies that Plaintiff has been damaged. FIRST AFFIRMATIVE DEFENSE As a first and separate affirmative defense t0 said Complaint, this answering Defendant alleges that Plaintiff was actively careless and negligent in the matters alleged including, but not limited t0, Plaintiff” s failure t0 use diligent care, thereby proximately causing and contributing to any alleged injury -1- ANSWER TO COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 0r damage t0 Plaintiff and that said active negligence and carelessness bars Plaintiff” s rights t0 recovery from this answering Defendant. SECOND AFFIRMATIVE DEFENSE As a second and separate affirmative defense t0 said Complaint, this answering Defendant alleges by way of a plea of comparative negligence that the Plaintiff was negligent in and about the matters and activities alleged in said Complaint, that said negligence contributed t0 and was a proximate cause 0f Plaintiff’s alleged injuries and damages, if any, and that if the Plaintiff is entitled t0 recover damages against this answering Defendant prays that said recovery be diminished by reason of the Plaintiff’s actions in proportion t0 the degree 0f fault attributable t0 the Plaintiff. THIRD AFFIRMATIVE DEFENSE As a third and separate affirmative defense t0 said Complaint, this answering Defendant is informed and believes, and therefore alleges, that this answering Defendant is entitled t0 a right 0f contribution from any entities and/or persons whose negligence proximately contributed to the happening 0f the claimed accident or alleged injuries if said Plaintiff should receive a verdict against these answering Defendants. The owner of the vehicle Plaintiff was driving negligently entrusted Plaintiff With her vehicle, With knowledge that Plaintiffwas a negligent driver. The owner is also potentially subj ect t0 liability as permissive user under Vehicle Code sections 17150 and 1715 1. THIRD AFFIRMATIVE DEFENSE As an third and separate affirmative defense t0 said Complaint, this answering Defendant is informed and believes, and therefore alleges that if this Defendant has any liability t0 Plaintiff in this action, Which is denied, he is only severally liable for Plaintiff’s non-economic damages under Civil Code §143 1 .2, and therefore request a judicial determination of the percentage of his negligence, if any, which proximately contributed to the subj ect accident. As a result 0f Plaintiff’s own negligence, and/or the vehicle owner’s negligence, even if this Answering Defendant is found negligent, it is not responsible for non-economic damages caused by other parties 0r individuals. -2- ANSWER TO COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FOURTH AFFIRMATIVE DEFENSE As a fourth and separate affirmative defense t0 said Complaint, this answering Defendant is informed and believes, and therefore alleges that Plaintiff had the capability and failed to mitigate damages. FIFTH AFFIRMATIVE DEFENSE As a fifth and separate affirmative defense t0 said Complaint, this answering Defendant is informed and believe, and therefore allege that the Complaint fails t0 state facts sufficient t0 constitute a cause 0f action. SIXTH AFFIRMATIVE DEFENSE As a sixth and separate affirmative defense t0 said Complaint, this answering Defendant is informed and believe, and therefore allege that the Complaint is barred by the applicable statute(s) 0f limitations, which is/are contained in CCP §§335.1, 337, 337.1, 337.6, 337.15, 338, 339, 340 and 343, or other applicable statues. SEVENTH AFFIRMATIVE DEFENSE As a seventh and separate affirmative defense t0 said Complaint, this answering Defendant is informed and believes, and therefore alleges that Civil Code §3333.4 applies t0 this case. This answering Defendant is informed and believes, and thereon alleges that Plaintiff had n0 insurance of her own and was driving a car that was not her own. Plaintiff therefore is uninsured for purposes 0f Proposition 213 and thus cannot make a claim for noneconomic damages. WHEREFORE, this answering Defendant prays judgment as follows: 1. That Plaintiff takes nothing by reason of this action; 2. For reasonable attorney's fees; 3. For costs 0f suit incurred herein; 4. For such other and further relief as the Court may deem just and proper. Dated: March 18, 2021 LAW OFFICES OF JOHN A. BIARDWVM Paul V. Samoni Attorneys for SANDMAN, INC. dba STAR QUALITY CONCRETE and DICK J. PORRAS PEREZ -3- ANSWER TO COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE Lidia Rodrigeuz Cruz v. Sandman, Inc., et. al. Santa Clara County Superior Court Case N0.: 20CV373875 I declare that I am over the age of eighteen (1 8) years, and not a party to the Within entitled action. I am employed at the LAW OFFICES OF JOHN A. BIARD, 401 Lennon Lane, Suite 125, Walnut Creek, CA 94598. On the date listed below, I caused to be served true and accurate copies 0f the following document(s): ANSWER TO COMPLAINT addressed as follows: Brian G. Beecher Attorneys for Plaintiff Lidia Rodriguez Judd Allen Cruz Joseph H. Low, IV THE LAW OFFICE OF ARASH KHORSANDI, PC Tel: (3 10) 277-7529 2960 Wilshire Boulevard, Third Floor Fax: (3 10) 388-8442 Los Angeles, CA 90010 bbeecher@arash1aw.com ioseph@arashlaw.com iudd@arashlaw.com alex@arashlaw.com D By U.S. Mail: I enclosed the documents in a sealed envelope or package addressed to the person(s) set forth herein. E placed the envelope for collection and mailing following our ordinary business practices. I am readily familiar With this business’s practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course 0f business with the United States Postal Service in a sealed envelope with postage fully prepaid. D deposited the sealed envelope With the United State Postal Service with the postage fully prepaid. D By Facsimile: I faxed a true copy 0f the document(s) to the person(s) at the facsimile number(s) set forth herein. No error was reported by the fax machine that I used. D By Overnight Delivery. I enclosed the above-referenced documents in an envelope or package provided by an overnight delivery carrier and addressed t0 the person(s) set forth herein. I placed the sealed envelope 0r package for collection and overnight delivery for pickup by Federal Express in Walnut Creek, California 0r a regularly utilized drop box 0f the overnight delivery carrier. By Personal Service: I caused such envelope t0 be hand-delivered t0 the addressee(s) set forth herein. X Electronic Service: Itransmitted a true copy 0fthe document(s) by an electronic mail account maintained at the Law Offices 0f John A. Biard t0 the e-mail address(es) set forth herein. Pursuant t0 California Rules 0fCourt, Emergency Rule 12 (Electronic Service) related t0 C0VID-19, I caused the document to be sent t0 the persons at the electronic service/mail addresses listed above. The electronic service/mail addressfrom which Iserved the document is kamable@travelers.c0m. N0 message was received within a reasonable time after service indicating transmission was unsuccessful. I declare under penalty 0f perjury under the laws of the State 0f California that the foregoing is true and correct. Executed on March 19, 2021, at Walnut Creek, alifomia. ANSWER TO COMPLAINT