Answer Unlimited Fee Applies

Cal. Super. - 6th Dist.November 23, 2020

\OOONONUI-PUJNp-t NNNNNNNNNHHh-tb-Ab-h-Hb-h-H OOflom-PWNHOCOOQONMLWNF-‘O LAW OFFICES OF MELANIE D. JOHNSON 1798 Technology Drive, Ste 238 San Jose, CA 951 10-1399 E-mail Address: emil .mahoney@allstate.com E-service E-mail Adfi Telephone: (408) 768-7207 By: EMILY A. MAHONEY State Bar No. 3 14948 Our File N0. 0527040182.1-YPH Attorneys for Defendant(s): LETICIA MORENO ess: SanJoseLegal@allstate.com Electronically Filed by Superior Court of CA, County of Santa Clara, on 8/4/2021 4:52 PM Reviewed By: L Del Mundo Case #20CV373923 Envelope: 6998237 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA - UNLIMITED CIVIL JURISDICTION DANIEL WHITSON and CONNOR WHITSON, a Minor, by his Guardian Ad Litem, ANDREA WHITSON, Plaintiffs, VS. LETICIA MORENO, and DOES 1 t0 20, Defendants. CASE NO. 20CV373923 ANSWER TO COMPLAINT Defendant(s), LETICIA MORENO, allege(s) as follows: 1. The Defendant(s), LETICIA MORENO, answering all the paragraphs in the unverified Complaint herein and by Virtue of the provisions of the California Code 0f Civil Procedure Section 431.30, now generally denies/deny each and every allegation therein contained and the whole thereof. FIRST AFFIRMATIVE DEFENSE 2. That the cause 0f action stated in the Complaint herein is barred by the provisions of California Code 0f Civil Procedure Section 335.1, 0f the. For actions arising out 0f accidents occurring before January 1, 2003, former California Code 0f Civil Procedure Section 340 subdivision 3 applies. SECOND AFFIRMATIVE DEFENSE 3. That the Complaint on file herein fails t0 state facts sufficient t0 constitute a cause 1 ANSWER TO COMPLAINT \OOONONUI-PUJNp-t NNNNNNNNNHHh-tb-Ab-h-Hb-h-H OOflom-PWNHOCOOQONMLWNF-‘O of action entitling each and every Plaintiff to prejudgment interest. THIRD AFFIRMATIVE DEFENSE 4. Each and every Plaintiff has failed to state facts sufficient t0 constitute a cause of action against any answering party herein. FOURTH AFFIRMATIVE DEFENSE 5. That the Complaint is barred by California Code 0f Civil Procedure Section 474 and case law interpreting said Code. FIFTH AFFIRMATIVE DEFENSE 6. That at the alleged time and place in question, each and every Plaintiff s0 negligently and carelessly acted as to proximately cause and contribute to the happening 0f the accident complained 0f, and t0 whatever injury or damage, if any, each and every Plaintiff claims t0 have sustained therefrom. SIXTH AFFIRMATIVE DEFENSE 7. That if any P1aintiff(s) received any injuries, and/or damages, if any, as a result of the accident complained 0f herein, then said P1aintiff(s) proximately caused, aggravated and/or failed to take proper action t0 mitigate and/or reduce said injuries if any, or damages, if any. SEVENTH AFFIRMATIVE DEFENSE 8. Defendant(s) liability, if any, for each and every P1aintiff(s) non-economic damages, is limited t0 Defendant(s) proportionate share of fault in accordance with California Civil Code Section 1431.2. EIGHTH AFFIRMATIVE DEFENSE 9. If it should be found that any answering party herein is in any manner legally responsible for injuries 0r damages, if any, sustained by any Plaintiff(s), which supposition is not admitted but merely stated for the purpose of this defense, that any such injuries 0r damages found to have been incurred or suffered by said Plaintiff(s) in this action was proximately contributed to 0r by other Defendant(s) or Cross-Defendant(s) in this case, whether served 0r not served and/or by other persons 0r companies, Whether made parties t0 this action 0r not, be determined and prorated, and that any judgment that might be rendered against any answering 2 ANSWER TO COMPLAINT \OOONONUI-PUJNp-t NNNNNNNNNHHh-tb-Ab-h-Hb-h-H OOflom-PWNHOCOOQONMLWNF-‘O party herein be reduced not only by that degree of contributory negligence and/or assumption of risk found to exist as t0 any Plaintiff(s), but also as t0 the total of that degree 0f negligence and/or fault found t0 exist as t0 said other persons 0r companies. NINTH AFFIRMATIVE DEFENSE 10. At all times relevant 0n and before the date 0f the accident alleged herein, each and every Plaintiff had actual knowledge of the particular danger, if any there was, involved in the activities referred to in the Complaint, and knew and understood the degree 0f the risk involved, and is therefore barred from recovery 0f any damages as a matter of law. TENTH AFFIRMATIVE DEFENSE 11. Defendant(s) are informed and believe and thereon allege that at all relevant times Plaintiff is/are barred from recovering non-economic damages pursuant t0 the “Personal Responsibility Act of 1996," amending the California Civil Code, adding Sections 3333.3 and 3333.4 and applicable California Vehicle Code Sections. Each and every Plaintiff, having the freedom t0 make a choice as t0 what action t0 take, voluntarily assumed said risks, if any there was, in the activities referred t0 in the Complaint. This affirmative defense is interposed to the Complaint 0f each and every Plaintiff in its entirety and separately as to each individual cause of action 0r count therein although not restated under separate headings as to each cause of action or count. WHEREFORE, Defendant(s) pray(s) that Plaintiff(s) take nothing by reason of the Complaint and that Defendant(s) be given judgment for costs of suit incurred herein and for such other and further relief as the Court may deem just and proper. DATED: August 4, 2021 LAW OFFICES OF MELANIE D. JOHNSON B: M329- Wham» EMILY A. MAHONEY Attorney for Defendant(s) LETICIA MORENO 3 ANSWER TO COMPLAINT KOOOQQUI-PUJNu-A NNNNNNNNNHr-‘r-‘p-‘r-‘r-‘p-‘h-‘r-‘p-A OOQONUI-bUJNF-‘OKOOOQQUI-bUJNHO PROOF OF SERVICE BY ELECTRONIC TRANSMISSION [CCP 1010.6(a)(2)(A)(i), 1010.6(a)(2)(A)(ii), CRC 2.251(c)(3), 2.251(b)l STATE OF CALIFORNIA, COUNTY OF SANTA CLARA I am employed in the County of Santa Clara, State of California, I am over the age of eighteen (18) years, and not a party to the within action; my business address is 1798 Technology Drive, Ste 238, San Jose, CA 951 10-1399. That the necessity resulting from Executive Order N-33-20 (also referred t0 as the “Stay-at-Home Order") issued 0n March 19, 2020, by the Governor 0f the State 0f California in response t0 the C0Vid-19 Virus Which has presented a national emergency as declared by the President 0f the United States, has resulted in this office’s use 0f remote working staff members and the interruption 0f our normal capabilities to accept, dispatch and process physical mail causing the use 0f electronic service as this office’s principal means 0f dispatch. On August 04, 2021, I caused the within ANSWER TO COMPLAINT, DEMAND FOR JURY, DEMAND FOR PRODUCTION AND INSPECTION OF DOCUMENTS, SPECML INTERROGATORIES, JUDICIAL COUNCIL FORM INTERROGATORIES, AND REQUEST FOR ADMISSION on the party or parties named on the attached mailing list to be served, by dispatching a true and correct copy thereof Via electronic mail (e-mail) addressed as follows: SEE ATTACHED MAILING LIST. N0 electronic message or other notice that the transmission electronically sent was unsuccessfully dispatched, was received within a reasonable period after the transmission. I declare under penalty of perjury under the laws of the State of California that the foregoing Proof 0f Service is true and correct, and that this declaration was executed 0n flgLst 04, 2021, at San Jose, California. Tien T. Luong Email: SanJoseLegal@allstate.com PROOF OF SERVICE BY ELECTRONIC TRANSMISSION KOOOQQUI-PUJNu-A NNNNNNNNNHr-‘r-‘p-‘r-‘r-‘p-‘h-‘r-‘p-A OOQONUI-bUJNF-‘OKOOOQQUI-bUJNHO PROOF OF SERVICE E-MAILING LIST Whitson, et a1. vs. Moreno Case N0. 20CV373923 JEFF BRANDON ATTERBURY, ESQ. HABBAS, NASSERI & ASSOCIATES 675 N. FIRST STREET, SUITE 1000 SAN JOSE, CA 951 12 Telephone: 408-278-0480 Email: jatterbury@habbaslaw.com; litigation@habbaslaw.com ATTORNEY FOR PLAINTIFF PROOF OF SERVICE BY ELECTRONIC TRANSMISSION