Answer Unlimited Fee AppliesCal. Super. - 6th Dist.November 23, 202017196402.1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 200V37393O Santa Clara - Civil Electronically Filed by Superior Court of CA, County of Santa Clara, HANSON BRIDGETT LLP MERTON A. HOWARD, SBN 161 125 mhoward@hansonbridgett.com SHANNON M. NESSIER, SBN 267644 0n 1/1 5/2021 6:47 PM snessier@hansonbridgett.com Reviewed By: L. Quach-Marcellan ELLEN K. DEMSON, SBN 324222 Case #20CV373930 edemson@hansonbridgett.com Envelope: 5656979 425 Market Street, 26th Floor San Francisco, California 94105 Telephone: (415) 777-3200 Facsimile: (415) 541-9366 Attorneys for Defendant THE WHITING- TURNER CONTRACTING COMPANY IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA ALONSO HERNANDEZ, Case N0. 20CV373930 Plaintiff, DEFENDANT THE WHITING-TURNER CONTRACTINGCOMPANY'S ANSWER V. TO COMPLAINT THE WHITING-TURNER CONTRACTING JURY TRIAL DEMANDED COMPANY; and DOES 1 to 100, inclusive, Defendants. Defendant THE WHITING-TURNER CONTRACTING COMPANY (“Whiting-Turner” or “Defendant”), through its attorneys Hanson Bridgett LLP, for itself and for no others, answers the Complaint of Plaintiff ALONSO HERNANDEZ (“Plai11tiff’), 0n file herein (the “Complaint”) as follows: ANSWER TO THE COMPLAINT Pursuant to California Code 0f Civil Procedure section 431.30(d), Defendant generally denies each and every allegation 0f the Complaint, and specifically denies that any plaintiff, beneficiary, 0r other person 0n Whose behalf this action is prosecuted has 0r Will sustain damages 0r injuries in the nature 0r sums alleged in the Complaint, to be alleged, or otherwise. AFFIRMATIVE DEFENSES The following affirmative defenses are alleged 0n information and belief, and except as _ 1- THE WHITING-TURNER CONTRACTINGCOMPANY‘S ANSWERTO COMPLAINT; JURY DEMAND a 17196402.1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 expressly stated otherwise, each defense applies t0 the entire Complaint and t0 each purported cause 0f action or claim for relief therein and to each plaintiff, beneficiary, heir, and other person 0n whose behalf this action is prosecuted (collectively referred to as “P1aintiff’). Defendant reserves the right t0 amend 0r withdraw any 0r all defenses 0r t0 raise any and all additional defenses as 0r after they may become known during or after the course 0f investigation, discovery, 0r trial. N0 assertion 0f any affirmative defense shall constitute either (a) an admission that Plaintiff does not bear the burden of proof 0r the burden 0f producing evidence 0n any element 0f any cause of action 0r claim for relief 0r 0n any issue as to which Plaintiff bears the burden 0f proof 0r the burden of producing evidence as a matter of law, 0r (b) a waiver 0f any Defendant’s right to require that any Plaintiff satisfy any burden 0f proof 0r burden of producing evidence. FIRST AFFIRMATIVE DEFENSE (Failure to State a Claim) 1. As a separate and first affirmative defense t0 the Complaint, and t0 the purported causes of action set forth therein, Defendant alleges that the Complaint fails to state facts sufficient t0 constitute a cause of action. SECOND AFFIRMATIVE DEFENSE (Waiver and Estoppel) 2. As a separate and second affirmative defense t0 the Complaint and each purported cause 0f action contained therein, Defendant alleges that as a result 0f his own acts and/or omissions, Plaintiff has waived any right Which he may have had to recover, and/or is estopped from recovering, any relief sought against Defendant. THIRD AFFIRMATIVE DEFENSE (Lack of Subje ct MatterJuris diction) 3. As a separate and third affirmative defense to the Complaint and each purported cause 0f action contained therein, Defendant alleges that the Court lacks subject matter jurisdiction over the matters alleged in the Complaint. FOURTH AFFIRMATIVE DEFENSE -2- THE WHITING-TURNER CONTRACTINGCOMPANY‘S ANSWERTO COMPLAINT; JURY DEMAND 17196402.1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (Apportionme nt 0f Fault) 4. As a separate and fourth affirmative defense t0 the Complaint and each purported cause of action contained therein, Defendant alleges that Plaintist damages were caused by the negligence and/or acts 0r omissions of parties other than this answering Defendant Whiting- Turner, Whether 0r not parties t0 this action. By reason thereof, Plaintist damages as against this Defendant, must be reduced by the proportion of fault attributable t0 such other parties, and to the extent that this is necessary, Defendant may be entitled t0 partial indemnity from others 0n a comparative fault basis. FIFTH AFFIRMATIVE DEFENSE (Assumption 0f Ris k) 5. As a separate and fifth affirmative defense to the Complaint and each purported cause of action contained therein, Defendant alleges that Plaintiff assumed any and all risks, hazards and perils alleged in the Complaint, and therefore assumed the risk 0f all injuries or damages sustained, if any, Which serves t0 bar 0r reduce any recovery by Plaintiff. SIXTH AFFIRMATIVE DEFENSE (Contributory Ne gligence / Comparative Fault) 6. As a separate and sixth affirmative defense t0 the Complaint and each purported cause of action contained therein, Defendant alleges that any recovery or relief shall be reduced by the extent of the contrlbutory negligence or comparative fault of 0r attrlbutable t0 Plaintiff. SEVENTH AFFIRMATIVE DEFENSE (N0 Control OverRe sponsible Partie s) 7. As a separate and seventh affirmative defense t0 the Complaint and each purported cause 0f action contained therein, Defendant alleges that any loss, injury 0r damage incurred by Plaintiff was proximately caused by the negligent or willful acts 0r omissions 0f parties or other persons 0r entities whom Defendant neither controlled nor had the right t0 control, and was not proximately caused by any acts, omissions or other conduct 0f Defendant. EIGHTH AFFIRMATIVE DEFENSE (Compliance With the Law) -3- THE WHITING-TURNER CONTRACTINGCOMPANY‘S ANSWERTO COMPLAINT; JURY DEMAND 17196402.1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8. As a separate and eighth affirmative defense t0 the Complaint and each purported cause 0f action contained therein, Defendant alleges that any actions taken by Defendant were in full compliance With the law. NINTH AFFIRMATIVE DEFENSE (Spoliation 0fEvide nce) 9. As a separate and ninth affirmative defense to the Complaint and each purported cause 0f action contained therein, Defendant alleges that Plaintiff, Plaintiff’s attorneys 0r agents, and/or other persons (other than this Defendant), may have lost, destroyed, misplaced, altered, modified, failed to preserve, 0r otherwise acted so as to preclude Defendant from gainjng access to relevant and material evidence. TENTH AFFIRMATIVE DEFENSE (Failure t0 Exhaust Adminis trative Reme die s) 10. As a separate and tenth affirmative defense t0 the Complaint and each purported cause 0f action contained therein, Defendant alleges that Plaintiff s claims are barred because Plaintiff failed to exhaust his administrative remedies. ELEVENTH AFFIRMATIVE DEFENSE (Failure t0 Mitigate) 11. As a separate and eleventh affirmative defense t0 the Complaint and each purported cause 0f action contained therein, Defendant alleges that Plaintist claims are barred for hjs failure to mitigate any purported damages. TWELFTH AFFIRMATIVE DEFENSE (Inte rvening and Superseding Cause) 12. As a separate and twelfth affirmative defense t0 the Complaint and each purported cause of action contained therein, Defendant alleges that if Plaintiff suffered 0r sustained any loss, damage 0r injury as alleged in the Complaint, such loss, damage 0r injury was legally caused 0r contrflmted to by the negligence or wrongful conduct 0f other parties, persons 0r entities, and that their negligence 0r wrongful conduct was an intervening and superseding cause 0f the loss, damage 0r injury of Which Plaintiff complains. -4- THE WHITING-TURNER CONTRACTINGCOMPANY‘S ANSWERTO COMPLAINT; JURY DEMAND 17196402.1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THIRTEENTH AFFIRMATIVE DEFENSE (Laches) 13. As a separate and thjl‘teenth affirmative defense to the Complaint and each purported cause of action contained therein, Defendant alleges that Plaintiff is barred in whole 0r in part from prosecuting the purported causes 0f action set forth in the Complaint by the doctrine of laches. FOURTEENTH AFFIRMATIVE DEFENSE (Re s Judicata/ Collate ral Estoppe l) 14. As a separate and fourteenth affirmative defense, Defendant alleges that the entire Complaint, and each cause 0f action thereof, are barred by the doctrines 0f res judicata and/or collateral estoppel. FIFTEENTH AFFIRMATIVE DEFENSE (N0 Caus ation) 15. As a separate and fifteenth affirmative defense t0 the Complaint and each purported cause 0f action contained therein, Defendant alleges that Plaintiff has not been injured or damaged as a proximate result 0f any act or omission for which Defendant is responsible. SIXTEENTH AFFIRMATIVE DEFENSE (Non-Joinder 0fNecessary and Appropriate Parties) 16. As a separate and sixteenth affirmative defense t0 the Complaint and each purported cause 0f action contained therein, Defendant alleges that Plaintiff has failed t0 join t0 the action all necessary and appropriate parties. SEVENTEENTH AFFIRMATIVE DEFENSE (No Liability for Conduct 0fIndepe nde nt Contractors) 17. As a separate and seventeenth affirmative defense t0 the Complaint and each purported cause 0f action contained therein, Defendant alleges that Plaintiff’s claims against it are barred by the holdings 0f Privette v. Superior Court, 5 Ca1.4th 689 (1993) and/or Toland v. SunlandHousing Group,Inc., 18 Ca1.4th 253 (1998) and its progeny. -5- THE WHITING-TURNER CONTRACTINGCOMPANY‘S ANSWERTO COMPLAINT; JURY DEMAND 17196402.1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EIGHTEENTH AFFIRMATIVE DEFENSE (Statute 0f Limitations) 18. As a separate and eighteenth affirmative defense t0 the Complaint and each purported cause 0f action contained therein, Defendant alleges that the purported causes 0f action asserted in the Complaint are barred by such statutes 0f limitation as may be applicable, including, but not limited t0, California Code 0f Civil Procedure sections 335.1, 337, 338, 339, 343, 361, 583.210, 583.310, 583.410, and other applicable statutes 0f limitations, laches, and/or by any applicable contractual time limitations for the commencement 0f suit. NINETEENTH AFFIRMATIVE DEFENSE (Inhe re nt Risk - N0 Duty) 19. As a separate and nineteenth affirmative defense t0 the Complaint and each purported cause of action contained therein, Defendant alleges that Plaintiff’s alleged injuries and damages, if any, resulted from inherent risks 0f the activity in which Plaintiff voluntarily engaged and as t0 which Defendant owed n0 duty. TWENTIETH AFFIRMATIVE DEFENSE (Setofl and Satis faction) 20. As a separate and twentieth affirmative defense t0 the Complaint and each purported cause of action contained therein, Defendant alleges that Plaintiff’s claims are barred as a whole 0r in part t0 the extent Plaintiff has released, settled, entered into accords and satisfaction, or otherwise compromised his claims. Any recovery 0r remedy must be set off and reduced by the amount of any separate obligation owed by or on behalf of Plaintiff t0 or for the benefit of Defendant and by any payment or promise 0f payment made t0 or for the benefit 0f Plaintiff With regard t0 any item 0f Plaintiff s alleged damages. TWENTY-FIRST AFFIRMATIVE DEFENSE (Open and Obvious) 21. As a separate and twenty-first affirmative defense t0 the Complaint and each purported cause of action contained therein, Defendant alleges that any alleged dangerous condition was open and obvious by Virtue 0f its appearance, form, function, instructions, -6- THE WHITING-TURNER CONTRACTINGCOMPANY‘S ANSWERTO COMPLAINT; JURY DEMAND 17196402.1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 warnings, or other features, and Plaintiff and/or Richard Fall’s employer, knew 0r in the exercise 0f reasonable care should have known 0f it and taken measures t0 mitigate 0r avoid it. TWENTY-SECOND AFFIRMATIVE DEFENSE (Unavoidable Accide nt) 22. As a separate and twenty-second affirmative defense t0 the Complaint and each purported cause of action contained therein, Defendant alleges that if Plaintiff suffered any damages, such damages were and are the sole and proximate result 0f an unavoidable accident. TWENTY-THIRD AFFIRMATIVE DEFENSE (Worke rs ’ Compe ns ation: Repayme nt) 23. As a separate and twenty-third affirmative defense t0 the Complaint and each purported cause 0f action contained therein, Defendant alleges that if Plaintiff has received, or in the future may receive, Workers” Compensation benefits under the California Labor Code as a consequence 0f the alleged industrial injury referred t0 in the Complaint, Defendant demands repayment 0f any such Workers’ Compensation benefits in the event that Plaintiff recovers tort damages as a result 0f the industrial injury allegedly involved in this case. Although Defendant denies the validity 0f Plaintiffs claims, in the event those claims are held valid and not barred by the statutes of limitations 0r otherwise, Defendant asserts that cross-demands for money have existed between Plaintiff and Defendant and the demands are compensated, so far as they equal each other, pursuant to California Code 0f Civil Procedure section 431.70. TWENTY-FOURTH AFFIRMATIVE DEFENSE (Workers’ Compensation: Set-Ofl) 24. As a separate and twenty-fourth affirmative defense t0 the Complaint and each purported cause 0f action contained therein, Defendant alleges that Plaintiff Richard Fall was employed and was entitled t0 receive Workers’ Compensation benefits from his employers; his employers were negligent in and about the matters referred t0 in the Complaint, and the negligence on the part 0f said employers proximately and concurrently contrflouted to the loss, injury or damage complained of by Plaintiff; and by reason thereof, Defendant is entitled t0 set-off any such benefits t0 be received by Plaintiff against any judgment Which may be rendered in Plaintiff s -7- THE WHITING-TURNER CONTRACTINGCOMPANY‘S ANSWERTO COMPLAINT; JURY DEMAND 17196402.1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 favor. TWENTY-FIFTH AFFIRMATIVE DEFENSE (Workers ’ Compe ns ation: Re duction and Cre dit) 25. As a separate and twenty-fifth affirmative defense t0 the Complaint and each purported cause 0f action contained therein, Defendant alleges that if Plaintiff has received, or in the future may receive, Workers” Compensation benefits under the California Labor Code as a consequence 0f the alleged industrial injury referred t0 in the Complaint, and in the event Plaintiff is awarded damages against Defendant, any award against Defendant must be reduced, 0r alternatively Defendant claims a credit against these awards to the extent that Defendant is barred from enforcing its rights t0 reimbursement for Workers’ Compensation benefits, in the amount 0f all such benefits that Plaintiff has received 0r may receive in the future. TWENTY-SIXTH AFFIRMATIVE DEFENSE (Employe rs ’ Fault) 26. As a separate and twenty-sixth affirmative defense to the Complaint and each purported cause of action contained therein, Defendant alleges that Richard Fall's employers were negligent, careless and reckless in and about the matters referred t0 in the Complaint, and that said employers failed t0 exercise ordinary 0r any care for hjs own safety, and fithher that such negligence and carelessness on the part 0f said employers proximately and concurrently contrlbuted t0 any loss 0r damage, including non-economic damages complained 0f by Plaintiff. TWENTY-SEVENTH AFFIRMATIVE DEFENSE (Reservation ofAfirmative Defe ns e) 27. As a separate and twenty-seventh affimlative defense t0 the Complaint and each purported cause 0f action contained therein, Defendant alleges that Plaintiff has failed t0 set out his claims with sufficient particularity t0 permit Defendant t0 raise all appropriate affirmative defenses, and Defendant therefore reserves its rights t0 amend 0r supplement its answer with additional affirmative defenses. WHEREFORE, Defendant prays for relief as follows: 1. That the Complaint be dismissed, With prejudice and in its entirety; -8- THE WHITING-TURNER CONTRACTINGCOMPANY‘S ANSWERTO COMPLAINT; JURY DEMAND 171964021 \DOONQ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. That Plaintiff take nothing by reason of this Complaint and that judgment be entered against Plaintiff and in favor of Defendant; 3. That Defendant be awarded its attorneys’ fees and costs incurred; 4. For appropriate credits and set-offs for any payment 0r promise t0 or for the benefit 0f Plaintiff arising out 0f any subject 0f the Complaint, be they Workers’ Compensation benefits, settlements, judgments, or any other payments, promises, rights or benefits; 5. That any judgment for damages entered against Defendant be no greater than the amount 0f damages related t0 its proportionate share, if any, 0f the combined culpable conduct or legal liability 0f all parties and non-parties proximately causing Plaintiff’s alleged injuries and damages, if any; and 6. That Defendant be granted such other relief as the Court may deem just and proper. DATED: January 15, 2021 HANSON BRIDGETT LLP 54mQ" MERTON A. HOWARD SHANNON M. NESSIER ELLEN K. DEMSON Attorneys for Defendant THE WHITING- TURNER CONTRACTING COMPANY -9- THE WHITING-TURNER CONTRACTINGCOMPANY'S ANSWERTO COMPLAINT; JURY DEMAND 171964021 \DOONO‘x 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEMAND FOR JURY TRIAL Defendant THE WHITING-TURNER CONTRACTING COMPANY hereby demands a jury trial in the above-entitled action as to all causes of action that may be tried before a jury. DATED: January 15, 2021 HANSON BRIDGETT LLP 54mQ" MERTON A. HOWARD SHANNON M. NESSIER ELLEN K. DEMSON Attorneys for Defendant THE WHITING- TURNER CONTRACTING COMPANY -10- THE WHITING-TURNER CONTRACTINGCOMPANY'S ANSWERTO COMPLAINT; JURY DEMAND 17 l 96402. 1 PROOF 0F SERVICE Alonso Hernandez v. The Whiting Turner Contracting C0., et al. Santa Clara County Superior Court, Case N0. 20CV373930 STATE 0F CALIFORNIA, COUNTY OF SAN FRANCISCO At the time 0f service, l was over 18 years of age and not a party to this action. I am employed in the County of San Francisco, State of California. My business address is 425 Market Street, 26th Floor, San Francisco, CA 94105. On January 15, 2021, I scrvcd truc copies of thc following document(s) described as DEFENDANT THE WHITING-TURNER CONTRACTING COMPANY'S ANSWER TO COMPLAINT 0n the interested parties in this action as follows: Robert S. Arns Attorneys for Plaintiff, Alonzo Hernandez Jonathan E. Davis Zachariah Hansen THE ARNS LAW FIRM 515 Folsom Street, 3rd Floor San Francisco, CA 94105 Phone: ( 41 5) 495-7800 Fax: (415) 495-7888 Emails: rsa@arnslaw.com jed@arnslaw.com zdh@arnsla w .com BY MAIL: l enclosed the document(s) in a sealed envelope or package addressed to the persons at the addresses listed in the Service List and placed the envelope for collection and mailing, following our ordinary business practices. lam readily familiar with Hanson Bridgett LLP'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 of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on January 15, 2021, at San Francisco, California. Anthony Zamora PRINTED NAME -1]- THE, Wl“|l'I‘lNG-'|‘URNER CONTRACTING COM PANY'S ANSWERTO COM PLA INT; JURY DEMAND
