Answer Filed

Cal. Super. - 5th Dist.May 7, 2021

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT’S ANSWER TO COMPLAINT ROSALINE S. AYOUB, ESQ., SBN: 246233 Rose.Ayoub@qpwblaw.com SALLY HOSN, ESQ., SBN 276231 Sally.Hosn@qpwblaw.com QUINTAIROS, PRIETO, WOOD & BOYER, P.A. 500 N. Brand Boulevard, Suite 1650 Glendale, California 91203 Telephone: 213.486.0048 Facsimile: 213.486.0049 Attorneys for Defendant, MACERICH FRESNO LIMITED PARTNERSHIP SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF FRESNO MARY O’NEILL, Plaintiff, vs. MACERICH FRESNO LIMITED PARTNERSHIP dba FASHION FAIR MALL; and DOES 1 TO 100, Defendants. CASE NO.: 21CECG01333 Judge: Hon. Rosemary McGuire Dept.: 502 DEFENDANT’S ANSWER TO COMPLAINT Action Filed: 05/07/2021 Trial Date: Not set COMES NOW Defendant, MACERICH FRESNO LIMITED PARTNERSHIP (hereinafter referred to as “Answering Defendant”) and answers Plaintiff’s unverified Complaint on file herein as follows: 1. STATUTORY DENIAL It appearing that the Complaint on file is unverified, Answering Defendant hereby files its general denial pursuant to Code of Civil Procedure §431.30(d). 2. GENERAL DENIAL This Answering Defendant herein denies generally and specifically, each and every allegation and each and every cause of action contained in Plaintiff’s Complaint, both E-FILED 6/14/2021 4:20 PM Superior Court of California County of Fresno By: L Peterson, Deputy 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 DEFENDANT’S ANSWER TO COMPLAINT conjunctively and disjunctively and the whole thereof, and denies further that Plaintiff has been damaged in the amount claimed or in any other sum whatsoever or at all, and specifically denies that Plaintiff is entitled to the relief sought. 3. FAILURE TO STATE CAUSE OF ACTION FOR A FIRST, SEPARATE AND AFFIRMATIVE DEFENSE, this Answering Defendant alleges that each and every Cause of Action of Plaintiff’s unverified Complaint fails to state facts sufficient to constitute a cause of action against this Answering Defendant. 4. COMPARATIVE FAULT OF PLAINTIFF FOR A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE to Plaintiff’s Complaint, this Answering Defendant alleges that at the times and places mentioned in Plaintiff’s Complaint, Plaintiff was careless, reckless and negligent in and about the matters and things alleged in Plaintiff’s Complaint, which said carelessness, recklessness and negligence concurred in point of time with the alleged negligence of this Defendant, if any there may have been, and proximately caused and contributed to whatever injury and/or damage said Plaintiff may have sustained, if any, and recovery by the said Plaintiff, if any, should be proportionately reduced according to the percentage of fault of Plaintiff. 5. COMPARATIVE FAULT OF THIRD PARTIES FOR A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE to Plaintiff’s Complaint, this Answering Defendant alleges that at the times and places mentioned in Plaintiff’s Complaint, third parties, unknown to this Answering Defendant, were careless, reckless and negligent in and about the matters and things alleged in Plaintiff’s Complaint, which said carelessness, recklessness and negligence was the proximate cause and contributed to whatever injury and/or damage said Plaintiff may have sustained, if any, and recovery by the said Plaintiff, if any, should be proportionately reduced according to the percentage of fault of the third parties. 6. NEGLIGENCE OF OTHERS FOR A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE, this Answering Defendant alleges that if any injuries and/or damages were sustained by Plaintiff, then said injuries 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 DEFENDANT’S ANSWER TO COMPLAINT and/or damages, and the whole or a part thereof, were and are the proximate and direct result of the recklessness, carelessness and negligence of persons other than this Answering Defendant, and in the event that this Answering Defendant is found to be liable to Plaintiff herein in any manner whatsoever, or at all, then this Answering Defendant prays for leave of court to compare its negligence with such other persons whose conduct may, wholly or in part, have contributed to said injuries and/or damages, and to require that any judgment rendered herein in favor of Plaintiff and against this Answering Defendant be of an amount directly proportional to this Answering Defendant’s individual degree of fault. 7. WILLFUL ACTIONS OF THE PLAINTIFF FOR A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE, this Answering Defendant alleges that if Plaintiff was injured and/or damaged as set forth in their Complaint, or in any other way, sum or manner, or at all, then said damage and the whole thereof proximately and concurrently resulted from and was caused, in whole or in part, by the willful and serious misconduct on the part of Plaintiff, with regard to each and every activity at the time and place mentioned in Plaintiff’s Complaint, and at all times relevant thereto, that said willful and serious misconduct proximately contributed to and caused, in whole or in part, Plaintiff’s injuries and/or damages. 8. FAILURE TO MITIGATE DAMAGES FOR A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE to the Plaintiff’s Complaint, this Answering Defendant alleges, upon information and belief, that Plaintiff, by the exercise of reasonable effort and/or care, could have mitigated that amount of damages alleged to have suffered, but that Plaintiff failed, neglected and refused, and continue to fail and refuse to exercise a reasonable effort to mitigate the alleged damages. 9. ASSUMPTION OF RISK FOR A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE, this Answering Defendant alleges that if damages were sustained by the Plaintiff, then said damages, if any, and the whole or part thereof, were and are the proximate and direct result of risk(s) that the Plaintiff 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 DEFENDANT’S ANSWER TO COMPLAINT reasonably assumed having actual knowledge of the particular danger(s), knowing or understanding the degree of the risk(s) involved, and voluntarily assuming the risk(s) at or about the time and place referred to and described in Plaintiff’s Complaint; which said reasonable implied assumption of risk(s) on the part of the Plaintiff proximately and concurrently caused and brought about wholly whatever damages, if any, said Plaintiff claims to have sustained. 10. UNREASONABLE ASSUMPTION OF RISK FOR A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE, this Answering Defendant alleges that if damages were sustained by the Plaintiff, then said damages, if any, and the whole or part thereof, were and are the proximate and direct result of risk(s) that the Plaintiff unreasonably assumed having actual knowledge of the particular danger(s), knowing or understanding the degree of the risk(s) involved, and voluntarily assuming the risk(s) at or about the time and place referred to and described in Plaintiff’s Complaint; which said unreasonable implied assumption of risk(s) on the part of the Plaintiff proximately and concurrently caused and brought about wholly whatever damages, if any, said Plaintiff claims to have sustained. 11. STATUTE OF LIMITATIONS - CODE OF CIVIL PROCEDURE § 335.1 FOR A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE, Plaintiff’s action is barred by the following statute limiting the time in which this action may be brought: Code of Civil Procedure § 335.1. 12. ESTOPPEL FOR A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE to the Plaintiff’s Complaint, this Answering Defendant alleges that Plaintiff, by virtue of their own acts and omissions, are estopped from recovering damages from this Answering Defendant. 13. WAIVER FOR A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE to the Plaintiff’s Complaint, this Answering Defendant alleges that Plaintiff has, through their own acts and omissions, waived the right to recover damages from this Answering Defendant. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 DEFENDANT’S ANSWER TO COMPLAINT 14. UNCLEAN HANDS FOR A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE, this Answering Defendant is informed and believes, and thereon alleges that Plaintiff’s claims are barred by the equitable doctrine of unclean hands. 15. DILATORY CONDUCT FOR A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE, this Answering Defendant alleges that Plaintiff is precluded from relief due to their dilatory conduct with respect to bringing suit against this Answering Defendant. 16. DUE CARE AND PRUDENCE FOR A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE, this Answering Defendant alleges that at all times pertinent herein, this Answering Defendant acted with due care and prudence in carrying out its obligations, if any, to Plaintiff. 17. CIVIL CODE § 1431.1 through 1431.5 FOR A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE, this Answering Defendant alleges that, under and pursuant to the terms of Civil Code § 1431.1 through 1431.5, Plaintiff is barred and precluded from recovery against this Answering Defendant for any non- economic damages except those allocated to this Answering Defendant in direct proportion to its percentage of fault, if any such fault or damages there be. 18. JUDGMENT REDUCED BY AMOUNT OF BENEFITS PAID FOR A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE, this Answering Defendant alleges that it is entitled to have any judgment rendered herein, if any, reduced by the amount of benefits paid, or to be paid to, or on behalf of Plaintiff. 19. DOCTRINE OF LACHES FOR A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE, this Answering Defendant is informed and believes, and thereon alleges that Plaintiff waited an unreasonable period of time before asserting their claim, if any, against Defendant, and is therefore barred from asserting such claims under the doctrine of laches. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 DEFENDANT’S ANSWER TO COMPLAINT 20. OPEN AND OBVIOUS CONDITION Plaintiff should have been aware of the open and obvious condition and should have taken the proper precautions to avoid it. 21. LACK OF ACTUAL OR CONSTRUCTIVE NOTICE FOR A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE this Answering Defendant alleges that if a dangerous or defective conditions existed on the premises that caused or contributed to the cause of Plaintiff’s alleged accident and damages, which this Answering Defendant denies, Plaintiff failed to timely notify Answering Defendant of such conditions, and failed to give Answering Defendant timely opportunity to remedy such conditions, warn Plaintiff and others of the conditions or to mitigate the damage resulting from such conditions. This Answering Defendant otherwise lacked notice of such conditions, if they indeed existed, sufficiently prior to Plaintiff’s alleged accident to have taken any corrective action and/or warned Plaintiff of said conditions. As such, Plaintiff is barred from any relief from these Answering Defendants. 22. RESERVATION OF RIGHT TO AMEND FOR A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE to the Plaintiff’s Complaint, this Answering Defendant presently has insufficient knowledge or information on which to form a belief as to whether it may have additional, as yet unstated, affirmative defenses available. This answering Defendant herein reserves the right to assert additional defenses in the event that discovery indicates that they would be appropriate. / / / / / / / / / / / / / / / / / / / / / / / / 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 DEFENDANT’S ANSWER TO COMPLAINT WHEREFORE, having fully answered and responded to Plaintiff’s Complaint, this Answering Defendant prays for judgment as follows: 1. That Plaintiff take nothing by virtue of her Complaint; 2. That the Complaint be dismissed with prejudice and that Answering Defendant be awarded judgment in this action; 3. That Answering Defendant be awarded its costs incurred herein; and 4. For such other and further relief as the Court deems just and proper. DATED: June 14, 2021 QUINTAIROS, PRIETO, WOOD & BOYER, P.A. By: ROSALINE S. AYOUB SALLY HOSN Attorneys for Defendant, MACERICH FRESNO LIMITED PARTNERSHIP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 DEFENDANT’S ANSWER TO COMPLAINT PROOF OF SERVICE Mary O’Neill v. Macerich Fresno Limited Partnership, et al. Fresno County Superior Court Case No.: 21CECG01333 Client/Matter: 160664 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES At the time of service, I was over 18 years of age and not a party to the action. My business address is 500 N. Brand Boulevard, Suite 1650, Glendale, California 91203. On June 14, 2021, I served the following document described as DEFENDANT’S ANSWER TO COMPLAINT on the following persons at the following address: SEE ATTACHED SERVICE LIST  BY MAIL: I am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. postal service on that same day with postage thereon fully prepaid at Glendale, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit.  BY OVERNIGHT DELIVERY: I served such envelope or package to be delivered on the same day to an authorized courier or driver authorized by the overnight service carrier to receive documents, in an envelope or package designated by the overnight service carrier.  BY ELECTRONIC SERVICE: I caused the above-entitled document(s) to be served via E-mail to the E-mail addresses on the attached Service List. The document(s) is not being served by U.S. mail due to the COVID-19 coronavirus National Emergency and stay-at- home orders. Electronic service is being made pursuant to an agreement with all parties and pursuant to California Code of Civil Procedure § 1010.6. No electronic message or other indication that the transmission was unsuccessful was received within a reasonable time after the transmission.  STATE: I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on June 14, 2021, at Glendale, California. LISETH GONZALEZ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 DEFENDANT’S ANSWER TO COMPLAINT SERVICE LIST Mary O’Neill v. Macerich Fresno Limited Partnership, et al. Fresno County Superior Court Case No.: 21CECG01333 Client/Matter: 160664 Nolan C. Kane BARADAT & PABOOJIAN, INC. 720 W. Alluvial Avenue Fresno, CA 93711 T: (559) 431-5366 F: (559) 431-1702 E: nck@bplaw-inc.com Attorneys for Plaintiff, MARY O’NEILL