Answer Limited 10K and 25K

Cal. Super. - 6th Dist.March 15, 2021

OLOOONOUO‘l-bCDNA NNNNNNNNNAAAAAAAAAA WNQCN¥®NAO©®N®CJ1¥CDNA Electronically Filed NORA FRIMANN, City Attorney (93249) by Superior Court 0f CA, ARDELL JOHNSON, Assistant City Attorney (95340) County of Santa Clara, CHRISTIAN B. NIELSEN, Chief Deputy City Attorney (87963)6/7/2021 2:55 PM AARON YU, Deputy City Attorney (304882) Reviewed By; |_ De| Mundo Office of the City Attorney Case #21cv378957 200 East Santa Clara Street, 16th Floor _ San José, California 951 13-1905 Enve'°|°e- 6596963 Telephone Number: (408) 535-1900 Facsimile Number: (408) 998-3131 E-Mail Address: cao.main@sanjoseca.gov Attorneys for JUSTIN MILLER & CITY OF SAN JOSE, A MUNICIPAL CORPORATION SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA LIMITED JURISDICTION STATE FARM MUTUAL AUTOMOBILE . |NSURANCE COMPANY, Case Number. 21CV378957 plaintiff DEFENDANTS’ ANSWER TO ’ COMPLAINT FOR SUBROGATION RECOVERY v. JUSTIN MILLER, an individual, CITY OF SAN JOSE, a municipal corporation, and DOES 1-40, inclusive, Defendants. Defendants, JUSTIN MILLER and CITY OF SAN JOSE (“Defendants”), for themselves and no other, generally deny each and every allegation in the unverified complaint of Plaintiff State Farm Mutual Automobile Insurance Company (“Plaintiff”). Defendants further deny that Plaintiff sustained or will sustain damages in any sum or sums, or otherwise, or at all, due to any act or omission on the part of Defendants. Defendants further state the following separate affirmative defenses to the Complaint: // DEFENDANTS’ ANSWER TO COMPLAINT FOR SUBROGATION RECOVERY Case No: 21CV378957 1806580 OLOOONOUO‘l-bCDNA NNNNNNNNNAAAAAAAAAA WNQCN¥®NAO©®N®CJ1¥CDNA FIRST AFFIRMATIVE DEFENSE The complaint fails to state facts sufficient to constitute a cause of action against Defendants. SECOND AFFIRMATIVE DEFENSE That the Complaint exceeds the scope of Plaintiff’s claim, if any. THIRD AFFIRMATIVE DEFENSE That Plaintiff is barred from pursuing any causes of action against the CITY based upon Plaintiff’s failure to comply with Government Code sections 900, et seq. FOURTH AFFIRMATIVE DEFENSE Any loss, injury, damage or detriment allegedly suffered or sustained by Plaintiff’s insured and/or driver with permission (“Insured”) was directly and proximately caused and contributed to by Insured’s assumption of the risks and hazards of the activities in which Insured was engaged at the time and place referred to in Plaintiff’s Complaint of which Insured had full knowledge and understanding, and said assumption of the risks bars Plaintiff’s recovery. FIFTH AFFIRMATIVE DEFENSE That Insured was careless and negligent in and about the matters referred to in said Complaint and Insured failed to exercise ordinary or any care for her own safety. It was Insured carelessness and negligence which proximately caused and contributed to his damages, detriment or injuries, if any there was, and therefore, Plaintiff’s recovery should be barred or reduced to the extent of his negligence. SIXTH AFFIRMATIVE DEFENSE To the extent Plaintiff sustained any loss, damage or harm caused by third parties Defendants are not liable to Plaintiff pursuant to the provisions of Government Code §§ 820.8, 815.2, and 835(a), or alternatively, such damages must be apportioned between those parties causing Plaintiff’s alleged damages. SEVENTH AFFIRMATIVE DEFENSE That the damages to Plaintiff, if any there be, were sustained by Plaintiff as a result of a DEFENDANTS’ ANSWER TO COMPLAINT FOR SUBROGATION RECOVERY Case No: 21CV378957 1806580 OLOOONOUO‘l-bCDNA NNNNNNNNNAAAAAAAAAA WNQCN¥®NAO©®N®CJ1¥CDNA superseding, intervening cause. EIGHTH AFFIRMATIVE DEFENSE The Defendants are immune for Plaintiffs’ alleged damages pursuant to Vehicle Code sections 17004, 17004.7, 21055, and 21806, to the extent that subsequently discovered facts show said immunities apply to this case. NINTH AFFIRMATIVE DEFENSE The Defendants are not liable for any injury or damages, if any there were, pursuant to the provisions of Government Code § 830, et seq., including, but not limited to, sections 830.2, 830.4, 830.6, 830.8, 831, 835, 835.2 and 835.4. TENTH AFFIRMATIVE DEFENSE That Defendants assert the affirmative defenses provided by Government Code sections 800-1000, including, but not limited to, sections 815, 815.2, 815.6, 818.2, 818.8, 820.2, 820.4, 820.8, 822.2, and 844.6, to the extent that subsequently discovered facts show said immunities apply to this case. ELEVENTH AFFIRMATIVE DEFENSE That Defendants acted at all times in good faith and with a reasonable belief that their actions were proper and valid. TWELFTH AFFIRMATIVE DEFENSE The conclusory nature of Plaintiff’s allegations have made it impossible for Defendants to plead all affirmative defenses that may apply and, as such, Defendants reserve the right to amend their answer at a later time. WHEREFORE, Defendants pray for judgment as follows: 1. That judgement be rendered in favor of Defendants and against Plaintiff, 2 That Plaintiff take nothing by the allegations of the Complaint herein; 3. That the CITY be awarded its costs of suit incurred herein; and 4 For such other and further relief as this Court may deem just and proper. DEFENDANTS’ ANSWER TO COMPLAINT FOR SUBROGATION RECOVERY Case No: 21CV378957 1806580 OLOOONOUO‘l-bOONA NNNNNNNNNAAAAAAAAAA memkWN-‘DmmflmmkmNé Respectfully submitted, Dated: June 7’ 2021 NORA FRIMANN, City Attorney By: 44W}? M AARON YU Deputy City A orney Attorneys for JUSTIN MILLER & CITY OF SAN JOSE, A MUNICIPAL CORPORATION DEFENDANTS’ ANSWER TO COMPLAINT FOR SUBROGATION RECOVERY Case No: 21CV378957 1806580 OLOOONOUO‘l-bOONA NNNNNNNNNAAAAAAAAAA memkWN-‘DmmflmmkmNé PROOF OF SERVICE CASE NAME: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY V. CITY OF SAN JOSE, et al. CASE NO.: 21CV378957 I, the undersigned declare as follows: | am a citizen of the United States, over 18 years 0f age, employed in Santa Clara County, and not a party to the within action. My business address is 200 East Santa Clara Street, San Jose, California 95113-1905, and is located in the county where the service described below occurred. On June 7, 2021, | caused to be served the within: DEFENDANTS’ ANSWER TO COMPLAINT FOR SUBROGATION RECOVERY E by ELECTRONIC TRANSMISSION, with a copy of this declaration, to an electronic address listed below. | further declare that the electronic transmission was sent on June 7, 2021, and that the City of San Jose, City Attorney’s electronic address is CAO.Main@sanioseca.qov. The above-described transmission was reported as sent by a transmission report available for printing from the computer. Addressed as follows: Mr. Richard L. Mahfouz || Clerkin, Sinclair & Mahfouz, LLP 701 B Street, Suite 1160 San Diego, CA 92101 Phone Number: (619) 308-6550 Fax Number: (61 9) 923-3143 Email: rlmahfouz@clerkinlaw.com Attorneys for, State Farm Mutual Automobile Ins. Co., Plaintiff | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on June 7, 2021, at San Jose, California. z... Tracy Dug? DEFENDANTS’ ANSWER TO COMPLAINT FOR SUBROGATION RECOVERY Case No: 21CV378957 1806580