Answer Unlimited Fee Applies

Cal. Super. - 6th Dist.March 16, 2021

Electronically Filed by Superior Court of CA, County of Santa Clara, on 4/16/2021 5:08 PM Reviewed By: R. Tien Case #21CV379027 Envelope: 6261561A Nam 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pablo Orozco - SBN 274267 NILAN JOHNSON LEWIS PA 250 Marquette Avenue South, Suite 800 Minneapolis, MN 55401 Tel: (612) 305-7500 Fax: (612) 305-7501 Email: porozco@nilanjohnson.com Craig A. Livingston - SBN 148551 LIVINGSTON LAW FIRM A Professional Corporation 1600 South Main Street, Suite 280 Walnut Creek, CA 94596 Tel: (925) 952-9880 Fax: (925) 952-9881 Email: clivingston@1iVingstonlawyers.com Attorneys for Defendant FUTURE MOTION, INC. SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA - UNLIMITED CIVIL CHRISTOPHER KACZMARKSI Case N0. 21CV379027 Plaintiff, DEFENDANT FUTURE MOTION, INC.’S V. ANSWER TO PLAINTIFF’S COMPLAINT FUTURE MOTION, INC. and Does 1 to 100, Complaint Filed: 3-16-21 Trial Date: None Defendants. vvvvvvvvvvvv Defendant Future Motion, Inc. (“Future Motion”), for its Answer to Plaintiff’s Complaint, states and alleges as follows: GENERAL DENIAL Pursuant to the provisions 0f Code 0f Civil Procedure Section 43 1 .30, Future Motion denies, generally and specifically, each and every allegation, statement, matter and purported cause of action contained in the Complaint and each and every part thereof, including denying that Plaintiff was damaged in the manner or sums alleged, 0r in any way at all. Kaczmarski v. Future Motion, Ina, Case N0. 21-CV-379027 DEFENDANT FUTURE MOTION, INC.’S ANSWER TO PLAINTIFF’S COMPLAINT -1- DJ U1 6 15 16 17 18 19 20 Future Motion denies that any act, omission, fault 01‘ conduct 0n its part caused any injury 01' damage 10 plaintiff in any manner 01' amount. Future Motion denies that i1 was at fault in any way, has any liability 0n any oi‘plainlii‘i’s Claims, including for design dcl‘cct, 111anu1‘acluring defect, failure 10 warn, negligence 01' otherwise has any liability 01‘ responsibility for any 0fthc allegations 01‘ claims in this case. FIRST AFFIRMATIVE DEFENSE 1 . Tho Complaint fails 10 state a cause ()t‘action against Future Motion. SECOND AFFIRMATIVE DEFENSE 2. Plaintiff has altered, spoliatcd 0r failed 10 preserve evidence without proper notice to Future Motion, and each cause 0f action is therefore barred. THIRD AFFIRMATIVE DEFENSE 3. Plaintiff’s Claims may be barred, in whole 01' in part, by lhc applicable statute 0f limitations 0r repose and/Ol‘ by lhc doctrine 0f lachcs. FOURTH AFFIRMATIVE DEFENSE 4. Plaintiff‘s damages, ifany, were caused by the acts 01' omissions ol‘lhird parties over whom Future Motion had no control and for whose acts Future Motion is not responsible. FIFTH AFFIRMATIVE DEFENSE 5. Plaintiff was aware 0171110 risks inherent in using Future Motion’s Oncwhccl product, including the risk 01‘ falling and sustaining injury, and knowingly assumed the risk 0f any damages hc may have sustained in both the primary and secondary scnsc. SIXTH AFFIRMATIVE DEFENSE 6. Plaintiff‘s damages, if any, wcrc Ihc result 0f an Open and obvious risk 01‘ which I’laintifl‘was 0r should have been aware, and accordingly, Plaintiff‘s Claims arc barred. SEVENTH AFFIRMATIVE DEFENSE 7. Plaintiff’s damages, ifany, wcrc the result 0f intervening and/or superscding acts 0r negligence ofpcrsons, parties 01' entities over whom Future Motion had no control. Kaczmam/{f{iWEE”?[Aliégfialfl Z715: 'ch'c Nd. 2'71 96V53’796’2’7 DEFENDANT FUTURE MO’I‘ION, INCHS ANSWER ’I‘O PLAIN'I‘II’IVS COMPLAINT -2- [Q b) U1 10 11 12 14 15 16 17 18 19 20 EIGHTH AFFIRMATEVE DEFENSE 8. The product complained Ofwas substantially modified, altered and/or damaged after it left Future Motion’s control. NINTH AFFIRMATIVE DEFENSE 9. 'l‘hc incident and Plaintiff‘s damages, ifany, were caused by the unforcsceablc and unanticipated misuse 0f the product, barring any recovery by Plaintiff. TENTH AFFIRMATIVE DEFENSE 10. At the time tho product left the control 0f Futurc Motion there was not a practical and technically feasible alternative design that would have prevented tho alleged harm without substantially impairing the reasonably anticipated 01‘ intcndcd function OI‘IhC product. ELEVENTH AFFIRMATIVE DEFENSE 1 1. Plaintiffs damages, if any, were caused by his own comparative fault and/or comparative negligence. TWELFTH AFFIRMATIVE DEFENSE 12. The incident and injury, ifany, were caused by the unauthorized, unintended, 01‘ improper use QfIhe product complained 01‘ and as a result ol‘thc failure 10 exercise reasonable and ordinary care, caution or Vigilance. THIRTEENTH AFFIRMATIVE DEFENSE 13. Plaintifffailcd to follow warnings and/or instructions and as such, Plaintiff's claims arc barred. FOURTEENTII AFFIRMATIVE DEFENSE 14. Plaintiffs Claims may bc barred by the defense oi‘l‘clcasc, cstoppcl or waiver. FIFTEENTH AFFIRMATIVE DEFENSE 15. Future Motion did not breach any duty it may have owed 10 Plaintiff. SIXTEENTH AFFIRMATIVE DEFENSE 16. A1 all times relevant t0 this litigation, Future Motion complied with all applicable laws, regulations and standards. Kaczfifiuiv/(i v. Fl/lm'c Motion, lncIEagc N0. Zl-CVL3V790727f" DEFENDANT FUTURE MO'I‘ION, INC.‘S ANSWER TO PIJAIN'I'II7VS COMPLAINT ,, -3- Ix.) DJ 9 10 11 12 SEVENTEENTI'E AFFIRMATIVE DEFENSE 17. 'l‘hC product was designed and manufactured consistent with the Slate ot‘thc art for similar products at the time 0f its design and manufacture. EIGHTEENTH AFFIRMATIVE DEFENSE 18. In the event Plaintiffhas failed 10 mitigate his damages, Plaintiff is barred from recovering those damages from Future Motion. NINETEENTH AFFIRMATIVE DEFENSE 19. Plaintiff’s damages, ifany, must be set off against any paymcnts received from a collateral source. TWENTIETII AFFIRMATIVE DEFENSE 20. Any injuries and/or losses sustained. as alleged in tho Complaint, were caused in whole 0r in part through the operation Ofnaturc 01' other intervening causes 01‘ both. TWENTY-FIRST AFFIRMATIVE DEFENSE 21. Plaimit‘l‘has neither incurred nor paid any medical expenses as alleged. TWENTY-SECONI) AFFIRMATIVE DEFENSE 22. Future Motion is entitled 10 a sctoff amount 1‘01‘ all sums ofmoncy recovered by 0r on bchalfof Plainlifl‘by way 01‘ any settlement judgment 01‘ otherwise which wcrc entered into 01‘ received by Plaintiff from any party 01‘ non-party in this action. TWENTY-THIRD AFFIRMATIVE DEFENSE 23. It‘Plaimiff 01' any other party has failed or fails t0 preserve evidence pertaining 10 the allegedly defective product, then Plaintiff and/or thc other party may not inlroducc evidence related t0 01‘ based upon such lost, destroyed 0r altered evidence and, therefore, some 01' all 011110 Claims asserted by Plaintiffand/or other parties may be barred. TWENTY-FOURTII AFFIRMATIVE DEFENSE 24. Future Motion contends that if liability is assessed against it, pursuant to Civil Code section 1431 cf seq., it shall bc liable only for thc amount 0fnon-cc0nomic damages allocated 10 it in direct proportion 10 thc percentage 0f fault assessed against it by the trier 0f fact. Further, Future Motion requests that a separate judgmcnt bC rendered against it for that amount; Kaczmarski 1A Fulim‘e MZII'OH, Ina; Case N0. 21-CV-3790277 DEFENDANF FUTURE MOTION, INC.’S ANSWER TO PLAIN'I‘IFF’S COMPLAINT -4- 10 11 12 but that Future Motion, in setting forth this affirmative defense, makes 110 admission that i1 is liable 10 plaintiff in any amount 01' in any proportion; and Future Motion. in selling [‘0th this affirmative defense, makes no admission thal plaintit‘fhas been damaged in any sum 0r sums at all. TWENTY-FIFTII AFFIRMATIVE DEFENSE 25. Future Motion reserves the right L0 amend its Answer and 10 rely upon affirmative defenses as may hcrcaflcr bC disclosed by further investigation and discovery. PRAYER FOR RELIEF WI IEREFORE, Future Motion, Inc. prays that: a. Plaintiff’s Com laim be dismissed With rc'udicc and that Plaintifftakcs nothinoP P J a thereby; b. Future Motion Inc. bC awarded its costs and reasonable attorneys‘ fees incurred in connection with thc defense ofthis action; and c. Future Motion Inc. be awarded such other and further relicfas the Court deems just and proper. Dated: April 16, 2021 I IVINGS l (2N I AW FIRM Craig A. Livingston wcmdw NILAN JOHNSON LEWIS PA By /s/ Pablo Orozco Pablo Orozco Attorneys [‘01‘ Defendant FU l URI MO I ION INC. Emméfki v, 15mm A/mriim, 122?, Case No. 21-Cv-379027 DEFENDANT FUTURE MOTION, mos ANSWER T0 PLAIN'I‘IFF‘S COMPLAINI‘ -5- 10 11 17 18 19 20 21 22 24 25 26 27 PROOF OF SERVICE I, the undersigncd5 hereby declare that I am over the age 0f eighteen years and not a party 10 tho within action. My business address is 1600 South Main Street, Suite 280, Walnut Creek, California 94596. On thc date set forth below, I served thc following document(s): DEFENDANT FUTURE MOTION, INCRS ANSWER TO PLAINTIFF’S COMPLAINT upon the following a1 the address(es) stated below: Louis S. Abronson , Esq. ABRONSON LAW OFFICES 332 North 2nd Street San Jose, CA 951 12 Tel: (408) 687-9155 Fax: (408) 352-5595 Email: LSA@1‘cdhousclawyCr.com Service was accomplished as follows: X BY US MAIL, According t0 Normal Business Practices. A1 my place ol‘business at thc above address, I scaled the above d0cumcnl(s) in an envelope addressed 10 the above, and I placed that scaled envelope for collection and mailing following ordinary business practices, for deposit with the U.S. Postal Service. I am readily familiar with the business practice a1 my place Oi‘busincss for thc collection and processing of correspondence for mailing with the US. Postal Service. Correspondence so collected and processed is deposited with the U.S. Postal Service tho same day in thc ordinary course of‘business, postage fully prepaid. X BY ELECTRONIC TRANSMISSION: Based 0n California Rule ofCourt Emergency Rule 12(1)) requiring a party represented by counsel, Who has appeared in an action or proceeding, 10 accept electronic service 0f a notice 01‘ document that may bc served by mail, express mail, overnight delivery, 0r facsimile n'ansmission, subsequently codified in Code 0f Civil Procedure section 1010.6, I caused the documents 10 bC electronically sent 10 the persons listed abovc‘ Before first serving electronically, I confirmed through prior email communications thc appropriate electronic service address {01‘ counsel being served. I did not rcccivc, within a reasonable time after the transmission, any electronic message 01‘ other indication that the transmission was unsuccessful. Kaczmag‘s/(i v: Future Motion, Inc, Case N0. 21CV379027 Proof of Scrvwc 1 1 I declare under penalty 0f perjury under the laws OI‘LhC State 0f California that the foregoing is true and correct, and that this declaration was executed 0n April 16, 2021 , at Walnut Creek, California. //’ ii '3 :-’«Mm ‘ 73 r-a’fE‘” ’ 5/. y {vK‘ ,. y. $7 Y,” MV/}| 4 s _. a Ma Tracey Nguyen}u 5 gw 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Proof 0f Service 2