Answer Unlimited Fee AppliesCal. Super. - 6th Dist.March 3, 2021Electronically Filed by Superior Court of CA, County of Santa Clara, on 5/25/2021 3:22 PM Reviewed By: Y. Chavez Case #21CV379119 Envelope: 6518052 21CV379119 Santa Clara - Civil Y. Chavez \OOONONLIIAUJNr-A NNNNNNNNr-Ar-AHy-Ay-Ap-‘r-AH-Ap-A QQMJ>UJNHO©OONONU1$UJNHO 28 VAN DE POEL, LEVY, THOMAS, ARNEAL LLP ATFORNEYS AT LAW 1600 South Maln Plaza SURE 325 Walnut Creek, CA 94596 Telephone: (925) 9346102 Faslmlle: (925) 934-6060 Yvonne V. Jorgensen (Bar N0. 136264) VAN DE POEL, LEVY, THOMAS, ARNEAL LLP 1600 South Main Plaza, Suite 325 Walnut Creek, California 94596 Telephone: (925) 934-6102 Facsimile: (925) 934-6060 Email: yiorgensen®vanlevlawcom Attorneys for Defendant LIVE NATION WORLDWIDE, INC. IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA MICHELLE KISS, CASE NO. :21CV3791 19 Plaintiff, ANSWER TO COMPLAINT VS. LIVE NATION WORLDWIDE, INC, AND DOES 1 THROUGH 10, INCLUSIVE, Complaint Filed: March 3, 2021 Defendants. Defendant, LIVE NATION WORLDWIDE, INC. (sued herein as Doe 1) (hereinafter referred t0 as “this Answering Defendant”) hereby answers the Plaintiff, MICHELLE KISS’S (hereinafter “Plaintiff’) Complaint for Damages (hereinafter referred to as “the Complaint”) as follows: GENERAL DENIAL 1. Pursuant to the provisions 0f Code of Civil Procedure §431.30, this answering Defendant denies generally and specifically each and every allegation contained in each cause of action of the Complaint and further denies that Plaintiff has been damaged. AFFIRMATIVE DEFENSES The following affirmative defenses are alleged on information and belief by Defendant as t0 Plaintiff so as not to be waived at trial. Defendant reserves the right t0 amend or withdraw any or all defenses or t0 raise additional defenses as or after they may become known during the course of investigation and discovery. {01927519} 1 ANSWER TO COMPLAINT \OOOQONU‘IAUJNH NNNNNNNNHHHHHr-lp-np-A-Ap-A \IQM-PWNHOOMNQM-PWNHO 28 VAN DE POEL, LEW, THOMAS, ARNEAL LLP ATI'ORNEYS AT LAW 1600 Scum Maln Plaza Sulte 325 Walnut Creek CA 94596 Telephone: (925) 934-6102 Faslmlle: (925) 934-6060 FIRST AFFIRMATIVE DEFENSE (Incorporation of Defenses) 1. As a first affirmative defense to each cause of action of the Complaint, Defendant incorporates by this reference each and every affirmative defense set forth in its answer to Plaintiff’s Complaint as if the same were set forth seriatim. SECOND AFFIRMATIVE DEFENSE (Failure to State Cause 0f Action) 2. As a second affirmative defense to each cause of action of the Complaint, Defendant alleges the Complaint does not state facts sufficient to constitute a cause of action against the Defendant. THIRD AFFIRMATIVE DEFENSE (Assumption of Risk) 3. As a third affirmative defense to each cause of action of the Complaint, by virtue of the nature of the activity and/or incident alleged in the Complaint, and the parties’ relationship to the activity and/or incident, Defendant owed no legal duty to Plaintiff under the doctrine of primary and/or secondary assumption of risk. FOURTH AFFIRMATIVE DEFENSE (Negligence/Fault of Others) 4. As a fourth affirmative defense to each cause 0f action of the Complaint, the damages sustained by Plaintiff, if any, were caused, in whole or in part, by the negligence or fault of others for which the Defendant is not liable 0r legally responsible. FIFTH AFFIRMATIVE DEFENSE (Comparative Negligence) 5. As a fifth affirmative defense to each cause of action of the Complaint, Plaintiff, her agents, employees, servants and representatives were partially, if not wholly, negligent 0r otherwise at fault on her own part pursuant to the doctrine 0f comparative negligence, and should be barred from recovery of that portion of the damages directly attributable to their proportionate share of the negligence or fault. (01927519) 2 ANSWER TO COMPLAINT \oooqosmthH NNNNNNNNt-IHHHHHHHHH \IQM-bWNHOOOONQm-hmwb‘o 28 VAN DE POEL, LEW, THOMAS, ARNEAL LLP ATI'ORNEYS AT LAW 1600 South Main Plaza Suite 325 Walnut Crmk, 0A 94596 Telephone: (925) 934-6102 FaGimile: (925) 934-6060 SIXTH AFFIRMATIVE DEFENSE (Failure to Mitigate Damages) 6. As a sixth affirmative defense to each cause of action of the Complaint, the Defendant alleges that Plaintiff has failed to mitigate any claimed damages 0r losses. SEVENTH AFFIRMATIVE DEFENSE (Apportionment 0f Fault/Limitation of Damages) 7. As a seventh affirmative defense to each cause of action of the Complaint, the provisions of the “Fair Responsibility Act of 1986” (commonly known as Proposition 51, Civil Code sections 1430, 1431, 1431.1, 1431.2, 1431.3, 1431.4, 1431.5 and 1432) are applicable to this action to the extent that Plaintiffs injuries and damages, if any, were legally caused or contributed to by the negligence or fault of persons or entities other than Defendant. EIGHTH AFFIRMATIVE DEFENSE (Trivial Defect) 8. As an eighth affirmative defense t0 each cause of action of the Complaint, the Defendant alleges that Defendant had no duty with respect t0 any defect or condition of which Plaintiff complains because said alleged defect or condition, if any, was trivial as a matter of law. NINTH AFFIRMATIVE DEFENSE (Open and Obvious) 9. As a ninth affirmative defense to each cause of action of the Complaint, the Defendant alleges that any alleged defect or condition was open and obvious by virtue of its appearance, form, function, instructions, warnings or other features, and that Plaintiff 0r others knew or in the exercise of reasonable care should have known of it and taken measures to avoid it. TENTH AFFIRMATIVE DEFENSE (Waiver and Estoppel) 10. As a tenth affirmative defense to each cause of action of the Complaint, the Defendant alleges that Plaintiff has waived, and is therefore estopped from asserting, any of the claims upon which Plaintiff seeks relief. (01927519) 3 ANSWER TO COMPLAINT \OOOQONU‘IAUJNH NNNNNNNNHr-IHr-IHHHr-tr-Ap-A \lONM-PWNHOWWQQM-PWNF-‘O 28 VAN DE POEL, LEW, THOMAS, ARNEAL LLP ATI'ORNEYS AT LAW 1600 South Maln Plaza Suhe 325 Walnut Creek, CA 94596 Telephone: (925) 934-6102 Faslmile: (925) 934-6060 ELEVENTH AFFIRMATIVE DEFENSE (Unavoidable Accident/Act of God) 11. As an eleventh affirmative defense to each cause of action of the Complaint, the Defendant alleges that if Plaintiff suffered any damage, which is denied, such damages were and are the sole proximate result of an unavoidable accident/act of God. TWELFTH AFFIRMATIVE DEFENSE (Statute of Limitations - Laches) 12. As a twelfth affirmative defense to each cause o'f action of the Complaint, the Defendant alleges that Plaintiff is barred from asserting any claim by reason of the applicable statutes of limitation, including but not limited to California Code of Civil Procedure §§335.1, 337.1, and 337.6, among others. THIRTEENTH AFFIRMATIVE DEFENSE (Implied Assumption 0f Risk) 13. As a thirteenth affirmative defense to the Complaint and to each purported cause of action 0r claim for relief therein, Defendant alleges that Plaintiff voluntarily and with knowledge of the matters referred to in said complaint assumed any and all of the risks, hazards and perils of the conditions referred to in said complaint, and therefore, assumed the risk of any damages sustained, if any, which serves t0 bar or reduce any recovery by Plaintiff. FOURTEENTH AFFIRMATIVE DEFENSE (Spoliation of Evidence) 14. As a fourteenth affirmative defense to the Complaint and to each purported cause of action or claim for relief therein, Defendant alleges that Plaintiff, Plaintiff’s attorneys or agents, and/or other persons (other than this answering Defendant), have lost, destroyed, misplaced, altered, modified, failed t0 preserve or otherwise acted so as to preclude Defendant from gaining access to relevant and material evidence, which evidence, if available would serve to exonerate Defendant. / / / / / / (01927519) 4 ANSWER TO COMPLAINT \OOOQOUI-PUJNH NNNNNNNNHt-‘HHHHHHp-Ar-A flam$WNHOKOOONONUl¥wNHO 28 VAN DE POEL, LEVY, THOMAS, ARNEAL LLP ATTORNEYS AT LAW 1600 South Maln PIaza Suite 325 Walnut Creek, (I 94596 Telephone: (925) 934-6102 Faslmlle: (925) 9%6060 FIFTEENTH AFFIRMATIVE DEFENSE (Unclean Hands) 15. As a fifteenth affimlative defense to each cause of action of the Complaint, each cause of action contained therein, is barred, in whole or in part, by the doctrine 0f unclean hands. SIXTEENTH AFFIRMATIVE DEFENSE (Superseding Causes) 16. As a sixteenth affirmative defense to each cause 0f action of the Complaint, Plaintiff’s purported causes of action are the result of the acts, omissions and conduct of third parties, or independent, intervening or superseding causes which are not Defendant’ responsibility. SEVENTEENTH AFFIRMATIVE DEFENSE (Performance of Duties) 17. As a seventeenth affirmative defense to each cause of action of the Complaint, Defendant’s performance of all mandatory duties were exercised with reasonable diligence. EIGHTEENTH AFFIRMATIVE DEFENSE (Good Faith) 18. As an eighteenth affirmative defense to each cause of action of the Complaint, Defendant’s conduct was fully justified and in good faith. NINETEENTH AFFIRMATIVE DEFENSE (Reservation of Right to Amend Answer) 19. As a nineteenth affirmative defense to each cause of action of the Complaint, Defendant presently have insufficient knowledge or information 0n which t0 form a belief as to whether it may have additional, yet unstated, defenses available. Defendant reserve herein the right to assert additional defenses in the event discovery indicates that they would be appropriate. WHEREFORE, Defendant pray for judgment as follows: 1. That Plaintiff takes nothing by reason 0f her Complaint 0n file herein; 2. That Defendant be awarded costs of suit incurred herein; and 3. For such other and further relief as the Court deems proper. (01927519) 5 ANSWER TO COMPLAINT 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 VAN DE POEL, LEW, THOMAS, ARNEAL LLP A'I'I’ORNEYS AT LAW 1600 South Maln Plaza Suite 325 Walnut Creek, CA 94596 Telephone: (925) 934-6102 FaGImlle: (925) 9346060 DATED: May 24, 2021 (01927519) VAN DE POEL, LEVY, THOMAS, ARNEAL LLP t By: NNE V.JO N EN Attorney for Defendant LIVE NATION WORLDWIDE, INC. ANSWER TO COMPLAINT \OOONONUI-bwwv-n NNNNNNNNHHHHp-Ap-AHr-‘r-IH \IONMAWNHOOOONQm-PWNHO 28 VAN DE POEL, LEW, THOMAS, ARNEAL LLP ATI'ORNEYS AT LAW 1600 South Maln Plaza Suite 325 Walnut Creek,a 94596 Telephone: (925) 934-6102 Faslmlle: (925) 934-6060 PROOF OF SERVICE I am employed in the County of Contra Costa, State of California. I am over the age of 18 and am not a party to the within action. My business address is at Van De Poel, Levy, Thomas, Arneal LLP, 1600 South Main Plaza, Suite 325, Walnut Creek, CA 94596. On May 25, 2021, I served the foregoing document(s) described as: ANSWER TO COMPLAINT 0n all other parties and/or their attorney(s) of record to this action as follows: *** SEE ATTACHED SERVICE LIST *** [ ] By United States Postal Service: I am a resident of, or employed in, the county where the mailing occurs; I am over the age of 18 years and am not a paITy to the cause. I am readily familiar with the business’ practice for collection and processing of correspondence for mailing with the United States Postal Service. The envelope was placed for deposit in the United States Postal Service at Van De Poel, Levy, Thomas, Arneal LLP, in Walnut Creek, California on May 25, 2021. The envelope was sealed and placed for collection and mailing with first-class prepaid postage on that date following ordinary business practices. Service made pursuant t0 CCP § 1013a(3), upon motion of a party served, shall be presumed invalid if the postal cancellation date or postage meter date on the envelope is more than one day after the date of deposit for mailing contained in the affidavit. [x ] By Electronic Transmission ONLY: By e-mailing the attached document(s) to the person(s) at the e-mail address(es) listed below 0n May 25, 2020, that during the Coronavirus (Covid-19) pandemic, this office will be working remotely, not able to send physical mall as usual, and is therefore using only electronic mail. No electronic message or other indication that the transmission was unsuccessful was received within a reasonable time after the transmission. [ ] By Facsimile: By faxing a copy of the above-referenced document(s) t0 the addressee at the number set forth beneath their above-listed address. At the completion of the transmission, a Transmission Report was generated, confirming transmission and receipt by the addresse(es). [ ] By Personal Delivery: By personally delivering a true copy thereof to the person(s) and at the address(es) set forth below. [ ] By Overnight Delivery: At the address(es) listed herein above. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct to the best 0fmy knowledge. Executed on May 25, 2021, at Walnut Creek, ContUosta County, California.b-\ Lish~B€SiT§Ia (o 1 927443) 1 Proof of Service 1 2 3 4 5 6 7 8 9 1o 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VAN DE POEL, LEVY, THOMAS, ARNEAL LLP A'ITORNEYS AT LAW 1600 South Maln Plaza Suite 325 Walnut Creek,m 94596 Telephone: (925) 934-6102 Fadmlle: (925) 934-6060 SERVICE LIST Case: Michelle Kiss v. Live Nation Worldwide, Inc. Court: Santa Clara County Superior Court Case N0. 21CV3791 19 Represent: Live Nation Worldwide, Inc. Roger D. Hecht, Esq. FARLING, HACHT & DAVIS, LLP 96 N. Third Street, Suite 660 San Jose, CA 951 13 Telephone: 408-295-6100 Emallz roger@farlinghechtanddavis.com Attorneys for Plaintiff Michelle Kiss {01927443} Proof of Service