Answer Unlimited Fee AppliesCal. Super. - 6th Dist.March 24, 2021O©OON®U1-POOl\D-\ NNNNNNNNNAAAAAAAAAA mVOUU‘l-thAOCQWVmU‘l-POONA 21 CV381 1 90 Santa Clara - Civil Victoria C: NORA FRIMANN C't Att (93249) EleCtronicany Filed , Iy orney ' f A CHRISTIAN B. NIELSEN, Chief Deputy City Attorney (87972) gfifltpegfsraefigrgar: ’ GABRIEL RODRIGUEZ, Deputy City Attorney (29291 1) y a Office of the City Attorney 0n 8/26/2021 2:44 P_M 200 East Santa Clara Street, 16th Floor ReVleWGd By: VICtor'a C&Star San José, California 951 13-1905 Case #21CV381 190 Telephone Number: (408) 535-1900 EnveIope; 7147090 Facsimile Number: (408) 998-3131 E-Mail Address: cao.main@sanjoseca.gov Attorneys for CITY OF SAN JOSE Exempt from Filing Fees -Gov. Code § 6103 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA UNLIMITED JURISDICTION Case Number: 21CV381 190 plaintiff DEFENDANT CITY OF SAN JOSE’S ’ ANSWER TO UNVERIFIED COMPLAINT NAYOUNG LEE, V. RAUL ARIAS, individual, JOSE MENDOZA, individual aka CESARIO CRUZ, CITY OF SAN JOSE, a municipal corporation, DOES 1-10, inclusive, Defendants. Defendant City of San Jose (“Defendant” or “City”) in answer to the unverified Complaint of Plaintiff NAYOUNG LEE (“Plaintiff”) specifically and generally denies each and every allegation therein. The City assets the following separate affirmative defenses to the Complaint: FIRST AFFIRMATIVE DEFENSE That Plaintiff’s Complaint herein does not state facts sufficient to constitute a cause of action against the CITY. _ 1 _ DEFENDANT, CITY OF SAN JOSE’S, ANSWER TO UNVERIFIED COMPLAINT 21cv381 190 1841716.doc astane Ieda O©OON®U1-POOl\D-\ NNNNNNNNNAAAAAAAAAA mVOUU‘l-thAOCQWVmU‘l-POONA SECOND AFFIRMATIVE DEFENSE That Plaintiff’s Complaint exceeds the scope of her 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 §§ 900, et seq. FOURTH AFFIRMATIVE DEFENSE That Plaintiff was careless and negligent in and about the matters referred to in Plaintiff’s Complaint, and that such carelessness and negligence proximately caused and contributed to the damage and detriment allegedly sustained by Plaintiff, if any there was. FIFTH AFFIRMATIVE DEFENSE That any loss, injury, damage or detriment, if any, suffered or sustained by Plaintiff was directly and proximately caused and contributed to by Plaintiff’s assumption of the risks and hazards of the activities in which Plaintiff was engaged at the time and place referred to in Plaintiff’s Complaint of which Plaintiff had full knowledge and understanding, and that said assumption of the risks bars Plaintiff’s recovery. SIXTH AFFIRMATIVE DEFENSE That any and all alleged acts or omissions which allegedly caused the damages, which are the subject of this action, were caused by third parties and, therefore, the CITY is not liable to Plaintiff for any of the alleged damages pursuant to the provisions of Government Code §§ 820.2, 820.8, 815.2, and 835(a). In the alternative, the alleged damages must be apportioned pursuant to Proposition 51. SEVENTH AFFIRMATIVE DEFENSE That any and all acts or omissions of the CITY, its agents or employees which allegedly caused the damages, which are the subject of this action, were the result of the exercise of discretion vested in the CITY, its agents or employees, and therefore, the CITY is not liable to Plaintiff for injury or damages, if any, resulting therefrom pursuant to the provisions of Government Code §§ 820.2 and 815.2. _ 2 _ DEFENDANT, CITY OF SAN JOSE’S, ANSWER TO UNVERIFIED COMPLAINT 21cv381 190 1841716.doc O©OON®U1-POOl\D-\ NNNNNNNNNAAAAAAAAAA mVOUU‘l-thAOCQWVmU‘l-POONA EIGHTH AFFIRMATIVE DEFENSE That the CITY had no notice, actual or constructive, of the condition alleged and is, therefore, not liable for the alleged damages under Government Code § 835(b). NINTH AFFIRMATIVE DEFENSE That any and all acts or omissions of the CITY, its agents or employees, which allegedly created a dangerous condition, if any there was, of property at the time and place alleged were reasonable. The CITY is therefore not liable for any of the alleged damages complained of pursuant to Government Code § 835.4(a). TENTH AFFIRMATIVE DEFENSE That the CITY’S precautionary actions, and those of its employees and agents, or lack of said precautionary actions, in relation to the alleged dangerous condition were reasonable under Government Code § 835.4(b). ELEVENTH AFFIRMATIVE DEFENSE That the alleged hazardous and dangerous condition, if it existed at all, was trivial and insignificant; therefore, the CITY is not liable for Plaintiff’s damages, if any. TWELFTH AFFIRMATIVE DEFENSE That the property described in Plaintiff’s Complaint did not create a risk of injury when said property was used with due care in a manner in which it was reasonably foreseeable that it would be used. THIRTEENTH AFFIRMATIVE DEFENSE That the property described in Plaintiff’s Complaint, was not being used with due care by Plaintiff and, therefore, no dangerous condition can be found under Government Code § 830(3). /// /// /// /// _ 3 _ DEFENDANT, CITY OF SAN JOSE’S, ANSWER TO UNVERIFIED COMPLAINT 21cv381 190 1841716.doc O©OON®U1-POOl\D-\ NNNNNNNNNAAAAAAAAAA mVOUU‘l-thAOCQWVmU‘l-POONA FOURTEENTH AFFIRMATIVE DEFENSE That the City has absolute immunity and cannot be held liable for Plaintiff’s injury or damages, if any, pursuant to Government Code § 831 .4. FIFTEENTH AFFIRMATIVE DEFENSE That the CITY is 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, §§ 830.2, 830.4, 830.6, 830.8, 831, 835, 835.2 and 835.4. SIXTEENTH AFFIRMATIVE DEFENSE That the CITY asserts the affirmative defenses provided by Government Code §§ 800-1000, including, but not limited to, §§ 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. SEVENTEETH AFFIRMATIVE DEFENSE Plaintiff has failed to mitigate her damages. EIGHTEENTH AFFIRMATIVE DEFENSE That the acts alleged to have been committed by the CITY were not the cause in fact, proximate, or legal cause of Plaintiff’s damages, if any. NINETEETH AFFIRMATIVE DEFENSE That the damages to the Plaintiff, if any there be, were sustained by the Plaintiff as a result of a superseding, intervening cause. TWENTIETH AFFIRMATIVE DEFENSE That the CITY acted at all times in good faith and with a reasonable belief that its actions were proper and valid. TWENTIETH-FIRST AFFIRMATIVE DEFENSE That the CITY maintained and operated a reasonably adequate inspection system relating to the public property in question, if there be any, and that system could not detect _ 4 _ DEFENDANT, CITY OF SAN JOSE’S, ANSWER TO UNVERIFIED COMPLAINT 21cv381 190 1841716.doc O©OON®U1-POOl\D-\ NNNNNNNNNAAAAAAAAAA mVOUU‘l-thAOCQWVmU‘l-POONA the alleged dangerous condition on said property under Government Code §§ 835.2(b)(1) and 835.2(b)(2). TWENTY-SECOND AFFIRMATIVE DEFENSE That some, or all, of Plaintiff's damages, if any, were caused by the actions of third parties under the provisions of San Jose Municipal Code Sections 14.16.2200 and 14.16.2205. TWENTY-THIRD AFFIRMATIVE DEFENSE That any and all acts or omissions of the CITY and its agents or employees, which allegedly created a dangerous condition of the property at the time and place of the alleged accident which is the subject ofthis action, were in accordance with a plan and design for the construction of an improvement to public property and said plan and design had been approved in advance of the construction and improvements by the proper legislative body and public employees exercising discretionary authority to give such approval; and said plan and design were prepared in conformity with standards previously so approved, and said approvals were reasonable. The CITY is therefore, not liable for any of the alleged injuries or damages complained of pursuant to Government Code § 830.6. TWENTY-FOURTH AFFIRMATIVE DEFENSE That the wrongful acts and/or negligence of third parties contributed as a cause or causes of Plaintiff’s alleged injuries and damages, and that any liability for said damages must be allocated to Plaintiff and to each such third party in accordance with the percentage share of comparative fault of each. TWENTY-FIFTH AFFIRMATIVE DEFENSE That Plaintiff’s Complaint is barred by the statute of limitations. /// /// _ 5 _ DEFENDANT, CITY OF SAN JOSE’S, ANSWER TO UNVERIFIED COMPLAINT 21cv381 190 1841716.doc O©OON®U1-POOl\D-\ NNNNNNNNNAAAAAAAAAA mVOUU‘l-thAOCQWVmU‘l-POONA The conclusory nature of Plaintiff’s allegations have made it impossible for the CITY to plead all affirmative defenses that may apply and, as such, the CITY reserves the right to amend its answer at a later time. WHEREFORE, the CITY prays forjudgment as follows: 1. 2 3. 4 Thatjudgment be rendered in favor of the CITY and against Plaintiff, That Plaintiff takes nothing by the allegations of her Complaint herein; That the CITY be awarded its costs of suit incurred herein; and For such other and further relief as this Court may deem just and proper. Respectfully submitted, Dated: August 26, 2021 NORA FRIMANN, City Attorney By: /s/Gabriel A. Rodriquez GABRIEL A. RODRIGUEZ Attorneys for Defendant, CITY OF SAN JOSE -6- DEFENDANT, CITY OF SAN JOSE’S, ANSWER TO UNVERIFIED COMPLAINT 21cv381 190 1841 716.doc OOWNGU‘I-POON-K NNNNNNNNNAAAAAAAAAA mNmm-thAOQmem-POONA PROOF OF SERVICE CASE NAME: Nayong Lee v. Raul Arias, et al. CASE NO.: 21CV381 190 I, the undersigned declare as follows: | am over 18 years of age and not a party to this action. My business address is 200 East Santa Clara Street, San Jose, California 951 13-1905, and is located in the county where the service described below occurred. On August 26, 2021 caused to be served the within: CITY OF SAN JOSE’S ANSWER TO COMPLAINT by MAIL, with a copy of this declaration, by depositing them into a sealed envelope, with postage fully prepaid, and causing the envelope to be deposited for collection and mailing on the date indicated above. | further declare that | am readily familiar with the business’ practice for collection and processing of correspondence for mailing with the United States Postal Service. Said correspondence would be deposited with the United States Postal Service that same day in the ordinary course of business. by PERSONAL DELIVERY, with a copy of this declaration, by causing to be personally delivered a true copy thereof to the person at the address set forth below. by ELECTRONIC SERVICE listed below, transmitted using the One Legal Process Service electronic filing system. The document(s) listed above was/were electronically served to the electronic address(s) below: by ELECTRONIC TRANSMISSION, with a copy of this declaration, to an electronic address listed below. | further declare that the electronic transmission was sent on , before 5:00 p.m., 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. by EXPRESS MAIL, with a copy of this declaration, by depositing them into a sealed envelope, with postage fully prepaid, and causing the envelope to be deposited for collection and mailing on the date indicated above. | further declare that | am readily familiar with the business’ practice for collection and processing 0f correspondence for mailing with the United States Postal Service. Said correspondence would be deposited with the United States Postal Service that same day in the ordinary course of business. DEFENDANT, CITY OF SAN JOSE’S, ANSWER TO UNVERIFIED COMPLAINT 21CV381 190 1841 716.doc OQWNGU‘I-POONA NNNNNNNNNAAAAAAAAAA mNOUU‘l-PCDNAOComeU'l-POONA D by OVERNIGHT DELIVERY, with a copy of this declaration, by depositing them into a sealed envelope/package, with delivery fees fully prepaid/provided for, and D causing the envelope/package to be deposited for collection causing the envelope/package to be delivered to an authorized courier or driver to receive the envelope/package designated by the express service carrier for next day delivery. | further declare that | am readily familiar with the business’ practice for collection and processing of correspondence for overnight delivery by an express courier service. Such correspondence would be deposited with the express service or delivered to the authorized express service courier/driver to receive an gnvelope/package for the express service that same day in the ordinary course of usmess. Addressed as follows: James J. Kim Charles J. Smith Kim & Associates Law Offices of Charles J. Smith 1970 Broadway, Suite 1030 777 Marshall Street Oakland, CA 94612 Redwood City, CA 94063 51 0-444-0709 650-568-2820 51 0-444-1 291 smith@hslawoffice.com ikim@roklaw.com Attorney for Defendant, Raul Arias Attorney for Plaintiff Nayoung Lee | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on August 26, 2021, at San Jose, California. /sfl'ammy Clark TAMMY CLARK DEFENDANT, CITY OF SAN JOSE’S, ANSWER TO UNVERIFIED COMPLAINT 21cv381 190 1841716.doc
