Answer Unlimited Fee AppliesCal. Super. - 6th Dist.March 26, 2021\OOOQQUI-bUJNr-t NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQONUI-bUJNr-‘OKOOOQQUI-bUJNr-O 21 CV381 337 Santa Clara - Civil Electronically Filed Elizabeth A. Skane, Esq. (SBN 187752) - Milan C. Foston, Esq. (SBN 333685) by S”'°e"°r cw” °f CA’ SKANE MILLS LLP County of Santa Clara, 33 New Montgomery Street, Suite 1250 0n 9/7/2021 7:25 PM San Francisco, CA 94105 RGVieWGd By: J- N90 Telephone: (415) 431-4150 / Facsimile: (415) 431-4151 Case #21 CV381337 eskane@skanemills.com / mfoston@skanemills.com Enve|ope; 721 7303 Attorneys for Defendant, WESTERN NATIONAL CONTRACTORS SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA JESUS A. LOPEZ, an individual, CASE NO. 21CV381337 Plaintiff, ANSWER TO COMPLAINT VS- Judge: Hon. Socrates P. Manoukian Dept: 20 WESTERN NATIONAL CONTRACTORS; JOHN DOE, an Filed; March 26 2021 individual; and DOES 1 TO 20, inclusive, ’ Defendants. COMES NOW Defendant, WESTERN NATIONAL CONTRACTORS, and answers the Complaint of Plaintiff JESUS A. LOPEZ, 0n file herein, as follows: GENERAL DENIAL 1. Pursuant t0 the provisions 0f California Code 0f Civil Procedure section 43 1 .30, Defendant denies generally and specifically each, every and all 0f the allegations in Plaintiff’ s Complaint, and the whole thereof, including each and every purported cause 0f action, claim and/or assertion contained therein. Defendant further denies that Plaintiff has or Will sustain damages in the amount alleged and/or in any amount whatsoever. FIRST AFFIRMATIVE DEFENSE (Failure t0 State Cause of Action) 2. To the extent the Complaint, and each and every purported cause of action 1 ANSWER TO COMPLAINT J. Ngo ©OOQONLh-bWNr-A NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQONUI4>UJNHO©OOQONUIJ>WNHO contained therein, fails to set forth facts sufficient to state a cause 0f action, Plaintiff is barred from any recovery against Defendant. SECOND AFFIRMATIVE DEFENSE (Apportionment) 3. T0 the extent parties, persons and/or entities, other than this responding Defendant, failed to exercise ordinary care, Which negligence and carelessness was a proximate cause 0f some portion, up to and including the whole thereof, 0f the injuries and damages complained of by Plaintiff in this action, the fault, if any, of Defendant, Which Defendant denies, should be compared With the fault of the other parties and Plaintiff s damages, if any, should be apportioned among the parties in direct relation t0 each party’s comparative fault. This responding Defendant should be obligated to pay only such damages, if any, Which are directly attributable to its percentage of comparative fault. To require Defendant to pay any more than its percentage of comparative fault violates the equal protection and due process clauses 0f the Constitution 0f the United States and the Constitution of the State 0f California. THIRD AFFIRMATIVE DEFENSE (Equitable Bar) 4. Defendant is informed and believes, and thereon alleges, that as between Plaintiff and Defendant, the equities do not preponderate in favor of Plaintiff and, accordingly, Plaintiff is barred from any recovery against Defendant. FOURTH AFFIRMATIVE DEFENSE (Comparative Negligence) 5. To the extent Plaintiff failed t0 exercise ordinary care 0n his own behalf, which negligence and carelessness was a proximate cause of some portion, up t0 and including the Whole thereof, 0f the injuries and damages complained 0f in this action, Plaintiff s recovery against Defendant should be barred or reduced according to principles of comparative negligence. /// /// 2 ANSWER TO COMPLAINT ©OOQONLh-bWNr-A NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQONUI4>UJNHO©OOQONUIJ>WNHO FIFTH AFFIRMATIVE DEFENSE (Statute 0f Limitations) 6. T0 the extent the Complaint is barred by the applicable statute of limitations including, but not limited t0, provisions 0f California Code of Civil Procedure sections 337.1; 337.15; 338; 339; 339.5; 340; and 343, Plaintiff is not entitled t0 any recovery against Defendant. SIXTH AFFIRMATIVE DEFENSE (Intervening Acts) 7. T0 the extent the injuries and damages 0f Which Plaintiff complains were proximately caused 0r contributed t0 by the acts of other parties, persons and/or entities, said acts were an intervening, supervening and superseding cause of the injuries and damages, thus barring Plaintiff from any recovery against Defendant. SEVENTH AFFIRMATIVE DEFENSE (Estoppel) 8. To the extent the doctrine of estoppel applies, Plaintiff is precluded from any recovery against Defendant. EIGHTH AFFIRMATIVE DEFENSE (Laches) 9. T0 the extent the doctrine 0f laches applies, each and every one of Plaintiff s claims and alleged causes of action against Defendant should be barred. NINTH AFFIRMATIVE DEFENSE (Waiver) 10. T0 the extent the doctrine of waiver applies, Plaintiff is precluded from any recovery against Defendant. TENTH AFFIRMATIVE DEFENSE (Act 0f God) 11. To the extent any and all events, happenings, injuries and damages, if any, as alleged in the Complaint, were a direct result of an unforeseeable act of God, Plaintiff is 3 ANSWER TO COMPLAINT ©OOQONLh-bWNr-A NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQONUI4>UJNHO©OOQONUIJ>WNHO precluded from any recovery against Defendant. ELEVENTH AFFIRMATIVE DEFENSE (Offset) 12. Defendant is entitled to a set-off as a result of any recovery made by Plaintiff from any other party, person and/or entity in connection With the damages claimed in this lawsuit. TWELFTH AFFIRMATIVE DEFENSE (Assumption 0f Risk) 13. T0 the extent Plaintiff voluntarily assumed the risks 0f the activities alleged in the Complaint, under the circumstances and conditions then and there existing, and the resultant damages, if any, sustained by Plaintiff were proximately contributed t0 and caused by his own voluntary assumption of the risk. THIRTEENTH AFFIRMATIVE DEFENSE (Unclean Hands) 14. To the extent the equitable doctrine of unclean hands applies, Plaintiff is barred from any recovery against Defendant. FOURTEENTH AFFIRMATIVE DEFENSE (Untimely Notice) 15. T0 the extent Plaintiff did not give Defendant notice in a reasonable and/or timely manner of any conditions Plaintiff believed to be improper and/or defective, and further did not give Defendant an opportunity t0 inspect or remedy same, Plaintiff is not entitled t0 any recovery against Defendant. FIFTEENTH AFFIRMATIVE DEFENSE (Code 0f Civil Procedure § 1021) 16. Defendant is entitled to all necessary and reasonable defense costs, including attorney’s fees, incurred by Defendant, as more particularly set forth in California Code of Civil Procedure section 102 1. /// 4 ANSWER TO COMPLAINT ©OOQONLh-bWNr-A NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQONUI4>UJNHO©OOQONUIJ>WNHO SIXTEENTH AFFIRMATIVE DEFENSE (Controversy) 17. T0 the extent the Complaint, and each alleged cause 0f action contained therein, was brought without reasonable cause and without a good faith belief that there was a justifiable controversy under the facts and the law which warranted the filing of said Complaint against Defendant; Plaintiff is therefore responsible for all necessary and reasonable defense costs, including attorney’s fees, incurred by Defendant, as more particularly set forth in California Code of Civil Procedure sections 128.6 and 128.7. SEVENTEENTH AFFIRMATIVE DEFENSE (Failure t0 Mitigate) 18. To the extent Plaintiff failed to exercise reasonable care and diligence t0 avoid loss and to minimize damages, Plaintiff is not entitled to any recovery 0r, in the alternative, Plaintiff’ s recovery, if any, should be reduced by the failure of Plaintiff t0 mitigate his damages, if any. EIGHTEENTH AFFIRMATIVE DEFENSE (Mitigation of Damages through the Affordable Care Act) 19. This answering Defendant is informed and believes and thereon alleges, that the Plaintiff should not be allowed t0 recover damages for any harm that she could have avoided by the use of reasonable effort 0r expenditure after the commission of a tort including her obligation to obtain minimum essential health care coverage pursuant to 26 U.S.C. § 5000A(d) - (e). NINETEENTH AFFIRMATIVE DEFENSE (Collateral Source Rule Does Not Apply) 20. This answering Defendant is informed and believes and thereon alleges, that the collateral source rule does not apply because the difference between the billed and negotiated rate for any medical treatment provided to Plaintiff does not reflect an amount paid on the Plaintiff’s behalf. As such, if awarding any compensatory damages, the Plaintiff should only be able to recover for amounts paid 0r that could be owed. /// 5 ANSWER TO COMPLAINT ©OOQONLh-bWNr-A NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQONUI4>UJNHO©OOQONUIJ>WNHO TWENTIETH AFFIRMATIVE DEFENSE (Contribution) 20. Plaintiff’ s damages, if any, were proximately caused and/or contributed t0 by other parties, persons and/or entities for which Defendant is not responsible. TWENTY-FIRST AFFIRMATIVE DEFENSE (Code 0f Civil Procedure § 1431.2) 21. Defendant denies any liability, but to the extent Defendant is found liable at all for the amount of non-economic damages, if any, Which Defendant denies, these damages should be limited pursuant to the Fair Responsibility Act 0f 1986, Civil Code section 143 1 .2, in direct proportion t0 Defendant’s percentage of negligence or fault, if any, Which Defendant denies, and a separate judgment shall be rendered against Defendant for that amount. TWENTY-SECOND AFFIRMATIVE DEFENSE (Consent) 22. Plaintiff consented to those acts ofwhich he complains, thereby barring any recovery to Plaintiff as against this responding Defendant. AFFIRMATIVE DEFENSE (Res Judicataflletraxit/Collateral Estoppel) 23. Defendant alleges that t0 the extent the doctrines of collateral estoppel, res judicata, and/or retraxit apply, Plaintiff is barred from any recovery against this responding Defendant. TWENTY-THIRD AFFIRMATIVE DEFENSE (Unforseeability) 24. Plaintiff s alleged injuries and damages were not reasonably foreseeable t0 Defendant. TWENTY-FOURTH AFFIRMATIVE DEFENSE (Bar - Act 0f Others) 25. Defendant alleges, t0 the extent Plaintiff failed to name necessary and indispensable parties t0 his Complaint, judgments 0n the claims presented in the Complaint are barred in their entirety. 6 ANSWER TO COMPLAINT \OOOQQUI-BUJNH NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQONUI-bUJNr-‘OKOOOQQUI-bUJNr-O 26. TWENTY-FIFTH AFFIRMATIVE DEFENSE (ADDITIONAL DEFENSES) Defendant reserves the right t0 file additional affirmative defenses and claims depending upon the information revealed during the course 0f discovery. WHEREFORE, this answering Defendant prays for judgment herein as follows: 1. That Plaintiff take nothing by way of his Complaint 0n file herein, 2 For costs 0f suit incurred herein; 3 For those costs, fees, and expenses incurred in the defense of the Complaint; 4. For attorney’s fees according to proof; and 5 For such other and further relief as the Court may deem just and proper. DATED: September 7, 2021 SKANE MILLS LLP ElizabMA. Skane, Esq. Milan C. Foston, Esq. Attorneys for Defendant, WESTERN NATIONAL CONTRACTORS 7 ANSWER TO COMPLAINT Western National Contractors Superior Court 0f the State 0f California FOR COURT USE ONLY County of Santa Clara TITLE 0F CASE (Abbreviated) Jesus Lopez v. Western National Contractors, et al. ATTORNEY(S) NAME AND ADDRESS Elizabeth A. Skane, Esq. Milan C. Foston, Esq. SKANE MILLS LLP 33 New Montgomery Street, Suite 1250 San Francisco, CA 94105 (415) 431-4150/ F (415) 431-4151 eskane@skanemills.com / mfoston@skanemills.com ATTORNEY(S) FOR: HEARING; DATE-TIME-DEPT: CASE NUMBER: 2 1CV3 8 1 3 37 I, the undersigned, declare: DECLARATION 0F SERVICE [C.C.P. §§ 1013A and 2015.5] I am, and was at the time of service 0f the papers herein referred to, over the age 0f 18 years, and not a party to this action. My business address is 33 New Montgomery Street, Suite 1250, San Francisco, CA 94105. I served the following document(s): WESTERN NATIONAL CONTRACTORS’ ANSWER TO COMPLAINT, on the parties in this action addressed as follows: SEE ATTACHED ATTORNEY SERVICE LIST BY MAIL: Iplaced a true copy in a sealed envelope addressed as indicated in the attached attorney service list, on the date noted below. I am readily familiar with the firm's practice of collection and processing correspondence for mailing. It is deposited with the U.S. Postal Service on that same day in the ordinary course of business. I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage mater date is more than one day after date of deposit for mailing in affidavit. X BY E-MAIL 0r ELECTRONIC TRANSMISSION: Based on the agreemant 0f the parties t0 accept service by e-mail 0r electronic transmission, I caused the documents t0 be sent t0 the persons at the email addresses listed below. I did not receive, within a reasonable period 0f time, after the transmission, any electronic message or other indication that the transmission was unsuccessful. BY ELECTRONIC FILING/SERVICE: Complying with California Code 0f Civil Procedure § 1010.6, I caused the above document(s) to be electronically filed and served 0n counsel or interested party authorized t0 accept service listed 0n the service list maintained 0n the File and Serve Express website for this case. The file transmission was reported as complete and a copy 0f the file receipt page will be maintained with the original document(s) in our office. I declare under penalty of perjury under the laws of the State 0f California that the foregoing is true and correct and that this declaration was executed on September 07, at San Francisco, California. QMM/ RON WILLIAMS Re: Jesus Lopez v. Western National Contractors, et al. Santa Clara Superior Court, Case N0. 21CV38 1 337 Our File No. 174- 1 044 SERVICE LIST Owili K. Eison, Esq. BANAFSHEH, DANESH & JAVID, PC 9701 Wilshire B1Vd., 12th Floor Beverly Hills, CA 90212 Phone: 310-385-8080 | Fax: 310-385-8080 oe@bhattorneys.com Attorney for Plaintiff, Jesus A. Lopez Jessica A. Nudelman, Esq. Law Offices of John Hauser The Hartford PO Box 2282 Brea, CA 92822-2282 Phone: 714-308-2547 | Fax: 877-369-5799 Jessica.Nudelman@thehartford.com Attorneys for Hartford Fire Insurance Company
