Answer Unlimited Fee Applies

Cal. Super. - 6th Dist.March 26, 2021

Def. San Jose BMW Motorcycles Answer to Complaint Rivero v. San Jose Motosport; Case #21CV381377 1 27 I I I 28 I I I 24 to plaintiffs ESTATE OF RAUL BRAGANZA RIVERO, CARLA GARDNER, ANGELICA 25 RIVERO, ANA RIVERO, and RAPHAEL RIVERO's unverified complaint herein, admit, deny, and 26 allege as follows: 23 erroneously sued herein as San Jose Motosport, Inc. dba San Jose BMW Motorcycles, and in answer I --------------- 20 21 22 COMES NOW defendant SAN JOSE MOTOSPORT, INC. dba SAN JOSE BMW, 16 BMW OF NORTH AMERICA, LLC dba BMW MOTORRAD, a Delaware limited liability 17 company; SAN JOSE MOTOSPORT, INC. dba SAN JOSE BMW MOTORCYCLES, a 18 California corporation; and DOES 1 to 10 inclusive, 19 v. Plaintiffs, 14 15 No. 21CV381377 DEFENDANT SAN JOSE MOTOSPORT, INC. DBA SAN JOSE BMW'S ANSWER TO PLAINTIFFS' UNVERIFIED COMPLAINT 11 ESTATE OF RAUL BRAGANZA RIVERO, CARLA GARDNER, an individual; ANGELICA 12 RIVERO, an individual; ANA RIVERO, an individual; and RAPHAEL RIVERO, an 13 individual; SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA- UNLIMITED CIVIL JURISDICTION 9 10 1 Paula M. Shaw, Esq. [SBN 116946] Marissa N ebenzahl Sinha [SBN 2513 98] 2 McDOWELL SHAW GARCIA & PATTON 1655 N. Main Street, Suite 370 3 Walnut Creek, CA 94596 Tel.: (925) 210-1300 4 Fax" (925)210-1366 Email: pshaw@mcdowelllaw.com 5 msinha@mcdowelllaw.com 6 Attorneys for Defendant SAN JOSE MOTOSPORT, INC. 7 dba SAN JOSE BMW 8 Action Filed: March 26, 2021 Trial Date: Not Set Defendants. Electronically Filed by Superior Court of CA, County of Santa Clara, on 9/7/2021 10:45 AM Reviewed By: J. Ngo Case #21CV381377 Envelope: 7211669 21CV381377 Santa Clara - Civil J. Ngo Def. San Jose BMW Motorcycles Answer to Complaint Rivero v. San Jose Motosport; Case #21CV381377 2 28 defendant. 27 states that the complaint fails to state facts sufficient to constitute a cause of action against this 26 AS AND FOR A FIFTH AFFIRMATIVE AND SEP ARA TE DEFENSE, this defendant 20 states that in the event it is found to be negligent (which supposition is denied and merely stated for 21 the purpose of this affirmative defense), it contends that its liability, if any, for non-economic 22 damages shall be several pursuant to the Fair Responsibility Act of 1986, section 1431.2 of the Civil 23 Code, so that this defendant shall be liable only for the amount of non-economic damages allocated 24 to this defendant in direct proportion to this defendant's percentage of fault, if any, and a separate 25 judgment, if any, rendered against this defendant for that amount. 19 AS AND FOR A FOURTH AFFIRMATIVE AND SEP ARA TE DEFENSE, this defendant 14 that the injuries and damages complained of by plaintiffs, if any there were, were either wholly or in 15 part directly and proximately caused by the negligence of persons or entities other than this 16 answering defendant, and said negligence is either imputed to plaintiff by reason of the relationship 17 between said persons or entities, or comparatively reduces the proportion of negligence and 18 corresponding liability of this answering defendant. 13 AS AND FOR A THIRD AFFIRMATIVE AND SEP ARA TE DEFENSE, defendant states 12 entitled to recover therefor. 9 that plaintiffs were under a duty to minimize the damages and injuries complained of, if any there 10 were; plaintiffs haves failed, neglected, and refused to so minimize such damages and injuries, and 11 by reason of such failure, neglect and refusal, have increased their damages and injuries, and are not 8 AS AND FOR SECOND AFFIRMATIVE AND SEPARATE DEFENSE, defendant states 5 that decedent Raul Braganza Rivero was negligent in and about the matters complained of in the 6 complaint, and that said carelessness and negligence on decedent's part directly and proximately 7 contributed to and caused the injuries, death, and damages complained of, if any there were. 4 AS AND FOR A FIRST AFFIRMATIVE AND SEP ARA TE DEFENSE, defendant states 3 or sums. 1 This answering defendant denies each and every, all and singular, generally and specifically, 2 the allegations of said complaint and specifically deny that plaintiffs haves been damaged in any sum Def. San Jose BMW Motorcycles Answer to Complaint Rivero v. San Jose Motosport; Case #21CV381377 3 26 answering defendant is informed and believes and thereon alleges that plaintiffs have unreasonably 27 delayed in filing their complaint and in notifying this answering defendant of the alleged harm and 28 damages, and the basis for the causes of action alleged against it, all of which has unduly and 25 AS AND FOR AN ELEVENTH AFFIRMATIVE AND SEP ARA TE DEFENSE, this 24 attributed to this answering defendant, if any. 20 negligence of others and therefore any recovery obtained by plaintiffs against this answering 21 defendant should be apportioned among or between all such responsible parties pursuant to the 22 doctrines of comparative negligence, total indemnity, and partial indemnity. The liability of this 23 answering defendant, if any, is limited in direct proportion to the percentage of fault actually 19 strict liability, breach of warranty, acts, omissions, activities, carelessness, recklessness and/or 16 defendant is informed and believes and thereon alleges that it was not legally responsible in any way 17 or fashion with respect to the damages and injuries claimed by in the complaint. However, if this 18 answering defendant is subject to any liability to plaintiffs it will be due, in whole or in part, to the 15 AS AND FOR A TENTH AFFIRMATIVE AND SEP ARA TE DEFENSE, this answering 11 defendant is informed and believes and thereon alleges that at all times herein mentioned, decedent 12 Raul Braganza Rivero, with full knowledge of all risks attendant thereto, voluntarily and knowingly 13 assumed any and all risks attendant upon decedent's conduct, including any purported damages 14 alleged to be related thereto and proximately caused thereby. 10 AS AND FOR A NINTH AFFIRMATIVE AND SEP ARA TE DEFENSE, this answering 8 defendant alleges that plaintiffs' complaint fails by reason of non-joinder of necessary and 9 indispensable parties. 7 AS AND FOR AN EIGHTH AFFIRMATIVE AND SEP ARA TE DEFENSE, this answering 6 plaintiffs' recovery is barred by the provisions of Civil Code section 3333.4. 5 unverified complaint and each alleged cause of action thereof, this answering defendant alleges that 4 AS AND FOR A SEVENTH AFFIRMATIVE AND SEP ARA TE DEFENSE to the 3 plaintiffs are barred from stating any cause of action. 2 alleges that plaintiffs have failed to comply with the applicable statute of limitations, and, therefore, 1 AS AND FOR A SIXTH AFFIRMATIVE AND SEP ARA TE DEFENSE, this defendant Def. San Jose BMW Motorcycles Answer to Complaint Rivero v. San Jose Motosport; Case #21CV381377 4 23 I I I 24 I I I 25 I I I 26 27 28 22 the event discovery indicates that they would be appropriate. 19 answering defendant presently has insufficient knowledge or information upon which to form a 20 belief as to whether it may have additional, as yet unstated, affirmative defenses available. 21 Accordingly, this answering defendant reserves the right to assert additional affirmative defenses in 18 AS AND FOR A FIFTEENTH AFFIRMATIVE AND SEP ARA TE DEFENSE, this 16 damages, if any, of which plaintiffs complain, thus barring plaintiffs from any recovery against this 1 7 answering defendant. 15 and/or entities. Said acts were an intervening, supervening and superseding cause of the injuries and 13 answering defendant is informed and believes and thereon alleges the injuries of which plaintiffs 14 complain were proximately caused or contributed to by acts of plaintiffs, other parties, other persons 12 AS AND FOR A FOURTEENTH AFFIRMATIVE AND SEPARATE DEFENSE, this 9 all times alleged by plaintiffs, complied with the standard of care to this answering defendant's 10 industry at the times and locations of the alleged incident, thereby barring and/or precluding 11 plaintiffs from recovery herein. 8 answering defendant is informed and believes and thereon alleges that this answering defendant, at 7 AS AND FOR A THIRTEENTH AFFIRMATIVE AND SEPARATE DEFENSE, this 4 defendant is informed and believes and thereon alleges that decedent and/ or other person( s) or 5 entity(ies) changed, altered and/or modified the product in question, which conduct discharges this 6 answering defendant from any liability. 3 AS AND FOR A TWELFTH AFFIRMATIVE AND SEP ARA TE DEFENSE, this answering 1 severely prejudiced this answering defendant in its defense of the action, thereby barring or 2 diminishing plaintiffs' recovery herein under the doctrine of laches. Paula . Shaw Marissa Nebenzahl Sinha Attorneys for Defendant SAN JOSE MOTOSPORT, INC. dba SAN JOSE BMW For such other and further relief as the court may deem just and proper. For defendant's costs of suit herein; 1. 2. 3. Def. San Jose BMW Motorcycles Answer to Complaint Rivero v. San Jose Motosport; Case #21CV381377 5 6 DATED: September 3, 2021 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 That plaintiffs take nothing by reason of their complaint; 1 WHEREFORE, defendant prays judgment as follows: 2 3 4 5 Def. San Jose BMW Motorcycles Answer to Complaint Rivero v. San Jose Motosport; Case #21CV381377 6 Elizabejh Bates 25 26 27 28 California. 23 I declare under penalty of perjury under the laws of the State of California that the foregoing 24 is true and correct and that this declaration was executed on September 7, 2021, in Walnut Creek, 17 David C. Shay, Esq. Siamak Vaziri, Esq. 18 Alfonso Ortega, Esq. Seungjai Oh, Esq. 19 V AZIRI LAW GROUP 5757 Wilshire Blvd., Suite 670 20 Los Angeles, CA 90036 Tel.: (310) 777-7540 21 Fax: (310) 777-0373 Email: dshay@vazirilaw.com; svaziri@vazirilaw.com 22 aortega@vazirilaw.com; soh@vazirilaw.com XX by sending a copy via electronic mail to the person(s) at the e-mail address(es) as set forth 16 below. 15 14 be sending a copy via Federal Express overnight delivery to the person(s) at the address(es) as set forth below. by sending a copy via Facsimile to the person(s) at the Facsimile number(s) as set forth 13 below. 11 by having a true copy thereof personally delivered to the person(s) at the address(s) as set forth below. 9 XX by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid in the United States Post Office box at Walnut Creek, California, addressed as set 10 forth below. 6 DEFENDANT SAN JOSE MOTOSPORT, INC. DBA SAN JOSE BMW'S 7 ANSWER TO PLAINTIFFS' UNVERIFIED COMPLAINT 8 2 I, Elizabeth Bates, declare as follows: 3 I am a citizen of the United States, I am over the age of eighteen (18) years and not party to 4 this action; and my business address is 1655 N. Main Street, Walnut Creek, CA 94596. 5 On the date set forth below, I served the within: 1 PROOF OF SERVICE 12