Answer Unlimited Fee Applies

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

LEWIS BRISBOIS BISGAARD &3MnH LLP ATI'ORNEYS AT LAW 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 CV381 377 Santa Clara - Civil LEWIS BRISBOIS BISGAARD & SMITH LLP STEVEN E. MEYER, SB# 145333 E-Mail: Steve.Meyer@lewisbrisbois.com 633 West 5th Street, Suite 4000 Los Angeles, California 90071 Telephone: 213.250.1800 Facsimile: 213.250.7900 Attorneys for Defendant, BMW 0fNorth America, LLC R. Burcia Electronically Filed by Superior Court of CA, County of Santa Clara, on 7/7/2021 4:39 PM Reviewed By: R. Burciaga Case #21 CV381377 Envelope: 6798971 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA, DOWNTOWN SUPERIOR ESTATE OF RAUL BRAGANZA RIVERO; CARLA GARDNER, an individual; ANGELICA RIVERO, an individual; ANA RIVERO, an individual; and RAPHAEL RIVERO, an individual , Plaintiffs, vs. BMW OF NORTH AMERICA, LLC d/b/a BMW Motorrad. a Delaware limited liability company; SAN JOSE MOTOSPORT, INC. d/b/a San Jose BMW Motorcycles, a California corporation; and DOES I t0 10, inclusive,, Defendants. Case N0. 21CV381377 DEFENDANT BMW OF NORTH AMERICA, LLC’S ANSWER TO PLAINTIFFS’ COMPLAINT; DEMAND FOR JURY TRIAL Action Filed: March 26, 2021 FSC Date: None Set Trial Date: None Set Defendant BMW 0fNorth America, LLC (“BMW NA”), for itself only and 0n behalf 0f no other entity, hereby answers the Complaint of Plaintiffs ESTATE OF RAUL BRAGANZA RIVERO; CARLA GARDNER, an individual; ANGELICA RIVERO, an individual; ANA RIVERO, an individual; and RAPHAEL RIVERO, an individual Robert Ross (“Plaintiffs”) as follows: 1. Pursuant t0 the provisions 0f California Code of Civil Procedure section 43 1 .30, subdivision (d), BMW NA denies, both generally and specifically, each and every allegation of 4819-2150-8848.1 1 DEFENDANT BMW OF NORTH AMERICA, LLC’S ANSWER TO PLAINTIFF’S COMPLAINT; DEMAND FOR JURY TRIAL Ja LEWIS BRISBOIS BISGAARD &3MnH LLP ATI'ORNEYS AT LAW 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 said Complaint, and the Whole thereof, including each and every purported cause of action contained therein, and denies that Plaintiffs sustained or Will sustain damages in the sums alleged, 0r any other sums, 0r at all. 2. Further answering the Complaint herein, and the Whole thereof, BMW NA denies that Plaintiffs sustained any injuries, damage 0r loss, if any, by reason 0f any act, omission, 0r negligence on the part 0fBMW NA. FIRST AFFIRMATIVE DEFENSE (Comparative Negligence) 3. BMW NA is informed and believes and thereupon alleges that if Plaintiffs suffered any injuries or damages, said injuries 0r damages were proximately caused by the negligence and carelessness 0f Plaintiffs and others, and not by BMW NA. SECOND AFFIRMATIVE DEFENSE (Abuse, Misuse, and Modification 0f Product) 4. BMW NA is informed and believes and thereupon alleges that if any product distributed by it caused injuries 0r damages (Which BMW NA expressly denies), said injuries 0r damages were caused solely and exclusively as a result of abuse, misuse, and/or modification 0f the product in a manner unforeseeable by BMW NA. THIRD AFFIRMATIVE DEFENSE (Failure t0 State Cause 0f Action) 5. BMW NA is informed and believes and thereupon alleges that the Complaint, and each purported cause 0f action contained therein, fails to state facts sufficient t0 constitute a cause 0f action against BMW NA. FOURTH AFFIRMATIVE DEFENSE (Superseding Acts 01' Omissions) 6. BMW NA is informed and believes and thereupon alleges that n0 act 0r omission ofBMW NA was a substantial cause of bringing about the occurrence referred t0 in the Complaint, or any injury, damage 0r loss t0 Plaintiffs, nor was any act or omission ofBMW NA a contributing cause thereof, and any act 0r omission ofBMW NA was superseded by the acts 0r 4819-2150-8848.1 2 DEFENDANT BMW OF NORTH AMERICA, LLC’S ANSWER TO PLAINTIFF’S COMPLAINT; DEMAND FOR JURY TRIAL LEWIS BRISBOIS BISGAARD &3MnH LLP ATI'ORNEYS AT LAW 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 omissions of Plaintiffs, 0r by the acts 0r omissions 0f other persons, Which acts 0r omissions were the independent, intervening and proximate cause of the incident and damage alleged in this action. FIFTH AFFIRMATIVE DEFENSE (Apportionment) 7. BMW NA is informed and believes and thereupon alleges that any injury, damage 0r loss sustained by Plaintiffs was proximately caused by the negligence of Plaintiffs, and/or persons or entities other than BMW NA. By reason thereof, Plaintiffs’ recovery, if any, should be reduced by the proportionate amount that the acts or omissions 0f Plaintiffs, and/or persons and entities other than BMW NA contributed to the happening of the alleged incident. SIXTH AFFIRMATIVE DEFENSE (Contribution) 8. BMW NA is not legally liable for the loss and damages alleged by Plaintiffs, if any, but if a court 0r jury finds that BMW NA contributed in some fashion to the injuries, loss and damages alleged by Plaintiffs, BMW NA is informed and believes, and thereupon alleges, that any such contribution is secondary and 0f a lesser kind, whereas the fault and liability 0f others is primary, active and gross, thereby barring 0r reducing proportionately Plaintiffs’ recovery herein. SEVENTH AFFIRMATIVE DEFENSE (N0 Privity) 9. BMW NA is informed and believes and thereupon alleges that Plaintiffs have no priVity of contract with BMW NA, thereby barring Plaintiffs from asserting any claims for breach 0f implied warranty and for any claims in Which privity 0f contract is required. EIGHTH AFFIRMATIVE DEFENSE (Assumption 0f Risk) 10. BMW NA is informed and believes and thereupon alleges that Plaintiffs knowingly and voluntarily assumed all risk, perils and danger in respect t0 the operation 0r use of the motorcycle involved, that the perils, risks or dangers were open and obvious and known t0 Plaintiffs and t0 persons Whose knowledge is imputed to Plaintiffs, Who nevertheless conducted 4819-2150-8848.1 3 DEFENDANT BMW OF NORTH AMERICA, LLC’S ANSWER TO PLAINTIFF’S COMPLAINT; DEMAND FOR JURY TRIAL LEWIS BRISBOIS BISGAARD &3MnH LLP ATI'ORNEYS AT LAW 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 themselves in a manner so as t0 expose themselves and others t0 said perils, dangers and risks, thus assuming all risk and harm attendant t0 the use and operation 0f the motorcycle. Plaintiffs voluntary assumption of the risk is such that it should bar Plaintiffs recovery from BMW NA or, in the alternative, should reduce Plaintiffs right of recovery from BMW NA in an amount equivalent to Plaintiffs percentage 0f fault. NINTH AFFIRMATIVE DEFENSE (Disclaimer) 11. BMW NA is informed and believes and thereupon alleges that other than the express written warranty that accompanied the original sale of the subj ect motorcycle, all other warranties, express or implied, have been expressly disclaimed and may not be asserted against BMW NA. TENTH AFFIRMATIVE DEFENSE (Waiver) 12. Plaintiffs acts or omissions constitute a waiver of any and all causes 0f action asserted against BMW NA. ELEVENTH AFFIRMATIVE DEFENSE (Estoppel) 13. Plaintiffs acts or omissions result in an estoppel, precluding Plaintiff from asserting any and all causes 0f action against BMW NA. TWELFTH AFFIRMATIVE DEFENSE (Adequate Warnings) 14. BMW NA is informed and believes and thereupon alleges that instructions and warnings provided With the motorcycle were adequate in their content and informed ordinary users 0f the proper way to operate the motorcycle and the specific risk 0fharm that may be involved in its use. Notwithstanding these instructions and warnings, the motorcycle, upon information and belief, was used in a manner for Which it was not intended t0 be used and contrary to express and adequate instructions and warnings, this misuse 0r failure t0 heed warnings or t0 follow instructions proximately caused the alleged injuries. 4819-2150-8848.1 4 DEFENDANT BMW OF NORTH AMERICA, LLC’S ANSWER TO PLAINTIFF’S COMPLAINT; DEMAND FOR JURY TRIAL LEWIS BRISBOIS BISGAARD &3MnH LLP ATI'ORNEYS AT LAW 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THIRTEENTH AFFIRMATIVE DEFENSE (Statute 0f Limitations) 15. BMW NA alleges that each and every cause 0f action is barred by each and every applicable statute of limitations, including, but not limited t0, California Code 0f Civil Procedure, section 335.1 and former California Code 0f Civil Procedure section 340, subdivision (3). FOURTEENTH AFFIRMATIVE DEFENSE (Non-Joinder) 16. Plaintiffs have failed t0 name 0r join an indispensable and/or necessary party 0r parties to the present action. FIFTEENTH AFFIRMATIVE DEFENSE (State-of-the-Art) 17. BMW NA is informed and believes that the design and method of manufacture 0f the motorcycle conformed to the generally recognized and prevailing standards 0f the art in existence at the time 0f the motorcycle’s design and manufacture. SIXTEENTH AFFIRMATIVE DEFENSE (Compliance with Standards) 18. BMW NA is informed and believes that the motorcycle, at the time of manufacture, comported with all applicable government regulations, rules, orders, codes and statutes and all applicable industry standards or practices, including but not limited t0 all Federal Motor Vehicle Safety Standards. SEVENTEENTH AFFIRMATIVE DEFENSE (Additional Affirmative Defenses) 19. BMW NA reserves the right to assert further affirmative defenses that may become known at a later time and which BMW NA had no reason to know the existence of at the time 0f the filing of this Answer. WHEREFORE, BMW NA prays for judgment as follows: 1. That Plaintiffs take nothing by reason 0f their Complaint herein; 2. For costs of suit herein, including reasonable attorney’s fees; and 4819-2150-8848.1 5 DEFENDANT BMW OF NORTH AMERICA, LLC’S ANSWER TO PLAINTIFF’S COMPLAINT; DEMAND FOR JURY TRIAL LEWIS BRISBOIS BISGAARD &3MnH LLP ATI'ORNEYS AT LAW 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. For such other and further relief as the Court may deem just and proper. DEMAND FOR JURY TRIAL PLEASE TAKE NOTICE that defendant BMW NA hereby demands a trial by jury in the above-entitled matter. DATED: July 7, 2021 48 1 9-2 1 50-8848.1 STEVEN E. MEYER LEWIS BRISBOIS BISGAARD & SMITH LLP STEVEN E. MEYER Attorneys for Defendant, BMW OF NORTH AMERICA, LLC 6 DEFENDANT BMW OF NORTH AMERICA, LLC’S ANSWER TO PLAINTIFF’S COMPLAINT; DEMAND FOR JURY TRIAL LEWIS BRISBOIS BISGAARD & SMHH up AITORNEYS AT LAW 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CALIFORNIA STATE COURT PROOF OF SERVICE Estate of Raul Braganza Rivero V. BMW NA Case N0. 21CV381377 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES At the time of service, I was over 18 years 0f age and not a party t0 this action. My business address is 633 West 5th Street, Suite 4000, Los Angeles, CA 90071. On July 7, 2021, I served true copies 0f the following document(s): DEFENDANT BMW OF NORTH AMERICA, LLC’S ANSWER TO PLAINTIFFS’ COMPLAINT; DEMAND FOR JURY TRIAL I served the documents on the following persons at the following addresses (including fax numbers and e-mail addresses, if applicable): Siamak Vaziri, Esq. Attorneys for Plaintiffs, David C. Shay, Esq. ESTATE OF RAUL BRAGANZA RIVERO, Alfonso Ortega, Esq. CARLA GARDNER, ANGELICA RIVERO, Seungiai Oh, Esq. ANA RIVERO. AND RAPHAEL RIVERO VAZIRI LAW GROUP 5757 Wilshire B1Vd., Suite 670 Los Angeles. CA 90036 Tel: (310) 777-7540 Fax: (310) 777-0373 Email: svaziri@vazirilaw.com dshav@vazirilaw.com a0rtega@vazirilaw.com soh@vazirilaw.com The documents were served by the following means: E (BY ELECTRONIC TRANSMISSION ONLY) Only by e-mailing the document(s) t0 the persons at the e-mail address(es) listed above based 0n notice provided 0n March 16, 2020 that, during the Coronavirus (COVID-19) pandemic, this office Will be working remotely, not able to send physical mail 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. I declare under penalty of perjury under the laws of the State 0f California that the foregoing is true and correct. Executed 0n July 7, 2021, at Los Angeles, California. Martha Calderon-Ruiz 4819415088481 7 DEFENDANT BMW OF NORTH AMERICA, LLC’S ANSWER TO PLAINTIFF’S COMPLAINT; DEMAND FOR JURY TRIAL