Answer Unlimited Fee AppliesCal. Super. - 6th Dist.March 29, 2021\OOOQONUI-bUJNH NNNNNNNNNr-tr-tp-tp-tr-tp-tr-tr-tr-tr-t OOQQUI-waHOKDOOQONm-war-‘O 21 CV381433 Santa Clara - Civil Electronically Filed hfiichgelf. McLlean, SBIjic k207712 by Superior Court of CA, E iza et G. Sut ian-Mar i ian, SBN: 281099 ADELsOMcLEAw 4100 Newport Place Drive, Suite 200 . ' Newport Beach, CA 92660 Rev'ewed By: J- N90 Telephone: (949) 656-4601 Case #21 CV381433 Facsimile: (949) 656-4223 Envelope: 7530448 Attorneys for Defendant, Elite Rooter Inc. and Bryan Ray Saabedra SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA CESAR AUGUSTO FERNANDEZ-GOMEZ, C386 NO-I 21CV381433 MONICA ALEJANDRA ROMAN ORTEGA, . Judge: Chrlstopher Rudy Plaintiff, Dept: 7 V_ DEFENDANT ELITE ROOTER INC’S ANSWER AND AFFIRMATIVE DEFENSES T0 THE UNVERIFIED COMPLAINT 0F PLAINTIFFS CESAR AUGUSTO ¥A§A§FABI§8§IXTALITYD INC" BRYAN FERNANDEz-GOMEZ AND MONICA 9 ALEJANDRA ROMAN ORTEGA Defendants. Complaint filed: June 16, 2021 COMES NOW Defendant(s) ELITE ROOTER INC. (hereafter referred to as “Defendant”) and answers each of Plaintiffs CESAR AUGUSTO FERNANDEZ-GOMEZ and MONICA ALEJANDRA ROMAN ORTEGA (hereafter “Plaintiffs”) causes of action in Plaintiffs’ unverified Complaint against this answering Defendant on file herein, and denies and/or alleges as follows: GENERAL DENIAL Under the provisions of §431.30(d) of the California Code 0f Civil Procedure, each and every allegation and all 0f the allegations, and each cause 0f action in said Complaint of Plaintiffs and the Whole thereof is generally denied; and it is further expressly denied that as a direct and proximate result of any act or omission on the part 0f this answering Defendant, Plaintiffs sustained injuries or damages in the amount alleged, 0r in any amount or amounts, or at all. /// -1- ANSWER TO COMPLAINT Ngo \OOOQONUI-bUJNH NNNNNNNNNr-tr-tp-tp-tr-tp-tr-tr-tr-tr-t OOQQUI-waHOKDOOQONm-war-‘O FIRST AFFIRMATIVE DEFENSE The Complaint fails to state facts sufficient to constitute any cause 0f action against Defendant. SECOND AFFIRMATIVE DEFENSE The Complaint and each cause 0f action alleged therein are barred by applicable statutes 0f limitations and repose, including, but not limited to, Code of Civil Procedure §§ 335, 335.1, 338(a), 338(d), 339(1), 340(3), 340.2, 343, 353, 361, 583.210 and 583.310. THIRD AFFIRMATIVE DEFENSE Plaintiffs have unreasonably delayed the commencement 0fthis action against this answering Defendant, to his prejudice, whereby the Complaint and each cause of action alleged therein are barred by the doctrine 0f laches. FOURTH AFFIRMATIVE DEFENSE As a result 0f the acts, conduct, and/or omissions of Plaintiffs, Plaintiffs’ Complaint, and each cause of action alleged therein is barred by the doctrine of estoppel. FIFTH AFFIRMATIVE DEFENSE The Complaint and each cause of action alleged therein, is barred on the grounds that Plaintiffs’ loss based on their alleged injuries, and/or damages, if any, was solely and proximately caused by Plaintiffs’ comparative negligence and/or other misconduct. SIXTH AFFIRMATIVE DEFENSE The Complaint and each cause of action alleged therein is barred 0n the grounds that Plaintiffs knew, or in the exercise of ordinary care should have known, 0f the risk of the injuries 0r damages alleged in the Complaint, if any, and nevertheless did freely, knowingly and voluntarily assume said risk, and this undertaking proximately caused and contributed to the losses, injuries 0r damages, if any, alleged by Plaintiffs. SEVENTH AFFIRMATIVE DEFENSE The acts, conduct and omissions 0f Plaintiffs actually and proximately caused the alleged damages and injuries, if any, ofWhich Plaintiffs complain. Defendant is not liable t0 Plaintiffs for the proportion 0f fault attributable t0 Plaintiffs and/or t0 any person 0r entity Whose acts or omissions are -2- ANSWER TO COMPLAINT \OOOQONUI-bUJNH NNNNNNNNNr-tr-tp-tp-tr-tp-tr-tr-tr-tr-t OOQQUI-waHOKDOOQONm-war-‘O imputed t0 Plaintiffs. EIGHTH AFFIRMATIVE DEFENSE Defendant is not liable for the injuries and/or damages claimed by Plaintiffs 0n the grounds that his alleged acts and/or omissions were not a substantial factor in causing the harm alleged by Plaintiffs in the Complaint and each cause of action alleged therein. NINTH AFFIRMATIVE DEFENSE The injuries and/or damages claimed by Plaintiffs on the grounds were not caused by the acts and/or omissions of Defendant, but by a third party 0r parties Who are not agents, representatives, employees, 0r other individuals over Whom Defendant has agency 0r control. TENTH AFFIRMATIVE DEFENSE Defendant alleges each 0fthe parties t0 this action, other than Defendant, and others, Whose identities are presently not known to Defendant, were negligently 0r legally responsible or otherwise at fault for the damages alleged in the Complaint, and each cause of action alleged therein. Therefore, Defendant requests that in the event 0f Plaintiffs’ recovery against Defendant, whether by settlement 0r judgment, an apportionment of fault be made by the Court 0r jury as t0 all parties. Defendant further requests a judgment and declaration of indemnification and contribution against all those parties or persons in accord with the apportionment of fault. ELEVENTH AFFIRMATIVE DEFENSE If Plaintiffs have suffered any damages, Which Defendant denies, Defendant alleges that Plaintiffs’ right 0frecovery for those damages is barred by Plaintiffs’ failure t0 mitigate their damages, if any. TWELFTH AFFIRMATIVE DEFENSE Plaintiffs’ injuries and damages, if any, were proximately caused by an unforeseeable, independent, intervening and/or superseding event beyond the control, and unrelated to any conduct ofDefendant and Defendant’ actions, if any, were superseded by the negligence and wrongful conduct of others. THIRTEENTH AFFIRMATIVE DEFENSE The Complaint and each cause of action alleged therein is vague, ambiguous and uncertain. -3- ANSWER TO COMPLAINT \OOOQONUI-bUJNH NNNNNNNNNr-tr-tp-tp-tr-tp-tr-tr-tr-tr-t OOQQUI-waHOKDOOQONm-war-‘O FOURTEENTH AFFIRMATIVE DEFENSE The Court lacks jurisdiction over the subj ect matter of this action. FIFTEENTH AFFIRMATIVE DEFENSE The Complaint and each cause 0f action alleged therein is barred 0n the grounds that Plaintiffs failed t0 join indispensable parties and the Complaint is thereby defective. SIXTEENTH AFFIRMATIVE DEFENSE No Defendant to this action were, at the time of Plaintiffs’ alleged accident, loss and/or damage, acting as an agent or employee 0f this answering Defendant, such that ifany other Defendant caused 0r contributed t0 Plaintiffs’ alleged accident, loss 0r damage, this answering Defendant is not vicariously liable for the same. SEVENTEENTH AFFIRMATIVE DEFENSE The damages alleged by Plaintiffs, if any, were proximately caused by the negligence and fault of other parties, and Defendant is thereby entitled to and request an allocation 0f such negligence, fault and liability be made among such other parties, and that if any liability is found 0n the part of this answering Defendant, judgment against said Defendant be only in the amount which is proportionate to the extent and percentage by Which its acts 0r omissions caused or contributed t0 the Plaintiffs’ damages. EIGHTEENTH AFFIRMATIVE DEFENSE If the Plaintiffs were not insured pursuant to the requirements 0f California law at the time of the alleged accident, Plaintiffs’ pain, suffering and general damages are barred. NINETEENTH AFFIRMATIVE DEFENSE Pursuant to California law, including California Civil Code Sections 143 1.1 and 143 1 .2, if this answering Defendant is found liable for non-economic damages in the instant action, to the extent and upon the proportion 0f the fault 0f each other Defendant, and in the event anyjudgment is entered against such other Defendant, this answering Defendant requests a separate judgment be rendered against each Defendant for any non-economic damages imposed, if any are such awarded. -4- ANSWER TO COMPLAINT \DOOQQUIAUJNr-a» NNNNNNNNNr-tr-tr-tr-tr-tr-KHt-tr-tr-t ooquUI-waHOOOOQOxUI-waP-‘O TWENTIETH AFFIRMATIVE DEFENSE Defendant is informed and believes, and upon such information and belief alleges, that if Plaintiffs and/or other parties t0 the action suffered 0r sustained any loss, injury, damage or detriment, the same was solely, directly and proximately caused and contributed by superseding actions of other parties, either served 0r not served, and not by this answering Defendant, and such breaches, conduct, acts, omissions, activities, carelessness, recklessness and/or negligence of said other parties bar recovery by Plaintiffs against this answering Defendant. TWENTY-FIRST AFFIRMATIVE DEFENSE The Complaint of Plaintiffs and each cause 0f action alleged Within is subject t0 the limitations codified within California Vehicle Code Sections 17150, 17151 & 17155. TWENTY-SECOND AFFIRMATIVE DEFENSE Defendant presently has insufficient knowledge 0r information on which to form a belief as t0 whether there may be additional, as yet unstated affirmative defenses available. Defendant reserves herein the right to assert additional defenses in the event that the discovery indicates they would be appropriate. WHEREFORE, Defendant prays for judgment as follows: 1. That Plaintiffs take nothing by reason of the Complaint or any claims stated therein; 2. That the Complaint 0f Plaintiffs and each cause 0f action contained therein, be dismissed With prejudice against this answering Defendant; 3. That Defendant recovers their costs, disbursements, expenses, and any attorneys’ fees t0 which it may now 0r in the future become entitled; and 4. That the Court Order such other and further compensation and 0r relief to this answering Defendant as it may deem just and proper. DATED: 10/25/2021 ADELSON McLEAN, APC Michael D. McLean Elizabeth G. Sutlian-Mardikian Attorneys for Defendant Elite Rooter Inc. and Bryan Ray Saabedra -5- ANSWER TO COMPLAINT \OOOflQLh-bUJNH NNNNNNNNNr-p-tr-tr-tr-tr-tr-tp-tr-p-t OOQO‘xUl-hUJNHOKOOOflO‘xUl-hUJNHO PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE I, the undersigned, declare that I am, and was at the time of the service hereinafter mentioned, over the age of 18 years and not a party t0 the within action. My business address is 4100 Newport Place Drive, Suite 200, Newport Beach, CA 92660; and I am employed in Orange County, California. On October 25, 2021, I served a true copy 0f the foregoing document(s): DEFENDANT ELITE ROOTER INC.’S ANSWER AND AFFIRMATIVE DEFENSES TO THE UNVERIFIED COMPLAINT OF PLAINTIFF’S CESAR AUGUSTO FERNANDEZ-GOMEZ AND MONICA ALEJANDRA ROMAN ORTEGA By U.S. Mail: placing the envelope for collection and mailing, following our ordinary business practices. I am readily familiar With this business’s practice for collecting and processing correspondence for mailing. On the same day, that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service in a sealed envelope with postage fully prepaid. The name(s) and address(es) of each person(s) to Whom I mailed the documents is listed below. By Overnight Delivery: I enclosed the above document(s) in an envelope or package provided by an overnight delivery carrier and addressed t0 the person(s) at the address(es) below. I placed the envelope or package for collection and overnight delivery at an office 0r a regularly utilized drop box 0f the overnight delivery carrier. By Messenger Service: I caused t0 be delivered, by a professional attorney service, a true copy 0f the above document(s), t0 the person(s) at the address(es) set forth below By Fax: Based on Court Order or agreement of the parties to accept service by fax transmission, I faxed the above document(s) to the person(s) at the fax number(s) listed below. N0 error was reported by thefax service that I used. By Email (Electronic Service): Based on Court Order or agreement of the parties t0 accept service by electronic service, I emailed the above document(s) to the person(s) at the email address(es) listed below. N0 rejection was received within a reasonableperiod 0ftime after the email was sent. I declare under penalty and perjury of the State of California that the foregoing is true and correct. Executed on October 25, 2021 at Newport Beach, CA.Z .4. m- /Evelyn Miguez -1- PROOF OF SERVICE \DOOQQUI-bUJNr-A NNNNNNNNNv-tr-KHr-tr-tr-tr-KHr-tht OOQO‘xUl-PUJNb-‘OKOOOQC‘xUl-PWNHO SERVICE LIST Julian Sonnega, Esq. Owili K. Eison, Esq. BD & J 9701 Wilshire Blvd. 12th Floor Beverly Hills, CA 90212 Tel.: (310) 887-1818 Fax: (3 10) 887-1880 Email: ics@bhattomevs.com Email: oe@bhattomevs.com Email: eer@bhattornevs.com Attorneyfor Plaintifl Cesar Augusto Fernandez Gomez and Monica Alejandra Roman Ortega -2- PROOF OF SERVICE
