Answer Unlimited Fee Applies

Cal. Super. - 6th Dist.April 1, 2021

EVERETT DOREY LLP Attorneys at Law 18300 VON KARMAN AVENUE, SUITE 900 IRVINE, CALIFORNIA 92612 TELEPHONE 949-771-9233 OFAX 949-377-3110 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 CV381448 Santa Clara - Civil J.N Electronically Filed by Superior Court of CA, County of Santa Clara, on 11/3/2021 1:51 PM Reviewed By: J. Ngo Case #21 CV381448 Envelope: 7595909 EVERETT DOREY LLP Seymour B. Everett, III, SBN 223441 severett@everettdorey.com Samantha E. Dorey, SBN 281006 sdorey@everettdorey.com 18300 Von Karman Avenue, Suite 900 Irvine, California 92612 Phone: 949-771-9233 Fax: 949-377-3 1 10 Attorneys for Defendants AMERICAN MANAGEMENT SERVICES, INC. and BLOSSOM HILL ESTATES NO. 2 HOMEOWNERS ASSOCIATION SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA VERA FOX, individually and HERBERT FOX, individualy, Case N0. 21CV381448 DEFENDANTS AMERICAN Plaintiff, MANAGEMENT SERVICES, INC. AND BLOSSOM HILL ESTATES NO. 2 VS. HOMEOWNERS ASSOCIATIONS' ANSWER TO COMPLAINT AQUATEK PLUMBING, INC., a California Corporation; AMERICAN MANAGEMENT [Assignedfor All Purposes t0: SERVICES, INC., a California Corporation; Hon. Socrates P. Manoukz'an, Dept. 20] BLOSSOM HILL ESTATES NO. 2 HOMEOWNERS ASSOCIATION, a Action Filed: April 1, 2021 California Corpoartion; DOES 1 - 10, Defendant. Pursuant to Sections 43 1 . 10, et seq., of the California Code of Civil Procedure, Defendants AMERICAN MANAGEMENT SERVICES, INC. and BLOSSOM HILL ESTATES NO. 2 HOMEOWNERS ASSOCIATION ("Defendants") answer the Complaint of Plaintiffs VERA FOX and HERBERT FOX ("Plaintiffs"). Defendants deny, both generally and specifically, each and every allegation 0f the Complaint and denies that Plaintiffs are entitled to any relief whatsoever. AFFIRMATIVE DEFENSES Defendants plead the following separate defenses. Defendants reserve the right to assert additional affirmative defenses that discovery indicates are proper. 4813-2747-7245.1 _ 1 _ DEFENDANTS AMERICAN MANAGEMENT SERVICES, INC. AND BLOSSOM HILL ESTATES NO. 2 HOMEOWNERS ASSOCIATIONS' ANSWER TO COMPLAINT go EVERETT DOREY LLP Attorneys at Law 18300 VON KARMAN AVENUE, SUITE 900 IRVINE, CALIFORNIA 92612 TELEPHONE 949-771-9233 OFAX 949-377-3110 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FIRST AFFIRMATIVE DEFENSE (Failure t0 State a Claim) 1. These answering Defendants are informed and believe and therefore allege that the Complaint and each purported cause 0f action therein, fails t0 state a claim for which relief can be granted against AMERICAN MANAGEMENT SERVICES, INC. and BLOSSOM HILL ESTATES NO. 2 HOMEOWNERS ASSOCIATION. SECOND AFFIRMATIVE DEFENSE (Abatement 0f Damages/Set Off) 2. These answering Defendants are informed and believe and therefore allege that should AMERICAN MANAGEMENT SERVICES, INC. and BLOSSOM HILL ESTATES NO. 2 HOMEOWNERS ASSOCIATION be found liable t0 VERA FOX and HERBERT FOX, Which liability is expressly denied, AMERICAN MANAGEMENT SERVICES, INC. and BLOSSOM HILL ESTATES NO. 2 HOMEOWNERS ASSOCIATION are entitled t0 have the amount 0f damages abated, reduced, 0r eliminated t0 the extent the negligence, carelessness, 0r fault 0f other persons, corporations, 0r business entities, including the other named Defendants and VERA FOX and HERBERT FOX themselves, caused 0r contributed to VERA FOX and HERBERT FOXS' damages, if any. THIRD AFFIRMATIVE DEFENSE (Avoidable Consequences) 3. These answering Defendants are informed and believe and therefore allege that each and every cause 0f action set forth in VERA FOX and HERBERT FOXs' Complaint is barred, and VERA FOX and HERBERT FOX may not recover damages due t0 the failure of VERA FOX and HERBERT FOX t0 take actions to avoid the injuries alleged and damages, if any, as set forth in the Complaint. FOURTH AFFIRMATIVE DEFENSE (Failure t0 Mitigate) 4. These answering Defendants are informed and believe and therefore allege that VERA FOX and HERBERT FOX failed t0 mitigate their damages, if any, in that VERA FOX and 4813-2747-7245.1 _2_ DEFENDANTS AMERICAN MANAGEMENT SERVICES, INC. AND BLOSSOM HILL ESTATES NO. 2 HOMEOWNERS ASSOCIATIONS' ANSWER TO COMPLAINT EVERETT DOREY LLP Attorneys at Law 18300 VON KARMAN AVENUE, SUITE 900 IRVINE, CALIFORNIA 92612 TELEPHONE 949-771-9233 OFAX 949-377-3110 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HERBERT FOX failed t0 use reasonable diligence in caring for their injuries and reasonable means t0 prevent their aggravation or to accomplish their healing. FIFTH AFFIRMATIVE DEFENSE (Cause in Fact) 5. These answering Defendants are informed and believe and therefore allege that VERA FOX and HERBERT FOX cannot prove any facts showing that AMERICAN MANAGEMENT SERVICES, INC. and BLOSSOM HILL ESTATES NO. 2 HOMEOWNERS ASSOCIATIONS' conduct was the cause in fact 0f any injuries 0r damages alleged in the Complaint. SIXTH AFFIRMATIVE DEFENSE (Proximate Cause) 6. These answering Defendants are informed and believe and therefore allege that VERA FOX and HERBERT FOX cannot prove any facts showing that AMERICAN MANAGEMENT SERVICES, INC. and BLOSSOM HILL ESTATES NO. 2 HOMEOWNERS ASSOCIATIONS' conduct was the proximate cause 0f any injuries 0r damages alleged in the Complaint. SEVENTH AFFIRMATIVE DEFENSE (Comparative Negligence) 7. These answering Defendants are informed and believe and therefore allege that persons and/or entities other than this AMERICAN MANAGEMENT SERVICES, INC. and BLOSSOM HILL ESTATES NO. 2 HOMEOWNERS ASSOCIATION, both served and unserved, named and unnamed, were comparatively negligent, strictly liable, or otherwise at fault for the injuries, losses, and damages alleged by VERA FOX and HERBERT FOX, if any. Thus, in the event of a finding of liability in favor 0f any party against this AMERICAN MANAGEMENT SERVICES, INC. and BLOSSOM HILL ESTATES NO. 2 HOMEOWNERS ASSOCIATION, Which expressly deny liability, AMERICAN MANAGEMENT SERVICES, INC. and BLOSSOM HILL ESTATES NO. 2 HOMEOWNERS ASSOCIATION are entitled t0 apportionment of fault among all persons and entities, served and unserved, named and unnamed, and t0 a reduction 0f 4813-2747-7245.1 _3 _ DEFENDANTS AMERICAN MANAGEMENT SERVICES, INC. AND BLOSSOM HILL ESTATES NO. 2 HOMEOWNERS ASSOCIATIONS' ANSWER TO COMPLAINT EVERETT DOREY LLP Attorneys at Law 18300 VON KARMAN AVENUE, SUITE 900 IRVINE, CALIFORNIA 92612 TELEPHONE 949-771-9233 OFAX 949-377-3110 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 damages pursuant t0 the percentage 0f fault of all other persons and entities, served and unserved, named and unnamed. AMERICAN MANAGEMENT SERVICES, INC. and BLOSSOM HILL ESTATES NO. 2 HOMEOWNERS ASSOCIATION therefore require an order from the trier of fact setting forth the percentage 0f fault 0f all persons and entities, served and unserved, named and unnamed, and further reserve their right t0 seek recompense and/or other damages resulting from this action through cross-claims or otherwise against any and all responsible parties. EIGHTH AFFIRMATIVE DEFENSE (Comparative Fault) 8. These answering Defendants are informed and believe and therefore allege that if found that the answering Defendants are in any manner, legally responsible for the alleged injury or damages, if any, sustained by VERA FOX and HERBERT FOX, Which supposition is denied and merely stated for the purpose 0f this affirmative defense, that any injuries 0r damages found t0 have been incurred or suffered by VERA FOX and HERBERT FOX in this action, were proximately caused or contributed t0 by others in this case, and/or by other persons 0r entities not parties t0 this action, and it is necessary that the proportionate degree of negligence 0r fault or unreasonable conduct of each 0f said persons 0r entities whether parties to this action 0r not, be determined and pro-rationed and that any judgment that might be rendered against these answering Defendantsbe reduced not only by the degree 0f comparative negligence found to exist as t0 VERA FOX and HERBERT FOX but also as t0 the total of that degree of negligence, fault and/or unreasonable conduct found to exist as t0 said other persons or entities. NINTH AFFIRMATIVE DEFENSE (Compliance With Applicable Laws) 9. These answering Defendants are informed and believe and therefore allege that at all relevant times, AMERICAN MANAGEMENT SERVICES, INC. and BLOSSOM HILL ESTATES NO. 2 HOMEOWNERS ASSOCIATION acted in accordance With all federal, state, and local laws. Retroactive application 0f statutes, regulations, and/or case law t0 AMERICAN MANAGEMENT SERVICES, INC. and BLOSSOM HILL ESTATES NO. 2 HOMEOWNERS ASSOCIATIONS' alleged conduct violates the due process and equal protection clauses 0f the 4813-2747-7245.1 _4_ DEFENDANTS AMERICAN MANAGEMENT SERVICES, INC. AND BLOSSOM HILL ESTATES NO. 2 HOMEOWNERS ASSOCIATIONS' ANSWER TO COMPLAINT EVERETT DOREY LLP Attorneys at Law 18300 VON KARMAN AVENUE, SUITE 900 IRVINE, CALIFORNIA 92612 TELEPHONE 949-771-9233 OFAX 949-377-3110 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 California Constitution, and the Fifth and Fourteenth Amendments of the U.S. Constitution. TENTH AFFIRMATIVE DEFENSE (Contribution and Indemnification) 10. These answering Defendants are informed and believe and therefore allege that they are entitled t0 a right of indemnification by apportionment and to a right 0f contribution from any person 0r entity Whose negligence proximately contributed to the happening of the alleged injuries ofVERA FOX and HERBERT FOX ifVERA FOX and HERBERT FOX should receive a verdict against these answering AMERICAN MANAGEMENT SERVICES, INC. and BLOSSOM HILL ESTATES NO. 2 HOMEOWNERS ASSOCIATION. ELEVENTH AFFIRMATIVE DEFENSE (Equitable Indemnity) 11. These answering Defendants are informed and believe and therefore allege that if AMERICAN MANAGEMENT SERVICES, INC. and BLOSSOM HILL ESTATES NO. 2 HOMEOWNERS ASSOCIATION are determined to be liable for VERA FOX and HERBERT FOX, such liability is based on conduct which is passive and secondary t0 the active and primary wrongful conduct 0f other AMERICAN MANAGEMENT SERVICES, INC. and BLOSSOM HILL ESTATES NO. 2 HOMEOWNERS ASSOCIATION to this act. Therefore, These answering Defendants are entitled to total, equitable indemnity from such other AMERICAN MANAGEMENT SERVICES, INC. and BLOSSOM HILL ESTATES NO. 2 HOMEOWNERS ASSOCIATION. TWELFTH AFFIRMATIVE DEFENSE (Estoppel) 12. These answering Defendants are informed and believe and therefore allege that the entire Complaint, and each cause 0f action thereof, is barred against These answering Defendants by the doctrine 0f estoppel. THIRTEENTH AFFIRMATIVE DEFENSE (Good Faith) 13. These answering Defendants are informed and believe and therefore allege that 4813-2747-7245.1 _5_ DEFENDANTS AMERICAN MANAGEMENT SERVICES, INC. AND BLOSSOM HILL ESTATES NO. 2 HOMEOWNERS ASSOCIATIONS' ANSWER TO COMPLAINT EVERETT DOREY LLP Attorneys at Law 18300 VON KARMAN AVENUE, SUITE 900 IRVINE, CALIFORNIA 92612 TELEPHONE 949-771-9233 OFAX 949-377-3110 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 these answering Defendants are excused from all liability under the facts alleged in VERA FOX and HERBERT FOXS' claims for relief because at all material times these answering Defendants acted in good faith and conducted all material transactions in good faith. FOURTEENTH AFFIRMATIVE DEFENSE (Intervening Superseding Causes) 14. These answering Defendants are informed and believe and therefore allege that the injuries and damages of which VERA FOX and HERBERT FOX complain were proximately caused by or contributed t0 by the acts 0f other persons and/or other entities, and said acts were an intervening and superseding cause 0f the injuries and damages, if any, of which VERA FOX and HERBERT FOX complain, thus barring VERA FOX and HERBERT FOX from any recovery against AMERICAN MANAGEMENT SERVICES, INC. and BLOSSOM HILL ESTATES NO. 2 HOMEOWNERS ASSOCIATION. FIFTEENTH AFFIRMATIVE DEFENSE (Laches) 15. These answering Defendants are informed and believe and therefore allege that VERA FOX and HERBERT FOXs' claims are barred by the doctrine 0f laches. SIXTEENTH AFFIRMATIVE DEFENSE (Lack of Knowledge) 16. These answering Defendants are informed and believe and therefore allege that they lacked actual or constructive knowledge of any defect or condition. SEVENTEENTH AFFIRMATIVE DEFENSE (Lack 0f Notice) 17. These answering Defendants are informed and believe and therefore allege that AMERICAN MANAGEMENT SERVICES, INC. and BLOSSOM HILL ESTATES NO. 2 HOMEOWNERS ASSOCIATION had n0 notice, either actual 0r constructive, 0f the allegedly dangerous condition; nor did AMERICAN MANAGEMENT SERVICES, INC. and BLOSSOM HILL ESTATES NO. 2 HOMEOWNERS ASSOCIATION have any duty concerning the subj ect area where the incident purportedly occurred. 4813-2747-7245.1 _6_ DEFENDANTS AMERICAN MANAGEMENT SERVICES, INC. AND BLOSSOM HILL ESTATES NO. 2 HOMEOWNERS ASSOCIATIONS' ANSWER TO COMPLAINT EVERETT DOREY LLP Attorneys at Law 18300 VON KARMAN AVENUE, SUITE 900 IRVINE, CALIFORNIA 92612 TELEPHONE 949-771-9233 OFAX 949-377-3110 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EIGHTEENTH AFFIRMATIVE DEFENSE (N0 Duty) 18. These answering Defendants are informed and believe and therefore allege that AMERICAN MANAGEMENT SERVICES, INC. and BLOSSOM HILL ESTATES NO. 2 HOMEOWNERS ASSOCIATION owed n0 duty or obligation t0 VERA FOX and HERBERT FOX. NINETEENTH AFFIRMATIVE DEFENSE (N0 Damages 0r Injury) 19. These answering Defendants are informed and believe and therefore allege that VERA FOX and HERBERT FOX have not suffered cognizable damage resulting from any and all 0f the matters alleged in the Complaint. TWENTIETH AFFIRMATIVE DEFENSE (Not a Substantial Factor) 20. These answering Defendants are informed and believe and therefore allege that the entire Complaint, and each cause of action thereof, is barred 0n the grounds that the products or materials referred t0 in the Complaint, if any, were not a substantial factor in bringing about the injuries and damages alleged by VERA FOX and HERBERT FOX. TWENTY-FIRST AFFIRMATIVE DEFENSE (Assumption 0f Risk) 21. These answering Defendants are informed and believe and therefore allege that the alleged defect in the product 0r material, if any, was known to VERA FOX and HERBERT FOX, Who used said product 0r material after full knowledge of said alleged defect; and that, as a result, VERA FOX and HERBERT FOX are barred from recovery herein, proportionately 0r totally, in that VERA FOX and HERBERT FOX voluntarily exposed themselves and their property t0 a known danger and thereby assumed the risk 0f any injury 0r damage resulting from that injury. TWENTY-SECOND AFFIRMATIVE DEFENSE (Unclean Hands) 22. These answering Defendants are informed and believe and therefore allege that 4813-2747-7245.1 _7_ DEFENDANTS AMERICAN MANAGEMENT SERVICES, INC. AND BLOSSOM HILL ESTATES NO. 2 HOMEOWNERS ASSOCIATIONS' ANSWER TO COMPLAINT EVERETT DOREY LLP Attorneys at Law 18300 VON KARMAN AVENUE, SUITE 900 IRVINE, CALIFORNIA 92612 TELEPHONE 949-771-9233 OFAX 949-377-3110 .p \OOOQONUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VERA FOX and HERBERT FOX are barred by the equitable doctrine of unclean hands from obtaining the relief requested. TWENTY-THIRD AFFIRMATIVE DEFENSE (Reservation 0f Rights) 23. AMERICAN MANAGEMENT SERVICES, INC. and BLOSSOM HILL ESTATES NO. 2 HOMEOWNERS ASSOCIATION presently have insufficient knowledge or information upon which t0 form a belief as to whether they may have additional, yet unstated, affirmative defenses available. AMERICAN MANAGEMENT SERVICES, INC. and BLOSSOM HILL ESTATES NO. 2 HOMEOWNERS ASSOCIATION expressly and specifically reserve the right t0 amend this answer t0 add, delete, and/or modify affirmative defenses based upon legal theories, facts, and/or circumstances Which may 0r Will be developed through discovery and/or through further legal analysis of its position in this action. WHEREFORE, Defendants pray for relief as follows: 1. That the Complaint be dismissed, with prejudice and in its entirety; 2. That Plaintiffs take nothing by reason 0f this Complaint and that judgment be entered against Plaintiffs and in favor of Defendants; 3. That Defendants be awarded their costs incurred in defending this action; 4. That Defendants be granted such other and further relief as the Court may deem just and proper. DATED: September 29, 2021 EVERETT DOREY LLP Seymo B. Everett, III Samantha E. Dorey Attorneys for Defendants AMERICAN MANAGEMENT SERVICES, INC. and BLOSSOM HILL ESTATES NO. 2 HOMEOWNERS ASSOCIATION 4813-2747-7245.1 _8_ DEFENDANTS AMERICAN MANAGEMENT SERVICES, INC. AND BLOSSOM HILL ESTATES NO. 2 HOMEOWNERS ASSOCIATIONS' ANSWER TO COMPLAINT EVERETT DOREY LLP Attorneys at Law 18300 VON KARMAN AVENUE, SUITE 900 IRVINE, CALIFORNIA 92612 TELEPHONE 949-771-9233 OFAX 949-377-3110 .p \DOOQONUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 File N0. 1076-02 PROOF OF SERVICE Fox V. Aquarek Plumbing, Inc. et al Case N0. 21CV381448 STATE OF CALIFORNIA, COUNTY OF ORANGE At the time of service, I was over 18 years of age and not a party to this action. 1am employed in the County of Orange, State of California. My business address is 18300 Von Karman Avenue, Suite 900, Irvine, CA 92612. On September 29, 2021, I served true copies 0f the following document(s) described as: DEFENDANTS AMERICAN MANAGEMENT SERVICES, INC. AND BLOSSOM HILL ESTATES NO. 2 HOMEOWNERS ASSOCIATIONS' ANSWER TO COMPLAINT I served the documents 0n the interested parties in this action as follows: John C. Stein Attorneyfor Plaintiffs James P. Collins THE BOCCARDO LAW FIRM 111 West St. John Street Suite 400 San Jose, CA 951 13 istein@boccardo.com icollins@boccardo.com BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed t0 the persons at the addresses listed in the Service List and placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar With the practice 0f Everett Dorey LLP 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. I am a resident or employed in the county Where the mailing occurred. The envelope was placed in the mail at Irvine, California. I declare under penalty of perjury under the laws 0f the State of California that the foregoing is true and correct. Executed on September 29, 2021, at Irvine, California. X mM/w léista}N. Maur 4813-2747-7245.1 _9_ DEFENDANTS AMERICAN MANAGEMENT SERVICES, INC. AND BLOSSOM HILL ESTATES NO. 2 HOMEOWNERS ASSOCIATIONS' ANSWER TO COMPLAINT