Answer Unlimited Fee AppliesCal. Super. - 6th Dist.April 1, 2021SHARON L. HIGHTOWER, ESQ. - S.B.N. 129874 LAURA MALKOFSKY, ESQ. - S.B.N. 142536 ERICKSEN ARBUTHNOT 210 North Fourth Street, Suite 350 San Jose, CA 95112 Telephone: (4081 286-0880 Facsimile: (408) 286-0337 shiahtowerSericksenarbuthnot.corn ATTORNEYS FOR AQUATEK PLUMBING, INC. 7 8 9 10 11 12 14 15 16 AQUATEK PLUMBING, INC. AMERICAN MANAGEMENT SERVICES, E4C., BLOSSOM HILL ESTATES NO. 2 HOMEOWNERS ASSOCIATION, DOES 1-10, ANSWER TO UNVERIFIED COMPLAINT FOR DAMAGES SUPERIOR COURT OF CALIFORIA, COUNTY OF SANTA CLARA UNLIMITED JURISDICTION VERA FOX, individually and HERBERT CASE NO: 21CV381448 FOX, individually, Plaintiffs, 17 18 19 Defendants. Complaint Filed: Trial Date: 4/I/2021 TBD 20 21 22 23 24 25 26 27 28 COMES NOW Defendant Aquatek Plumbing, Inc., severing itself from all others, and for answer to the unverified Complaint of Plaintiffs, admits, denies and alleges as follows: Defendant denies all of the allegations, generally and specifically, contained in the Complaint and each cause of action as they apply to this appearing Defendant; and specifically deny that the Defendant is liable to Plaintiffs under the theories or in the manner set forth in the Complaint, deny that Plaintiffs were injured or damaged as alleged in the Complaint, or as the result of any conduct of Defendant. /// ANSWER TO UNVERIFIED COMPLAINT Electronically Filed by Superior Court of CA, County of Santa Clara, on 11/23/2021 3:26 PM Reviewed By: I. Murillo Case #21CV381448 Envelope: 7727974 AFFIRMATIVE DEFENSES As a first, separate, distinct and affirmative defense, this appearing Defendant alleges that the Plaintiffs were guilty of contributory fault/negIigence in the matters set forth in the Complaint which proximately caused or contributed to the injuries or damages complained of. As a second, separate, distinct and affirmative defense, this appearing Defendant alleges that the Plaintiffs had the express knowledge of the risks and hazards set forth in the Complaint, as well as the magnitude of the risks and hazards, and thereafter knowingly, willingly and 9 10 11 12 13 voluntarily assumed those risks. As a third, separate, distinct and affirmative defense, this appearing Defendant alleges that the Plaintiffs had knowledge of the risks and hazards set forth in the Complaint, as well as the magnitude of the risks and hazards, and thereafter knowingly, willingly and voluntarily 15 16 17 18 19 impliedly assumed those risks by their conduct. As a fourth, separate, distinct and affirmative defense, this appearing Defendant alleges that neither the Complaint nor any cause of action in the Complaint states facts sufficient to substantiate a cause of action against this appearing Defendant. As a fifth, separate, distinct and affirmative defense, this appearing Defendant alleges 20 2'l 22 23 24 that, on information and belief, Plaintiffs'lleged injuries, if any there were, were aggravated by Plaintiffs'ailure to use reasonable diligence to mitigate them. As a sixth, separate, distinct and affirmative defense, this appearing Defendant alleges that co-Defendants, and each of them, named and unnamed in the Complaint, were guilty of 25 negligence, or other acts or omissions in the matters set forth in the Complaint, which 26 27 proximately caused or contributed to the damages or loss complained of, if any, and that the 28 ANSWER TO UNVERIFIED COMPLAINT Court is requested to determine and allocate the percentage of negligence attributable to each co-Defendant. As a seventh, separate, distinct and affirmative defense, this appearing Defendant alleges that the condition claimed to be the cause of injury, damage or loss, if any there are, sustained by the Plaintiffs was open and obvious. As an eighth, separate, distinct and affirmative defense, this appearing Defendant alleges that the condition claimed to be the cause of injury, damage or loss, if any there are, sustained 9 10 11 12 by the Plaintiff was trivial. As a ninth, separate, distinct and affirmative defense, this appearing Defendant alleges that Plaintiffs are estopped by action of law or by conduct from maintaining the action filed in this matter. 14 15 16 17 18 19 As a tenth, separate, distinct and affirmative defense, this appearing Defendant alleges that Plaintiffs have waived and forever discharged their right to maintain an action as set forth in the Complaint. As an eleventh, separate, distinct and affirmative defense, this appearing Defendant alleges that the action filed in this matter is not maintainable under the doctrine of laches. 20 21 22 23 24 As a twelfth, separate, distinct and affirmative defense, this appearing Defendant alleges that the Plaintiffs are guilty of unclean hands in the matters set forth in the Complaint which extinguishes the right to equitable relief. As a thirteenth, separate, distinct and affirmative defense, this appearing Defendant 25 alleges that it does not have any control over the condition complained of by the Plaintiffs and 26 27 is not liable for any injury, damage, or claims arising therefrom. 28 ANSWER TO UNVERIFIED COMPI.AINT As a fourteenth, separate, distinct and affirmative defense, this appearing Defendant alleges that it lacked notice of any hazardous condition alleged in the Complaint that would give rise to liability. As a fifteenth, separate, distinct and affirmative defense, this appearing Defendant alleges that to the extent that Plaintiff suffered any symptoms of emotional distress or injury, they were the result of a preexisting disorder or alternative concurrent cause, and not the result of any act or omission of Defendant. As a sixteenth, separate, distinct and affirmative defense, this appearing Defendant 10 alleges that Plaintiffs may not recover damages due to the failure of Plaintiffs to take actions to avoid the injuries allege and damages, if any, as set forth in the Complaint. As a seventeenth, separate distinct, and affirmative defense, this appearing Defendant 12 13 14 16 17 18 19 alleges that Plaintiffs cannot prove any facts showing that the conduct of this Defendant was the cause in fact of any injuries or damages alleged in the Complaint. As an eighteenth, separate, distinct and affirmative defense, this appearing Defendant alleges that this Defendant acted in accordance with federal, state, and local laws and provided work within the appropriate standard of care. As a nineteenth, separate, distinct and affirmative defense, this appearing Defendant alleges that at all times it acted in good faith. As a twentieth, separate, distinct and affirmative defense, this appearing Defendant 20 21 22 23 24 alleges that it owed no duty to Plaintiffs as alleged in the Complaint. As a twenty-first, separate, distinct and affirmative defense, this appearing Defendant sets forth that it may have other, separate and additional defenses of which it is not presently aware, and hereby reserve the right to assert them by amendment to this answer when discovery is coiilp1etc. 25 26 27 28 ANSWER TO UNVERIFIED COMPLAINT 1 WHEREFORE, Defendant prays that Plaintiffs take nothing by their Complaint, for 2 costs, attorneys'ees, and such other relief as the Court may deem just and proper. 3 DATED: November 23, 2021 4 ERICKSEN ARBUTHNOT SHARON L. HIGHAHVER, ESQ. Attorneys for AQUATEK PLUMBING, INC. 10 12 14 15 17 18 19 20 21 22 24 25 26 27 28 ANSWER TO UNVERIFIED COMPLAINT CASE NAME: FOX v. AQUATEK PLUMBING, et al. ACTION NO: 21CV3 81448 2 PROOF OF SERVICE I declare that I am employed in the County of Santa Clara, California. I am over the age of eighteen (18) years and not a party to the within cause; my business address is 210 No. Fourth Street, Suite 350, San Jose, CA 95112. 8 // g // 10 14 16 17 18 5 I served the attached: Answer to Unverified Complaintfor Da&nages on the interested parties in said cause, using the following method; / / (BY MAIL) I placed each sealed envelope, with postage thereon fully prepaid for first-class mail, for collection and mailing at San Jose, California, following ordinary business practices. I am readily familiar7 with the practice of ERICKSEN ARBUTHNOT for the processing of correspondence, said practice being that in the ordinary course of business, correspondence is deposited in the United States Postal Service the same day as it is placed for processing. (BY PERSONAL SERVICE) I caused each such envelope to be delivered by hand to the addressee(s) noted below. (BY FEDERAL EXPRESS) The foregoing document was placed in a sealed envelope provided by Federal Express/UPS, designated as overnight (delivery by next business day) with delivery fees paid or provided for and addressed as stated below. I deposited such envelope in the Federal Express/UPS collection box at 210 North Fourth Street, San Jose, California. (BY FACSIMILE) I caused the said document to be transmitted by facsimile machine to the facsimile number indicated after the address(es) noted below. Such transmission was verified as complete and without error. /XX/ (BY ELECTRONIC SERVICE) Based on a court order or an agreement of the parties to accept service by electronic transmission, I caused the documents to be sent to the persons at the electronic notification addresses listed below. OR: The abave-described document(s) will be delivered electronically through the Court's electronic filing system. /XX / (ELECTRONIC SERVICE VIA ONE LEGAL) Based on a court order or an agreement of the parties to accept service by electronic transmission, I caused the above-entitled document to be served through One Legal at www.oneleuat.corn addressed to all parties appearing on the electronic service list for the above-entitled case. The service transmission was reported as complete and a copy One Legal Receipt Page/ Confirmation will be filed, deposited or maintained with the original document m this office. All parties that do not appear on the electronic service list will be sent a copy by US Mail. 1 g PLAINTIFF COUNSEL: John C. Stein James P. Collins The Boccardo Law Firm 111 W. St. Johns St, Ste. 400 22 San Jose, CA 95113 (408) 298-5678 stein boccardo.corn jcollins boccardo.corn 25 26 27 28 ANSWER TO UNVERIFIED COMPLAINT ATTORNEY FOR DEFENDANT AMERICAN MANAGEMENT SERVICES, INC. Seymour Bernard Everett III Samantha E.Dorey Everett Dorey LLP 18300 Von Karman Ave, Ste 900 Irvine, CA 92612-1054 5 Phone: 949-771-9244 i Fax: 949-377-3110 Email: severett(keverettdorev.corn sdoreyieverettdorey.corn 7 I declare under penalty of perjury under the laws of the State of California that the foregoing is 8 true and correct, and that this declaration was executed on November 23, 2021, at San Jose, California. 9 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ANSWER TO UNVERIFIED COMPLAINT -3
