Answer Unlimited Fee Applies

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

WALSWO RTH ONE SANSOME STREET, SUITE 1800 SAN FRANCISCO, CALIFORNIA 94 1 04-4461 TEL (415) 781-7072 ' FAX (41 5) 391-6258 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEIDRE COHEN KATZ, State Bar No. 166261 dkatz@wfbm.com ROBERT L. NELDER, State Bar No. 125426 melder@wfbm.com WFBM, LLP Attorneys at Law One Sansome Street, Suite 1800 San Francisco, California 94104-4461 Telephone: (4 1 5) 78 1 -7072 Facsimile: (415) 391-6258 Attorneys for Defendant BATEMAN COMMUNITY LIVING, LLC erroneously sued as BATEMAN COMMUNITY Electronically Filed by Superior Court of CA, County of Santa Clara, on 6/3/2021 12:20 PM Reviewed By: L Del Mundo Case #21 CV381453 Envelope: 6573810 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA LIVING NARAYAN DAHAL, Plaintiff, V. BLAKE YAMAICHI, BATEMAN COMMUNITY LIVING, ELIOR INC., and DOES 1-10 , Defendants. Case N0. 21CV381453 DEFENDANT BATEMAN COMMUNITY LIVING, LLC'S ANSWER TO PLAINTIFF'S COMPLAINT Action Filed: April 1, 2021 Defendant BATEMAN COMMUNITY LIVING, LLC, erroneously sued as BATEMAN COMMUNITY LIVING (“Defendant”) answers the unverified Complaint ofPlaintiffNARAYAN DAHAL ("Complaint") as follows: GENERAL DENIAL In accordance with Code 0f Civil Procedure section 43 1 .30, this answering Defendant denies generally and specifically each and every allegation contained in the Complaint, and further specifically denies that Plaintiff have been damaged in the alleged sum 0r sums, 0r incurred any liability in the alleged sums, 0r in any other manner or form by any act, omission 0r obligation 0n the part of this answering Defendant. -1- DEFENDANT BATEMAN COMMUNITY LIVING LLC'S ANSWER TO PLAINTIFF'S COMPLAINT WALSWO RTH ONE SANSOME STREET, SUITE 1800 SAN FRANCISCO, CALIFORNIA 94 1 04-4461 TEL (415) 781-7072 ' FAX (41 5) 391-6258 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The affirmative defenses set forth below are asserted based on information and belief. DEFENDANT HEREIN ALLEGES AND SET FORTH SEPARATELY AND DISTINCTLY THE FOLLOWING AFFIRMATIVE DEFENSES TO EACH AND EVERY CAUSE OF ACTION AS ALLEGED IN PLAINTIFF'S COMPLAINT AS THOUGH PLED SEPARATELY TO EACH AND EVERY SUCH CAUSE OF ACTION: FIRST AFFIRMATIVE DEFENSE [Failure t0 State a Cause 0f Action] 1. Defendant is informed and believe and thereon allege that each and every cause 0f action in Plaintiffs complaint fails t0 state facts sufficient t0 state a claim upon Which relief can be granted. SECOND AFFIRMATIVE DEFENSE [Comparative Negligence] 2. Defendant is informed and believe and thereon allege that Plaintiff was careless and negligent in and about the matters alleged in Plaintiffs complaint, and that said carelessness and negligence actually and/or proximately caused, or contributed to, in whole or in part, Plaintiffs alleged damages and that said damages, if any, must be diminished in proportion t0 the amount of fault properly attributable to Plaintiff. THIRD AFFIRMATIVE DEFENSE [Third Parties’ Comparative Fault] 3. Defendant is informed and believe and thereon allege that if Plaintiff suffered 0r sustained any obligation or liability for any loss, damage or injury as alleged in the complaint, such loss, damage or injury was proximately caused 0r contributed t0 by the wrongful and negligent acts and conduct 0f parties, persons 0r entities other than this answering Defendant, and that such wrongful and negligent acts 0r conduct were an intervening or superseding cause of the loss, damage 0r injury of which Plaintiff complains. FOURTH AFFIRMATIVE DEFENSE [Assumption 0f the Risk] 4. Defendant is informed and believe and thereon allege that Plaintiff is barred from -2- DEFENDANT BATEMAN COMMUNITY LIVING, LLC'S ANSWER TO PLAINTIFF'S COMPLAINT WALSWO RTH ONE SANSOME STREET, SUITE 1800 SAN FRANCISCO, CALIFORNIA 94 1 04-4461 TEL (415) 781-7072 ' FAX (41 5) 391-6258 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 asserting any claim against Defendant by reason 0f the fact that Plaintiff impliedly and voluntarily assumed the risk 0f the matters causing the injuries and damages incurred, if any. FIFTH AFFIRMATIVE DEFENSE [Failure T0 Mitigate Damages] 5. Defendant is informed and believe and thereon allege that Plaintiff has failed t0 take reasonable efforts t0 mitigate the damages that allegedly were incurred. SIXTH AFFIRMATIVE DEFENSE [Proportionate Liability] 6. Defendant is informed and believe and thereon allege that in the event Plaintiff is entitled t0 non-economic damages including, but not limited t0, pain, suffering, inconvenience, mental suffering, emotional distress, loss 0f society and companionship, loss of consortium, and/or injury t0 reputation and humiliation, Defendant shall be liable only for the amount 0f non- economic damages, if any, allocated t0 Defendant's percentage 0f fault, and a separate judgment shall be rendered against Defendant for that amount pursuant to California Civil Code, section 143 1 .2. SEVENTH AFFIRMATIVE DEFENSE [Substantial Factor] 7. Defendant is informed and believe and thereon allege that the acts and omissions 0f Defendant allege in Plaintiffs claims for relief were not a substantial factor 0f the loss 0r damages for Which Plaintiff seeks recovery. EIGHTH AFFIRMATIVE DEFENSE [Excessive Medical Billing] 8. Defendant is informed and believe and thereon allege that the medical treatment allegedly procured by Plaintiff was unreasonable, medically unnecessary, and not the proximate result of the alleged incident. Furthermore, the medical billing is excessive and does not comport With the reasonable medical billing procedures in the State of California. / / / / / / -3- DEFENDANT BATEMAN COMMUNITY LIVING, LLC'S ANSWER TO PLAINTIFF'S COMPLAINT WALSWO RTH ONE SANSOME STREET, SUITE 1800 SAN FRANCISCO, CALIFORNIA 94 1 04-4461 TEL (415) 781-7072 ' FAX (41 5) 391-6258 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NINTH AFFIRMATIVE DEFENSE [Failure t0 Join Necessary/Indispensable Parties] 9. Defendant is informed and believe and thereon allege that Plaintiff has failed t0 name or join in her complaint a necessary/indispensable party or parties t0 the present action. TENTH AFFIRMATIVE DEFENSE [Statute of Limitations] 10. Defendant is informed and believe and thereon allege that the complaint, and each and every cause 0f action contained therein, is barred by the applicable statute 0f limitations including, but not limited t0, California Code ofCivil Procedure sections 335.1, 338, 338.1, 340.3, 343, and 340.8. ELEVENTH AFFIRMATIVE DEFENSE [Proposition 213] 11. Defendant is informed and believe and thereon allege that Plaintiff did not carry proper insurance coverage at the time 0f the incident per California Proposition 213, and is thus precluded from seeking non-economic damages. damages alleged in the Complaint TWELFTH AFFIRMATIVE DEFENSE [Failure t0 Exercise Ordinary Care] 12. Defendant is informed and believes and thereon alleges that the alleged potential liability of Defendant resulted from the failure of others t0 exercise reasonable and ordinary care, caution or Vigilance for which Defendant is not legally liable or responsible. THIRTEENTH AFFIRMATIVE DEFENSE [Superseding Causes] 13. Defendant is informed and believes and thereon alleges that Plaintiffs damages, if any, were the direct and proximate result 0f intervening and superseding events, including unavoidable incidents resulting from acts 0f God 0r natural causes, and/or actions 0f other parties without fault or liability 0n the part of Defendant, and that such intervening and superseding events and/or actions limit 0r bar Plaintiffs recovery herein. -4- DEFENDANT BATEMAN COMMUNITY LIVING, LLC'S ANSWER TO PLAINTIFF'S COMPLAINT WALSWO RTH ONE SANSOME STREET, SUITE 1800 SAN FRANCISCO, CALIFORNIA 94 1 04-4461 TEL (415) 781-7072 ' FAX (41 5) 391-6258 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FOURTEENTH AFFIRMATIVE DEFENSE [Unjust Enrichment] 14. Defendant is informed and believes and thereon alleges that the Complaint and each cause of action therein are barred by the doctrine 0f unjust enrichment. FIFTEENTH AFFIRMATIVE DEFENSE [Assumption of Risk] 15. Defendant is informed and believes and thereon alleges that Plaintiff is barred from asserting any claim against Defendant by reason 0f the fact that Plaintiff impliedly and voluntarily assumed the risk 0f the matters causing the injuries and damages incurred, if any. SIXTEENTH AFFIRMATIVE DEFENSE [Good Faith] 16. Defendant is excused from any and all liability under the facts alleged because at all material times Defendant acted in good faith and conducted all alleged acts, if they occurred, in good faith. SEVENTEENTH AFFIRMATIVE DEFENSE [Not Foreseeable] 17. Defendant is informed and believes and thereon alleges that any foreseeable and unreasonable risk 0f personal injury that is the subject of this litigation was a risk which Defendant did not create and/or could not reduce 0r eliminate. EIGHTEENTH AFFIRMATIVE DEFENSE [Additional Affirmative Defenses] 18. Defendant is informed and believes and thereon alleges that the Complaint does not describe the claims against Defendant With sufficient particularity and certainty t0 enable Defendant t0 determine what defenses may exist. Defendant therefore cannot fully anticipate all affirmative defenses that may be applicable in this action. Accordingly, the right to assert additional affirmative defenses, if and t0 the extent that such affirmative defenses are applicable, is hereby reserved. /// -5- DEFENDANT BATEMAN COMMUNITY LIVING, LLC'S ANSWER TO PLAINTIFF'S COMPLAINT WALSWO RTH ONE SANSOME STREET, SUITE 1800 SAN FRANCISCO, CALIFORNIA 94 1 04-4461 TEL (415) 781-7072 0 FAX (41 5) 391-6258 Ul-RLNN \OOOQON 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WHEREFORE, Defendant BATEMAN COMMUNITY LIVING, LLC erroneously sued as BATEMAN COMMUNITY LIVING prays for judgment as follows: 1. That Plaintiff takes nothing from Defendant by Virtue of the Complaint herein; 2. That Defendant be awarded costs of suit and attorneys' fees herein; and 3. That Defendant be granted such other and further relief as the Court may deem just and proper. Dated: June 3, 2021 WFBM, LLPW e21W DEIDRE COHEN KATZ ROBERT L. NELDER Attorneys for Defendant BATEMAN COMMUNITY LIVING, LLC erroneously sued as BATEMAN COMMUNITY LIVING -6- DEFENDANT BATEMAN COMMUNITY LIVING, LLC'S ANSWER TO PLAINTIFF'S COMPLAINT WALSWO RTH ONE SANSOME STREET, SUITE 1800 SAN FRANCISCO, CALIFORNIA 94 1 04-4461 TEL (415) 781-7072 0 FAX (41 5) 391-6258 Ul-RUJN \OOOQON 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE Narayan Dahal, V. Blake Yamaichi, et al. Santa Clara Superior Court Case N0. 21CV381453 Our Client: BATEMAN COMMUNITY LIVING, LLC erroneously sued as BATEMAN COMMUNITY LIVING At the time 0f service, Iwas over 18 years 0f age and not a party t0 this action. I am employed in the County 0f San Francisco, State of California. My business address is One Sansome Street, Suite 1800, San Francisco, CA 94104-4461. On June 3, 2021, I served true copies 0f the following document(s) described as DEFENDANT BATEMAN COMMUNITY LIVING, LLC'S ANSWER TO PLAINTIFF'S COMPLAINT on the interested parties in this action as follows: Brian L. Larsen Law Offices 0f Brian L. Larsen 530 Jackson Street, 2nd Floor San Francisco, CA 94133 Attornev for Plaintiff BY MAIL: I enclosed the document(s) in a sealed envelope 0r package addressed to 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 WFBM, 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 of the State 0f California that the foregoing is true and correct. Executed 0n June 3, 2021, at San Francisco, California. “W34 Valentine Wirj asatria -7- DEFENDANT BATEMAN COMMUNITY LIVING, LLC'S ANSWER TO PLAINTIFF'S COMPLAINT