Answer Unlimited Fee Applies

Cal. Super. - 6th Dist.March 29, 2021

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BREMER WHYTE BROWN 8L O'MEARA LLP 20320 S.W. BIRCH STREET SECOND FLOOR NEWPORT BCH, CA 92660 (949) 221-1000 21 CV381461 Santa Clara - Civil Dr BREMER WHYTE BROWN & O’MEARA LLP Electronically Filed Arash S. Arabi, State Bar No. 228813 by Superior Court of CA, aarab1@bremerwhyte.com county of Santa Clara, Ryan M. Arakawa, State Bar No. 315181 on 7/22/2021 5:17 pM rarakawa@bremerwhyte.com . _ . 20320 S.W. Birch Street Rewewed By- D HarrIs Second Floor Case #21 CV381 461 Newport Beach, California 92660 EnveIOPG: 69081 26 Telephone: (949) 22 1 - 1 000 Facsimile: (949) 22 1 - 1 001 Attorneys for Defendant, MORRIS NELSON SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA JOCELYN GOMEZ VELAZQUEZ, Case N0. 2 1 STCV3 8 1461 Plaintiff, Judge: Unassigned MORRIS NELSON’S ANSWER TO THE COMPLAINT OF JOCELYN GOMEZ VELAZQUEZ VS. DENISE L. MONTOYA; MORRIS NELSON; UBER TECHOLOGIES, INC; RASIER-PA LLC; RASIER-CA LLC; RASIER-DC LLC; and DOES 1 to 20 Inclusive, Complaint Filed: March 29, 2021 Defendant. vvvvvvvvvvvvv COMES NOW Defendant, MORRIS NELSON, and answers Plaintiff, JOCELYN GOMEZ VELAZQUEZ’S Complaint herein and admits, denies, and alleges as follows: 1. Answering Plaintiff” s unverified Complaint herein, and by Virtue 0f the provisions of Code 0f Civil Procedure § 43 1 .30(d), answering Defendant denies, generally and specifically, every allegation contained in the Complaint. FIRST AFFIRMATIVE DEFENSE (COMPARATIVE FAULT OF PLAINTIFF) 2. Answering Defendant is informed and believes, and 0n such information and belief alleges, that the injuries and damages, if any, alleged in the Complaint occurred and were proximately caused by either the sole or the partial negligence of Plaintiff, which negligence bars 0r reduces Plaintiff” s recovery herein. ANSWER TO COMPLAINT 1356.442 48 1 8-2527-8707.1 {arris 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BREMER WHYTE BROWN 8L O'MEARA LLP 20320 S.W. BIRCH STREET SECOND FLOOR NEWPORT BCH, CA 92660 (949) 221-1000 SECOND AFFIRMATIVE DEFENSE (FAILURE TO STATE CAUSE OF ACTION) 3. Each of Plaintiff’s causes of action, individually, fails to state facts sufficient t0 constitute a cause 0f action against this answering Defendant. THIRD AFFIRMATIVE DEFENSE (SEVERAL LIABILITY FOR NON-ECONOMIC DAMAGES) 4. The right of Plaintiff to recovery herein, if any right exists, is reduced and limited t0 the percentage 0f negligence attributable t0 this answering Defendant pursuant t0 § 143 1 .2 of the California Civil Code. FOURTH AFFIRMATIVE DEFENSE (COMPARATIVE FAULT OF THIRD PARTIES) 5. Answering Defendant is informed and believes, and upon such information and belief alleges, that the accident and the injuries, if any, allegedly suffered by Plaintiff were proximately caused and contributed t0 by the negligence 0f third parties (not Plaintiff 0r this answering Defendant) and that said third parties failed to exercise reasonable care at and prior to the time 0f said accident, and by reason thereof any recovery by Plaintiff against this answering Defendant must be reduced by an amount equal to the proportionate fault of said third parties. FIFTH AFFIRMATIVE DEFENSE {LACHESQ 6. Plaintiff has unreasonably delayed the commencement of the within action to the substantial prejudice 0f answering Defendant and by reason thereof has been guilty of laches, and Plaintiff is thereby precluded from recovery in the Within action. SIXTH AFFIRMATIVE DEFENSE (UNCLEAN HANDS) 7. Plaintiff’ s conduct With respect t0 the matters alleged in the Complaint deprived Plaintiff of clean hands, and by reason of not coming into court with clean hands Plaintiff is precluded from recovery in the Within action. /// 2 ANSWER TO COMPLAINT 1356.442 48 1 8-2527-8707.1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BREMER WHYTE BROWN 8L O'MEARA LLP 20320 S.W. BIRCH STREET SECOND FLOOR NEWPORT BCH, CA 92660 (949) 221-1000 SEVENTH AFFIRMATIVE DEFENSE (COMPLAINT FRIVOLOUS AND IN BAD FAITH) 8. Answering Defendant alleges that Plaintiff” s Complaint is frivolous and is not based on good faith as t0 answering Defendant within the meaning of California Code 0f Civil Procedure § 128.5, and answering Defendant is entitled to recover his reasonable expenses, including attorneys’ fees, in defending this action. EIGHTH AFFIRMATIVE DEFENSE (FAILURE TO MITIGATE DAMAGES) 9. Plaintiff failed to mitigate damages, if any, Which Plaintiff has sustained, and has failed t0 exercise reasonable care t0 avoid the consequences 0f harm, if any, in that, among other things, Plaintiff has failed t0 use reasonable diligence in caring for any injuries damages 0r property, failed to use reasonable means t0 prevent aggravation of any injuries, damages or property, failed to take reasonable precautions t0 reduce any injuries, damages 0r property, failed to make reasonable expenditures Which could have prevented the losses alleged and has otherwise failed to prevent the existence or extent 0f damages as claimed. NINTH AFFIRMATIVE DEFENSE §ACT OF GOD! 10. Any damages alleged in the Complaint were the result 0f an unavoidable accident and occurred Without any negligence, want of care, default, or other breach of duty, and were the result of no human intervention, but were solely caused by a natural cause which no one could reasonably be expected t0 anticipate and whose effects could not be prevented or controlled by the exercise of prudence, diligence and care. TENTH AFFIRMATIVE DEFENSE (PROXIMATE CAUSE) 11. This answering Defendant is informed and believes and therefore alleges that if Plaintiff was damaged in any manner whatsoever, that said damage was a direct and proximate result 0f the intervening and superseding actions on the part 0f other parties and/or third parties, and not 0f this Defendant, and that such intervening and superseding actions 0f the other parties 3 ANSWER TO COMPLAINT 1356.442 48 1 8-2527-8707.1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BREMER WHYTE BROWN 8L O'MEARA LLP 20320 S.W. BIRCH STREET SECOND FLOOR NEWPORT BCH, CA 92660 (949) 221-1000 and/or third parties bar recovery herein on behalf of Plaintiff. ELEVENTH AFFIRMATIVE DEFENSE (ASSUMPTION OF RISK) 12. This answering Defendant alleges that at the date and time 0f the accident alleged herein. Plaintiff assumed certain risks and hazards that were known, and such assumption of the risk was the proximate cause of the injuries and damages allegedly sustained by Plaintiff. To the extent thereof Plaintiff is barred from recovery. TWELFTH AFFIRMATIVE DEFENSE (INDEMNIFICATION BY APPORTIONMENT) 13. This answering Defendant is informed, believes and thereon alleges that this Defendant is entitled t0 the right 0f indemnification by apportionment against all other parties and persons whose negligence contributed proximately to the happening of the claimed accident 0r alleged injuries. THIRTEENTH AFFIRMATIVE DEFENSE (STATUTE OF LIMITATIONS) 14. This answering Defendant is informed and believes, and thereon alleges, that Plaintiff’s claims are barred by one or more statutes of limitations. FOURTEENTH AFFIRMATIVE DEFENSE (SUPERSEDING CAUSE) 15. This answering Defendant is informed and believes, and thereon alleges, that Plaintiffs claims are barred 0r limited because of a superseding cause 0f Plaintiffs alleged damages. FIFTEENTH AFFIRMATIVE DEFENSE (INTERVENING OR SUPERVENING CAUSE) 16. This answering Defendant is informed and believes, and thereon alleges, that Plaintiff’s claims are barred 0r limited by an intervening or supervening cause. /// /// 4 ANSWER TO COMPLAINT 1356.442 48 1 8-2527-8707.1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BREMER WHYTE BROWN 8L O'MEARA LLP 20320 S.W. BIRCH STREET SECOND FLOOR NEWPORT BCH, CA 92660 (949) 221-1000 SIXTEENTH AFFIRMATIVE DEFENSE(w 17. This answering Defendant is informed and believes, and thereon alleges, that Plaintiff’s claims are barred by the doctrine 0f estoppel. SEVENTEENTH AFFIRMATIVE DEFENSE (M) 18. This answering Defendant is informed and believes, and thereon alleges, that Plaintiff’ s claims are barred by the doctrine 0f waiver. EIGHTEENTH AFFIRMATIVE DEFENSE (CONSENT BY PLAINTIFF) 19. This answering Defendant is informed and believes, and thereon alleges, that Plaintiff’s claims are barred because Plaintiff agreed t0 and/or participated in the conduct giving rise to Plaintiff s alleged damages. NINETEENTH AFFIRMATIVE DEFENSE (RATIFICATION) 20. This answering Defendant is informed and believes, and thereon alleges, that Plaintiff s claims are barred because Plaintiff ratified the conduct for Which Plaintiffnow complains. TWENTIETH AFFIRMATIVE DEFENSE (GOOD FAITH CONDUCT) 21. This answering Defendant is informed and believes, and thereon alleges, that Plaintiff’ s claims are barred because Defendant’s conduct was in good faith. TWENTY FIRST AFFIRMATIVE DEFENSE (FAILURE TO JOIN NECESSARY PARTY) 22. This answering Defendant is informed and believes, and thereon alleges, that Plaintiff’s claims are barred because Plaintiff fails to join a party in whose absence complete relief cannot be accorded among those parties named in the Complaint. /// 5 ANSWER TO COMPLAINT 1356.442 48 1 8-2527-8707.1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BREMER WHYTE BROWN 8L O'MEARA LLP 20320 S.W. BIRCH STREET SECOND FLOOR NEWPORT BCH, CA 92660 (949) 221-1000 TWENTY SECOND AFFIRMATIVE DEFENSE (SEATBELT MISUSE/USE) 23. Plaintiff is barred from recovering any remedy against Defendant or her recovery should be reduced by the fact that the Plaintiffwere negligent in not wearing seatbelts and/or similar safety restraint devices at the time 0f the accident. Plaintiffmay not recover damages for those injuries and damages which would not have been sustained if Plaintiff had worn seatbelts or similar safety restraint devices. Vehicle Code § 27315. TWENTY THIRD AFFIRMATIVE DEFENSE (FAILURE TO PRESERVE EVIDENCE/SPOILATION) 24. Defendant is informed and believes and 0n that basis alleges that any and all damages, if any, are barred because Plaintiff breached their duty t0 and have failed t0 preserve and/or have spoiled evidence pertinent t0 Defendant’s defense. Such actions/omissions bar recovery herein 0n behalf 0f Plaintiff. TWENTY FOURTH AFFIRMATIVE DEFENSE (PRE-EXISTING INJURIES) 25. Defendant is informed and believes and thereon alleges that the injuries and damages, if any, alleged in the Complaint were the result of pre-existing injuries and conditions and not a result of the subj ect incident as alleged in the Complaint. TWENTY FIFTH AFFIRMATIVE DEFENSE (PROPOSITION 213) 26. Defendant is informed and believes, and thereon alleges that Plaintiff failed to carry proper insurance coverage at the time 0f the incident alleged in the Complaint per California Proposition 213 and is thus precluded from seeking general damages. TWENTY SIXTH AFFIRMATIVE DEFENSE (HOWELL v. HAMILTON MEATS) 27. Defendant is informed and believes, and thereon alleges that Plaintiff’s recovery for past medical expenses 01‘ other economic loss 0r benefit, if any, is limited t0 the lesser 0f the amount paid or the reasonable value 0f those services 0r benefits. 6 ANSWER T0 COMPLAINT 1356.442 48 1 8-2527-8707.1 UI-hbJN \OOOQON 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BREMER WHYTE BROWN 8L O'MEARA LLP 20320 S.W. BIRCH STREET SECOND FLOOR NEWPORT BCH, CA 92660 (949) 221-1000 TWENTY SEVENTH AFFIRMATIVE DEFENSE (ARBITRATION AGREEMENT) 28. This answering Defendant is informed and believes, and thereon alleges, that this dispute may be subject to an arbitration agreement between Plaintiff and this answering Defendant, such that this matter is properly brought before a qualified arbitration rather than in the instant court. TWENTY EIGHTH AFFIRMATIVE DEFENSE (UNSTATED AFFIRMATIVE DEFENSES) 29. This answering Defendant is informed and believes, and thereon alleges, that there may be additional affirmative defenses, and Defendant reserves the right to assefi additional affirmative defenses as the facts and law warrant. WHEREFORE, answering Defendant prays for judgment in his favor and that Plaintiff take nothing by reason 0f her Complaint 0n file herein, for costs of suit, and for such other and filrther relief as t0 the Court deems just and proper. Dated: July 22, 2021 BREMER WHYTE BROWN & O’MEARA LLP Arfi S. Arabi, Esq. Ryan M. Arakawa, Esq. Attorneys for Defendant, MORRIS NELSON 7 ANSWER TO COMPLAINT 1356,442 48 1 8-2527-87071 UI-hbJN \OOOQQ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BREMER WHYTE BROWN 8L O'MEARA LLP 20320 S.W. BIRCH STREET SECOND FLOOR NEWPORT BCH, CA 92660 (949) 221-1000 PROOF OF SERVICE I am employed in the County of Orange, State of California. 1am over the age of 18 and not a party to the within action. My business address is 20320 S.W. Birch Street, Second Floor, Newport Beach, California 92660. My business e-mail address is malonso@bremerwhyte.com. On July 22, 2021, I served the Within document(s) described as: MORRIS NELSON’S ANSWER TO THE COMPLAINT OF JOCELYN GOMEZ VELAZQUEZ on the interested parties in this action as stated on the attached mailing list. (BY ELECTRONIC MAIL SERVICE) Based upon CRC Rule 2.251 or an agreement of the parties to accept electronic service I caused such document(s) to be Electronically Mailed through Bremer, Whyte, Brown & O'Meara electronic mail system for the above entitled case. Should your office require a hard copy 0f said document, please contact our office. Executed 0n July 22, 2021, at Newport Beach, California. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. . Melanie Alonso MMl/ (Type 0r print name) I V(‘Sigflatura 8 ANSWER TO COMPLAINT 1356,442 48 1 8-2527-87071 1 Jocelvn Gomez Velazquez v. Morris Nelson 2 Case N0. 218TCV381461 3 BWB&O CLIENT: Norris Nelson BWB&O FILE NO.: 1356.442 4 w 5 Michael Avanesian, Esq. 6 Ani Megerdichian, Esq. JT LEGAL GROUP, APC 7 801 N. Brand Boulevard, Suite 1 130 8 Glendale, CA 91203 9 T: 818.745.1998 F: 818.208.4550 10 ani@jtlegalgroup.com 11 Attornevs for Plaintiff 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 W 9 NEw§5§$§3§,L€£Zzeso ANSWER TO COMPLAINT wmmm 1356.442 4818252187071