Response of Plaintiff To Order To Show Cause

Response

Cal. Super. - 1st Dist.August 3, 2017

o o o 1 O y w r B e a B a ee p d pe d pe ed pe ed Je e ee d ee d fe ed fe ed pe es N O 00 ~~ O N W r d s Ww a e s OD H. Gregory Nelch, Esq. - SBN 118258 Min K. Kang, Esq. - SBN 246904 CODDINGTON, HICKS & DANFORTH A Professional Corporation, Lawyers 555 Twin Dolphin Drive, Suite 300 Redwood City, CA 94065-2133 Tel: 650.592.5400 Fax: 650.592.5027 ATTORNEYS FOR Plaintitt Jeremy Kistler ELECTRONICALLY FILED Superior Court of California, County of San Francisco 05/01/2018 Clerk of the Court BY: KENNETH HUNT Deputy Clerk IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO JEREMY KISTLER, Plaintiff, vs. MARK R. MONTGOMERY, an individual; AVIS BUDGET GROUP, INC, a corporation; PV HOLDING CORP, a corporation; and Does 1 to 25, Defendants, Case No. CGC-17-560546 RESPONSE OF PLAINTIFF TO ORDER TO SHOW CAUSE Date: May 22, 2018 Time: 10:30 a.m. Dept: 610 Comes now Plaintiff JEREMY KISTLER in response to the Court’s Order to Show Cause Order as to why the acdon should not be dismissed or sanctions should not be imposed for failure to obtain an answer from, or enter default against defendant states as follows. Plaintiff has received by mail an Answer to the First Amended Complaint on behalf of the Defendant received in our office on March hereto and incorporated herein as Exhibit A. Dated: May 1, 2018 Response of Plaintff to Order to Show Cause Case No: CGC-17-560546 26, 2018. A copy of the Answer is attached CODDINGTON, HICKS & DANFORTH of Win XK. Rang By: "Min Kang Attorneys for Plaintiff Jeremy Kistler 469330 EXHIBIT A wn ta S o G s o n JAMES E. SELL, ESQ. (SBN 135935) Jsell@tysonmendes.com ALLISON M. LAWRENCE, ESQ. (SBN 188463) Alawrence@tysonmendes.com CODDINGTON TYSON & MENDES LLF HICKS & DANFORTH 523 Fourth Street, Suite 100 San Rafael, CA 94901 SRE Ao Bs Telephone: (628) 253-5070 MAR 26 20% Facsimile: (415) 785-3165 HL seem INIT mer rsmmamres% ANNED mercer cnc Attorneys for Defendant, pp Se -- MARK R. MONTGOMERY SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO JEREMY KISTLER, an individual Case No.: CGC-17-560546 Plaintiff, DEFENDANT MARK R, VE, VIONTCOVERY'E ANSWER TD PLAINTIFS FIERY AMENDED MARK R. MONTGOMERY, an individual; and COMPLAINT DOES 1-25, Defendants, Date Filed: ~~ August 3, 2017 Trial Date: M/A COMES NOW Defendant MARK R. MONTGOMERY (“Defendant”), to answer the First Amended Complaint (“Complaint”) on file herein as follows: DENIALS 1. Defendant denies all of the allegations generally and specifically contained in the Complaint and each cause of action as they apply to them. Defendant specifically denies that the Defendant is liable to the plaintiff under the theories or in the matters set forth in the Complaint, and denies that plaintiff was injured or damaged as alleged in the Complaint as a result of any conduct of the Defendant. 2. Defendant denies responsibility for any damages or any percentage of damages claimed by the plaintiff. i DEFENDANT MARK R. MONTGOMERY'S ANSWER TO PLAINTIFF’S FIRST AMENDED COMPLAINT Li La d N D D 0 sw ] E N 10 11 12 13 14 1S i6 17 18 19 20 SEPARATE AFFIRMATIVE DEFENSES 3. The answering Defendant does not, by stating the matters set forth in these defenses, allege or admit that they have the burden of proof and/or persuasion with respect to any of these matters, and does not assume the burden of proof or persuasion as to any matters to which Plaintiff | has the burden of proof or persuasion. FIRST AFFIRMATIVE DEFENSE 4. As and for a first, separate, and affirmative defense to the Complaint and to each purported cause of action contained therein, the answering Defendant is informed and believes and based thereon alleges: plaintiff was guilty of contributory fault/negligence in the matters set forth in, the Complaint which proximately caused or contributed to the injuries or damages complained of. SECOND AFFIRMATIVE DEFENSE 5. As and for a second, separate, and affirmative defense to the Complaint and to each purported cause of action contained therein, the answering Defendant is informed and believes and based thereon alleges: neither the Complaint nor any cause of action in the Complaint states facts sufficient to substantiate a cause of action against Defendant. THIRD AFFIRMATIVE DEFENSE 6. As and for a third, separate, and affirmative defense to the Complaint and to each purported cause of action contained therein, the answering Defendant is informed and believes and based thereon alleges: the plaintiff”s alleged injuries, if any there were, were aggravated by the plaintiff's failure to use reasonable diligence to mitigate plaintiff’s damages. FOURTH AFFIRMATIVE DEFENSE 7. As and for a fourth, separate, and affirmative defense to the Complaint and to each purported cause of action contained therein, the answering Defendant is informed and believes and based thereon alleges: plaintiff's injuries and damages, if any, were caused by the negligence and fault of others than the answering Defendant, and that such fault on the part of others proximately and concurrently caused or contributed to the happening of the accident and to the loss and damage complained of by plaintiff, if any there were. Such acts were the intervening, supervening, and superseding cause of the injuries and damages, if any, of which the plaintiff coraplains, thus barring “3 P DEFENDANT MARK R. MONTGOMERY'S ANSWER TO PLAINTIFF'S FIRST AMENDED COMPLAINT EN te Lh D e o 3 O n plaintiff from any recovery against the answering Defendant. FIFTH AFFIRMATIVE DEFENST 8. As and for a fifth, separate, and affirmative defense to the Complaint and to each purported cause of action contained therein, the answering Defendant is informed and believes and based thereon alleges: that other persons, or entities, and each of them, named and unnamed in the Complaint, were guilty of negligence, or other acts or omissions in the matters set forth in the Complaint, which proximately caused or contributed to the damages or loss complained of, if any, and that Defendant is liable, if at all, only for the amount of non-economic damages allocated to it in direct proportion to its percentage of fault, and that the court is requested to determine and allocate the percentage of negligence attributable to sach of the other persons or entities at fault as set forth in Civil Code §1431.2, SIXTH AFFIRMATIVE DEFENSE 9. As and for a sixth, separate, and affirmative defense to the Complaint and to each purported cause of action contained therein, the answering Defendant is informed and believes and based thereon alleges: Defendant did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law. SEVENTH AFFIRMATIVE DEFENSE 10. As and for a seventh, separate, and affirmative defense to the Complaint and to each purported cause of action contained therein, the answering Defendant is informed and believes and based thereon alleges: the injuries to the plaintiff, if any, were sustained in that plaintiff failed to exercise ordinary and reasonable care or caution concerning the matters alleged in the Complaint; that any and all events, happenings, injuries and damages set forth in the Complaint, if any, were therefore proximately caused and contributed to by the acts and/or omissions of plaintiff, and such negligence on plaintiff’s part constitutes a bar to any recovery by said plaintiff, or in the alternative, the recovery, if any, by said plaintiff should be reduced in proportion to the extent such negligence was a cause of plaintiff’s injuries and damages, if any. 1 DEFENDANT MARK EK. MONTGOMERY'S ANSWER TO PLAINTIFF'S FIRST AMENDED COMPLAINT Ln La d “No oo ~ J On EICHTH AFFIRMATIVE DEFENSE 11. As and for an eighth, separate, and affirmative defense to the Complaint, and to each purported cause of action contained therein, the answering Defendant is informed and believes and based thereon alleges: plaintiff knowingly, willingly and voluntarily assumed the risk of all damages, if any. NINTH AFFIRMATIVE DEFENSE 12. As and for a ninth, separate and affirmative defense to the Complaint, and to each purported cause of action contained therein, the answering Defendant is informed and believes and based thereon alleges: any recovery on the Corplaint, or any claim for relief averred therein, is barred to the extent the answering Defendant owed no duty to plaintiff. TENTH AFFIRMATIVE DEFENSE 13. As and for an tenth, separate, and affirmative defense to the Complaint, and to each purported cause of action contained therein, the answering Defendant is informed and believes and based thereon alleges: to the extent plaintiff suffered injuries and damages, which Defendant denies, such injury or damage was not proximately caused by any conduct or inaction of the answering Defendant, or was not foreseeable, or both. ELEVENTH AFFIRMATIVE DEFENSE 14. As and for an eleventh, separate, and affirmative defense to the Complaint, and to each purported cause of action contained therein, the answering Defendant is informed and believes and based thereon alleges: to the extent plaintiff suffered injury or damage, which Defendant denies, such injury or damage was caused by the action or conduct of others, not the answering Defendant. TWELFTH AFFIRMATIVE DEFENSE 5. As and for a twelfth, separate and affirmative defense to the Complaint, and to each fra purported cause of action contained therein, the answering Defendant is informed and believes and based thereon alleges: plaintiff’s damages, if any, are speculative, uncertain, and not capable of being determined by a trier of fact, 4 DEFENDANT MARK R. MONTGOMERY'S ANSWER TO PLAINTIFF'S FIRST AMENDED COMPLAINT i d La d No Q c ~ J oN HIRTEENTH AFFIRMATIVE DEFENSE 16. As and for a thirteenth separate, and affirmative defense to the Complaint, and to each purported cause of action contained therein, the answering Defendant is informed and believes and based thereon alleges: plaintiff’s recovery for past medical expenses or other economic loss or benefit, if any, is limited to the lesser of the amount paid or the reasonable value of those services or benefits. FOURTEENTH AFFIRMATIVE DEFENSE 17. As and for a fourteenth, separate and affirmative defense to the Complaint, and to each purported cause of action contained therein, the answering Defendant is informed and believes and based thereon alleges: plaintiff is excluded from recovering any amounts which have been, or will, indemnify plaintiff, for any past or future claimed medical expenses, health care, life care, or other economic loss or benefit that is offered, or provided under or in connection with the Patient Protection and Affordable Care Act. FIFTEENTH AFFIRMATIVE DEFENSE 18. As and for a fifteenth, separate and affirmative defense to the Complaint, and to each purported cause of action contained therein, the answering Defendant is informed and believes and based thereon alleges: in the event plaintiff failed to obtain health insurance coverage available to Plaintiff, which Plaintiff is eligible to obtain under the Patient Protection and Affordable Care Act, plaintiff failed to mitigate Plaintiff's damages and cannot recover for such fatlure. SIXTEENTH AFFIRMATIVE DEFENSE 19. As and for a sixteenth, separate, and affirmative defense to the Complaint, and to each purported cause of action contained therein, the answering Defendant is informed and - believes and based thereon alleges: to the extent plaintiff failed to take reasonable steps to avail himself of the resources, service benefits, and coverage available to him under the Patient Protection and Affordable Care Act, plaintiff failed to mitigate his damages and cannot recover for such failure. 5 DEFENDANT MARK R. MONTGOMERY'S ANSWER TO PLAINTIFF'S FIRST- AMENDED COMPLAINT Lh La d G e Sa o h SEVENTEENTH AFFIRMATIVE DEFENSE 20. As and for a nineteenth, separate, and affirmative defense to the Complaint, and to each purported cause of action contained therein, the answering Defendant is informed and believes and based thereon alleges: the answering Defendant presently has insufficient knowledge or insufficient information upon which to form a belief as to whether Defendant may have additional, yet unasserted, affirmative defenses. Defendant therefore reserves the right to assert additional affirmative defenses in the event discovery indicates it would be appropriate. WHEREFORE, the answering Defendant prays for judgment as follows: i That plaintiff take nothing by virtue of plaintiff's Complaint; 2. For costs of suit incurred herein; and 3. For such other and further relief as the Court may deem just and proper. Dated: March 22, 2018 TYSON & MENDES LLP Attorneys 9 Defendant MARK R. MONTGOMERY 6 DEFENDANT MARK R. MONTGOMERY'S ANSWER TO PLAINTIFF'S FIRST AMENDED COMPLAINT on ~ J o n WH Le d No Case Name: Jeremy Kistler v. Mark R. Montgomery Case Number: CGC-17-560546 PROOF OF SERVICE 1, the undersigned, declare that T am over the age of 18 years and not a party fo the within action or proceeding. I am employed by Tyson and Mendes and my business address is 523 Fourth Street, Suite 100, San Rafael, CA 94501 On March 22, 2018, I caused to be served the following document(s): DEFENDANT MARK R. MONTGOMERY’S ANSWER TO PLAINTIFF'S FIRST AMENDED COMPLAINT on the interested patties in this action: _X_ BY MAIL: I further declare that I am readily familiar with the firm's business practice of collection and processing of correspondence for mailing with the United States Postal Service, and that the correspondence shall be deposited with the United States Postal Service this same day in the ordinary course of business pursuant to Code of Civil Procedure section 1013(a). I then sealed each envelope and, with postage thereon fully prepaid, placed each for deposit in the United States Postal Service, this same day, at my business address shown above, following ordinary business practices. Lee J. Danforth, Esq. CODDINGTON, HICKS & DANFORTH 555 Twin Dolphin Drive, Suite 300 Redwood City, CA 94065 Tel: (650) 592-5400 ldanforth@chdlawyers.com Attorney for Plaintify I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on BIEEh 22, 2018, at San Rafael, California. (Le Lore S. o e =~ On PROOF OF SERVICE California Code of Civil Procedure sections 1011, 1013, 1013a, 2015.5 California Rule of Court rule 2.251 Federal Rule of Civil Procedure Rule 5(b) 1, the undersigned, declare that I am employed in the County of San Mateo, State of California. I am over the age of eighteen (18) years and not a party to the within action. My business address is 555 Twin Dolphin Drive, Suite 300, Redwood City, California 94065. My electronic mail address is Eva@chdlawyers.com. I am readily familiar with my employet’s business practice for collection and processing of correspondence and documents for mailing with the United States Postal Service, mailing via overnight delivery, transmission by facsimile machine, and delivery by hand. On May 1, 2018, I served a copy of each of the documents listed below by placing said copies for processing as indicated herein. RESPONSE OF PLAINTIFF TO ORDER TO SHOW CAUSE X United States Mail: The correspondence or documents were placed in sealed, labeled envelopes with postage thereon fully prepaid on the above date placed for collection and mailing at my place of business to be deposited with the U.S. Postal pervice at Redwood City, California on this same date in the ordinary course of usiness. Overnight Delivery: The correspondence or documents were placed in sealed, labeled packaging for overnight delivery, with Federal Express, with all charges to be paid by my employer on the above date for collection at my place of business to be deposited in a facility regularly maintained by the overnight delivery carrier, or delivered to a courier or driver authotized by the overnight delivery carrier to receive such packages, on this date in the ordinary course of business. Hand Delivery: The correspondence or documents were placed in sealed, labeled envelopes and served by personal delivery to the party or attorney indicated herein, or if upon attorney, by leaving the labeled envelopes with a receptionist or other person having charge of the attorney’s office. Facsimile Transmission: The correspondence or documents were placed for transmission from (650) 592-5027 at Redwood City, California, and were transmitted to a facsimile machine maintained by the party or attorney to be served at the facsimile machine telephone number somided by said party or attorney, on this same date in the ordinary course of business. The transmission was reported as complete and without error, and a record of the transmission was properly issued by the transmitting facsimile machine. Electronic Transmission: The correspondence or documents were transmitted electronically to the electronic address set forth below. p o = O r L h dB L d B d ee P d b E B S D d D I D B D I D d E e ee t ee ee d pe e e d be d fe d e d ee d QC ~~ O h Wh a dB W r Ba ee O D N G E N h W r WB W B ) e e OD State. The recipient has filed and served notice that he or she accepts electronic service; the recipient has electronically filed a document with the court; and/or the Court has mandated that the patties serve documents through its Court approved vendor. The printed form of this document bearing the original signature is on file and available for inspection at the request of the court or any party to the action or proceeding in which it is filed, in the manner provided in California Rule of Court Rule 2.257 (a). - Federal. The recipient of this electronic service has consented to this method of service in writing, a copy of which is on file and available for inspection in my employer’s office. I have received no indication the electronic transmission did not reach the recipient. PERSONS OR PARTIES SERVED: Attorneys for Defendant Montgomery James E. Sell, Esq. Tyson Mendes, LLP 523 Fourth Street, Suite 100 San Rafael, CA 94901 Tel: 628.253.5070 Fax: 415.785.3165 Email: JSell@tysonmendes.com I certify (or declare) under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration was executed on May 1, 2018. Hwa Oliveira Court: Superior Court of California, San Francisco County Action No: CGC-17-560546 Case Name: Kistier 0. Monigonrery