answer to complaint

Cal. Super. - 1st Dist.September 21, 2021

ANSWER TO COMPLAINT - 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HAL CHASE, JR., ESQ. - State Bar No. 95789 STRATMAN, SCHWARTZ & WILLIAMS-ABREGO P.O. Box 258829 Oklahoma City, OK 73125-8829 Phone: (510) 457-3440 Email: hal.chase@farmersinsurance.com Attorney for Defendants, YBL RESTAURANT GROUP, LLC, dba TROPISUENO RESTAURANT (erroneously sued as TROPISUENO RESTAURANT a separate entity), MICHAEL SOPHER, SYLVIA SOPHER SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO RUBEN CARRILLO, PATRICIA VALLE, Plaintiffs, vs. YBL RESTAURANT GROUP, LLC, TROPISUENO RESTAURANT, MICHAEL SOPHER, SYLVIA SOPHER, ERIN BROOKS DOES 1 TO 40, Defendants. Case No.: CGC-20-586477 UNLIMITED JURISDICTION ASSIGNED TO FOR ALL PURPOSES: DEPT: Not Assigned ANSWER TO COMPLAINT COME NOW the Defendants YBL RESTAURANT GROUP, LLC, dba TROPISUENO RESTAURANT (erroneously sued as TROPISUENO RESTAURANT a separate entity), MICHAEL SOPHER, and SYLVIA SOPHER, above named, and in answer to the Complaint of Plaintiffs on file herein admit, deny and allege as follows: I Under the provisions of Section 431.30 of the California Code of Civil Procedure, these answering Defendants deny each, every and all of the allegations of said Complaint, and the whole ELECTRONICALLY F I L E D Superior Court of California, County of San Francisco 06/02/2021 Clerk of the Court BY: EDWARD SANTOS Deputy Clerk ANSWER TO COMPLAINT - 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 thereof, and deny Plaintiffs have sustained damages in any sum or sums alleged, or in any other sum or at all. II Further answering Plaintiffs’ Complaint on file herein, and the whole thereof, these answering defendants deny that the Plaintiffs have sustained any injury, damages or loss, if any, by reason of any act or omission of these answering Defendants or their agents or employees. FIRST AFFIRMATIVE DEFENSE That all times mentioned in the Complaint, the Plaintiffs so carelessly, recklessly and negligently conducted and maintained themselves so as to cause and contribute in some degree to the alleged incident and to the damages and injuries, if any, alleged to have been sustained by said Plaintiffs and therefore said negligence completely bars any recovery or in the alternative, it reduces the right of recovery by that amount said negligence contributed to this incident as set forth under the doctrine of comparative negligence. SECOND AFFIRMATIVE DEFENSE That at all times mentioned in the Complaint, the Plaintiffs knowing the probable consequences thereof, placed themselves in a position of danger and freely and voluntarily participated in all the activities alleged herein, and thereby assumed all the risks attendant thereto. THIRD AFFIRMATIVE DEFENSE That the Complaint and each of the alleged causes of action fails to state facts sufficient to constitute a cause of action against these answering Defendants. FOURTH AFFIRMATIVE DEFENSE That Plaintiffs failed to exercise reasonable care and diligence to mitigate any damages sustained by reason of Defendants’ alleged acts. Therefore, any damages awarded to Plaintiffs shall be limited to the damages Plaintiffs would have sustained had Plaintiffs mitigated their damages. FIFTH AFFIRMATIVE DEFENSE That Plaintiffs are barred from any recovery as to these answering Defendants, in that any damage proven to have been sustained by Plaintiffs was the direct and proximate result of the ANSWER TO COMPLAINT - 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 independent and superseding action of Plaintiffs and other persons or parties, and not due to any act or omission on the part of these Defendants. SIXTH AFFIRMATIVE DEFENSE That each of the alleged causes of action stated in the complaint is barred by the applicable statute of limitations including, but not limited to, provisions of Subdivision 3, Section 340, and/or Section 335.1 of the California Code of Civil Procedure. SEVENTH AFFIRMATIVE DEFENSE That the said conditions complained of in Plaintiffs’ Complaint are not and were not dangerous conditions, and did not create substantial risk of injury when it was used with due care in a manner in which it was reasonably foreseeable that it would be used. EIGHTH AFFIRMATIVE DEFENSE That any and all acts or omissions of these answering Defendants, their agents or employees, which allegedly created the condition of property at the time and place alleged in the Complaint, did not constitute a substantial risk of injury, but, if any risk at all, merely constituted a minor, trivial, or insignificant risk which did not create a dangerous condition of property. NINTH AFFIRMATIVE DEFENSE If Plaintiffs suffered any losses, damages, injuries, and/or harm, such losses, harm, damages and/or injuries were proximately caused, contributed to and/or initiated by persons and/or entities other than the answering Defendants, and the liability of all Defendants named or unnamed, should be apportioned according to their relative degrees of fault, and the liability, if any, of the answering Defendants should be reduced accordingly. TENTH AFFIRMATIVE DEFENSE Under and pursuant to the terms of Civil Code Sections 1431.1 through 1431.5, Plaintiffs are barred and precluded from recovery against the answering Defendants for any noneconomic damages except those allocated in direct proportion to the percentage of fault allocated to answering Defendants, if any. ANSWER TO COMPLAINT - 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ELEVENTH AFFIRMATIVE DEFENSE As and for a further, separate and distinct affirmative defense to the complaint on file herein, it is hereby alleged upon information and belief that at the time of the accident described in the complaint, plaintiffs were in the course and scope of his/her employment with these answering defendants. Therefore, the Worker’s Compensation statutes and/or laws and the Worker’s Compensation Appeals Board have exclusive jurisdiction over and concerning plaintiffs’ claims and as a result the complaint is barred with this court having no jurisdiction. WHEREFORE, Defendants pray that Plaintiffs take nothing by reason of their Complaint and that these defendants be dismissed hence with their costs. NOTICE By placing the following statement in the answer, neither these Defendants nor their counsel waives any privilege or objection regarding the admissibility of the following statement (or the existence of insurance coverage for these Defendants), and requests that this statement be redacted as may be necessary and appropriate to protect these answering Defendants. All attorneys and staff of the office of Stratman, Schwartz & Williams-Abrego are employees of Farmers Insurance Exchange, a Member of the Farmers Insurance Group of Companies, and not a partnership. DATED: June 1, 2021 STRATMAN, SCHWARTZ & WILLIAMS- ABREGO BY: HAL CHASE, JR., ESQ. Attorney for Defendants, YBL RESTAURANT GROUP, LLC, dba TROPISUENO RESTAURANT (erroneously sued as TROPISUENO RESTAURANT a separate entity), MICHAEL SOPHER, SYLVIA SOPHER ANSWER TO COMPLAINT - 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Re: Carrillo, et al. v. YBL Restaurant Group, LLC, et al. Case Number: CGC-20-586477 PROOF OF SERVICE Code of Civil Procedure §§ 1013a, 2015.5 I am a resident of the State of California and over the age of eighteen years, and not a party to the within action. My business address is PO Box 258829, Oklahoma City, OK 73125-8829. On June 2, 2021, I served the following document(s): ANSWER TO COMPLAINT X By placing the document(s) listed above in a sealed envelope, addressed as set forth below: Ruben Carrillo, 4439 Meadow Valley Circle, Fairfield, CA 94534 And Patricia Valle, 4439 Meadow Valley Circle, Fairfield, CA 94534 with postage fully prepaid, and placing the envelope for collection and mailing by the U.S. Postal Service on the same day following the firm’s ordinary business practices of which I am readily familiar. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. X By electronically serving the document(s) described above via a Court approved File & Serve vendor on those recipients designated on the Transaction Receipt located on the vendor’s Website. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on June 2, 2021, at Santa Rosa, California. LALI OCHOA ANSWER TO COMPLAINT - 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Re: Carrillo, et al. v. YBL Restaurant Group, LLC, et al. Case Number: CGC-20-586477 SERVICE LIST Ruben Carrillo 4439 Meadow Valley Circle Fairfield, CA 94534 Phone: (707) 631-7240 Plaintiff in Propria Persona Rub850@sbcglobal.net Patricia Valle 4439 Meadow Valley Circle Fairfield, CA 94534 Phone: (707) 631-7240 Plaintiff in Propria Persona Rub850@sbcglobal.net