defendant carlos rosass answer to plaintiffs unverified complaint

Cal. Super. - 1st Dist.October 18, 2021

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 DEFENDANT CARLOS ROSAS’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT - 1 Richard G. Grotch, Esq. - SBN 127713 Jetstream Legal APC 80 Cabrillo Highway North, Suite Q-325 Half Moon Bay, CA 94019 Tel. 415.961.1691 rgrotch@jetstreamlegal.com Attorney for Defendants McGee Air Services, Inc., Alaska Airlines, Inc. and Carlos Rosas SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO MICHAEL MOJALLI, Plaintiff, vs. McGEE AIR SERVICES, INC.; ALASKA AIRLINES, INC.; CARLOS ROSAS; DOES 2 to 100, Defendants. Case No.: CGC-20-588094 DEFENDANT CARLOS ROSAS’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT COMES NOW defendant Carlos Rosas (“Rosas”), previously designated as “Doe 1,” and in response to the unverified complaint of plaintiff Michael Mojalli on file herein (“Complaint”), herewith denies each and every, all and singular, the allegations therein contained, and in this connection, Rosas denies that plaintiff has been injured or damaged in any of the sums mentioned in the Complaint, or in any sum whatsoever or at all, as a result of any act or omission of Rosas. AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, Rosas alleges that the Complaint, and each cause of action thereof, fails to state facts sufficient to constitute a cause of action against Rosas. ELECTRONICALLY F I L E D Superior Court of California, County of San Francisco 08/30/2021 Clerk of the Court BY: EDWARD SANTOS Deputy Clerk 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 DEFENDANT CARLOS ROSAS’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT - 2 AS A SECOND, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, Rosas alleges that plaintiff was himself careless and negligent in and about the matters alleged in the Complaint; that this carelessness and negligence on plaintiff’s own part proximately contributed to the happening of the incident and to the injuries, loss and damage complained of, if any there were; that should plaintiff recover damages, Rosas is entitled to have the amount thereof abated, reduced or eliminated to the extent that plaintiff’s negligence caused or contributed to his injuries, if any. AS A THIRD, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, Rosas alleges that plaintiff acted with full knowledge of all the facts and circumstances surrounding his injury and assumed the risk of the matters causing his injury, if any, and that the matters of which plaintiff assumed the risk proximately contributed to the happening of the incident at bar and proximately caused his injury, if any. AS A FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, Rosas alleges that named and/or unnamed third parties were careless and negligent in and about the matters alleged in the Complaint; that the carelessness and negligence of these named and/or unnamed third parties proximately contributed to the happening of the incident and to the injuries, loss and damage complained of by plaintiff, if any there were; that should plaintiff recover damages, Rosas is entitled to have the amount thereof abated, reduced or eliminated to the extent that these named and/or unnamed third parties’ negligence caused or contributed to plaintiff’s injuries, if any. 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 DEFENDANT CARLOS ROSAS’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT - 3 AS A FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, Rosas alleges that plaintiff failed subsequent to the occurrence described in the Complaint properly to mitigate his damages and is thereby precluded from recovering those damages which could have reasonably been avoided by the exercise of due care on the part of plaintiff. AS A SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, Rosas alleges that plaintiff’s Complaint, and each cause of action thereof, is barred by the applicable period of limitations including, but not limited to, limitations codified in Code of Civil Procedure Section 335.1. AS A SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, Rosas alleges that at the time of the injuries alleged in the Complaint, plaintiff was employed by American Airlines, Inc., and was entitled to and did receive worker’s compensation benefits from that employer. Rosas is informed and thereon believes that if the conditions as alleged in plaintiff’s Complaint are found to exist, plaintiff’s employer was negligent and careless in and about the matters referred to in the Complaint and that negligence on the part of the employer proximately caused or contributed to the injuries and damages, if any, complained of by plaintiff and by reason thereof, Rosas is entitled to set-off any compensation benefits received or to be received by plaintiff against any judgment which may be rendered in favor of plaintiff herein. AS AN EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, Rosas alleges that the acts and omissions of others, including plaintiff were intervening, independent, proximate and legal causes of the 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 DEFENDANT CARLOS ROSAS’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT - 4 injury, damage or loss to plaintiff, if any, either as alleged or otherwise, thus barring plaintiff from any recovery against Rosas. AS A NINTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, Rosas alleges that any act or omission by him was superseded by the acts or omissions of others, including plaintiff, which were the sole proximate and legal causes of the damage or loss to the plaintiff, if any, either as alleged or otherwise. AS A TENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, Rosas alleges that plaintiff’s Complaint, and each cause of action thereof, is preempted by federal law, including, but not limited to, the provisions of the Federal Aviation Act of 1958, 49 U.S.C. § 40103, et seq. WHEREFORE, Rosas prays that plaintiff take nothing against him by his Complaint; that Rosas have judgment for his costs of suit herein incurred, together with such other and further relief as may be just and proper. Dated: August 27, 2021 JETSTREAM LEGAL APC Richard G. Grotch Attorney for Defendants McGee Air Services, Inc., Alaska Airlines, Inc. and Carlos Rosas 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 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) I, the undersigned, declare that I am employed in the County of San Mateo, State of California. I am over the age of 18 years and not a party to the within action. My business address is 80 Cabrillo Highway North, Suite Q-325, Half Moon Bay, California 94019. My electronic mail address is rgrotch@jetstreamlegal.com. I am readily familiar with my business’s practice for collection and processing of correspondence and documents for mailing with the United States Postal Service, mailing by overnight delivery, transmission by facsimile machine and by email, and delivery by hand. On August 28, 2021, I served a copy of each of the documents listed below by placing them for processing as indicated herein. DEFENDANT CARLOS ROSAS’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT United States Mail: The correspondence or documents were placed in sealed, labeled envelopes with postage thereon fully prepaid on the above date and delivered for mailing at the U.S. Post Office at El Granada, California on this same date in the ordinary course of business. 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 business on the above date and deposited in a facility regularly maintained by the overnight delivery carrier, or delivered to a courier or driver authorized 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) 726-2938 at Half Moon Bay, California, and were transmitted to a facsimile machine maintained by the party or attorney to be served at the facsimile machine telephone number provided by that party or attorney, on this same date in the ordinary course of business. The transmission was reported as complete and 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 without error, and a record of the transmission was properly issued by the transmitting facsimile machine. X Electronic Transmission: The correspondence or documents were transmitted electronically to the electronic address set forth below. 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 parties 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 Rules of Court, rule 2.257(a). __XX__ One Legal: I caused the above-referenced document(s) to be e- mailed to the person(s) at the address(es) set forth below through One Legal. 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 Plaintiff: George W. Ellard, Esq. Emanuel Law Group 411 Borel Avenue, Suite 425 San Mateo, CA 94402 Telephone: (650) 369-8900 Facsimile: (650) 369-8999 E-mail: george@teinjurylaw.com Attorneys for Intervenor: David R. Vasquez, Esq. Adelson McLean, APC 4100 Newport Place Drive Suite 200 Newport Beach, CA 92660 Telephone: (949) 656-4601 Facsimile: (949) 656-4223 E-mail: DVasquez@AdelsonMcLean.com 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 I 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 August 28, 2021. Richard G. Grotch