AnswerCal. Super. - 3rd Dist.June 8, 2021 ________________________________________________________________________________ 1 ANSWER TO COMPLAINT 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 Susan F. Leonard (SBN 200909) LAW OFFICES OF JOHN A. BIARD P.O. Box 64093 St. Paul, MN 55164-0093 Physical Address: 11070 White Rock Road, Suite 200 Rancho Cordova, CA 95670 Telephone: 916-638-6610 Direct: 916-638-6661 Facsimile: 855-631-5920 Email: sfleonar@travelers.com Attorneys for Defendants QUARRY PONDS TOWN CENTER, LP; ANTHONY L. CARDOSO, Individually; ANTHONY L. CARDOSO dba CAPITAL PACIFIC COMPANY; ANTHONY L. CARDOSO dba CAPITAL INVESTMENT TRUST SUPERIOR COURT OF CALIFORNIA COUNTY OF PLACER KAREN PEAK, Plaintiff, vs. QUARRY PONDS TOWN CENTER, LP; ANTHONY L. CARDOSO, Individually; ANTHONY L. CARDOSO dba CAPITAL PACIFIC COMPANY; ANTHONY L. CARDOSO dba CAPITAL INVESTMENT TRUST; DOE INSPECTION/MAINTENANCE/REPAIR COMPANY, and DOES 1 through 30, inclusive, Defendants. Case No.: S-CV-0046812 ANSWER TO COMPLAINT Complaint filed June 8, 2021 COME NOW defendants QUARRY PONDS TOWN CENTER, LP; ANTHONY L. CARDOSO, Individually; ANTHONY L. CARDOSO dba CAPITAL PACIFIC COMPANY; ANTHONY L. CARDOSO dba CAPITAL INVESTMENT TRUST (hereinafter “these answering /// ________________________________________________________________________________ 2 ANSWER TO COMPLAINT 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 defendants”), who answer the Complaint of plaintiff KAREN PEAK (“plaintiff”) on file herein, as follows: 1. It appearing herein that the Complaint on file is unverified, therefore, these answering defendants hereby file their general denial pursuant to California Code of Civil Procedure § 431.30(d). 2. By way of further answer to the said Complaint, these answering defendants deny they are liable to plaintiff as alleged, or at all. These answering defendants further deny that plaintiff sustained damage of any kind or character, or damage in any sum or amount whatsoever as a result of any act or acts, fault, carelessness, negligence, or because of any act or omission or failure to act on the part of these answering defendants. These answering defendants lack information and/or belief sufficient to enable them to answer the allegations concerning the nature and extent of plaintiff’s damage and loss, if any, and basing their denial upon said lack of information and belief, deny each and every such allegation, generally and specifically, and on said ground, for the purpose of placing the question of the nature and extent of said damages and losses claimed by the plaintiff in issue, deny that plaintiff herein was damaged in any sum or sums, or at all. FIRST AFFIRMATIVE DEFENSE (Failure to State Cause of Action) 3. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE to each and every alleged cause of action, these answering defendants allege that plaintiff’s Complaint and each alleged cause of action therein fail to state facts sufficient to constitute a cause of action as to these answering defendants. SECOND AFFIRMATIVE DEFENSE (No Dangerous Condition) 4. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE to each and every alleged cause of action, these answering defendants allege that the condition of the property complained of in plaintiff’s Complaint did not create a substantial risk of injury when such property was used with due care and in a manner in which it was reasonably foreseeable that it would be used. /// /// ________________________________________________________________________________ 3 ANSWER TO COMPLAINT 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 THIRD AFFIRMATIVE DEFENSE (Lack of Substantial Dangerous Condition) 5. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE to each and every alleged cause of action, these answering defendants allege that the alleged condition causing plaintiff’s injuries was minor, insignificant, and trivial in nature, and therefore these answering defendants are not liable for plaintiff’s damages. FOURTH AFFIRMATIVE DEFENSE (Unavoidable Incident) 6. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE to each and every alleged cause of action, these answering defendants allege that the events, injuries, losses, and damages complained of, if any there were, were the result of an unavoidable accident insofar as these answering defendants are concerned, and occurred without any negligence, want of care, default, or other breach of duty on the part of said defendants. FIFTH AFFIRMATIVE DEFENSE (Carelessness of Complainant) 7. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE to each and every alleged cause of action, these answering defendants allege that plaintiff was careless and negligent in and about the matter set forth in plaintiff’s Complaint, and that said carelessness and negligence contributed to and proximately caused any and all damages, if any, alleged in the Complaint. SIXTH AFFIRMATIVE DEFENSE (Known Risk) 8. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE to each and every alleged cause of action, these answering defendants allege that all the risks and damages, if any there were, connected with the situation at the time and place alleged in Plaintiff’s Complaint were open, obvious, and apparent. /// /// /// ________________________________________________________________________________ 4 ANSWER TO COMPLAINT 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 SEVENTH AFFIRMATIVE DEFENSE (Assumption of Risk) 9. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE to each and every alleged cause of action, these answering defendants are informed and believe and thereupon allege that plaintiff did, with full knowledge of the facts, dangers, and consequences of plaintiff’s own actions or inaction, and of the actions or inaction of defendants, expressly, impliedly, and voluntarily accept the risk incident thereto. EIGHTH AFFIRMATIVE DEFENSE (Failure to Mitigate) 10. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE to each and every alleged cause of action, these answering defendants are informed and believe and thereupon allege that plaintiff, by the exercise of reasonable effort and/or care, could have mitigated the damages alleged to have been suffered, but plaintiff failed, neglected, and refused, and continues to fail and refuse, to exercise reasonable effort to mitigate the damages, if any. NINTH AFFIRMATIVE DEFENSE (Contributory Negligence) 11. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE to each and every alleged cause of action, these answering defendants allege that in addition to the aforementioned negligence of plaintiff, any injury and/or damage incurred by plaintiff was directly and legally caused and contributed to by the negligence and/or fault of third persons or parties. TENTH AFFIRMATIVE DEFENSE (Comparative Fault) 12. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE to each and every alleged cause of action, these answering defendants are informed and believe and thereupon allege that each alleged cause of action giving rise to plaintiff’s alleged damage, if any, was proximately caused and contributed to carelessness, recklessness, and/or negligence on the part of plaintiff, thus barring or diminishing plaintiff’s recovery herein according to the principles of comparative negligence. /// ________________________________________________________________________________ 5 ANSWER TO COMPLAINT 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 (Comparative Fault of Others) 13. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE to each and every alleged cause of action, these answering defendants are informed and believe and thereon allege that they are not legally responsible in any way or fashion with respect to the damages and injuries claimed by plaintiff in plaintiff’s Complaint. However, if these answering defendants are subject to any liability to plaintiff or any other party, it will be due, in whole or in part, to the strict liability, breach of warranty, acts, omissions, activities, carelessness, recklessness, and/or negligence of others, including parties and nonparties to this action; therefore, any recovery obtained by plaintiff or any other party against these answering defendants should be apportioned among or between all such responsible parties and nonparties pursuant to the doctrines of comparative negligence, total indemnity, and partial indemnity. The liability of these answering defendants, if any, should be limited in direct proportion to the percentage of fault or liability actually attributed to these answering defendants. TWELFTH AFFIRMATIVE DEFENSE (Percentage of Fault) 14. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE to each and every alleged cause of action, these answering defendants allege that plaintiff was careless, reckless, and negligent in and about the matters and things alleged in the Complaint, which said carelessness, recklessness, and negligence concurred in point of time with the alleged negligence of defendants, if any there may have been, and legally caused and/or contributed to whatever injury and/or damage plaintiff may have sustained, if any, and recovery by plaintiff, if any, should be proportionately reduced according to the percentage of fault of plaintiff. THIRTEENTH AFFIRMATIVE DEFENSE (No Joint/Several Liability) 15. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE to each and every alleged cause of action, these answering defendants allege that the Complaint and each alleged cause of action appearing therein fail to state facts, or to allege claims, which would impose joint and several ________________________________________________________________________________ 6 ANSWER TO COMPLAINT 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 liability for any of the damages claimed by any party against these answering defendants. Any liability of these answering defendants, which liability is expressly denied, would therefore be limited to those injuries, losses, or damages, if any there were, for which these answering defendants’ actionable conduct, if any, was a primary contributing factor. FOURTEENTH AFFIRMATIVE DEFENSE (No Joint/Several Damages) 16. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE to each and every alleged cause of action, these answering defendants are informed and believe and thereon allege that if plaintiff sustained any injuries or damages attributable to the use of or being present on these answering defendants’ property, which allegations are expressly denied, said injuries and damages were caused by and attributable to the misuse by plaintiff of these answering defendants’ property and by the unreasonable and improper use which was made of these answering defendants’ property. FIFTEENTH AFFIRMATIVE DEFENSE (Statute of Limitations) 17. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE to each and every alleged cause of action, these answering defendants allege that the causes of action stated in the Complaint herein are barred by the applicable statute(s) of limitations, including, but not limited to, Code of Civil Procedure §§ 335.1, 337; 337.1; 337.15; 337.2; 338; 339; 339.5; 340; 340.5; 340.6; 342; 343; 366.1; and 366.2. SIXTEENTH AFFIRMATIVE DEFENSE (Insufficient Knowledge) 18. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE to each and every alleged cause of action, these answering defendants presently have insufficient knowledge or information upon which to form a belief as to whether they may have additional, as yet unstated, affirmative defenses. These answering defendants reserve the right to raise additional affirmative defenses in the event discovery indicates it would be appropriate. /// /// ________________________________________________________________________________ 7 ANSWER TO COMPLAINT 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 WHEREFORE, these answering defendants pray that plaintiff take nothing by way of plaintiff’s Complaint, and that defendants go hence with defendants’ costs of suit, and for such other and further relief as the Court deems proper. Dated: August 9, 2021 LAW OFFICES OF JOHN A. BIARD _________________________________ Susan F. Leonard Attorneys for Defendants QUARRY PONDS TOWN CENTER, LP; ANTHONY L. CARDOSO, Individually; ANTHONY L. CARDOSO dba CAPITAL PACIFIC COMPANY; ANTHONY L. CARDOSO dba CAPITAL INVESTMENT TRUST ________________________________________________________________________________ 8 ANSWER TO COMPLAINT 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 I am employed in the County of Sacramento, State of California. I am over the age of 18 years and not a party to the above-captioned matter. My business address is 11070 White Rock Road, Suite 200 in Rancho Cordova, California 95670. On this date, I served the foregoing ANSWER TO COMPLAINT on the parties below by placing a true copy thereof in a sealed envelope and served same on the parties/counsel, addressed as follows: ATTORNEY FOR PLAINTIFF: Tim S. Spangler, Esq. DEMAS LAW GROUP 701 Howe Avenue, Suite A-1 Sacramento, CA 95825 Tel: 916-444-0100 Fax: 916-436-5027 EM: tss@demaslawgroup.com The following is the procedure in which service of this document was effected: __X__ (BY EMAIL SERVICE) Only by e-mailing the document(s) to the persons at the e-mail address(es) listed pursuant to California Rules of Court, Emergency Rule 12, which is in effect through 90 days after the Governor declares that the state of emergency related to the COVID-19 pandemic is lifted, or when amended or repealed by the counsel. No electronic message or other indication that the transmission was unsuccessful was received within a reasonable time after transmission. I, hereby declare, under penalty of perjury, under the laws of the State of California, that the foregoing is true and correct and this document was executed at Folsom, California on August 9, 2021. ________ A. O. KENNEDY
