Preview
1 LEWIS BRISBOIS BISGAARD & SMITH LLP
MATT D. ZUMSTEIN, SB# 201306
2 E-Mail: Matthew.Zumstein@lewisbrisbois.com
JESSICA WAHL, SB# 321887
3 Email: Jessica.Wahl@lewisbrisbois.com
2185 North California Boulevard, Suite 300
4 Walnut Creek, California 94596
Telephone: 925.357.3456
5 Facsimile: 925.478.3260
6 Attorneys for Defendants
GINO’S RESTAURANT, INC. AND
7 NGOCHAO THI NGUYEN
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF MONTEREY
11
12 LOUIS MONTANO, JR.; LOUIE Case No. 21CV003635
MONTANO III; and MICHAEL MONTANO,
13 DEFENDANTS GINO’S RESTAURANT,
Plaintiffs, INC. AND NGOCHAO THI NGUYEN’S
14 ANSWER TO PLAINTIFFS’
vs. COMPLAINT FOR DAMAGES;
15 NEGLIGENCE, PREMISES LIABILITY
CITY OF SALINAS; DEFENDANTS AND STATUTORY GOVERNMENT
16 RESTAURANT, INC.; DEFENDANTS FINE ENTITY LIABILITY
ITALIAN FOOD, INC.; BLFA PROPERTIES
17 LLC; NTN PROPERTIES LLC; NGOCHAO Action Filed: November 16, 2021
THI NGUYEN; RALPH BOZZO; ROSAURA Trial Date: None Set
18 ARCOS PANIAGUA; AUSTIN ALARCON;
and DOES 1-35,
19
Defendants.
20
21 Defendants GINO’S RESTAURANT, INC. and NGOCHAO THI NGUYEN
22 (hereinafter collectively referred to herein as “Defendants”) in answering the Plaintiffs’
23 Complaint, deny and allege as follows:
24 Under the provisions of Code of Civil Procedure § 431.30(d), Defendants deny, generally
25 and specifically, each allegation of the Complaint; Defendants further deny that Plaintiffs have
26 sustained damages resulting from any wrongful act or omission of Defendants or any of their
27 agents or employees.
28
LEWIS 4877-4038-2750.1 1
BRISBOIS DEFENDANTS GINOS RESTAURANT, INC. AND NGOCHAO THI NGUYEN’S ANSWER TO
BISGAARD
& SMITH LLP PLAINTIFFS’ COMPLAINT FOR DAMAGES; NEGLIGENCE, PREMISES LIABILITY AND
ATTORNEYS AT LAW STATUTORY GOVERNMENT ENTITY LIABILITY
1 FIRST SEPARATE AND AFFIRMATIVE DEFENSE
2 (Failure to State a Claim)
3 Plaintiffs’ Complaint and each and every claim contained therein is uncertain and fails to
4 state facts sufficient to state a claim upon which relief may be granted.
5 SECOND SEPARATE AND AFFIRMATIVE DEFENSE
6 (Failure to Mitigate Medical Damages Under the ACA)
7 To the extent that Plaintiffs have failed to take reasonable steps to protect Plaintiffs from
8 medical costs, health care, or life care costs, or to avail themselves of the resources, services,
9 benefits, and coverage available under the Affordable Care Act, the Plaintiffs have failed to
10 mitigate their damages and cannot recover for such failures.
11 THIRD SEPARATE AND AFFIRMATIVE DEFENSE
12 (Proximate Cause)
13 In the event that Defendants are in some manner found legally responsible for damages
14 allegedly sustained by Plaintiffs, and such damages were proximately caused or contributed to by
15 Plaintiffs and/or third parties, Defendants should be indemnified by Plaintiffs and/or such third
16 parties. This defense is alleged in the alternative and does not admit any of the allegations
17 contained in the Complaint.
18 FOURTH SEPARATE AND AFFIRMATIVE DEFENSE
19 (Contribution)
20 As a separate, distinct and affirmative defense to the claim on file herein and to each cause
21 of action thereof, Defendants allege that should they be found liable to Plaintiffs, which liability is
22 expressly denied, Defendants are entitled to have any reward against them abated, reduced, or
23 eliminated to the extent that the negligence, carelessness, fault, or defect caused by the remaining
24 parties in this action or by other persons, corporations, or business entities contributed to
25 Plaintiffs’ damages, if any.
26 FIFTH SEPARATE AND AFFIRMATIVE DEFENSE
27 (Failure to Mitigate Damages)
28 Defendants allege upon information and belief that Plaintiffs failed to act reasonably to
LEWIS 4877-4038-2750.1 2
BRISBOIS DEFENDANTS GINO’S RESTAURANT, INC. AND NGOCHAO THI NGUYEN’S ANSWER TO
BISGAARD
& SMITH LLP PLAINTIFFS’ COMPLAINT FOR DAMAGES; NEGLIGENCE, PREMISES LIABILITY AND
ATTORNEYS AT LAW STATUTORY GOVERNMENT ENTITY LIABILITY
1 mitigate any damages that they have alleged in this action, if any at all.
2 SIXTH SEPARATE AND AFFIRMATIVE DEFENSE
3 (Waiver)
4 Defendants are informed and believe and thereon allege that Plaintiffs have waived any
5 and all claims that they may have had or has against Defendants arising from the transactions and
6 occurrences contained in the Complaint.
7 SEVENTH SEPARATE AND AFFIRMATIVE DEFENSE
8 (Estoppel)
9 Defendants are informed and believe and thereon allege that Plaintiffs are estopped by
10 their own conduct and/or statements from asserting any and all claims they may have had or have
11 against Defendants arising from the transactions and occurrences contained in the Complaint,
12 including but not limited to judicial estoppel.
13 EIGHTH SEPARATE AND AFFIRMATIVE DEFENSE
14 (Doctrine of Laches)
15 Defendants are informed and believe and thereon allege that Plaintiffs’ Complaint is
16 barred, in its entirety, by the Doctrine of Laches.
17 NINTH SEPARATE AND AFFIRMATIVE DEFENSE
18 (Unclean Hands)
19 Defendants are informed and believe and thereon allege that Plaintiffs’ Complaint is
20 barred, in its entirety, by the Doctrine of Unclean Hands.
21 TENTH SEPARATE AND AFFIRMATIVE DEFENSE
22 (Contributory Negligence)
23 Defendants allege based upon information and belief that any and all events and
24 happenings, injuries and damages, if any, referred to in said Complaint, were proximately caused
25 and contributed to by the negligence and fault of Plaintiffs and/or others, in that Plaintiffs did not
26 exercise ordinary care on their own behalf at the times and places referred to, and therefore,
27 Plaintiffs are completely barred from recovery herein, or in the alternative, under the doctrine of
28 pure comparative negligence and fault, said acts of Plaintiffs reduce Plaintiffs right to recovery
LEWIS 4877-4038-2750.1 3
BRISBOIS DEFENDANTS GINO’S RESTAURANT, INC. AND NGOCHAO THI NGUYEN’S ANSWER TO
BISGAARD
& SMITH LLP PLAINTIFFS’ COMPLAINT FOR DAMAGES; NEGLIGENCE, PREMISES LIABILITY AND
ATTORNEYS AT LAW STATUTORY GOVERNMENT ENTITY LIABILITY
1 herein by the amount which such acts contributed to said incidents.
2 ELEVENTH SEPARATE AND AFFIRMATIVE DEFENSE
3 (Assumption of Risk)
4 Defendants allege that based upon information and belief that Plaintiffs freely and
5 voluntarily assumed the risk of injury and damage alleged in this action with full knowledge and
6 appreciation of the magnitude thereof.
7 TWELFTH SEPARATE AND AFFIRMATIVE DEFENSE
8 (Statute of Limitations)
9 Plaintiffs’ Complaint on file herein, and the whole thereof, including each and every
10 purported cause of action contained therein, is barred by the running of the statute of limitations as
11 set forth in the applicable Code of Civil Procedure § 335.1.
12 THIRTEENTH SEPARATE AND AFFIRMATIVE DEFENSE
13 (Proposition 51)
14 Defendants are informed and believe and therefore presently contend that they are entitled
15 to the benefits, defenses, rights, immunities, protections, and privileges provided under The Fair
16 Responsibility Act of 1986, as set forth in California Civil Code §§ 1431.1, 1431.2 et seq.
17 FOURTEENTH SEPARATE AND AFFIRMATIVE DEFENSE
18 (Offset)
19 As a separate, distinct, and affirmative defense to the claim on file herein and to each cause
20 of action thereof, Defendants allege that should Plaintiffs recover damages against any
21 Defendants, they are entitled to have the amount abated, reduced or eliminated to the extent the
22 other third parties’ fault caused or contributed to Plaintiffs damages, if any. This includes but is
23 not limited to reductions by any benefits or payments made or to be made to Plaintiffs by any
24 workers’ compensation carrier. See Witt v. Jackson, (1961) 57 Cal.2d 57.
25 FIFTEENTH SEPARATE AND AFFIRMATIVE DEFENSE
26 (Negligence of Others)
27 Defendants specifically deny that any negligence on their part contributed to or was a
28 proximate cause of any injuries or damages sustained by Plaintiffs. But, in the event it is found
LEWIS 4877-4038-2750.1 4
BRISBOIS DEFENDANTS GINO’S RESTAURANT, INC. AND NGOCHAO THI NGUYEN’S ANSWER TO
BISGAARD
& SMITH LLP PLAINTIFFS’ COMPLAINT FOR DAMAGES; NEGLIGENCE, PREMISES LIABILITY AND
ATTORNEYS AT LAW STATUTORY GOVERNMENT ENTITY LIABILITY
1 that Defendants were negligent in any manner or degree, Defendants allege upon information and
2 belief that certain co-Defendants may be negligent to a certain degree for the injuries or damages,
3 if any, sustained by Plaintiffs and further alleges upon information and belief that there may be
4 persons or parties not named in this action who likewise may have contributed to a certain degree
5 to the injuries alleged to have been sustained by Plaintiffs; whereby Defendants contends that in
6 the event there is found to be fault on the part of Defendants which in any manner or degree
7 contributed to the injuries of the Plaintiffs, that a finding should be made apportioning and fixing
8 the comparative fault of any and all parties or persons whether named to this action or otherwise.
9 SIXTEENTH SEPARATE AND AFFIRMATIVE DEFENSE
10 (Open and Obvious Dangers)
11 As a separate, distinct, and affirmative defense to the claim on file herein and to each cause
12 of action thereof, Defendants allege that Plaintiffs’ Complaint and each count thereof may be
13 barred, in whole or in part, to the extent that the alleged dangers were open and obvious.
14 SEVENTEENTH SEPARATE AND AFFIRMATIVE DEFENSE
15 (Superseding or Intervening Cause or Omission)
16 As a separate, distinct and affirmative defense to the claim on file herein and to each cause
17 of action thereof, Defendants allege that Plaintiffs’ Complaint, and each count thereof may be
18 barred, in whole or in part, because the alleged injuries or damages complained of by Plaintiffs, if
19 any, were caused by the superseding acts, intervening acts, or omissions, or any combination
20 thereof, of Plaintiffs and/or third parties, for which Defendants are neither responsible, or liable.
21 EIGHTEENTH SEPARATE AND AFFIRMATIVE DEFENSE
22 (Causation)
23 As a separate, distinct, and affirmative defense to the claim on file herein and to each cause
24 of action thereof, Defendants allege that their conduct was not the cause in fact nor the proximate
25 cause of any injury, loss, or damage alleged by Plaintiffs.
26 NINETEENTH SEPARATE AND AFFIRMATIVE DEFENSE
27 (Standing)
28 As a separate, distinct, and affirmative defense to the claim on file herein and to each cause
LEWIS 4877-4038-2750.1 5
BRISBOIS DEFENDANTS GINO’S RESTAURANT, INC. AND NGOCHAO THI NGUYEN’S ANSWER TO
BISGAARD
& SMITH LLP PLAINTIFFS’ COMPLAINT FOR DAMAGES; NEGLIGENCE, PREMISES LIABILITY AND
ATTORNEYS AT LAW STATUTORY GOVERNMENT ENTITY LIABILITY
1 of action thereof, Defendants allege that Plaintiffs lack standing to assert claims set forth in
2 Plaintiffs’ Complaint.
3 TWENTIETH SEPARATE AND AFFIRMATIVE DEFENSE
4 (Section 846 is Not Applicable)
5 As a separate, distinct, and affirmative defense to the claim on file herein and to each cause
6 of action thereof, Defendants allege that Plaintiffs are barred from recovery of any damages from
7 Defendants on the grounds that Plaintiffs cannot establish any of the predicate facts to establish the
8 applicability of Civil Code Section 846 to this accident.
9 TWENTY-FIRST SEPARATE AND AFFIRMATIVE DEFENSE
10 (No Non-Economic Damages)
11 As a separate, distinct, and affirmative defense to the claim on file herein and to each cause
12 of action thereof, Defendants allege that Plaintiffs are barred from obtaining compensation for
13 non-economic losses to compensate for pain, suffering, inconvenience, physical impairment,
14 disfigurement, and other nonpecuniary damages by virtue of the limitation set forth in Civil Code
15 section 3333.4.
16 TWENTY-SECOND SEPARATE AND AFFIRMATIVE DEFENSE
17 (Trivial Defect)
18 Defendants allege that the alleged dangerous or defective condition as described in the
19 Complaint was trivial in nature, and as such bars any recovery in this action or diminishes
20 Plaintiffs’ recovery to the extent that Plaintiffs’ loss, damage, or injury is attributable to the
21 existence of the alleged dangerous or defective condition. Accordingly, Defendants’ duty does not
22 extend to remedying or warning against minor or trivial defects.
23 TWENTY-THIRD SEPARATE AND AFFIRMATIVE DEFENSE
24 (Preventative Measures)
25 Defendants allege that their employees, and agents took all necessary and reasonable
26 actions to protect Plaintiffs from the risk of injury allegedly created by the purported dangerous
27 condition alleged in the Complaint.
28 ///
LEWIS 4877-4038-2750.1 6
BRISBOIS DEFENDANTS GINO’S RESTAURANT, INC. AND NGOCHAO THI NGUYEN’S ANSWER TO
BISGAARD
& SMITH LLP PLAINTIFFS’ COMPLAINT FOR DAMAGES; NEGLIGENCE, PREMISES LIABILITY AND
ATTORNEYS AT LAW STATUTORY GOVERNMENT ENTITY LIABILITY
1 TWENTY-FOURTH SEPARATE AND AFFIRMATIVE DEFENSE
2 (Knowledge of Potential Hazard)
3 Plaintiffs knew, or should have known, that the circumstances described in the Complaint
4 posed potential hazards and risks. In the event Plaintiffs are entitled to recovery of any damages,
5 the amount of those damages should be barred or reduced as a result of the Plaintiffs’ failure to act
6 accordingly notwithstanding this knowledge.
7 TWENTY-FIFTH SEPARATE AND AFFIRMATIVE DEFENSE
8 (Failure to Exhaust Remedies)
9 As a separate, distinct, and affirmative defense to the claim on file herein and to each cause
10 of action thereof, Defendants allege that Plaintiffs are barred from recovery of any damages from
11 Defendants on the grounds that as an affirmative defense to each cause of action of the complaint,
12 the complaint is barred because Plaintiffs failed to exhaust her administrative and/or contractual
13 remedies.
14 TWENTY-SIXTH SEPARATE AND AFFIRMATIVE DEFENSE
15 (Reservation of Rights)
16 Defendant reserves the right to assert additional affirmative defenses at such time and to
17 such extent as warranted by discovery and factual developments in the case.
18 WHEREFORE, Defendant pray as follows:
19 1. Plaintiffs take nothing by the Complaint;
20 2. Judgment be rendered in favor of Defendants;
21 3. Defendants be awarded costs of suit;
22 4. Defendants be awarded attorney’s fees in the defense of this action; and
23 5. Defendants be awarded whatever further relief the Court deems just and proper.
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LEWIS 4877-4038-2750.1 7
BRISBOIS DEFENDANTS GINO’S RESTAURANT, INC. AND NGOCHAO THI NGUYEN’S ANSWER TO
BISGAARD
& SMITH LLP PLAINTIFFS’ COMPLAINT FOR DAMAGES; NEGLIGENCE, PREMISES LIABILITY AND
ATTORNEYS AT LAW STATUTORY GOVERNMENT ENTITY LIABILITY
1 DATED: May 4, 2022 LEWIS BRISBOIS BISGAARD & SMITH LLP
2
By:
3
MATTHEW ZUMSTEIN
4 JESSICA WAHL
Attorneys for Defendants GINO’S
5 RESTAURANT, INC. and NGOCHAO THI
NGUYEN
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LEWIS 4877-4038-2750.1 8
BRISBOIS DEFENDANTS GINO’S RESTAURANT, INC. AND NGOCHAO THI NGUYEN’S ANSWER TO
BISGAARD
& SMITH LLP PLAINTIFFS’ COMPLAINT FOR DAMAGES; NEGLIGENCE, PREMISES LIABILITY AND
ATTORNEYS AT LAW STATUTORY GOVERNMENT ENTITY LIABILITY
1 CALIFORNIA STATE COURT PROOF OF SERVICE
Louis Montano, Jr., et al. v. City of Salinas, et al.
2 Monterey County Superior Court Case No. 21CV003635
3 STATE OF CALIFORNIA, COUNTY OF CONTRA COSTA
4 At the time of service, I was over 18 years of age and not a party to this action. My
business address is 2185 North California Boulevard, Suite 300, Walnut Creek, CA 94596.
5
On May 4, 2022, I served true copies of the following document(s): DEFENDANTS
6 GINOS RESTAURANT, INC. AND NGOCHAO THI NGUYEN’S ANSWER TO
PLAINTIFFS’ COMPLAINT FOR DAMAGES; NEGLIGENCE, PREMISES LIABILITY
7 AND STATUTORY GOVERNMENT ENTITY LIABILITY
8 I served the documents on the following persons at the following addresses (including fax
numbers and e-mail addresses, if applicable):
9
SEE ATTACHED SERVICE LIST
10
The documents were served by the following means:
11
(BY E-MAIL OR ELECTRONIC TRANSMISSION) Based on a court order or an
12 agreement of the parties to accept service by e-mail or electronic transmission, I caused the
documents to be sent from e-mail address Nicole.Tavis@lewisbrisbois.com to the persons
13 at the e-mail addresses listed above. I did not receive, within a reasonable time after the
transmission, any electronic message or other indication that the transmission was
14 unsuccessful.
15 I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
16
Executed on May 4, 2022, at Walnut Creek, California.
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19 Nicole Tavis
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LEWIS
BRISBOIS
BISGAARD
& SMITH LLP
4877-4038-2750.1 1
ATTORNEYS AT LAW PROOF OF SERVICE
1 SERVICE LIST
Louis Montano, Jr., et al. v. City of Salinas, et al.
2 Monterey County Superior Court Case No. 21CV003635
3 Sergio Cardenas, Esq. Attorneys for Plaintiffs
GREENBERG AND RUBY LOUIS MONTANO, JR., LOUIE MONTANO
4 6100 Wilshire Boulevard, Suite 1170 III, AND MICHAEL MONTANO
Los Angeles, CA 90048
5 Tel:323.782.0535
Fax:323.782.0543
6 Email: scardenas@caltrialpros.com
7
Richard C. Alpers Attorneys for Plaintiffs
8 ALBERS LAW GROUP, INC. LOUIS MONTANO, JR., LOUIE MONTANO
PO Box 1540 III, AND MICHAEL MONTANO
9 Aptos, CA 95001
Tel: 855.808.1174
10 Fax: 855.870.1129
Email: rca@alperslawgroup.com
11 clerk@alperslawgroup.com
12 Christopher A. Callihan, Esq. Attorneys for Defendant
CITY OF SALINAS, OFFICE OF THE CITY CITY OF SALINAS
13 ATTORNEY
200 Lincoln Avenue Tel: (831) 758-7073 (direct)
14 Salinas, CA 93901-2639 Fax: (831) 758-7257
Email: chrisc@ci.salinas.ca.us
15
William R. Price, Esq. Co Counsel for Defendant
16 Lisa Shaw, Paralegal CITY OF SALINAS
LAW OFFICES OF WILLIAM R. PRICE
17 12636 High Bluff Dr., Suite 400 Tel: (858) 888-0588
San Diego, CA 92130 Emails: wprice@williamrprice.com;
18 lshaw@williamrprice.com
19 James J. Cook, Esq. Attorneys for Defendants
HORAN | LLOYD, APC. RALPH BOZZO; BLFA PROPERTIES, LLC;
20 26385 Carmel Rancho Blvd., Suite 200 AND GINO'S FINE ITALIAN FOOD, INC.
Carmel, CA 93923
21 Tel: (831) 373-4131
Fax: (831) 373-8302
22 Email: jcook@horanlegal.com
23 Rodney N. Mayr, Esq. Attorneys for Defendants
MAYR LAW FIRM AUSTIN ALARCON AND ROSAURA
24 1010 W. Taylor St. ARCOS PANIAGUA
San Jose, CA 95126
25 Tel: (408) 331-7606
Fax: (669) 266-5612
26 Email: rodney@mayrlawfirm.com
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LEWIS
BRISBOIS
BISGAARD
& SMITH LLP
4877-4038-2750.1 1
ATTORNEYS AT LAW SERVICE LIST
Preview
1 LEWIS BRISBOIS BISGAARD & SMITH LLP MATT D. ZUMSTEIN, SB# 201306 2 E-Mail: Matthew.Zumstein@lewisbrisbois.com JESSICA WAHL, SB# 321887 3 Email: Jessica.Wahl@lewisbrisbois.com 2185 North California Boulevard, Suite 300 4 Walnut Creek, California 94596 Telephone: 925.357.3456 5 Facsimile: 925.478.3260 6 Attorneys for Defendants GINO’S RESTAURANT, INC. AND 7 NGOCHAO THI NGUYEN 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF MONTEREY 11 12 LOUIS MONTANO, JR.; LOUIE Case No. 21CV003635 MONTANO III; and MICHAEL MONTANO, 13 DEFENDANTS GINO’S RESTAURANT, Plaintiffs, INC. AND NGOCHAO THI NGUYEN’S 14 ANSWER TO PLAINTIFFS’ vs. COMPLAINT FOR DAMAGES; 15 NEGLIGENCE, PREMISES LIABILITY CITY OF SALINAS; DEFENDANTS AND STATUTORY GOVERNMENT 16 RESTAURANT, INC.; DEFENDANTS FINE ENTITY LIABILITY ITALIAN FOOD, INC.; BLFA PROPERTIES 17 LLC; NTN PROPERTIES LLC; NGOCHAO Action Filed: November 16, 2021 THI NGUYEN; RALPH BOZZO; ROSAURA Trial Date: None Set 18 ARCOS PANIAGUA; AUSTIN ALARCON; and DOES 1-35, 19 Defendants. 20 21 Defendants GINO’S RESTAURANT, INC. and NGOCHAO THI NGUYEN 22 (hereinafter collectively referred to herein as “Defendants”) in answering the Plaintiffs’ 23 Complaint, deny and allege as follows: 24 Under the provisions of Code of Civil Procedure § 431.30(d), Defendants deny, generally 25 and specifically, each allegation of the Complaint; Defendants further deny that Plaintiffs have 26 sustained damages resulting from any wrongful act or omission of Defendants or any of their 27 agents or employees. 28 LEWIS 4877-4038-2750.1 1 BRISBOIS DEFENDANTS GINOS RESTAURANT, INC. AND NGOCHAO THI NGUYEN’S ANSWER TO BISGAARD & SMITH LLP PLAINTIFFS’ COMPLAINT FOR DAMAGES; NEGLIGENCE, PREMISES LIABILITY AND ATTORNEYS AT LAW STATUTORY GOVERNMENT ENTITY LIABILITY 1 FIRST SEPARATE AND AFFIRMATIVE DEFENSE 2 (Failure to State a Claim) 3 Plaintiffs’ Complaint and each and every claim contained therein is uncertain and fails to 4 state facts sufficient to state a claim upon which relief may be granted. 5 SECOND SEPARATE AND AFFIRMATIVE DEFENSE 6 (Failure to Mitigate Medical Damages Under the ACA) 7 To the extent that Plaintiffs have failed to take reasonable steps to protect Plaintiffs from 8 medical costs, health care, or life care costs, or to avail themselves of the resources, services, 9 benefits, and coverage available under the Affordable Care Act, the Plaintiffs have failed to 10 mitigate their damages and cannot recover for such failures. 11 THIRD SEPARATE AND AFFIRMATIVE DEFENSE 12 (Proximate Cause) 13 In the event that Defendants are in some manner found legally responsible for damages 14 allegedly sustained by Plaintiffs, and such damages were proximately caused or contributed to by 15 Plaintiffs and/or third parties, Defendants should be indemnified by Plaintiffs and/or such third 16 parties. This defense is alleged in the alternative and does not admit any of the allegations 17 contained in the Complaint. 18 FOURTH SEPARATE AND AFFIRMATIVE DEFENSE 19 (Contribution) 20 As a separate, distinct and affirmative defense to the claim on file herein and to each cause 21 of action thereof, Defendants allege that should they be found liable to Plaintiffs, which liability is 22 expressly denied, Defendants are entitled to have any reward against them abated, reduced, or 23 eliminated to the extent that the negligence, carelessness, fault, or defect caused by the remaining 24 parties in this action or by other persons, corporations, or business entities contributed to 25 Plaintiffs’ damages, if any. 26 FIFTH SEPARATE AND AFFIRMATIVE DEFENSE 27 (Failure to Mitigate Damages) 28 Defendants allege upon information and belief that Plaintiffs failed to act reasonably to LEWIS 4877-4038-2750.1 2 BRISBOIS DEFENDANTS GINO’S RESTAURANT, INC. AND NGOCHAO THI NGUYEN’S ANSWER TO BISGAARD & SMITH LLP PLAINTIFFS’ COMPLAINT FOR DAMAGES; NEGLIGENCE, PREMISES LIABILITY AND ATTORNEYS AT LAW STATUTORY GOVERNMENT ENTITY LIABILITY 1 mitigate any damages that they have alleged in this action, if any at all. 2 SIXTH SEPARATE AND AFFIRMATIVE DEFENSE 3 (Waiver) 4 Defendants are informed and believe and thereon allege that Plaintiffs have waived any 5 and all claims that they may have had or has against Defendants arising from the transactions and 6 occurrences contained in the Complaint. 7 SEVENTH SEPARATE AND AFFIRMATIVE DEFENSE 8 (Estoppel) 9 Defendants are informed and believe and thereon allege that Plaintiffs are estopped by 10 their own conduct and/or statements from asserting any and all claims they may have had or have 11 against Defendants arising from the transactions and occurrences contained in the Complaint, 12 including but not limited to judicial estoppel. 13 EIGHTH SEPARATE AND AFFIRMATIVE DEFENSE 14 (Doctrine of Laches) 15 Defendants are informed and believe and thereon allege that Plaintiffs’ Complaint is 16 barred, in its entirety, by the Doctrine of Laches. 17 NINTH SEPARATE AND AFFIRMATIVE DEFENSE 18 (Unclean Hands) 19 Defendants are informed and believe and thereon allege that Plaintiffs’ Complaint is 20 barred, in its entirety, by the Doctrine of Unclean Hands. 21 TENTH SEPARATE AND AFFIRMATIVE DEFENSE 22 (Contributory Negligence) 23 Defendants allege based upon information and belief that any and all events and 24 happenings, injuries and damages, if any, referred to in said Complaint, were proximately caused 25 and contributed to by the negligence and fault of Plaintiffs and/or others, in that Plaintiffs did not 26 exercise ordinary care on their own behalf at the times and places referred to, and therefore, 27 Plaintiffs are completely barred from recovery herein, or in the alternative, under the doctrine of 28 pure comparative negligence and fault, said acts of Plaintiffs reduce Plaintiffs right to recovery LEWIS 4877-4038-2750.1 3 BRISBOIS DEFENDANTS GINO’S RESTAURANT, INC. AND NGOCHAO THI NGUYEN’S ANSWER TO BISGAARD & SMITH LLP PLAINTIFFS’ COMPLAINT FOR DAMAGES; NEGLIGENCE, PREMISES LIABILITY AND ATTORNEYS AT LAW STATUTORY GOVERNMENT ENTITY LIABILITY 1 herein by the amount which such acts contributed to said incidents. 2 ELEVENTH SEPARATE AND AFFIRMATIVE DEFENSE 3 (Assumption of Risk) 4 Defendants allege that based upon information and belief that Plaintiffs freely and 5 voluntarily assumed the risk of injury and damage alleged in this action with full knowledge and 6 appreciation of the magnitude thereof. 7 TWELFTH SEPARATE AND AFFIRMATIVE DEFENSE 8 (Statute of Limitations) 9 Plaintiffs’ Complaint on file herein, and the whole thereof, including each and every 10 purported cause of action contained therein, is barred by the running of the statute of limitations as 11 set forth in the applicable Code of Civil Procedure § 335.1. 12 THIRTEENTH SEPARATE AND AFFIRMATIVE DEFENSE 13 (Proposition 51) 14 Defendants are informed and believe and therefore presently contend that they are entitled 15 to the benefits, defenses, rights, immunities, protections, and privileges provided under The Fair 16 Responsibility Act of 1986, as set forth in California Civil Code §§ 1431.1, 1431.2 et seq. 17 FOURTEENTH SEPARATE AND AFFIRMATIVE DEFENSE 18 (Offset) 19 As a separate, distinct, and affirmative defense to the claim on file herein and to each cause 20 of action thereof, Defendants allege that should Plaintiffs recover damages against any 21 Defendants, they are entitled to have the amount abated, reduced or eliminated to the extent the 22 other third parties’ fault caused or contributed to Plaintiffs damages, if any. This includes but is 23 not limited to reductions by any benefits or payments made or to be made to Plaintiffs by any 24 workers’ compensation carrier. See Witt v. Jackson, (1961) 57 Cal.2d 57. 25 FIFTEENTH SEPARATE AND AFFIRMATIVE DEFENSE 26 (Negligence of Others) 27 Defendants specifically deny that any negligence on their part contributed to or was a 28 proximate cause of any injuries or damages sustained by Plaintiffs. But, in the event it is found LEWIS 4877-4038-2750.1 4 BRISBOIS DEFENDANTS GINO’S RESTAURANT, INC. AND NGOCHAO THI NGUYEN’S ANSWER TO BISGAARD & SMITH LLP PLAINTIFFS’ COMPLAINT FOR DAMAGES; NEGLIGENCE, PREMISES LIABILITY AND ATTORNEYS AT LAW STATUTORY GOVERNMENT ENTITY LIABILITY 1 that Defendants were negligent in any manner or degree, Defendants allege upon information and 2 belief that certain co-Defendants may be negligent to a certain degree for the injuries or damages, 3 if any, sustained by Plaintiffs and further alleges upon information and belief that there may be 4 persons or parties not named in this action who likewise may have contributed to a certain degree 5 to the injuries alleged to have been sustained by Plaintiffs; whereby Defendants contends that in 6 the event there is found to be fault on the part of Defendants which in any manner or degree 7 contributed to the injuries of the Plaintiffs, that a finding should be made apportioning and fixing 8 the comparative fault of any and all parties or persons whether named to this action or otherwise. 9 SIXTEENTH SEPARATE AND AFFIRMATIVE DEFENSE 10 (Open and Obvious Dangers) 11 As a separate, distinct, and affirmative defense to the claim on file herein and to each cause 12 of action thereof, Defendants allege that Plaintiffs’ Complaint and each count thereof may be 13 barred, in whole or in part, to the extent that the alleged dangers were open and obvious. 14 SEVENTEENTH SEPARATE AND AFFIRMATIVE DEFENSE 15 (Superseding or Intervening Cause or Omission) 16 As a separate, distinct and affirmative defense to the claim on file herein and to each cause 17 of action thereof, Defendants allege that Plaintiffs’ Complaint, and each count thereof may be 18 barred, in whole or in part, because the alleged injuries or damages complained of by Plaintiffs, if 19 any, were caused by the superseding acts, intervening acts, or omissions, or any combination 20 thereof, of Plaintiffs and/or third parties, for which Defendants are neither responsible, or liable. 21 EIGHTEENTH SEPARATE AND AFFIRMATIVE DEFENSE 22 (Causation) 23 As a separate, distinct, and affirmative defense to the claim on file herein and to each cause 24 of action thereof, Defendants allege that their conduct was not the cause in fact nor the proximate 25 cause of any injury, loss, or damage alleged by Plaintiffs. 26 NINETEENTH SEPARATE AND AFFIRMATIVE DEFENSE 27 (Standing) 28 As a separate, distinct, and affirmative defense to the claim on file herein and to each cause LEWIS 4877-4038-2750.1 5 BRISBOIS DEFENDANTS GINO’S RESTAURANT, INC. AND NGOCHAO THI NGUYEN’S ANSWER TO BISGAARD & SMITH LLP PLAINTIFFS’ COMPLAINT FOR DAMAGES; NEGLIGENCE, PREMISES LIABILITY AND ATTORNEYS AT LAW STATUTORY GOVERNMENT ENTITY LIABILITY 1 of action thereof, Defendants allege that Plaintiffs lack standing to assert claims set forth in 2 Plaintiffs’ Complaint. 3 TWENTIETH SEPARATE AND AFFIRMATIVE DEFENSE 4 (Section 846 is Not Applicable) 5 As a separate, distinct, and affirmative defense to the claim on file herein and to each cause 6 of action thereof, Defendants allege that Plaintiffs are barred from recovery of any damages from 7 Defendants on the grounds that Plaintiffs cannot establish any of the predicate facts to establish the 8 applicability of Civil Code Section 846 to this accident. 9 TWENTY-FIRST SEPARATE AND AFFIRMATIVE DEFENSE 10 (No Non-Economic Damages) 11 As a separate, distinct, and affirmative defense to the claim on file herein and to each cause 12 of action thereof, Defendants allege that Plaintiffs are barred from obtaining compensation for 13 non-economic losses to compensate for pain, suffering, inconvenience, physical impairment, 14 disfigurement, and other nonpecuniary damages by virtue of the limitation set forth in Civil Code 15 section 3333.4. 16 TWENTY-SECOND SEPARATE AND AFFIRMATIVE DEFENSE 17 (Trivial Defect) 18 Defendants allege that the alleged dangerous or defective condition as described in the 19 Complaint was trivial in nature, and as such bars any recovery in this action or diminishes 20 Plaintiffs’ recovery to the extent that Plaintiffs’ loss, damage, or injury is attributable to the 21 existence of the alleged dangerous or defective condition. Accordingly, Defendants’ duty does not 22 extend to remedying or warning against minor or trivial defects. 23 TWENTY-THIRD SEPARATE AND AFFIRMATIVE DEFENSE 24 (Preventative Measures) 25 Defendants allege that their employees, and agents took all necessary and reasonable 26 actions to protect Plaintiffs from the risk of injury allegedly created by the purported dangerous 27 condition alleged in the Complaint. 28 /// LEWIS 4877-4038-2750.1 6 BRISBOIS DEFENDANTS GINO’S RESTAURANT, INC. AND NGOCHAO THI NGUYEN’S ANSWER TO BISGAARD & SMITH LLP PLAINTIFFS’ COMPLAINT FOR DAMAGES; NEGLIGENCE, PREMISES LIABILITY AND ATTORNEYS AT LAW STATUTORY GOVERNMENT ENTITY LIABILITY 1 TWENTY-FOURTH SEPARATE AND AFFIRMATIVE DEFENSE 2 (Knowledge of Potential Hazard) 3 Plaintiffs knew, or should have known, that the circumstances described in the Complaint 4 posed potential hazards and risks. In the event Plaintiffs are entitled to recovery of any damages, 5 the amount of those damages should be barred or reduced as a result of the Plaintiffs’ failure to act 6 accordingly notwithstanding this knowledge. 7 TWENTY-FIFTH SEPARATE AND AFFIRMATIVE DEFENSE 8 (Failure to Exhaust Remedies) 9 As a separate, distinct, and affirmative defense to the claim on file herein and to each cause 10 of action thereof, Defendants allege that Plaintiffs are barred from recovery of any damages from 11 Defendants on the grounds that as an affirmative defense to each cause of action of the complaint, 12 the complaint is barred because Plaintiffs failed to exhaust her administrative and/or contractual 13 remedies. 14 TWENTY-SIXTH SEPARATE AND AFFIRMATIVE DEFENSE 15 (Reservation of Rights) 16 Defendant reserves the right to assert additional affirmative defenses at such time and to 17 such extent as warranted by discovery and factual developments in the case. 18 WHEREFORE, Defendant pray as follows: 19 1. Plaintiffs take nothing by the Complaint; 20 2. Judgment be rendered in favor of Defendants; 21 3. Defendants be awarded costs of suit; 22 4. Defendants be awarded attorney’s fees in the defense of this action; and 23 5. Defendants be awarded whatever further relief the Court deems just and proper. 24 25 26 27 28 LEWIS 4877-4038-2750.1 7 BRISBOIS DEFENDANTS GINO’S RESTAURANT, INC. AND NGOCHAO THI NGUYEN’S ANSWER TO BISGAARD & SMITH LLP PLAINTIFFS’ COMPLAINT FOR DAMAGES; NEGLIGENCE, PREMISES LIABILITY AND ATTORNEYS AT LAW STATUTORY GOVERNMENT ENTITY LIABILITY 1 DATED: May 4, 2022 LEWIS BRISBOIS BISGAARD & SMITH LLP 2 By: 3 MATTHEW ZUMSTEIN 4 JESSICA WAHL Attorneys for Defendants GINO’S 5 RESTAURANT, INC. and NGOCHAO THI NGUYEN 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LEWIS 4877-4038-2750.1 8 BRISBOIS DEFENDANTS GINO’S RESTAURANT, INC. AND NGOCHAO THI NGUYEN’S ANSWER TO BISGAARD & SMITH LLP PLAINTIFFS’ COMPLAINT FOR DAMAGES; NEGLIGENCE, PREMISES LIABILITY AND ATTORNEYS AT LAW STATUTORY GOVERNMENT ENTITY LIABILITY 1 CALIFORNIA STATE COURT PROOF OF SERVICE Louis Montano, Jr., et al. v. City of Salinas, et al. 2 Monterey County Superior Court Case No. 21CV003635 3 STATE OF CALIFORNIA, COUNTY OF CONTRA COSTA 4 At the time of service, I was over 18 years of age and not a party to this action. My business address is 2185 North California Boulevard, Suite 300, Walnut Creek, CA 94596. 5 On May 4, 2022, I served true copies of the following document(s): DEFENDANTS 6 GINOS RESTAURANT, INC. AND NGOCHAO THI NGUYEN’S ANSWER TO PLAINTIFFS’ COMPLAINT FOR DAMAGES; NEGLIGENCE, PREMISES LIABILITY 7 AND STATUTORY GOVERNMENT ENTITY LIABILITY 8 I served the documents on the following persons at the following addresses (including fax numbers and e-mail addresses, if applicable): 9 SEE ATTACHED SERVICE LIST 10 The documents were served by the following means: 11 (BY E-MAIL OR ELECTRONIC TRANSMISSION) Based on a court order or an 12 agreement of the parties to accept service by e-mail or electronic transmission, I caused the documents to be sent from e-mail address Nicole.Tavis@lewisbrisbois.com to the persons 13 at the e-mail addresses listed above. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was 14 unsuccessful. 15 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 16 Executed on May 4, 2022, at Walnut Creek, California. 17 18 19 Nicole Tavis 20 21 22 23 24 25 26 27 28 LEWIS BRISBOIS BISGAARD & SMITH LLP 4877-4038-2750.1 1 ATTORNEYS AT LAW PROOF OF SERVICE 1 SERVICE LIST Louis Montano, Jr., et al. v. City of Salinas, et al. 2 Monterey County Superior Court Case No. 21CV003635 3 Sergio Cardenas, Esq. Attorneys for Plaintiffs GREENBERG AND RUBY LOUIS MONTANO, JR., LOUIE MONTANO 4 6100 Wilshire Boulevard, Suite 1170 III, AND MICHAEL MONTANO Los Angeles, CA 90048 5 Tel:323.782.0535 Fax:323.782.0543 6 Email: scardenas@caltrialpros.com 7 Richard C. Alpers Attorneys for Plaintiffs 8 ALBERS LAW GROUP, INC. LOUIS MONTANO, JR., LOUIE MONTANO PO Box 1540 III, AND MICHAEL MONTANO 9 Aptos, CA 95001 Tel: 855.808.1174 10 Fax: 855.870.1129 Email: rca@alperslawgroup.com 11 clerk@alperslawgroup.com 12 Christopher A. Callihan, Esq. Attorneys for Defendant CITY OF SALINAS, OFFICE OF THE CITY CITY OF SALINAS 13 ATTORNEY 200 Lincoln Avenue Tel: (831) 758-7073 (direct) 14 Salinas, CA 93901-2639 Fax: (831) 758-7257 Email: chrisc@ci.salinas.ca.us 15 William R. Price, Esq. Co Counsel for Defendant 16 Lisa Shaw, Paralegal CITY OF SALINAS LAW OFFICES OF WILLIAM R. PRICE 17 12636 High Bluff Dr., Suite 400 Tel: (858) 888-0588 San Diego, CA 92130 Emails: wprice@williamrprice.com; 18 lshaw@williamrprice.com 19 James J. Cook, Esq. Attorneys for Defendants HORAN | LLOYD, APC. RALPH BOZZO; BLFA PROPERTIES, LLC; 20 26385 Carmel Rancho Blvd., Suite 200 AND GINO'S FINE ITALIAN FOOD, INC. Carmel, CA 93923 21 Tel: (831) 373-4131 Fax: (831) 373-8302 22 Email: jcook@horanlegal.com 23 Rodney N. Mayr, Esq. Attorneys for Defendants MAYR LAW FIRM AUSTIN ALARCON AND ROSAURA 24 1010 W. Taylor St. ARCOS PANIAGUA San Jose, CA 95126 25 Tel: (408) 331-7606 Fax: (669) 266-5612 26 Email: rodney@mayrlawfirm.com 27 28 LEWIS BRISBOIS BISGAARD & SMITH LLP 4877-4038-2750.1 1 ATTORNEYS AT LAW SERVICE LIST