Preview
1 BREMER WHYTE BROWN & O’MEARA LLP
Raymond Meyer Jr., State Bar No. 176235
2 rmeyer@bremerwhyte.com
Rikus R. Locati, State Bar No. 314901 ELECTRONICALLY
3 300 Frank H. Ogawa Plaza, Suite 355 FILED
Oakland, CA 94612 Superior Court of California,
4 Telephone: (510) 540-4881 County of San Francisco
Facsimile: (510) 540-4889 12/01/2020
5 Clerk of the Court
Attorneys for Defendants, BY: EDWARD SANTOS
6 CAL PACIFIC CONSTRUCTION, INC. and CARMEN Deputy Clerk
BORROMEO
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SAN FRANCISCO
10
11 MARY DIESCH, ) Case No. CGC-20-585978
)
12 Plaintiff, ) Judge: Hon. Samuel K. Feng
) Dept: 610
13 vs. )
) CARMEN BORROMEO’S ANSWER TO
14 CAL-PACIFIC CONSTRUCTION, INC., ) PLAINTIFF’S COMPLAINT
CARMEN BORROMEO, and DOES 1 through )
15 20, inclusive, ) Complaint Filed: August 14, 2020
)
16 Defendants. )
)
17
18 COMES NOW Defendant, CARMEN BORROMEO, and answers Plaintiff, MARY
19 DIESCH’s Complaint herein and admits, denies, and alleges as follows:
20 1. Answering Plaintiff’s unverified Complaint herein, and by virtue of the provisions
21 of Code of Civil Procedure § 431.30(d), answering Defendant denies, generally and specifically,
22 every allegation contained in the Complaint.
23 FIRST AFFIRMATIVE DEFENSE
24 (COMPARATIVE FAULT OF PLAINTIFF)
25 2. Answering Defendant is informed and believes, and on such information and belief
26 alleges, that the injuries and damages, if any, alleged in the Complaint occurred and were
27 proximately caused by either the sole or the partial negligence of Plaintiff, which negligence bars
28 or reduces Plaintiff’s recovery herein.
BREMER WHYTE BROWN &
O’MEARA LLP
300 FRANK H. OGAWA PL.
SUITE 355
OAKLAND, CA 94612
CARMEN BORROMEO’S ANSWER TO PLAINTIFF’S COMPLAINT
(510) 540-4881
1346.029 4832-3222-3699.1
1 SECOND AFFIRMATIVE DEFENSE
2 (FAILURE TO STATE CAUSE OF ACTION)
3 3. Each of Plaintiff’s causes of action, individually, fails to state facts sufficient to
4 constitute a cause of action against this answering Defendant.
5 THIRD AFFIRMATIVE DEFENSE
6 (SEVERAL LIABILITY FOR NON-ECONOMIC DAMAGES)
7 4. The right of Plaintiff to recovery herein, if any right exists, is reduced and limited to
8 the percentage of negligence attributable to this answering Defendant pursuant to § 1431.2 of the
9 California Civil Code.
10 FOURTH AFFIRMATIVE DEFENSE
11 (COMPARATIVE FAULT OF THIRD PARTIES)
12 5. Answering Defendant is informed and believes, and upon such information and
13 belief alleges, that the accident and the injuries, if any, allegedly suffered by Plaintiff were
14 proximately caused and contributed to by the negligence of third parties (not Plaintiff or this
15 answering Defendant) and that said third parties failed to exercise reasonable care at and prior to
16 the time of said accident, and by reason thereof any recovery by Plaintiff against this answering
17 Defendant must be reduced by an amount equal to the proportionate fault of said third parties.
18 FIFTH AFFIRMATIVE DEFENSE
19 (LACHES)
20 6. Plaintiff has unreasonably delayed the commencement of the within action to the
21 substantial prejudice of answering Defendant and by reason thereof has been guilty of laches, and
22 Plaintiff is thereby precluded from recovery in the within action.
23 SIXTH AFFIRMATIVE DEFENSE
24 (UNCLEAN HANDS)
25 7. Plaintiff’s conduct with respect to the matters alleged in the Complaint deprived
26 Plaintiff of clean hands, and by reason of not coming into court with clean hands Plaintiff is
27 precluded from recovery in the within action.
28 ///
BREMER WHYTE BROWN &
O’MEARA LLP
300 FRANK H. OGAWA PL.
2
SUITE 355
OAKLAND, CA 94612
CARMEN BORROMEO’S ANSWER TO PLAINTIFF’S COMPLAINT
(510) 540-4881
1346.029 4832-3222-3699.1
1 SEVENTH AFFIRMATIVE DEFENSE
2 (COMPLAINT FRIVOLOUS AND IN BAD FAITH)
3 8. Answering Defendant alleges that Plaintiff’s Complaint is frivolous and is not based
4 on good faith as to answering Defendant within the meaning of California Code of Civil Procedure
5 § 128.5, and answering Defendant is entitled to recover his reasonable expenses, including
6 attorneys’ fees, in defending this action.
7 EIGHTH AFFIRMATIVE DEFENSE
8 (FAILURE TO MITIGATE DAMAGES)
9 9. Plaintiff failed to mitigate damages, if any, which Plaintiff has sustained, and has
10 failed to exercise reasonable care to avoid the consequences of harm, if any, in that, among other
11 things, Plaintiff has failed to use reasonable diligence in caring for any injuries damages or
12 property, failed to use reasonable means to prevent aggravation of any injuries, damages or
13 property, failed to take reasonable precautions to reduce any injuries, damages or property, failed to
14 make reasonable expenditures which could have prevented the losses alleged and has otherwise
15 failed to prevent the existence or extent of damages as claimed.
16 NINTH AFFIRMATIVE DEFENSE
17 (ACT OF GOD)
18 10. Any damages alleged in the Complaint were the result of an unavoidable accident
19 and occurred without any negligence, want of care, default, or other breach of duty, and were the
20 result of no human intervention, but were solely caused by a natural cause which no one could
21 reasonably be expected to anticipate and whose effects could not be prevented or controlled by the
22 exercise of prudence, diligence and care.
23 TENTH AFFIRMATIVE DEFENSE
24 (PROXIMATE CAUSE)
25 11. This answering Defendant is informed and believes and therefore alleges that
26 if Plaintiff was damaged in any manner whatsoever, that said damage was a direct and proximate
27
result of the intervening and superseding actions on the part of other parties and/or third parties,
28
BREMER WHYTE BROWN &
and not of this Defendant, and that such intervening and superseding actions of the other parties
O’MEARA LLP
300 FRANK H. OGAWA PL.
3
SUITE 355
OAKLAND, CA 94612
CARMEN BORROMEO’S ANSWER TO PLAINTIFF’S COMPLAINT
(510) 540-4881
1346.029 4832-3222-3699.1
1 and/or third parties bar recovery herein on behalf of Plaintiff.
2 ELEVENTH AFFIRMATIVE DEFENSE
3 (ASSUMPTION OF RISK)
4 12. This answering Defendant alleges that at the date and time of the accident alleged
5 herein. Plaintiff assumed certain risks and hazards that were known, and such assumption of the
6 risk was the proximate cause of the injuries and damages allegedly sustained by Plaintiff. To the
7 extent thereof Plaintiff is barred from recovery.
8 TWELFTH AFFIRMATIVE DEFENSE
9 (INDEMNIFICATION BY APPORTIONMENT)
10 13. This answering Defendant is informed, believe and thereon alleges that this
11 Defendant is entitled to the right of indemnification by apportionment against all other parties and
12 persons whose negligence contributed proximately to the happening of the claimed accident or
13 alleged injuries.
14 THIRTEENTH AFFIRMATIVE DEFENSE
15 (STATUTE OF LIMITATIONS)
16 14. This answering Defendant is informed and believes, and thereon alleges, that
17 Plaintiff’s claims are barred by one or more statutes of limitations.
18 FOURTEENTH AFFIRMATIVE DEFENSE
19 (SUPERSEDING CAUSE)
20 15. This answering Defendant is informed and believes, and thereon alleges, that
21 Plaintiff’s claims are barred or limited because of a superseding cause of Plaintiff’s alleged
22 damages.
23 FIFTEENTH AFFIRMATIVE DEFENSE
24 (INTERVENING OR SUPERVENING CAUSE)
25 16. This answering Defendant is informed and believes, and thereon alleges, that
26 Plaintiff’s claims are barred or limited by an intervening or supervening cause.
27 ///
28 ///
BREMER WHYTE BROWN &
O’MEARA LLP
300 FRANK H. OGAWA PL.
4
SUITE 355
OAKLAND, CA 94612
CARMEN BORROMEO’S ANSWER TO PLAINTIFF’S COMPLAINT
(510) 540-4881
1346.029 4832-3222-3699.1
1 SIXTEENTH AFFIRMATIVE DEFENSE
2 (ESTOPPEL)
3 17. This answering Defendant is informed and believes, and thereon alleges, that
4 Plaintiff’s claims are barred by the doctrine of estoppel.
5 SEVENTEENTH AFFIRMATIVE DEFENSE
6 (WAIVER)
7 18. This answering Defendant is informed and believes, and thereon alleges, that
8 Plaintiff’s claims are barred by the doctrine of waiver.
9 EIGHTEENTH AFFIRMATIVE DEFENSE
10 (CONSENT BY PLAINTIFF)
11 19. This answering Defendant is informed and believes, and thereon alleges, that
12 Plaintiff’s claims are barred because Plaintiff agreed to and/or participated in the conduct giving
13 rise to Plaintiff’s alleged damages.
14 NINETEENTH AFFIRMATIVE DEFENSE
15 (RATIFICATION)
16 20. This answering Defendant is informed and believes, and thereon alleges, that
17 Plaintiff’s claims are barred because Plaintiff ratified the conduct for which Plaintiff now
18 complains.
19 TWENTIETH AFFIRMATIVE DEFENSE
20 (GOOD FAITH CONDUCT)
21 21. This answering Defendant is informed and believes, and thereon alleges, that
22 Plaintiff’s claims are barred because Defendant’s conduct was in good faith.
23 TWENTY FIRST AFFIRMATIVE DEFENSE
24 (FAILURE TO JOIN NECESSARY PARTY)
25 22. This answering Defendant is informed and believes, and thereon alleges, that
26 Plaintiff’s claims are barred because Plaintiff fails to join a party in whose absence complete relief
27 cannot be accorded among those parties named in the Complaint.
28
BREMER WHYTE BROWN &
O’MEARA LLP
300 FRANK H. OGAWA PL.
5
SUITE 355
OAKLAND, CA 94612
CARMEN BORROMEO’S ANSWER TO PLAINTIFF’S COMPLAINT
(510) 540-4881
1346.029 4832-3222-3699.1
1 TWENTY SECOND AFFIRMATIVE DEFENSE
2 (SEATBELT MISUSE/USE)
3 23. Plaintiff is barred from recovering any remedy against Defendant or her recovery
4 should be reduced by the fact that the Plaintiff were negligent in not wearing seatbelts and/or
5 similar safety restraint devices at the time of the accident. Plaintiff may not recover damages for
6 those injuries and damages which would not have been sustained if Plaintiff had worn seatbelts or
7 similar safety restraint devices. Vehicle Code § 27315.
8 TWENTY THIRD AFFIRMATIVE DEFENSE
9 (FAILURE TO PRESERVE EVIDENCE/SPOILATION)
10 24. Defendant is informed and believes and, on that basis, alleges that any and all
11 damages, if any, are barred because Plaintiff breached their duty to and have failed to preserve
12 and/or have spoiled evidence pertinent to Defendant’s defense. Such actions/omissions bar
13 recovery herein on behalf of Plaintiff.
14 TWENTY FOURTH AFFIRMATIVE DEFENSE
15 (PRE-EXISTING INJURIES)
16 25. Defendant is informed and believes and thereon alleges that the injuries and
17 damages, if any, alleged in the Complaint were the result of pre-existing injuries and conditions
18 and not a result of the subject incident as alleged in the Complaint.
19 TWENTY FIFTH AFFIRMATIVE DEFENSE
20 (VEHICLE CODE § 17150, et seq.)
21 26. Defendant’s liability, if any, is limited by the provisions of Vehicle Code § 17150, et
22 seq.
23 TWENTY SIXTH AFFIRMATIVE DEFENSE
24 (PROPOSITION 213)
25 27. Defendant is informed and believes, and thereon alleges that Plaintiff failed to carry
26 proper insurance coverage at the time of the incident alleged in the Complaint per California
27 Proposition 213 and is thus precluded from seeking general damages.
28 ///
BREMER WHYTE BROWN &
O’MEARA LLP
300 FRANK H. OGAWA PL.
6
SUITE 355
OAKLAND, CA 94612
CARMEN BORROMEO’S ANSWER TO PLAINTIFF’S COMPLAINT
(510) 540-4881
1346.029 4832-3222-3699.1
1 TWENTY SEVENTH AFFIRMATIVE DEFENSE
2 (UNSTATED AFFIRMATIVE DEFENSES)
3 28. This answering Defendant is informed and believes, and thereon alleges, that there
4 may be additional affirmative defenses, and Defendant reserves the right to assert additional
5 affirmative defenses as the facts and law warrant.
6 WHEREFORE, answering Defendant prays for judgment in their favor and that
7 Plaintiff take nothing by reason of her Complaint on file herein, for costs of suit, and for such other
8 and further relief as to the Court deems just and proper.
9 Dated: December 1, 2020 BREMER WHYTE BROWN & O’MEARA LLP
10
11 By:
Raymond Meyer Jr.
12 Rikus R. Locati
Attorneys for Defendant
13 CAL PACIFIC CONSTRUCTION, INC.
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BREMER WHYTE BROWN &
O’MEARA LLP
300 FRANK H. OGAWA PL.
7
SUITE 355
OAKLAND, CA 94612
CARMEN BORROMEO’S ANSWER TO PLAINTIFF’S COMPLAINT
(510) 540-4881
1346.029 4832-3222-3699.1
1 PROOF OF SERVICE
2
3 I am employed in the County of Alameda, State of California. I am over the age of 18 and
not a party to the within action. My business address is 300 Frank H. Ogawa Plaza, Suite 355,
4 Oakland, CA 94612. My business e-mail address is ksoto@bremerwhyte.com.
5 On December 1, 2020, I served the within document(s) described as:
6 • CARMEN BORROMEO’S ANSWER TO PLAINTIFF’S COMPLAINT
7 on the interested parties in this action as stated on the attached mailing list.
8
(BY ELECTRONIC SERVICE) Complying with CRC Rule 2.251, I caused such
9 X document(s) to be Electronically Filed and Served through File&ServeXpress on the
interested parties in the foregoing case. Upon completion of transmission of said
10 document(s), a transaction receipt is issued to the filing party acknowledging receipt, filing
and service by the File&ServeXpress system. A copy of the File&ServeXpress transaction
11 receipt will be maintained with the original document(s) in our office.
12 (ONLY BY ELECTRONIC TRANSMISSION) Electronic service pursuant to Judicial
X Counsel of California Emergency Rule 12. During the Coronavirus (COVID-19)
13 pandemic, this office will be working remotely and therefore will be serving documents on
all counsel listed on the attached service list via electronic mail only. Should your office
14 require a hard copy of said document, please contact our office.
15
Executed on December 1, 2020, at Oakland, California.
16
I declare under penalty of perjury under the laws of the State of California that the
17 foregoing is true and correct.
18
19 Kimberly J. Soto
(Type or print name) (Signature)
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BREMER WHYTE BROWN &
O’MEARA LLP
300 FRANK H. OGAWA PL.
8
SUITE 355
OAKLAND, CA 94612
CARMEN BORROMEO’S ANSWER TO PLAINTIFF’S COMPLAINT
(510) 540-4881
1346.029 4832-3222-3699.1
1 Mary Diesch v. Cal-Pacific Construction, Inc., et al.
2 Case No. CGC-20-585978
3 BWB&O CLIENT: Cal-Pacific Construction, Inc
BWB&O FILE NO.: 1346.029
4
SERVICE LIST
5
William C Johnson
6 Bennett & Johnson LLP
1901 Harrison Street,
7 Suite 1600
Oakland, CA 94612
8
510-444-5020
9 510-835-4260 Fax
william@bennettjohnsonlaw.com
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Attorney for Plaintiff
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BREMER WHYTE BROWN &
O’MEARA LLP
300 FRANK H. OGAWA PL.
9
SUITE 355
OAKLAND, CA 94612
CARMEN BORROMEO’S ANSWER TO PLAINTIFF’S COMPLAINT
(510) 540-4881
1346.029 4832-3222-3699.1
Preview
1 BREMER WHYTE BROWN & O’MEARA LLP Raymond Meyer Jr., State Bar No. 176235 2 rmeyer@bremerwhyte.com Rikus R. Locati, State Bar No. 314901 ELECTRONICALLY 3 300 Frank H. Ogawa Plaza, Suite 355 FILED Oakland, CA 94612 Superior Court of California, 4 Telephone: (510) 540-4881 County of San Francisco Facsimile: (510) 540-4889 12/01/2020 5 Clerk of the Court Attorneys for Defendants, BY: EDWARD SANTOS 6 CAL PACIFIC CONSTRUCTION, INC. and CARMEN Deputy Clerk BORROMEO 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SAN FRANCISCO 10 11 MARY DIESCH, ) Case No. CGC-20-585978 ) 12 Plaintiff, ) Judge: Hon. Samuel K. Feng ) Dept: 610 13 vs. ) ) CARMEN BORROMEO’S ANSWER TO 14 CAL-PACIFIC CONSTRUCTION, INC., ) PLAINTIFF’S COMPLAINT CARMEN BORROMEO, and DOES 1 through ) 15 20, inclusive, ) Complaint Filed: August 14, 2020 ) 16 Defendants. ) ) 17 18 COMES NOW Defendant, CARMEN BORROMEO, and answers Plaintiff, MARY 19 DIESCH’s Complaint herein and admits, denies, and alleges as follows: 20 1. Answering Plaintiff’s unverified Complaint herein, and by virtue of the provisions 21 of Code of Civil Procedure § 431.30(d), answering Defendant denies, generally and specifically, 22 every allegation contained in the Complaint. 23 FIRST AFFIRMATIVE DEFENSE 24 (COMPARATIVE FAULT OF PLAINTIFF) 25 2. Answering Defendant is informed and believes, and on such information and belief 26 alleges, that the injuries and damages, if any, alleged in the Complaint occurred and were 27 proximately caused by either the sole or the partial negligence of Plaintiff, which negligence bars 28 or reduces Plaintiff’s recovery herein. BREMER WHYTE BROWN & O’MEARA LLP 300 FRANK H. OGAWA PL. SUITE 355 OAKLAND, CA 94612 CARMEN BORROMEO’S ANSWER TO PLAINTIFF’S COMPLAINT (510) 540-4881 1346.029 4832-3222-3699.1 1 SECOND AFFIRMATIVE DEFENSE 2 (FAILURE TO STATE CAUSE OF ACTION) 3 3. Each of Plaintiff’s causes of action, individually, fails to state facts sufficient to 4 constitute a cause of action against this answering Defendant. 5 THIRD AFFIRMATIVE DEFENSE 6 (SEVERAL LIABILITY FOR NON-ECONOMIC DAMAGES) 7 4. The right of Plaintiff to recovery herein, if any right exists, is reduced and limited to 8 the percentage of negligence attributable to this answering Defendant pursuant to § 1431.2 of the 9 California Civil Code. 10 FOURTH AFFIRMATIVE DEFENSE 11 (COMPARATIVE FAULT OF THIRD PARTIES) 12 5. Answering Defendant is informed and believes, and upon such information and 13 belief alleges, that the accident and the injuries, if any, allegedly suffered by Plaintiff were 14 proximately caused and contributed to by the negligence of third parties (not Plaintiff or this 15 answering Defendant) and that said third parties failed to exercise reasonable care at and prior to 16 the time of said accident, and by reason thereof any recovery by Plaintiff against this answering 17 Defendant must be reduced by an amount equal to the proportionate fault of said third parties. 18 FIFTH AFFIRMATIVE DEFENSE 19 (LACHES) 20 6. Plaintiff has unreasonably delayed the commencement of the within action to the 21 substantial prejudice of answering Defendant and by reason thereof has been guilty of laches, and 22 Plaintiff is thereby precluded from recovery in the within action. 23 SIXTH AFFIRMATIVE DEFENSE 24 (UNCLEAN HANDS) 25 7. Plaintiff’s conduct with respect to the matters alleged in the Complaint deprived 26 Plaintiff of clean hands, and by reason of not coming into court with clean hands Plaintiff is 27 precluded from recovery in the within action. 28 /// BREMER WHYTE BROWN & O’MEARA LLP 300 FRANK H. OGAWA PL. 2 SUITE 355 OAKLAND, CA 94612 CARMEN BORROMEO’S ANSWER TO PLAINTIFF’S COMPLAINT (510) 540-4881 1346.029 4832-3222-3699.1 1 SEVENTH AFFIRMATIVE DEFENSE 2 (COMPLAINT FRIVOLOUS AND IN BAD FAITH) 3 8. Answering Defendant alleges that Plaintiff’s Complaint is frivolous and is not based 4 on good faith as to answering Defendant within the meaning of California Code of Civil Procedure 5 § 128.5, and answering Defendant is entitled to recover his reasonable expenses, including 6 attorneys’ fees, in defending this action. 7 EIGHTH AFFIRMATIVE DEFENSE 8 (FAILURE TO MITIGATE DAMAGES) 9 9. Plaintiff failed to mitigate damages, if any, which Plaintiff has sustained, and has 10 failed to exercise reasonable care to avoid the consequences of harm, if any, in that, among other 11 things, Plaintiff has failed to use reasonable diligence in caring for any injuries damages or 12 property, failed to use reasonable means to prevent aggravation of any injuries, damages or 13 property, failed to take reasonable precautions to reduce any injuries, damages or property, failed to 14 make reasonable expenditures which could have prevented the losses alleged and has otherwise 15 failed to prevent the existence or extent of damages as claimed. 16 NINTH AFFIRMATIVE DEFENSE 17 (ACT OF GOD) 18 10. Any damages alleged in the Complaint were the result of an unavoidable accident 19 and occurred without any negligence, want of care, default, or other breach of duty, and were the 20 result of no human intervention, but were solely caused by a natural cause which no one could 21 reasonably be expected to anticipate and whose effects could not be prevented or controlled by the 22 exercise of prudence, diligence and care. 23 TENTH AFFIRMATIVE DEFENSE 24 (PROXIMATE CAUSE) 25 11. This answering Defendant is informed and believes and therefore alleges that 26 if Plaintiff was damaged in any manner whatsoever, that said damage was a direct and proximate 27 result of the intervening and superseding actions on the part of other parties and/or third parties, 28 BREMER WHYTE BROWN & and not of this Defendant, and that such intervening and superseding actions of the other parties O’MEARA LLP 300 FRANK H. OGAWA PL. 3 SUITE 355 OAKLAND, CA 94612 CARMEN BORROMEO’S ANSWER TO PLAINTIFF’S COMPLAINT (510) 540-4881 1346.029 4832-3222-3699.1 1 and/or third parties bar recovery herein on behalf of Plaintiff. 2 ELEVENTH AFFIRMATIVE DEFENSE 3 (ASSUMPTION OF RISK) 4 12. This answering Defendant alleges that at the date and time of the accident alleged 5 herein. Plaintiff assumed certain risks and hazards that were known, and such assumption of the 6 risk was the proximate cause of the injuries and damages allegedly sustained by Plaintiff. To the 7 extent thereof Plaintiff is barred from recovery. 8 TWELFTH AFFIRMATIVE DEFENSE 9 (INDEMNIFICATION BY APPORTIONMENT) 10 13. This answering Defendant is informed, believe and thereon alleges that this 11 Defendant is entitled to the right of indemnification by apportionment against all other parties and 12 persons whose negligence contributed proximately to the happening of the claimed accident or 13 alleged injuries. 14 THIRTEENTH AFFIRMATIVE DEFENSE 15 (STATUTE OF LIMITATIONS) 16 14. This answering Defendant is informed and believes, and thereon alleges, that 17 Plaintiff’s claims are barred by one or more statutes of limitations. 18 FOURTEENTH AFFIRMATIVE DEFENSE 19 (SUPERSEDING CAUSE) 20 15. This answering Defendant is informed and believes, and thereon alleges, that 21 Plaintiff’s claims are barred or limited because of a superseding cause of Plaintiff’s alleged 22 damages. 23 FIFTEENTH AFFIRMATIVE DEFENSE 24 (INTERVENING OR SUPERVENING CAUSE) 25 16. This answering Defendant is informed and believes, and thereon alleges, that 26 Plaintiff’s claims are barred or limited by an intervening or supervening cause. 27 /// 28 /// BREMER WHYTE BROWN & O’MEARA LLP 300 FRANK H. OGAWA PL. 4 SUITE 355 OAKLAND, CA 94612 CARMEN BORROMEO’S ANSWER TO PLAINTIFF’S COMPLAINT (510) 540-4881 1346.029 4832-3222-3699.1 1 SIXTEENTH AFFIRMATIVE DEFENSE 2 (ESTOPPEL) 3 17. This answering Defendant is informed and believes, and thereon alleges, that 4 Plaintiff’s claims are barred by the doctrine of estoppel. 5 SEVENTEENTH AFFIRMATIVE DEFENSE 6 (WAIVER) 7 18. This answering Defendant is informed and believes, and thereon alleges, that 8 Plaintiff’s claims are barred by the doctrine of waiver. 9 EIGHTEENTH AFFIRMATIVE DEFENSE 10 (CONSENT BY PLAINTIFF) 11 19. This answering Defendant is informed and believes, and thereon alleges, that 12 Plaintiff’s claims are barred because Plaintiff agreed to and/or participated in the conduct giving 13 rise to Plaintiff’s alleged damages. 14 NINETEENTH AFFIRMATIVE DEFENSE 15 (RATIFICATION) 16 20. This answering Defendant is informed and believes, and thereon alleges, that 17 Plaintiff’s claims are barred because Plaintiff ratified the conduct for which Plaintiff now 18 complains. 19 TWENTIETH AFFIRMATIVE DEFENSE 20 (GOOD FAITH CONDUCT) 21 21. This answering Defendant is informed and believes, and thereon alleges, that 22 Plaintiff’s claims are barred because Defendant’s conduct was in good faith. 23 TWENTY FIRST AFFIRMATIVE DEFENSE 24 (FAILURE TO JOIN NECESSARY PARTY) 25 22. This answering Defendant is informed and believes, and thereon alleges, that 26 Plaintiff’s claims are barred because Plaintiff fails to join a party in whose absence complete relief 27 cannot be accorded among those parties named in the Complaint. 28 BREMER WHYTE BROWN & O’MEARA LLP 300 FRANK H. OGAWA PL. 5 SUITE 355 OAKLAND, CA 94612 CARMEN BORROMEO’S ANSWER TO PLAINTIFF’S COMPLAINT (510) 540-4881 1346.029 4832-3222-3699.1 1 TWENTY SECOND AFFIRMATIVE DEFENSE 2 (SEATBELT MISUSE/USE) 3 23. Plaintiff is barred from recovering any remedy against Defendant or her recovery 4 should be reduced by the fact that the Plaintiff were negligent in not wearing seatbelts and/or 5 similar safety restraint devices at the time of the accident. Plaintiff may not recover damages for 6 those injuries and damages which would not have been sustained if Plaintiff had worn seatbelts or 7 similar safety restraint devices. Vehicle Code § 27315. 8 TWENTY THIRD AFFIRMATIVE DEFENSE 9 (FAILURE TO PRESERVE EVIDENCE/SPOILATION) 10 24. Defendant is informed and believes and, on that basis, alleges that any and all 11 damages, if any, are barred because Plaintiff breached their duty to and have failed to preserve 12 and/or have spoiled evidence pertinent to Defendant’s defense. Such actions/omissions bar 13 recovery herein on behalf of Plaintiff. 14 TWENTY FOURTH AFFIRMATIVE DEFENSE 15 (PRE-EXISTING INJURIES) 16 25. Defendant is informed and believes and thereon alleges that the injuries and 17 damages, if any, alleged in the Complaint were the result of pre-existing injuries and conditions 18 and not a result of the subject incident as alleged in the Complaint. 19 TWENTY FIFTH AFFIRMATIVE DEFENSE 20 (VEHICLE CODE § 17150, et seq.) 21 26. Defendant’s liability, if any, is limited by the provisions of Vehicle Code § 17150, et 22 seq. 23 TWENTY SIXTH AFFIRMATIVE DEFENSE 24 (PROPOSITION 213) 25 27. Defendant is informed and believes, and thereon alleges that Plaintiff failed to carry 26 proper insurance coverage at the time of the incident alleged in the Complaint per California 27 Proposition 213 and is thus precluded from seeking general damages. 28 /// BREMER WHYTE BROWN & O’MEARA LLP 300 FRANK H. OGAWA PL. 6 SUITE 355 OAKLAND, CA 94612 CARMEN BORROMEO’S ANSWER TO PLAINTIFF’S COMPLAINT (510) 540-4881 1346.029 4832-3222-3699.1 1 TWENTY SEVENTH AFFIRMATIVE DEFENSE 2 (UNSTATED AFFIRMATIVE DEFENSES) 3 28. This answering Defendant is informed and believes, and thereon alleges, that there 4 may be additional affirmative defenses, and Defendant reserves the right to assert additional 5 affirmative defenses as the facts and law warrant. 6 WHEREFORE, answering Defendant prays for judgment in their favor and that 7 Plaintiff take nothing by reason of her Complaint on file herein, for costs of suit, and for such other 8 and further relief as to the Court deems just and proper. 9 Dated: December 1, 2020 BREMER WHYTE BROWN & O’MEARA LLP 10 11 By: Raymond Meyer Jr. 12 Rikus R. Locati Attorneys for Defendant 13 CAL PACIFIC CONSTRUCTION, INC. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BREMER WHYTE BROWN & O’MEARA LLP 300 FRANK H. OGAWA PL. 7 SUITE 355 OAKLAND, CA 94612 CARMEN BORROMEO’S ANSWER TO PLAINTIFF’S COMPLAINT (510) 540-4881 1346.029 4832-3222-3699.1 1 PROOF OF SERVICE 2 3 I am employed in the County of Alameda, State of California. I am over the age of 18 and not a party to the within action. My business address is 300 Frank H. Ogawa Plaza, Suite 355, 4 Oakland, CA 94612. My business e-mail address is ksoto@bremerwhyte.com. 5 On December 1, 2020, I served the within document(s) described as: 6 • CARMEN BORROMEO’S ANSWER TO PLAINTIFF’S COMPLAINT 7 on the interested parties in this action as stated on the attached mailing list. 8 (BY ELECTRONIC SERVICE) Complying with CRC Rule 2.251, I caused such 9 X document(s) to be Electronically Filed and Served through File&ServeXpress on the interested parties in the foregoing case. Upon completion of transmission of said 10 document(s), a transaction receipt is issued to the filing party acknowledging receipt, filing and service by the File&ServeXpress system. A copy of the File&ServeXpress transaction 11 receipt will be maintained with the original document(s) in our office. 12 (ONLY BY ELECTRONIC TRANSMISSION) Electronic service pursuant to Judicial X Counsel of California Emergency Rule 12. During the Coronavirus (COVID-19) 13 pandemic, this office will be working remotely and therefore will be serving documents on all counsel listed on the attached service list via electronic mail only. Should your office 14 require a hard copy of said document, please contact our office. 15 Executed on December 1, 2020, at Oakland, California. 16 I declare under penalty of perjury under the laws of the State of California that the 17 foregoing is true and correct. 18 19 Kimberly J. Soto (Type or print name) (Signature) 20 21 22 23 24 25 26 27 28 BREMER WHYTE BROWN & O’MEARA LLP 300 FRANK H. OGAWA PL. 8 SUITE 355 OAKLAND, CA 94612 CARMEN BORROMEO’S ANSWER TO PLAINTIFF’S COMPLAINT (510) 540-4881 1346.029 4832-3222-3699.1 1 Mary Diesch v. Cal-Pacific Construction, Inc., et al. 2 Case No. CGC-20-585978 3 BWB&O CLIENT: Cal-Pacific Construction, Inc BWB&O FILE NO.: 1346.029 4 SERVICE LIST 5 William C Johnson 6 Bennett & Johnson LLP 1901 Harrison Street, 7 Suite 1600 Oakland, CA 94612 8 510-444-5020 9 510-835-4260 Fax william@bennettjohnsonlaw.com 10 Attorney for Plaintiff 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BREMER WHYTE BROWN & O’MEARA LLP 300 FRANK H. OGAWA PL. 9 SUITE 355 OAKLAND, CA 94612 CARMEN BORROMEO’S ANSWER TO PLAINTIFF’S COMPLAINT (510) 540-4881 1346.029 4832-3222-3699.1