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Manuel Garcia, Esq. (SBN 183535)
PEEL | GARCIA LLP
3585 W. Beechwood, Suite 101
Fresno, California 93711
Telephone: (559) 431-1300
Facsimile: (559) 431-1442
Email: Mgarcia@pgllp.com
Attorneys for: Defendants, JUAN ENRIQUE DELACUEVA, FLORES CIRILO
DELACUEVA, and BLANCA GARCIA
SUPERIOR COURT OF CALIFORNIA
COUNTY OF KERN
JESSICA GARCIA, an individual; CAIN Case No. BCV-22-101439
GARCIA, an individual; ISAIAH GARCIA, a
minor, by and through his Guardian Ad Litem
Jessica Garcia, CAIDEN GARCIA, a minor, ANSWER TO COMPLAINT
by and through his Guardian Ad Litem Jessica
Garcia,
Plaintiffs, [Complaint Filed June 17, 2022]
v.
)
JUAN ENRIQUE DELACUEVA, an
individual; FLORES CIRILO DELACIEVA,
an individual BLANCA GARCIA, an
individual; and DOES | through 100,
Inclusive,
Defendants.
LA
COMES NOW Defendants, JUAN ENRIQUE DELACUEVA, FLORES CIRILO
DELACUEVA, and BLANCA GARCIA, and answer Plaintiffs’ Complaint on file herein, admits.
denies and alleges as follows:
1. Under the provisions of section 431.30(d) of the Code of Civil Procedure.
Defendants, JUAN ENRIQUE DELACUEVA, FLORES CIRILO DELACUEVA, and BLANCA|
GARCIA, deny both generally and specifically each, every, and all of the allegations contained i
said Complaint, and the whole thereof, including each and every purported cause of actioi
contained therein, and deny that the Plaintiffs sustained or will sustain damages in the sum or sums
alleged, or in any other sum or sums, at all.
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2. Further answering the Complaint, Defendants, JUAN ENRIQUE DELACUEVA]
FLORES CIRILO DELACUEVA, and BLANCA GARCIA, deny that Plaintiffs sustained am
injury, damage or loss by reason of any act or omission or breach of warranty, either by expres:
or implied, on the part of Defendants, JUAN ENRIQUE DELACUEVA, FLORES CIRILO|
DELACUEVA, and BLANCA GARCIA.
FIRST AFFIRMATIVE DEFENSE
3. That Plaintiffs failed to take reasonable steps and make reasonable expenditures to}
reduce Plaintiffs’ claims, damages, losses, if any, and that said failure to mitigate Plaintiffs’
damages bars or reduces any claims, losses, or damages.
SECOND AFFIRMATIVE DEFENSE
4, Plaintiffs’ Complaint fails to state facts sufficient to constitute a cause of actio
against these answering Defendants.
THIRD AFFIRMATIVE DEFENSE
5. That the Plaintiffs’ own conduct, lack of reasonable care, and contributory fault i
and about the matters alleged in Plaintiffs’ Complaint was the sole and proximate cause of the
happening of the accident and the loss and damages complained of, if any there were, and said
conduct, lack of reasonable care, and comparative fault on the part of the Plaintiffs bars Plaintiffs’
recovery; or, in the alternative, that Plaintiffs’ conduct, lack of reasonable care, and comparative
fault in and about the matters alleged in the Complaint proximately contributed to the happening
of the accident and to the loss and damages complained of, if any there were, and said conduct
lack of reasonable care, and comparative fault on the part of the Plaintiffs require that any damages|
awarded Plaintiffs shall be diminished, as required under the laws of the State of California, in|
proportion to the amount of fault attributed to said Plaintiffs.
FOURTH AFFIRMATIVE DEFENSE
6. These answering Defendants are informed and believe and thereupon allege that at
all times relevant on or before the date of the incident alleged herein, the Plaintiffs knew the|
hazards involved in his actions and knowing the probably consequences thereof, did place himself
in a position of danger, and freely and voluntarily participated in all of the activities alleged herei
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ANSWER TO COMPLAINTco DU Mm ND
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and thereby assumed the risks attendant thereto. The assumption of said risks was the sole and
proximate cause of the alleged injuries and damages, if any, and, accordingly, completely bars
Plaintiffs from recovery herein, or, in the alternative, it reduces the right of recovery by that amount
which said negligence contributed to this incident, as set forth under the doctrine of comparative|
negligence.
FIFTH AFFIRMATIVE DEFENSE
7. These answering Defendants are informed and believe and thereupon allege that at
all times relevant herein, Plaintiffs consented, impliedly or expressly, to the act as allegedly]
conducted by these answering Defendants.
SIXTH AFFIRMATIVE DEFENSE
8. These answering Defendants are informed and believe and thereupon allege that iff
it should be found that these answering Defendants are in any manner legally responsible for injur
or damages, if any, sustained by Plaintiffs which supposition is not admitted but merely stated for
the purpose of this defense, that any such injuries or damages found to have been incurred on
suffered by Plaintiffs in this action were proximately contributed to by other Defendants in thig
case, whether served or not served, and/or by other persons or companies not parties to this action]
and it is necessary that the proportionate degree of negligence or fault of each of said other persons
or companies, whether made party to this action or not, be determined and prorationed; and that
any judgment that might be rendered against these answering Defendants be reduced not only b:
that degree of comparative negligence and/or assumption of risk found to exist as to Plaintiffs bu
also as the total of that degree of negligence and/or fault found to exist as to said other persons of
companies; and that if these answering Defendants are required to pay any amount in excess off
these answering Defendants’ proportionate degree of comparative fault, if any, then this answering!
Defendants is entitled to recover from the other Defendants and each of them, the amount of said
excess paid.
SEVENTH AFFIRMATIVE DEFENSE
9. These answering Defendants are informed and believe and thereupon allege tha
Plaintiffs’ Complaint on file herein is barred by Section 335.1 of the Code of Civil Procedure.
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ANSWER TO COMPLAINTEIGHT AFFIRMATIVE DEFENSE
10. These answering Defendants are informed and believe and thereupon allege that at
all times mentioned in the Complaint, the Plaintiffs willfully, wantonly, recklessly, and with a
unreasonable disregard for the safety of himself and of others, acted, conducted and maintained
himself 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 Plaintiffs and said willful, wanton, and|
reckless misconduct is imputed to the Plaintiffs herein.
NINTH AFFIRMATIVE DEFENSE
11. These answering Defendants are informed and believe and thereupon allege that at
all times relevant herein, this answering Defendants acted within the bounds of the law, in good
faith, and with due care.
TENTH AFFIRMATIVE DEFENSE
12. The Complaint herein is barred by the Doctrine of Laches.
ELEVENTH AFFIRMATIVE DEFENSE
13. These answering Defendants are informed and believe and thereupon allege that at
all times relevant herein, Plaintiffs were acting within the course and scope of their employment;
that the incident alleged in the Complaint was proximately caused by the negligence and]
carelessness of Plaintiffs’ employer, who, on these answering Defendants’ information and belief,
was insured pursuant to the workers’ compensation laws of this state and whose carrier has paid}
or will pay money for medical care and disability compensation to, or on behalf of, Plaintiffs as a
result of the incident alleged herein; that any award of damages to the Plaintiffs should be reduced}
by any such sums paid or to be paid to, or on behalf of, the Plaintiffs or, in the alternative, the
negligence of said employer reduces the right of recovery by that amount which said negligence
contributed to the incident, as set forth under the doctrine of comparative negligence.
TWELFTH AFFIRMATIVE DEFENSE
14, These answering Defendants are informed and believe and thereupon allege that if
Plaintiffs sustained damage as alleged in the Complaint, that damage was proximately caused and
contributed to by persons, entities or parties other than these answering Defendants in failing t
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ANSWER TO COMPLAINTA FF BN
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conduct themselves in a manner ordinarily expected of reasonably prudent persons in the conduct
of their affairs and business. These answering Defendants shall only be liable for the amount off
the non-economic damages allocated to them in direct proportion to their percentage of faul
pursuant to Civil Code Section 1431.2 and other applicable law.
THIRTEENTH AFFIRMATIVE DEFENSE
15. Labor Code Section 3601(a) provides that, if the conditions of compensation se
forth in Labor Code Section 3600 concur, the exclusive remedy of an injured employee (or of aj
deceased employee’s dependents) against “any other employee of the employer acting within the]
scope of her or her employment” is the right to recover workers’ compensation. The exclusive
remedy rule bars this action.
FOURTEENTH AFFIRMATIVE DEFENSE
16. Should Plaintiffs receive payment of all or a portion of their medical expense:
pursuant to a policy of insurance which pays said medical expenses, that Plaintiffs are barred from]
again recovering those same expenses.
WHEREFORE, these answering Defendants pray that Plaintiffs take nothing, and these}
answering Defendants be dismissed hence with costs of suit incurred herein, and for such other
further relief as the Court deems fit and proper.
Dated: August _{__, 2022 PEEL | GARCIA LLP
Byz
Attorney for Defendants,
IQUE DELACUEVA, FLORES
DELACUEVA, and BLANCA GARCIA
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PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF FRESNO
Iam a resident of the county aforesaid; I am over the age of eighteen years and not a part}
to the within entitled action; my business address is 3585 West Beechwood, Suite 101, Fresno.
California 93711.
On August A » 2022, I served the within ANSWER TO COMPLAINT on the interested}
parties in said action, as listed below:
George Semaan, Esq.
Garrett May, Esq.
The May Firm, Inc.
297 Santa Rosa Street
San Luis Obispo, CA 93405
Phone: (805) 980-7758
Fax: (805) 980-7754
Email: lit@mayfirm.com
Attorneys for Plaintiffs
[ ] VIA FACSIMILE - I caused such document(s) to be served on the parties via facsimile to}
the facsimile number specified above.
[XX] VIA ELECTRONIC MAIL — A pdf version of said document was served on the
party(ies) via electronic mail transmission at the address(es) specified above.
[ ] VIA OVERNIGHT MAIL - I caused such envelope to be delivered by hand in a
receptacle regularly maintained by the United Parcel Service.
[XX] BY MAIL - [am readily familiar with the firm's practice of collection and processing of
documents for mailing. Under that practice, it would be deposited with the United States
Postal Service on that same day with postage thereon fully prepaid at Fresno, California,
in the ordinary course of business. I am aware on motion of the party served, service is
presumed invalid if postal cancellation date of postage meter date is more than one day
after date of deposit for mailing in affidavit.
[ ] BY PERSONAL SERVICE - I caused such envelope to be delivered by hand to the
offices of the addressee.
I declare under penalty of perjury under the laws of the State of California, that the
foregoing is true and correct and if sworn as a witness I can competently testify to the foregoing|
of my own knowledge.
Executed on August __“/, 2022, at Fresno, California.
Declarant — Lanette I. Andrist
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ANSWER TO COMPLAINT
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Manuel Garcia, Esq. (SBN 183535) PEEL | GARCIA LLP 3585 W. Beechwood, Suite 101 Fresno, California 93711 Telephone: (559) 431-1300 Facsimile: (559) 431-1442 Email: Mgarcia@pgllp.com Attorneys for: Defendants, JUAN ENRIQUE DELACUEVA, FLORES CIRILO DELACUEVA, and BLANCA GARCIA SUPERIOR COURT OF CALIFORNIA COUNTY OF KERN JESSICA GARCIA, an individual; CAIN Case No. BCV-22-101439 GARCIA, an individual; ISAIAH GARCIA, a minor, by and through his Guardian Ad Litem Jessica Garcia, CAIDEN GARCIA, a minor, ANSWER TO COMPLAINT by and through his Guardian Ad Litem Jessica Garcia, Plaintiffs, [Complaint Filed June 17, 2022] v. ) JUAN ENRIQUE DELACUEVA, an individual; FLORES CIRILO DELACIEVA, an individual BLANCA GARCIA, an individual; and DOES | through 100, Inclusive, Defendants. LA COMES NOW Defendants, JUAN ENRIQUE DELACUEVA, FLORES CIRILO DELACUEVA, and BLANCA GARCIA, and answer Plaintiffs’ Complaint on file herein, admits. denies and alleges as follows: 1. Under the provisions of section 431.30(d) of the Code of Civil Procedure. Defendants, JUAN ENRIQUE DELACUEVA, FLORES CIRILO DELACUEVA, and BLANCA| GARCIA, deny both generally and specifically each, every, and all of the allegations contained i said Complaint, and the whole thereof, including each and every purported cause of actioi contained therein, and deny that the Plaintiffs sustained or will sustain damages in the sum or sums alleged, or in any other sum or sums, at all. 1 ANSWER TO COMPLAINTia 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. Further answering the Complaint, Defendants, JUAN ENRIQUE DELACUEVA] FLORES CIRILO DELACUEVA, and BLANCA GARCIA, deny that Plaintiffs sustained am injury, damage or loss by reason of any act or omission or breach of warranty, either by expres: or implied, on the part of Defendants, JUAN ENRIQUE DELACUEVA, FLORES CIRILO| DELACUEVA, and BLANCA GARCIA. FIRST AFFIRMATIVE DEFENSE 3. That Plaintiffs failed to take reasonable steps and make reasonable expenditures to} reduce Plaintiffs’ claims, damages, losses, if any, and that said failure to mitigate Plaintiffs’ damages bars or reduces any claims, losses, or damages. SECOND AFFIRMATIVE DEFENSE 4, Plaintiffs’ Complaint fails to state facts sufficient to constitute a cause of actio against these answering Defendants. THIRD AFFIRMATIVE DEFENSE 5. That the Plaintiffs’ own conduct, lack of reasonable care, and contributory fault i and about the matters alleged in Plaintiffs’ Complaint was the sole and proximate cause of the happening of the accident and the loss and damages complained of, if any there were, and said conduct, lack of reasonable care, and comparative fault on the part of the Plaintiffs bars Plaintiffs’ recovery; or, in the alternative, that Plaintiffs’ conduct, lack of reasonable care, and comparative fault in and about the matters alleged in the Complaint proximately contributed to the happening of the accident and to the loss and damages complained of, if any there were, and said conduct lack of reasonable care, and comparative fault on the part of the Plaintiffs require that any damages| awarded Plaintiffs shall be diminished, as required under the laws of the State of California, in| proportion to the amount of fault attributed to said Plaintiffs. FOURTH AFFIRMATIVE DEFENSE 6. These answering Defendants are informed and believe and thereupon allege that at all times relevant on or before the date of the incident alleged herein, the Plaintiffs knew the| hazards involved in his actions and knowing the probably consequences thereof, did place himself in a position of danger, and freely and voluntarily participated in all of the activities alleged herei 2 ANSWER TO COMPLAINTco DU Mm ND ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and thereby assumed the risks attendant thereto. The assumption of said risks was the sole and proximate cause of the alleged injuries and damages, if any, and, accordingly, completely bars Plaintiffs from recovery herein, or, in the alternative, it reduces the right of recovery by that amount which said negligence contributed to this incident, as set forth under the doctrine of comparative| negligence. FIFTH AFFIRMATIVE DEFENSE 7. These answering Defendants are informed and believe and thereupon allege that at all times relevant herein, Plaintiffs consented, impliedly or expressly, to the act as allegedly] conducted by these answering Defendants. SIXTH AFFIRMATIVE DEFENSE 8. These answering Defendants are informed and believe and thereupon allege that iff it should be found that these answering Defendants are in any manner legally responsible for injur or damages, if any, sustained by Plaintiffs which supposition is not admitted but merely stated for the purpose of this defense, that any such injuries or damages found to have been incurred on suffered by Plaintiffs in this action were proximately contributed to by other Defendants in thig case, whether served or not served, and/or by other persons or companies not parties to this action] and it is necessary that the proportionate degree of negligence or fault of each of said other persons or companies, whether made party to this action or not, be determined and prorationed; and that any judgment that might be rendered against these answering Defendants be reduced not only b: that degree of comparative negligence and/or assumption of risk found to exist as to Plaintiffs bu also as the total of that degree of negligence and/or fault found to exist as to said other persons of companies; and that if these answering Defendants are required to pay any amount in excess off these answering Defendants’ proportionate degree of comparative fault, if any, then this answering! Defendants is entitled to recover from the other Defendants and each of them, the amount of said excess paid. SEVENTH AFFIRMATIVE DEFENSE 9. These answering Defendants are informed and believe and thereupon allege tha Plaintiffs’ Complaint on file herein is barred by Section 335.1 of the Code of Civil Procedure. 3 ANSWER TO COMPLAINTEIGHT AFFIRMATIVE DEFENSE 10. These answering Defendants are informed and believe and thereupon allege that at all times mentioned in the Complaint, the Plaintiffs willfully, wantonly, recklessly, and with a unreasonable disregard for the safety of himself and of others, acted, conducted and maintained himself 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 Plaintiffs and said willful, wanton, and| reckless misconduct is imputed to the Plaintiffs herein. NINTH AFFIRMATIVE DEFENSE 11. These answering Defendants are informed and believe and thereupon allege that at all times relevant herein, this answering Defendants acted within the bounds of the law, in good faith, and with due care. TENTH AFFIRMATIVE DEFENSE 12. The Complaint herein is barred by the Doctrine of Laches. ELEVENTH AFFIRMATIVE DEFENSE 13. These answering Defendants are informed and believe and thereupon allege that at all times relevant herein, Plaintiffs were acting within the course and scope of their employment; that the incident alleged in the Complaint was proximately caused by the negligence and] carelessness of Plaintiffs’ employer, who, on these answering Defendants’ information and belief, was insured pursuant to the workers’ compensation laws of this state and whose carrier has paid} or will pay money for medical care and disability compensation to, or on behalf of, Plaintiffs as a result of the incident alleged herein; that any award of damages to the Plaintiffs should be reduced} by any such sums paid or to be paid to, or on behalf of, the Plaintiffs or, in the alternative, the negligence of said employer reduces the right of recovery by that amount which said negligence contributed to the incident, as set forth under the doctrine of comparative negligence. TWELFTH AFFIRMATIVE DEFENSE 14, These answering Defendants are informed and believe and thereupon allege that if Plaintiffs sustained damage as alleged in the Complaint, that damage was proximately caused and contributed to by persons, entities or parties other than these answering Defendants in failing t 4 ANSWER TO COMPLAINTA FF BN 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 conduct themselves in a manner ordinarily expected of reasonably prudent persons in the conduct of their affairs and business. These answering Defendants shall only be liable for the amount off the non-economic damages allocated to them in direct proportion to their percentage of faul pursuant to Civil Code Section 1431.2 and other applicable law. THIRTEENTH AFFIRMATIVE DEFENSE 15. Labor Code Section 3601(a) provides that, if the conditions of compensation se forth in Labor Code Section 3600 concur, the exclusive remedy of an injured employee (or of aj deceased employee’s dependents) against “any other employee of the employer acting within the] scope of her or her employment” is the right to recover workers’ compensation. The exclusive remedy rule bars this action. FOURTEENTH AFFIRMATIVE DEFENSE 16. Should Plaintiffs receive payment of all or a portion of their medical expense: pursuant to a policy of insurance which pays said medical expenses, that Plaintiffs are barred from] again recovering those same expenses. WHEREFORE, these answering Defendants pray that Plaintiffs take nothing, and these} answering Defendants be dismissed hence with costs of suit incurred herein, and for such other further relief as the Court deems fit and proper. Dated: August _{__, 2022 PEEL | GARCIA LLP Byz Attorney for Defendants, IQUE DELACUEVA, FLORES DELACUEVA, and BLANCA GARCIA 5 ANSWER TO COMPLAINT& ya an w 10 ul 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF FRESNO Iam a resident of the county aforesaid; I am over the age of eighteen years and not a part} to the within entitled action; my business address is 3585 West Beechwood, Suite 101, Fresno. California 93711. On August A » 2022, I served the within ANSWER TO COMPLAINT on the interested} parties in said action, as listed below: George Semaan, Esq. Garrett May, Esq. The May Firm, Inc. 297 Santa Rosa Street San Luis Obispo, CA 93405 Phone: (805) 980-7758 Fax: (805) 980-7754 Email: lit@mayfirm.com Attorneys for Plaintiffs [ ] VIA FACSIMILE - I caused such document(s) to be served on the parties via facsimile to} the facsimile number specified above. [XX] VIA ELECTRONIC MAIL — A pdf version of said document was served on the party(ies) via electronic mail transmission at the address(es) specified above. [ ] VIA OVERNIGHT MAIL - I caused such envelope to be delivered by hand in a receptacle regularly maintained by the United Parcel Service. [XX] BY MAIL - [am readily familiar with the firm's practice of collection and processing of documents for mailing. Under that practice, it would be deposited with the United States Postal Service on that same day with postage thereon fully prepaid at Fresno, California, in the ordinary course of business. I am aware on motion of the party served, service is presumed invalid if postal cancellation date of postage meter date is more than one day after date of deposit for mailing in affidavit. [ ] BY PERSONAL SERVICE - I caused such envelope to be delivered by hand to the offices of the addressee. I declare under penalty of perjury under the laws of the State of California, that the foregoing is true and correct and if sworn as a witness I can competently testify to the foregoing| of my own knowledge. Executed on August __“/, 2022, at Fresno, California. Declarant — Lanette I. Andrist 6 ANSWER TO COMPLAINT