Preview
1 Brent M. Karren (State Bar No. 291038)
bkarren@mgmlaw.com
2 Mary Katherine Back (State Bar No. 234021) ELECTRONICALLY
mback@mgmlaw.com
3 MANNING GROSS + MASSENBURG LLP FILED
Superior Court of California,
200 Spear Street, 18th Floor County of San Francisco
4 San Francisco, CA 94105
Tel.: (415) 512-4381 11/08/2019
Clerk of the Court
5 Fax: (415) 512-6791 BY: EDWARD SANTOS
Deputy Clerk
6 Attorneys for Defendant
SODEXO, INC.
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF SAN FRANCISCO
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MARIE CLAIRE BENDER, Case No. CGC-19-576441
MANNING GROSS + MASSENBURG LLP
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Plaintiff, DEFENDANT SODEXO, INC.’S ANSWER
12 TO PLAINTIFF’S UNVERIFIED
v. COMPLAINT
LAW OFFICES OF
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SODEXO, INC., et al., Complaint Filed: June 4, 2019
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Defendants.
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17 COMES NOW, Defendant Sodexo, Inc. (hereinafter “Defendant”), and answers the
18 Complaint filed by Plaintiff Marie Claire Bender, individually (hereinafter “Plaintiff”), as follows:
19 GENERAL DENIAL
20 Per the provisions of section 431.30 of California’s Code of Civil Procedure, Defendant
21 denies generally and specifically each and every allegation contained in the Complaint, and the
22 whole thereof, and specifically denies that Plaintiff has been damaged in the sum or sums alleged,
23 or in any sum or sums, or at all, or that Defendant or any agent or employee thereof committed
24 any wrongful act or omission that caused Plaintiff any injury or damage whatsoever.
25 AFFIRMATIVE DEFENSES
26 As separate and affirmative defenses, Defendant alleges as follows:
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DEFENDANT SODEXO, INC.’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT
1 FIRST AFFIRMATIVE DEFENSE
2 Any and all happenings and events, damages and injuries, if any there were, referred to in
3 the Complaint were proximately caused and contributed to by the negligence or other wrongful
4 conduct of Plaintiff in that Plaintiff failed to exercise ordinary care on Plaintiff’s own behalf at all
5 times and places referred to in the Complaint.
6 SECOND AFFIRMATIVE DEFENSE
7 Should Plaintiff recover damages against Defendant, Defendant is entitled to have the
8 amount abated, apportioned, or reduced to the extent that any other party or entity or individual's
9 negligence and/or fault caused or contributed to Plaintiff’s alleged damages, if any there were.
10 THIRD AFFIRMATIVE DEFENSE
MANNING GROSS + MASSENBURG LLP
11 Other persons or entities for which Defendant is not responsible and over which
12 Defendant had no control or supervision were negligent or otherwise at fault in the matters
LAW OFFICES OF
13 referred to in said Complaint, such negligence or fault caused the loss or damage alleged in the
14 Complaint, and such negligence or other fault bars or diminishes Plaintiff’s recovery against
15 Defendant.
16 FOURTH AFFIRMATIVE DEFENSE
17 The provisions of California Civil Code section 1431.2 apply to the Complaint and each
18 cause of action stated therein.
19 FIFTH AFFIRMATIVE DEFENSE
20 Plaintiff willingly, voluntarily, and knowingly assumed each, every, and all of the risks
21 and hazards involved in the activities referred to in the Complaint.
22 SIXTH AFFIRMATIVE DEFENSE
23 The Complaint and each cause of action therein fails to state facts sufficient to constitute a
24 cause of action against Defendant.
25 SEVENTH AFFIRMATIVE DEFENSE
26 Plaintiff’s injuries were proximately caused by an unforeseeable, independent, intervening
27 and/or superseding event beyond the control and unrelated to any conduct of Defendant.
28 Defendant’s actions, if any, were superseded by the negligence and wrongful conduct of others
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DEFENDANT SODEXO, INC.’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT
1 EIGHTH AFFIRMATIVE DEFENSE
2 In the event Defendant is held liable to Plaintiff, which liability is expressly denied, and
3 any co-defendant or other person or entity, whether or not yet specifically named in the
4 Complaint, is likewise held liable, Defendant is entitled to a percentage contribution of the total
5 liability from co-defendants or other person or entity in accordance with principles of equitable
6 indemnity and comparative contribution.
7 NINTH AFFIRMATIVE DEFENSE
8 Defendant alleges that the condition which Plaintiff complains of was a condition which
9 Defendant did not have notice of, either actual and/or constructive.
10 TENTH AFFIRMATIVE DEFENSE
MANNING GROSS + MASSENBURG LLP
11 Defendant alleges that its conduct was not the cause in fact or the proximate cause of any
12 of the losses or injuries alleged by Plaintiff.
LAW OFFICES OF
13 ELEVENTH AFFIRMATIVE DEFENSE
14 Defendant complied with all applicable laws, regulations, and rules and such compliance
15 demonstrates that due care and reasonable prudence were exercised.
16 TWELFTH AFFIRMATIVE DEFENSE
17 The Complaint fails to state a cause of action for which pre-judgment interest, expert fees,
18 or attorneys' fees may be awarded.
19 THIRTEENTH AFFIRMATIVE DEFENSE
20 Should Plaintiff recover damages against Defendant, Defendant is entitled to have the
21 amount offset and/or reduced by any and all amounts paid by way of settlement or judgment of
22 any other lawsuit or claim regarding the injuries or damages referred to in the Complaint.
23 FOURTEENTH AFFIRMATIVE DEFENSE
24 The action is barred by the equitable doctrines of laches, waiver, and estoppel.
25 FIFTEENTH AFFIRMATIVE DEFENSE
26 The action is barred by various statutorily defined periods of limitation, including, but not
27 limited to, the following separate and distinct sections of the California Code of Civil Procedure:
28 337, 337.1, 337.15, 338, 339, 340, 343, et seq.
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DEFENDANT SODEXO, INC.’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT
1 SIXTEENTH AFFIRMATIVE DEFENSE
2 Plaintiff was careless and negligent in and about the matters referred to in the Complaint,
3 and said carelessness and negligence on the part of the Plaintiff proximately contributed to and/or
4 was the sole proximate contributing cause of all damages or injuries purportedly resulting or
5 arising therefrom, if any there were.
6 SEVENTEENTH AFFIRMATIVE DEFENSE
7 Any finding of negligence against Defendant should be compared to the negligence of all
8 other parties to this action, including the Plaintiff, cross-defendants and other third parties, and
9 reduced accordingly.
10 EIGHTTEENTH AFFIRMATIVE DEFENSE
MANNING GROSS + MASSENBURG LLP
11 In the event of misjoinder and/or non-joinder of parties, and specifically wherein there is
12 an omitted party to the action who has an interest in the subject matter and in whose absence
LAW OFFICES OF
13 complete relief cannot be accorded, Defendant specifically reserves all rights under applicable law
14 including, but not limited to, those under Code of Civil Procedure §389.
15 NINETEENTH AFFIRMATIVE DEFENSE
16 Because the Complaint is couched in conclusory terms and discovery and investigation is
17 ongoing, Defendant cannot anticipate all affirmative defenses that may be applicable to the
18 underlying action. Accordingly, Defendant reserves the right to assert additional affirmative
19 defenses if and to the extent that such affirmative defenses apply.
20 PRAYER
21 Wherefore, Defendant prays that:
22 1. Judgment be rendered in favor of Defendant and against Plaintiff;
23 2. Plaintiff take nothing by the Complaint;
24 3. Defendant be awarded its costs of suit incurred herein; and
25 4. If Defendant is found liable, the degree of the responsibility and liability for the
26 resulting damages be determined and that Defendant be held liable only for that portion of the total
27 damages in proportion to its liability for the same.
28 ///
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DEFENDANT SODEXO, INC.’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT
1 DEMAND FOR JURY TRIAL
2 Defendant respectfully requests a jury trial in the above-entitled action.
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4 Dated: November 8, 2019 MANNING GROSS + MASSENBURG LLP
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6
7 By:
Brent M. Karren
8 Mary Katherine Back
Attorneys for Defendant
9 SODEXO, INC.
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MANNING GROSS + MASSENBURG LLP
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LAW OFFICES OF
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DEFENDANT SODEXO, INC.’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT
1 PROOF OF SERVICE
Marie Claire Bender v. Sodexo, Inc., et al.
2 San Francisco Superior Court Case No: CGC-19-576441
3 I, the undersigned, declare and state:
4 That I am employed in the County of San Francisco, State of California. I am over the age
5 of eighteen (18) and not a party to the within action; my business address is 201 Spear Street, 18th
6 Floor, San Francisco, California 94105.
On November 8, 2019, I served the following document described as:
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DEFENDANT SODEXO, INC.’S ANSWER TO PLAINTIFF’S UNVERIFIED
8 COMPLAINT
9 on the interested parties in this action as follows:
10
THE OTUS LAW GROUP
MANNING GROSS + MASSENBURG LLP
11 7901 OAKPORT STREET
SUITE 4300
12 OAKLAND, CA 94621
LAW OFFICES OF
Attorney for Plaintiff
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☒ (BY UNITED STATES MAIL) — I placed the envelopes for collection and mailing,
15 following our ordinary business practices. I am readily familiar with this business’s practice for
collecting and processing correspondence for mailing. On the same day that correspondence is
16 placed for collection and mailing, it is deposited in the ordinary course of business with the
United States Postal Service, in sealed envelopes with postage fully prepaid.
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I declare under penalty of perjury under the laws of the State of California that the foregoing
18 is true and correct. Executed on November 8, 2019, in San Francisco, California.
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____________________________________
21 Martin C. Young
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DEFENDANT SODEXO, INC.’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT
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1 Brent M. Karren (State Bar No. 291038) bkarren@mgmlaw.com 2 Mary Katherine Back (State Bar No. 234021) ELECTRONICALLY mback@mgmlaw.com 3 MANNING GROSS + MASSENBURG LLP FILED Superior Court of California, 200 Spear Street, 18th Floor County of San Francisco 4 San Francisco, CA 94105 Tel.: (415) 512-4381 11/08/2019 Clerk of the Court 5 Fax: (415) 512-6791 BY: EDWARD SANTOS Deputy Clerk 6 Attorneys for Defendant SODEXO, INC. 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 COUNTY OF SAN FRANCISCO 9 10 MARIE CLAIRE BENDER, Case No. CGC-19-576441 MANNING GROSS + MASSENBURG LLP 11 Plaintiff, DEFENDANT SODEXO, INC.’S ANSWER 12 TO PLAINTIFF’S UNVERIFIED v. COMPLAINT LAW OFFICES OF 13 SODEXO, INC., et al., Complaint Filed: June 4, 2019 14 Defendants. 15 16 17 COMES NOW, Defendant Sodexo, Inc. (hereinafter “Defendant”), and answers the 18 Complaint filed by Plaintiff Marie Claire Bender, individually (hereinafter “Plaintiff”), as follows: 19 GENERAL DENIAL 20 Per the provisions of section 431.30 of California’s Code of Civil Procedure, Defendant 21 denies generally and specifically each and every allegation contained in the Complaint, and the 22 whole thereof, and specifically denies that Plaintiff has been damaged in the sum or sums alleged, 23 or in any sum or sums, or at all, or that Defendant or any agent or employee thereof committed 24 any wrongful act or omission that caused Plaintiff any injury or damage whatsoever. 25 AFFIRMATIVE DEFENSES 26 As separate and affirmative defenses, Defendant alleges as follows: 27 /// 28 /// -1- DEFENDANT SODEXO, INC.’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT 1 FIRST AFFIRMATIVE DEFENSE 2 Any and all happenings and events, damages and injuries, if any there were, referred to in 3 the Complaint were proximately caused and contributed to by the negligence or other wrongful 4 conduct of Plaintiff in that Plaintiff failed to exercise ordinary care on Plaintiff’s own behalf at all 5 times and places referred to in the Complaint. 6 SECOND AFFIRMATIVE DEFENSE 7 Should Plaintiff recover damages against Defendant, Defendant is entitled to have the 8 amount abated, apportioned, or reduced to the extent that any other party or entity or individual's 9 negligence and/or fault caused or contributed to Plaintiff’s alleged damages, if any there were. 10 THIRD AFFIRMATIVE DEFENSE MANNING GROSS + MASSENBURG LLP 11 Other persons or entities for which Defendant is not responsible and over which 12 Defendant had no control or supervision were negligent or otherwise at fault in the matters LAW OFFICES OF 13 referred to in said Complaint, such negligence or fault caused the loss or damage alleged in the 14 Complaint, and such negligence or other fault bars or diminishes Plaintiff’s recovery against 15 Defendant. 16 FOURTH AFFIRMATIVE DEFENSE 17 The provisions of California Civil Code section 1431.2 apply to the Complaint and each 18 cause of action stated therein. 19 FIFTH AFFIRMATIVE DEFENSE 20 Plaintiff willingly, voluntarily, and knowingly assumed each, every, and all of the risks 21 and hazards involved in the activities referred to in the Complaint. 22 SIXTH AFFIRMATIVE DEFENSE 23 The Complaint and each cause of action therein fails to state facts sufficient to constitute a 24 cause of action against Defendant. 25 SEVENTH AFFIRMATIVE DEFENSE 26 Plaintiff’s injuries were proximately caused by an unforeseeable, independent, intervening 27 and/or superseding event beyond the control and unrelated to any conduct of Defendant. 28 Defendant’s actions, if any, were superseded by the negligence and wrongful conduct of others -2- DEFENDANT SODEXO, INC.’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT 1 EIGHTH AFFIRMATIVE DEFENSE 2 In the event Defendant is held liable to Plaintiff, which liability is expressly denied, and 3 any co-defendant or other person or entity, whether or not yet specifically named in the 4 Complaint, is likewise held liable, Defendant is entitled to a percentage contribution of the total 5 liability from co-defendants or other person or entity in accordance with principles of equitable 6 indemnity and comparative contribution. 7 NINTH AFFIRMATIVE DEFENSE 8 Defendant alleges that the condition which Plaintiff complains of was a condition which 9 Defendant did not have notice of, either actual and/or constructive. 10 TENTH AFFIRMATIVE DEFENSE MANNING GROSS + MASSENBURG LLP 11 Defendant alleges that its conduct was not the cause in fact or the proximate cause of any 12 of the losses or injuries alleged by Plaintiff. LAW OFFICES OF 13 ELEVENTH AFFIRMATIVE DEFENSE 14 Defendant complied with all applicable laws, regulations, and rules and such compliance 15 demonstrates that due care and reasonable prudence were exercised. 16 TWELFTH AFFIRMATIVE DEFENSE 17 The Complaint fails to state a cause of action for which pre-judgment interest, expert fees, 18 or attorneys' fees may be awarded. 19 THIRTEENTH AFFIRMATIVE DEFENSE 20 Should Plaintiff recover damages against Defendant, Defendant is entitled to have the 21 amount offset and/or reduced by any and all amounts paid by way of settlement or judgment of 22 any other lawsuit or claim regarding the injuries or damages referred to in the Complaint. 23 FOURTEENTH AFFIRMATIVE DEFENSE 24 The action is barred by the equitable doctrines of laches, waiver, and estoppel. 25 FIFTEENTH AFFIRMATIVE DEFENSE 26 The action is barred by various statutorily defined periods of limitation, including, but not 27 limited to, the following separate and distinct sections of the California Code of Civil Procedure: 28 337, 337.1, 337.15, 338, 339, 340, 343, et seq. -3- DEFENDANT SODEXO, INC.’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT 1 SIXTEENTH AFFIRMATIVE DEFENSE 2 Plaintiff was careless and negligent in and about the matters referred to in the Complaint, 3 and said carelessness and negligence on the part of the Plaintiff proximately contributed to and/or 4 was the sole proximate contributing cause of all damages or injuries purportedly resulting or 5 arising therefrom, if any there were. 6 SEVENTEENTH AFFIRMATIVE DEFENSE 7 Any finding of negligence against Defendant should be compared to the negligence of all 8 other parties to this action, including the Plaintiff, cross-defendants and other third parties, and 9 reduced accordingly. 10 EIGHTTEENTH AFFIRMATIVE DEFENSE MANNING GROSS + MASSENBURG LLP 11 In the event of misjoinder and/or non-joinder of parties, and specifically wherein there is 12 an omitted party to the action who has an interest in the subject matter and in whose absence LAW OFFICES OF 13 complete relief cannot be accorded, Defendant specifically reserves all rights under applicable law 14 including, but not limited to, those under Code of Civil Procedure §389. 15 NINETEENTH AFFIRMATIVE DEFENSE 16 Because the Complaint is couched in conclusory terms and discovery and investigation is 17 ongoing, Defendant cannot anticipate all affirmative defenses that may be applicable to the 18 underlying action. Accordingly, Defendant reserves the right to assert additional affirmative 19 defenses if and to the extent that such affirmative defenses apply. 20 PRAYER 21 Wherefore, Defendant prays that: 22 1. Judgment be rendered in favor of Defendant and against Plaintiff; 23 2. Plaintiff take nothing by the Complaint; 24 3. Defendant be awarded its costs of suit incurred herein; and 25 4. If Defendant is found liable, the degree of the responsibility and liability for the 26 resulting damages be determined and that Defendant be held liable only for that portion of the total 27 damages in proportion to its liability for the same. 28 /// -4- DEFENDANT SODEXO, INC.’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT 1 DEMAND FOR JURY TRIAL 2 Defendant respectfully requests a jury trial in the above-entitled action. 3 4 Dated: November 8, 2019 MANNING GROSS + MASSENBURG LLP 5 6 7 By: Brent M. Karren 8 Mary Katherine Back Attorneys for Defendant 9 SODEXO, INC. 10 MANNING GROSS + MASSENBURG LLP 11 12 LAW OFFICES OF 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5- DEFENDANT SODEXO, INC.’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT 1 PROOF OF SERVICE Marie Claire Bender v. Sodexo, Inc., et al. 2 San Francisco Superior Court Case No: CGC-19-576441 3 I, the undersigned, declare and state: 4 That I am employed in the County of San Francisco, State of California. I am over the age 5 of eighteen (18) and not a party to the within action; my business address is 201 Spear Street, 18th 6 Floor, San Francisco, California 94105. On November 8, 2019, I served the following document described as: 7 DEFENDANT SODEXO, INC.’S ANSWER TO PLAINTIFF’S UNVERIFIED 8 COMPLAINT 9 on the interested parties in this action as follows: 10 THE OTUS LAW GROUP MANNING GROSS + MASSENBURG LLP 11 7901 OAKPORT STREET SUITE 4300 12 OAKLAND, CA 94621 LAW OFFICES OF Attorney for Plaintiff 13 14 ☒ (BY UNITED STATES MAIL) — I placed the envelopes for collection and mailing, 15 following our ordinary business practices. I am readily familiar with this business’s practice for collecting and processing correspondence for mailing. On the same day that correspondence is 16 placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in sealed envelopes with postage fully prepaid. 17 I declare under penalty of perjury under the laws of the State of California that the foregoing 18 is true and correct. Executed on November 8, 2019, in San Francisco, California. 19 20 ____________________________________ 21 Martin C. Young 22 23 24 25 26 27 28 -6- DEFENDANT SODEXO, INC.’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT