Preview
1 KAUFMAN DOLOWICH & VOLUCK, LLP
Tad A. Devlin (SBN 190355)
2 Kartikey A. Pradhan (SBN 291870) ELECTRONICALLY
Bryan A. Kurtz (SBN 326699)
3 425 California Street, Suite 2100 F I L E D
Superior Court of California,
San Francisco, California 94104 County of San Francisco
4 Telephone: (415) 926-7600
Facsimile: (415) 926-7601 10/11/2019
Clerk of the Court
5 BY: EDWARD SANTOS
Attorneys for Defendants Deputy Clerk
6 FREDERICK JEROME DIXON, BAY VIEW
PROPERTY MANAGERS, INC., and JAMES
7 RODERICK BLANDING 2011 TRUST
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SUPERIOR COURT FOR THE STATE OF CALIFORNIA
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COUNTY OF SAN FRANCISCO
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13 MARLON KITTLES, Case No.: CGC-19-577737
14 Plaintiff, Action Filed: July 18, 2019
15 V.
DEFENDANTS' ANSWER TO COMPLAINT
16 FREDERICK JEROME DIXON; BAY
VIEW PROPERTY MANAGERS, INC.;
17 JAMES RODERICK BLANDING 2011
TRUST; Does 1 to 50,
18
Defendants.
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21 Defendants FREDERICK JEROME DIXON, BAY VIEW PROPERTY MANAGERS, INC.
22 and JAMES RODERICK BLANDING 2011 TRUST (hereinafter "Defendants") answer Plaintiff
23 MARLON KITTLES' (hereinafter "Plaintiff') unverified Complaint (hereinafter "Complaint") as
24 follows:
25 GENERAL DENIAL
26 Pursuant to California Code of Civil Procedure § 431.30, Defendants deny, both generally and
27 specifically, each and every allegation in the Complaint. Defendants further deny, generally and
28 specifically, that Plaintiff has been damaged in any sum or at all by reason of any act or omission on
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DEFENDANTS' ANSWER TO COMPLAINT
1 the part of Defendants and deny that Plaintiff is entitled to recover any relief Plaintiff seeks in his
2 Complaint.
3 The following affirmative defenses are pled as a matter of law, and do not waive any
4 obligations by other parties, nor are they to be considered factual or evidentiary allegations.
5 AS SEPARATE AND FURTHER AFFIRMATIVE DEFENSES TO THE COMPLAINT,
Defendants allege as follows:
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FIRST AFFIRMATIVE DEFENSE
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(Comparative Negligence)
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The answering Defendants are informed and believe and thereon allege that if Plaintiff herein
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suffered or sustained any loss, injury, damage or detriment, the same was directly and proximately
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caused and contributed to by the conduct, acts, omissions, activities, carelessness, recklessness,
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and/or negligence, of the said Plaintiff; completely or partially barring Plaintiff recovery in the
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underlying action, in accordance with the body of law of comparative negligence.
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SECOND AFFIRMATIVE DEFENSE
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(Intentional Conduct by Plaintiff)
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The answering Defendants are informed and believe and thereon allege that if Plaintiff herein
16 suffered or sustained any loss, injury, damage or detriment, the same was directly and proximately
17 caused and contributed to by the intentional conduct of Plaintiff thereby barring or reducing
18 Plaintiffs rights to recovery against Defendants.
19 THIRD AFFIRMATIVE DEFENSE
20 (Self-Defense)
21 The answering Defendants are informed and believe and thereon allege that Co-Defendant
22 acted in self-defense thereby barring Plaintiffs recovery from answering Defendants. Without
23 limiting the foregoing, answering Defendants allege reasonable belief that Plaintiff was going to
24 cause harm and used only the amount of force that was reasonably necessary to protect
himself/herself/themselves or the safety of others.
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FOURTH AFFIRMATIVE DEFENSE
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(Absence of Fault)
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The answering Defendants are informed and believe and thereon allege that the Complaint,
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DEFENDANTS' ANSWER TO COMPLAINT
1 including each claim alleged, is barred because there is no fault on the part of the Defendants.
2 FIFTH AFFIRMATIVE DEFENSE
3 (No Breach of Duty)
4 The answering Defendants are informed and believe and thereon allege that they did not
5 breach any duty that allegedly led to the damages asserted by Plaintiff in his Complaint.
SIXTH AFFIRMATIVE DEFENSE
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(Causation)
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The answering Defendants are informed and believe and thereon allege that answering
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Defendants have committed no acts or omissions which caused any damage to Plaintiff.
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SEVENTH AFFIRMATIVE DEFENSE
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(Equitable Doctrine of Unclean Hands)
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The answering Defendants are informed and believe and thereon allege that Plaintiff's
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unlawful, immoral, careless, negligent, and other wrongful conduct should bar Plaintiff from
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recovering by way of its Complaint against answering Defendants under the equitable doctrine of
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unclean hands.
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EIGHTH AFFIRMATIVE DEFENSE
16 (Mitigation of Damages)
17 The answering Defendants are informed and believe and thereon allege that as to each alleged
18 cause of action, Plaintiff failed, refused, and/or neglected to take reasonable steps to mitigate his
19 alleged damages, if any, thus barring or diminishing Plaintiff's recovery herein.
20 NINTH AFFIRMATIVE DEFENSE
21 (In Pari Delicto)
22 The answering Defendants are informed and believe and thereon allege that, as to each alleged
23 cause of action, the answering Defendants deny any wrongdoing, but allege that, in any event,
24 Plaintiff is barred from any recovery for the acts alleged in the Complaint because Plaintiff was in
pari delicto.
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TENTH AFFIRMATIVE DEFENSE
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(Speculative Damages)
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The answering Defendants are informed and believe and thereon allege that the damages
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DEFENDANTS' ANSWER TO COMPLAINT
1 claimed by Plaintiff in the Complaint are speculative.
2 ELEVENTH AFFIRMATIVE DEFENSE
3 (No Evidence of Malice)
4 This answering Defendants allege that Plaintiff's claims, if any, seeking punitive damages, are
5 barred or limited because there is no evidence of conduct by Defendants amounting to malice,
oppression or fraud.
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TWELFTH AFFIRMATIVE DEFENSE
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(Claim for Punitive Damages is Barred)
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This answering Defendants allege that Plaintiff's claims, if any, seeking punitive damages
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are barred or limited by the United States Constitution, state constitutions or other applicable law,
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including, but not limited to, proscriptions against double jeopardy and excessive fines and
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provisions assuring due process oflaw and equal protection of the laws.
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THIRTEENTH AFFIRMATIVE DEFENSE
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(Estoppel /Laches /Waiver)
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The answering Defendants are informed and believe and thereon allege that Plaintiff
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unreasonably delayed the filing of his Complaint and the notification by same to answering
16 Defendants of his alleged damages, negligence, and the basis for the causes of action against it, all
17 of which have unduly and severely prejudiced answering Defendants in their defense of the action,
18 and opportunity to inspect and/or respond to Plaintiff's claims, or damages, thereby waiving, barring
19 or diminishing Plaintiff's recovery herein under the Doctrine of Laches, Estoppel and/or Waiver.
20 FOURTEENTH AFFIRMATIVE DEFENSE
21 (Statute of Limitations)
22 The answering Defendants are informed and believe and thereon allege that the Complaint
23 and each and every cause of action contained therein is barred by the Statute of Limitations,
24 including without limitations, those set forth in California Code of Civil Procedure §§ 335.1, 340.3,
and 343.
25
FIFTEENTH AFFIRMATIVE DEFENSE
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(Offset)
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The answering Defendants are informed and believe and thereon allege that they have the
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DEFENDANTS' ANSWER TO COMPLAINT
1 right of offset in any amount that has been recovered by Plaintiff from any non-collateral source.
2 SIXTEENTH AFFIRMATIVE DEFENSE
3 (Comparative Fault of Others)
4 Persons, firms, corporations and/or entities were careless and negligent in and about the
5 matters and things alleged in the Complaint for personal injury and each and every cause of action
contained therein. This carelessness and negligence caused and/or contributed, in whole or in part, to
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the happening of the incidents, and to the injuries, losses and damages, if any, alleged by the Plaintiff.
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In the event of any judgment in favor of the Plaintiff herein, said judgment must be reduced to the
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extent that said carelessness and negligence and/or comparative fault of others caused and/or
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contributed to the injuries, losses and damages, if any alleged by the Plaintiff.
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SEVENTEENTH AFFIRMATIVE DEFENSE
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(Lack of Control)
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The answering Defendants are informed and believe and thereon allege that they did not
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maintain control of the premises and conditions related to the incident, which Plaintiff alleges led to
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his damages, at the time of the incident, or otherwise.
15 EIGHTEENTH AFFIRMATIVE DEFENSE
16 (Knowing and Voluntary Assumption of the Risk)
17 The answering Defendants are informed and believe and thereon allege the Plaintiff knew, or
18 in the exercise of ordinary care, should have known, of the risks and hazards, if any, referred to in the
19 Complaint for personal injury and had full knowledge of the existing conditions, and appreciated the
20 risks involved and freely, knowingly and voluntarily assumed the same. The assumption of the risks
21 by the Plaintiff were the sole legal cause of the injuries, losses and damages, if any, alleged by the
22 Plaintiffs.
23 NINETEENTH AFFIRMATIVE DEFENSE
24 (Failure to Mitigate Damages)
The answering Defendants are informed and believe and thereon allege that as to each alleged
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cause of action, Plaintiff has failed, refused, and/or neglected to take reasonable steps to mitigate his
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alleged damages, if any, thus barring or diminishing Plaintiff's recovery herein.
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II
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DEFENDANTS' ANSWER TO COMPLAINT
1 TWENTIETH AFFIRMATIVE DEFENSE
2 (Failure to Exercise Due Care)
3 The answering Defendants are informed and believe and thereon allege that Plaintiffs
4 Complaint is barred in whole or part in that Plaintiff, by virtue of his own acts and/or the acts or
5 omissions of others chargeable to them failed to exercise the quality and quantity of care and caution
for which a reasonable individual in the same or similar circumstances would have exercised; said
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failure and negligence of Plaintiff, by virtue of his own acts and/or the acts or omissions of others
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chargeable to them, proximately caused and contributed to the alleged damages; and any recovery by
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Plaintiff should thereby be diminished or barred.
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TWENTY-FIRST AFFIRMATIVE DEFENSE
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(Negligence of Others)
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The answering Defendants are informed and believe and thereon allege that other defendants
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in this lawsuit, as well as other persons and entities not parties to this lawsuit, were themselves
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responsible for the Plaintiffs damages, if there were any. This answering Defendants requests that
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their liability, if any, be assessed in proportion to the liability of other co-defendants, persons and
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entities who are not parties to this action, and that defendants be required to pay only for their
16 proportionate share of fault, if any there be.
17 TWENTY-SECOND AFFIRMATIVE DEFENSE
18 (No Liability for Third Party Acts)
19 The answering Defendants are informed and believe and thereon allege that they are not liable
20 for the independent acts of third parties and Plaintiffs injuries and damages, if any, are attributable to
21 acts of third parties.
22 TWENTY-THIRD AFFIRMATIVE DEFENSE
23 (Good Faith and Reasonable Actions)
24 The answering Defendants are informed and believe and thereon allege that, as to each cause
of action in the Complaint, Defendants, at all times relevant, acted in complete good faith and
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reasonably within the meaning of all state statutes, doctrines, tenets of common law, and judicial
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authorities.
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II
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DEFENDANTS' ANSWER TO COMPLAINT
1 TWENTY-FOURTH AFFIRMATIVE DEFENSE
2 (Lack of Proximate Cause)
3 The answering Defendants are informed and believe and thereon allege that any alleged conduct or
4 omission by answering Defendants was not the cause in fact, or proximate cause, of any injuries or
5 damages alleged by Plaintiff.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
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(Intervening and Superseding Cause)
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The answering Defendants are informed and believe and thereon allege that if Plaintiff
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suffered or sustained any loss, damage or injury as alleged in the Complaint, such loss, damage or
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injury was legally caused or contributed to by the negligence or wrongful conduct of other parties,
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persons or entities, and that their negligence or wrongful conduct was an intervening and superseding
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cause of the loss, damage or injury of which Plaintiff complains.
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TWENTY-SIXTH AFFIRMATIVE DEFENSE
13
(Equitable Apportionment of the Loss)
14
The answering Defendants are informed and believe and thereon allege that they are not
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legally responsible in any fashion with respect to damages and injuries claimed by the Plaintiff in the
16 Complaint; however, if answering Defendants are subjected to any liability to the Plaintiff, or any
17 Cross-Complainant herein, it will be due, in whole or in part, to conduct, acts, omissions, activities,
18 carelessness, recklessness, negligence, and/or intentional conduct of others; wherefore, any recovery
19 obtained by Plaintiff herein against answering Defendants should be reduced in proportion to the
20 respective negligence and fault and legal responsibility of all other parties, persons and entities, their
21 agents, servants and employees who contributed to and/or caused any such injury and/or damages, in
22 accordance with the body of law of equitable apportionment of the loss; the liability of answering
23 Defendants, if any, is limited in direct proportion to the percentage of fault actually attributed to the
24 answering Defendants.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
25
(Failure to Join Necessary and Indispensable Parties)
26
The answering Defendants are informed and believe and thereon allege that Plaintiffs was
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reimbursed for a portion of the claimed damages by a third party; Defendants are informed and
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DEFENDANTS' ANSWER TO COMPLAINT
1 believe and thereon allege that Plaintiff has subrogated that third party to a portion of the damages
2 claimed herein; Defendants are informed and believe and thereon allege that by virtue of the
3 aforementioned subrogation, and Plaintiffs failure to join all necessary and indispensable parties
4 regardless of the aforementioned subrogation, Plaintiff has failed to name indispensable parties, and
5 has violated the rule against splitting causes of action, thus barring Plaintiffs recovery herein.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
6
(Lack of Legal Responsibility)
7
The answering Defendants are informed and believe and thereon allege that they are not
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legally responsible for the acts and/or omissions of those Defendants named herein as Doe
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Defendants.
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TWENTY-NINTH AFFIRMATIVE DEFENSE
11
(Failure to State a Cause of Action)
12
The answering Defendants are informed and believe and thereon allege that the Complaint
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and each and every cause of action stated therein fails to state facts sufficient to constitute a cause of
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action, or any cause of action, as against answering Defendants.
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THIRTIETH AFFIRMATIVE DEFENSE
16 (Reservation of Additional Affirmative Defenses)
17 The answering Defendants presently have insufficient knowledge or information upon which
18 to form a belief as to whether they may have additional, yet unasserted, affirmative defenses to the
19 Complaint, and therefore reserve the right to assert additional affirmative defenses in the event
20 discovery and/or additional investigation indicates it would be appropriate to do so.
21 WHEREFORE, Defendants pray for judgment against Plaintiff as follows:
22 1. That Plaintiff takes nothing by virtue of his Complaint;
23 2. For the costs of suit incurred herein;
24 3. For attorney's fees and costs; and
4. For such other and further relief as the Court deems just and proper.
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II
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II
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II
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DEFENDANTS' ANSWER TO COMPLAINT
1 DATED: October 11 , 2019 KAUFMAN DOLOWICH & VOLUCK, LLP
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Tad A. Dev: 1
4 Kartikey . Pradhan
Brian A. urtz
5 Attorneys for Defendants
FREDERICK JEROME DIXON, BAY VIEW
6 PROPERTY MANAGERS , INC. , and JAMES
RODERICK BLANDING 2011 TRUST
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8 4833-9908-0 I 05 , V. I
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DEFENDANTS ' ANSWER TO COMPLAINT
1 PROOF OF SERVICE
2 Marlon Kittles v. Frederick Jerome Dixon, et al.
San Francisco Superior Court Action No. CGC-19-577737
3
4
I am employed in the County of San Francisco, State of California. I am over the age of
5 18 and not a party to this action. My business address is 425 California Street, Suite 2100, San
Francisco, California 94104. On the execution date below and in the manner stated herein, I
6 served the following documents:
7
DEFENDANTS' ANSWER TO COMPLAINT
8
on all interested parties in this action by placing [ ] the original or [X] a true copy of the original
9 thereof enclosed in sealed envelopes addressed as follows:
10 Kikolaus W. Reed
Law Office of Nikolaus Reed
11
135 10th Street
12 San Francisco, CA 94103
Telephone: (415) 940-7766
13 Facsimile: (415) 940-7706
14
Attorneys for Plaintiff
15
[X] BY MAIL I deposited such envelope(s) with postage thereon fully prepaid in the United
16 States mail at a facility regularly maintained by the United States Postal Service at San
Francisco, California. I am readily familiar with the firm ' s practice of collecting and processing
17
correspondence for mailing. Under the practice it would be deposited with the U.S. Postal
18 Service on that same day with postage thereon fully prepaid at San Francisco, California in the
ordinary course of business.
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[X] (STA TE) I declare under penalty of perjury under the laws of the State of California that
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the above is true and correct.
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Executed on October 11 , 2019, at San Francisco, California.
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PROOF OF SERVICE
Preview
1 KAUFMAN DOLOWICH & VOLUCK, LLP Tad A. Devlin (SBN 190355) 2 Kartikey A. Pradhan (SBN 291870) ELECTRONICALLY Bryan A. Kurtz (SBN 326699) 3 425 California Street, Suite 2100 F I L E D Superior Court of California, San Francisco, California 94104 County of San Francisco 4 Telephone: (415) 926-7600 Facsimile: (415) 926-7601 10/11/2019 Clerk of the Court 5 BY: EDWARD SANTOS Attorneys for Defendants Deputy Clerk 6 FREDERICK JEROME DIXON, BAY VIEW PROPERTY MANAGERS, INC., and JAMES 7 RODERICK BLANDING 2011 TRUST 8 9 SUPERIOR COURT FOR THE STATE OF CALIFORNIA 10 COUNTY OF SAN FRANCISCO 11 12 13 MARLON KITTLES, Case No.: CGC-19-577737 14 Plaintiff, Action Filed: July 18, 2019 15 V. DEFENDANTS' ANSWER TO COMPLAINT 16 FREDERICK JEROME DIXON; BAY VIEW PROPERTY MANAGERS, INC.; 17 JAMES RODERICK BLANDING 2011 TRUST; Does 1 to 50, 18 Defendants. 19 20 21 Defendants FREDERICK JEROME DIXON, BAY VIEW PROPERTY MANAGERS, INC. 22 and JAMES RODERICK BLANDING 2011 TRUST (hereinafter "Defendants") answer Plaintiff 23 MARLON KITTLES' (hereinafter "Plaintiff') unverified Complaint (hereinafter "Complaint") as 24 follows: 25 GENERAL DENIAL 26 Pursuant to California Code of Civil Procedure § 431.30, Defendants deny, both generally and 27 specifically, each and every allegation in the Complaint. Defendants further deny, generally and 28 specifically, that Plaintiff has been damaged in any sum or at all by reason of any act or omission on - 1- DEFENDANTS' ANSWER TO COMPLAINT 1 the part of Defendants and deny that Plaintiff is entitled to recover any relief Plaintiff seeks in his 2 Complaint. 3 The following affirmative defenses are pled as a matter of law, and do not waive any 4 obligations by other parties, nor are they to be considered factual or evidentiary allegations. 5 AS SEPARATE AND FURTHER AFFIRMATIVE DEFENSES TO THE COMPLAINT, Defendants allege as follows: 6 FIRST AFFIRMATIVE DEFENSE 7 (Comparative Negligence) 8 The answering Defendants are informed and believe and thereon allege that if Plaintiff herein 9 suffered or sustained any loss, injury, damage or detriment, the same was directly and proximately 10 caused and contributed to by the conduct, acts, omissions, activities, carelessness, recklessness, 11 and/or negligence, of the said Plaintiff; completely or partially barring Plaintiff recovery in the 12 underlying action, in accordance with the body of law of comparative negligence. 13 SECOND AFFIRMATIVE DEFENSE 14 (Intentional Conduct by Plaintiff) 15 The answering Defendants are informed and believe and thereon allege that if Plaintiff herein 16 suffered or sustained any loss, injury, damage or detriment, the same was directly and proximately 17 caused and contributed to by the intentional conduct of Plaintiff thereby barring or reducing 18 Plaintiffs rights to recovery against Defendants. 19 THIRD AFFIRMATIVE DEFENSE 20 (Self-Defense) 21 The answering Defendants are informed and believe and thereon allege that Co-Defendant 22 acted in self-defense thereby barring Plaintiffs recovery from answering Defendants. Without 23 limiting the foregoing, answering Defendants allege reasonable belief that Plaintiff was going to 24 cause harm and used only the amount of force that was reasonably necessary to protect himself/herself/themselves or the safety of others. 25 FOURTH AFFIRMATIVE DEFENSE 26 (Absence of Fault) 27 The answering Defendants are informed and believe and thereon allege that the Complaint, 28 -2- DEFENDANTS' ANSWER TO COMPLAINT 1 including each claim alleged, is barred because there is no fault on the part of the Defendants. 2 FIFTH AFFIRMATIVE DEFENSE 3 (No Breach of Duty) 4 The answering Defendants are informed and believe and thereon allege that they did not 5 breach any duty that allegedly led to the damages asserted by Plaintiff in his Complaint. SIXTH AFFIRMATIVE DEFENSE 6 (Causation) 7 The answering Defendants are informed and believe and thereon allege that answering 8 Defendants have committed no acts or omissions which caused any damage to Plaintiff. 9 SEVENTH AFFIRMATIVE DEFENSE 10 (Equitable Doctrine of Unclean Hands) 11 The answering Defendants are informed and believe and thereon allege that Plaintiff's 12 unlawful, immoral, careless, negligent, and other wrongful conduct should bar Plaintiff from 13 recovering by way of its Complaint against answering Defendants under the equitable doctrine of 14 unclean hands. 15 EIGHTH AFFIRMATIVE DEFENSE 16 (Mitigation of Damages) 17 The answering Defendants are informed and believe and thereon allege that as to each alleged 18 cause of action, Plaintiff failed, refused, and/or neglected to take reasonable steps to mitigate his 19 alleged damages, if any, thus barring or diminishing Plaintiff's recovery herein. 20 NINTH AFFIRMATIVE DEFENSE 21 (In Pari Delicto) 22 The answering Defendants are informed and believe and thereon allege that, as to each alleged 23 cause of action, the answering Defendants deny any wrongdoing, but allege that, in any event, 24 Plaintiff is barred from any recovery for the acts alleged in the Complaint because Plaintiff was in pari delicto. 25 TENTH AFFIRMATIVE DEFENSE 26 (Speculative Damages) 27 The answering Defendants are informed and believe and thereon allege that the damages 28 -3- DEFENDANTS' ANSWER TO COMPLAINT 1 claimed by Plaintiff in the Complaint are speculative. 2 ELEVENTH AFFIRMATIVE DEFENSE 3 (No Evidence of Malice) 4 This answering Defendants allege that Plaintiff's claims, if any, seeking punitive damages, are 5 barred or limited because there is no evidence of conduct by Defendants amounting to malice, oppression or fraud. 6 TWELFTH AFFIRMATIVE DEFENSE 7 (Claim for Punitive Damages is Barred) 8 This answering Defendants allege that Plaintiff's claims, if any, seeking punitive damages 9 are barred or limited by the United States Constitution, state constitutions or other applicable law, 10 including, but not limited to, proscriptions against double jeopardy and excessive fines and 11 provisions assuring due process oflaw and equal protection of the laws. 12 THIRTEENTH AFFIRMATIVE DEFENSE 13 (Estoppel /Laches /Waiver) 14 The answering Defendants are informed and believe and thereon allege that Plaintiff 15 unreasonably delayed the filing of his Complaint and the notification by same to answering 16 Defendants of his alleged damages, negligence, and the basis for the causes of action against it, all 17 of which have unduly and severely prejudiced answering Defendants in their defense of the action, 18 and opportunity to inspect and/or respond to Plaintiff's claims, or damages, thereby waiving, barring 19 or diminishing Plaintiff's recovery herein under the Doctrine of Laches, Estoppel and/or Waiver. 20 FOURTEENTH AFFIRMATIVE DEFENSE 21 (Statute of Limitations) 22 The answering Defendants are informed and believe and thereon allege that the Complaint 23 and each and every cause of action contained therein is barred by the Statute of Limitations, 24 including without limitations, those set forth in California Code of Civil Procedure §§ 335.1, 340.3, and 343. 25 FIFTEENTH AFFIRMATIVE DEFENSE 26 (Offset) 27 The answering Defendants are informed and believe and thereon allege that they have the 28 -4- DEFENDANTS' ANSWER TO COMPLAINT 1 right of offset in any amount that has been recovered by Plaintiff from any non-collateral source. 2 SIXTEENTH AFFIRMATIVE DEFENSE 3 (Comparative Fault of Others) 4 Persons, firms, corporations and/or entities were careless and negligent in and about the 5 matters and things alleged in the Complaint for personal injury and each and every cause of action contained therein. This carelessness and negligence caused and/or contributed, in whole or in part, to 6 the happening of the incidents, and to the injuries, losses and damages, if any, alleged by the Plaintiff. 7 In the event of any judgment in favor of the Plaintiff herein, said judgment must be reduced to the 8 extent that said carelessness and negligence and/or comparative fault of others caused and/or 9 contributed to the injuries, losses and damages, if any alleged by the Plaintiff. 10 SEVENTEENTH AFFIRMATIVE DEFENSE 11 (Lack of Control) 12 The answering Defendants are informed and believe and thereon allege that they did not 13 maintain control of the premises and conditions related to the incident, which Plaintiff alleges led to 14 his damages, at the time of the incident, or otherwise. 15 EIGHTEENTH AFFIRMATIVE DEFENSE 16 (Knowing and Voluntary Assumption of the Risk) 17 The answering Defendants are informed and believe and thereon allege the Plaintiff knew, or 18 in the exercise of ordinary care, should have known, of the risks and hazards, if any, referred to in the 19 Complaint for personal injury and had full knowledge of the existing conditions, and appreciated the 20 risks involved and freely, knowingly and voluntarily assumed the same. The assumption of the risks 21 by the Plaintiff were the sole legal cause of the injuries, losses and damages, if any, alleged by the 22 Plaintiffs. 23 NINETEENTH AFFIRMATIVE DEFENSE 24 (Failure to Mitigate Damages) The answering Defendants are informed and believe and thereon allege that as to each alleged 25 cause of action, Plaintiff has failed, refused, and/or neglected to take reasonable steps to mitigate his 26 alleged damages, if any, thus barring or diminishing Plaintiff's recovery herein. 27 II 28 -5- DEFENDANTS' ANSWER TO COMPLAINT 1 TWENTIETH AFFIRMATIVE DEFENSE 2 (Failure to Exercise Due Care) 3 The answering Defendants are informed and believe and thereon allege that Plaintiffs 4 Complaint is barred in whole or part in that Plaintiff, by virtue of his own acts and/or the acts or 5 omissions of others chargeable to them failed to exercise the quality and quantity of care and caution for which a reasonable individual in the same or similar circumstances would have exercised; said 6 failure and negligence of Plaintiff, by virtue of his own acts and/or the acts or omissions of others 7 chargeable to them, proximately caused and contributed to the alleged damages; and any recovery by 8 Plaintiff should thereby be diminished or barred. 9 TWENTY-FIRST AFFIRMATIVE DEFENSE 10 (Negligence of Others) 11 The answering Defendants are informed and believe and thereon allege that other defendants 12 in this lawsuit, as well as other persons and entities not parties to this lawsuit, were themselves 13 responsible for the Plaintiffs damages, if there were any. This answering Defendants requests that 14 their liability, if any, be assessed in proportion to the liability of other co-defendants, persons and 15 entities who are not parties to this action, and that defendants be required to pay only for their 16 proportionate share of fault, if any there be. 17 TWENTY-SECOND AFFIRMATIVE DEFENSE 18 (No Liability for Third Party Acts) 19 The answering Defendants are informed and believe and thereon allege that they are not liable 20 for the independent acts of third parties and Plaintiffs injuries and damages, if any, are attributable to 21 acts of third parties. 22 TWENTY-THIRD AFFIRMATIVE DEFENSE 23 (Good Faith and Reasonable Actions) 24 The answering Defendants are informed and believe and thereon allege that, as to each cause of action in the Complaint, Defendants, at all times relevant, acted in complete good faith and 25 reasonably within the meaning of all state statutes, doctrines, tenets of common law, and judicial 26 authorities. 27 II 28 -6- DEFENDANTS' ANSWER TO COMPLAINT 1 TWENTY-FOURTH AFFIRMATIVE DEFENSE 2 (Lack of Proximate Cause) 3 The answering Defendants are informed and believe and thereon allege that any alleged conduct or 4 omission by answering Defendants was not the cause in fact, or proximate cause, of any injuries or 5 damages alleged by Plaintiff. TWENTY-FIFTH AFFIRMATIVE DEFENSE 6 (Intervening and Superseding Cause) 7 The answering Defendants are informed and believe and thereon allege that if Plaintiff 8 suffered or sustained any loss, damage or injury as alleged in the Complaint, such loss, damage or 9 injury was legally caused or contributed to by the negligence or wrongful conduct of other parties, 10 persons or entities, and that their negligence or wrongful conduct was an intervening and superseding 11 cause of the loss, damage or injury of which Plaintiff complains. 12 TWENTY-SIXTH AFFIRMATIVE DEFENSE 13 (Equitable Apportionment of the Loss) 14 The answering Defendants are informed and believe and thereon allege that they are not 15 legally responsible in any fashion with respect to damages and injuries claimed by the Plaintiff in the 16 Complaint; however, if answering Defendants are subjected to any liability to the Plaintiff, or any 17 Cross-Complainant herein, it will be due, in whole or in part, to conduct, acts, omissions, activities, 18 carelessness, recklessness, negligence, and/or intentional conduct of others; wherefore, any recovery 19 obtained by Plaintiff herein against answering Defendants should be reduced in proportion to the 20 respective negligence and fault and legal responsibility of all other parties, persons and entities, their 21 agents, servants and employees who contributed to and/or caused any such injury and/or damages, in 22 accordance with the body of law of equitable apportionment of the loss; the liability of answering 23 Defendants, if any, is limited in direct proportion to the percentage of fault actually attributed to the 24 answering Defendants. TWENTY-SEVENTH AFFIRMATIVE DEFENSE 25 (Failure to Join Necessary and Indispensable Parties) 26 The answering Defendants are informed and believe and thereon allege that Plaintiffs was 27 reimbursed for a portion of the claimed damages by a third party; Defendants are informed and 28 -7- DEFENDANTS' ANSWER TO COMPLAINT 1 believe and thereon allege that Plaintiff has subrogated that third party to a portion of the damages 2 claimed herein; Defendants are informed and believe and thereon allege that by virtue of the 3 aforementioned subrogation, and Plaintiffs failure to join all necessary and indispensable parties 4 regardless of the aforementioned subrogation, Plaintiff has failed to name indispensable parties, and 5 has violated the rule against splitting causes of action, thus barring Plaintiffs recovery herein. TWENTY-EIGHTH AFFIRMATIVE DEFENSE 6 (Lack of Legal Responsibility) 7 The answering Defendants are informed and believe and thereon allege that they are not 8 legally responsible for the acts and/or omissions of those Defendants named herein as Doe 9 Defendants. 10 TWENTY-NINTH AFFIRMATIVE DEFENSE 11 (Failure to State a Cause of Action) 12 The answering Defendants are informed and believe and thereon allege that the Complaint 13 and each and every cause of action stated therein fails to state facts sufficient to constitute a cause of 14 action, or any cause of action, as against answering Defendants. 15 THIRTIETH AFFIRMATIVE DEFENSE 16 (Reservation of Additional Affirmative Defenses) 17 The answering Defendants presently have insufficient knowledge or information upon which 18 to form a belief as to whether they may have additional, yet unasserted, affirmative defenses to the 19 Complaint, and therefore reserve the right to assert additional affirmative defenses in the event 20 discovery and/or additional investigation indicates it would be appropriate to do so. 21 WHEREFORE, Defendants pray for judgment against Plaintiff as follows: 22 1. That Plaintiff takes nothing by virtue of his Complaint; 23 2. For the costs of suit incurred herein; 24 3. For attorney's fees and costs; and 4. For such other and further relief as the Court deems just and proper. 25 II 26 II 27 II 28 -8- DEFENDANTS' ANSWER TO COMPLAINT 1 DATED: October 11 , 2019 KAUFMAN DOLOWICH & VOLUCK, LLP 2 3 Tad A. Dev: 1 4 Kartikey . Pradhan Brian A. urtz 5 Attorneys for Defendants FREDERICK JEROME DIXON, BAY VIEW 6 PROPERTY MANAGERS , INC. , and JAMES RODERICK BLANDING 2011 TRUST 7 8 4833-9908-0 I 05 , V. I 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9- DEFENDANTS ' ANSWER TO COMPLAINT 1 PROOF OF SERVICE 2 Marlon Kittles v. Frederick Jerome Dixon, et al. San Francisco Superior Court Action No. CGC-19-577737 3 4 I am employed in the County of San Francisco, State of California. I am over the age of 5 18 and not a party to this action. My business address is 425 California Street, Suite 2100, San Francisco, California 94104. On the execution date below and in the manner stated herein, I 6 served the following documents: 7 DEFENDANTS' ANSWER TO COMPLAINT 8 on all interested parties in this action by placing [ ] the original or [X] a true copy of the original 9 thereof enclosed in sealed envelopes addressed as follows: 10 Kikolaus W. Reed Law Office of Nikolaus Reed 11 135 10th Street 12 San Francisco, CA 94103 Telephone: (415) 940-7766 13 Facsimile: (415) 940-7706 14 Attorneys for Plaintiff 15 [X] BY MAIL I deposited such envelope(s) with postage thereon fully prepaid in the United 16 States mail at a facility regularly maintained by the United States Postal Service at San Francisco, California. I am readily familiar with the firm ' s practice of collecting and processing 17 correspondence for mailing. Under the practice it would be deposited with the U.S. Postal 18 Service on that same day with postage thereon fully prepaid at San Francisco, California in the ordinary course of business. 19 [X] (STA TE) I declare under penalty of perjury under the laws of the State of California that 20 the above is true and correct. 21 Executed on October 11 , 2019, at San Francisco, California. 22 23 24 25 26 27 28 PROOF OF SERVICE