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221 FEB-5 PH.3: 48
THE COSTA LAW FIRM
DANIEL P. COSTA, State Bar No, 110919 | BRANDON E. RILEY, CLERK
2489 Sunrise Blvd., Ste. A } .
Gold River, California 95670
Tel: (916) 400-2734
Fax: (916) 400-2744
Attorneys for Defendant
ELK GROVE FORD
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN JOAQUIN
ARTI SINGH GHOTRA, Case No.: STK-CV-UPL-20200000748
Plaintiff,
vs. DEFENDANT ELK GROVE FORD'S
ANSWER TO COMPLAINT
ELK GROVE FORD, FORD MOTOR
COMPANY, PERFORMAN GROUP AUTO.
GROUP, INC., CURRENT AUTO
PERFORMANCE GROUP, INC.; and DOES
1 to 50,
Complaint Filed: January 15, 2020
Defendants,
COMES NOW Defendant ELK GROVE FORD ("Defendant”), and in answer to the
Complaint (“Complaint”) on file herein and each cause of action therein states, admits, denies and
alleges as follows:
IL
GENERAL, DENIAL
Pursuant to Code of Civil Procedure Section 431.30(d), Defendant denies each and every, all
|
and singular, of the allegations contained in the Complaint, and each purported cause of action therein
contained, and further denies that Plaintiff is, or will be injured in the sum or sums therein alleged or
otherwise or at all.
DEFENDANT ELK GROVE FORD'S ANSWER TO COMPLAINT
-1-
Filed by Fax10
11
IL.
AFFIRMATIVE DEFENSES
AS AND FOR SEPARATE AND DISTINCT AFFIRMATIVE DEFENSES, DEFENDANT]
ALLEGES AS FOLLOWS:
FIRST AFFIRMATIVE DEFENSE
(Failure to State Cause of Action)
The Complaint and each cause of action therein contained fails to state facts sufficient to
constitute a cause of action against Defendant.
SECOND AFFIRMATIVE DEFENSE
(Statute of Limitations)
The Complaint and each alleged cause of action therein contained is barred by the applicable
Statutes of Limitations, including but not limited to, CCP §§ 335.1 and 340.
THIRD AFFIRMATIVE DEFENSE
(Unclean Hands)
Plaintiff is barred from recovering on the grounds that they are guilty of unclean hands.
FOURTH AFFIRMATIVE DEFENSE
(Waiver and Estoppel by Conduct)
Plaintiff has waived any and all claims which they seek to assert in this action and is estopped
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by their own conduct and/or the conduct of their agents from seeking and/or obtaining a recovery
against Defendant in reference to the incidents and occurrences described in the Complaint,
Mt
Wt
“i
DEFENDANT BLK GROVE FORD’S ANSWER ‘TO COMPLAINT
~2-FIFTH AFFIRMATIVE DEFENSE
(failure to Mitigate Damages)
Plaintiff's alleged damages, if any, were aggravated by their failuce lu use reasonable diligence
to mitigate their injuries.
SIXTH AFFIRMATIVE DEFENSE
(Contributory Negligence)
Plaintiff was careless and negligent and/or at fault in and about the matters alleged in the
Complaint and were contributorily negligent with respect to the matters referred to in the Complaint,
and cach alleged cause of action contained therein, which said carelessness, negligence and/or fault
on said Plaintiffs own part were the proximate cause of the alleged injuties, losses and damages
sustained, if any there be, and proximately contributed to the happening of the incident and to the
injuries, losses and damages, if any there were, alleged in the Complaint on file herein. Under the
doctrine of Li v. Yellow Cab Co, of California (1975) 13 Cal.3d 804 [119 Cal.Rptr, 858], American
Motoreycle Association v. Superior Court of Los Angeles County (Viking Motorcycle Club) (1978)
20 Cal.3d 578 [146 Cal.Rptr. 182] and progeny, Plaintiffs’ contributory negligence and/or fault shall
reduce any and all damages sustained by said Plaintiffs, if any there be.
SEVENTH AFFIRMATIVE DEFENSE
(Proximate Cause)
The injuries alleged in Plaintiffs Complaint, and cach cause of action thereof, if they exist at
all, resulted from a cause or causes not proximately related to any act or omission by Defendant. '
EIGHTH AFFIRMATIVE DEFENSE
(Negligence of Others)
Plaintiffs’ damages were either wholly, or in part, negligently caused by persons, firms,
DEFENDANT ELK GROVE FORD'S ANSWER TO COMPLAINT
~-3-corporations, or entities other than Defendant and said negligence comparatively reduces the
percentage of negligence, if any, of Defendant,
NINTH AFFIRMATIVE DEFENSE
(Assumption of Risk)
Plaintiff assumed whatever risk or hazard, if any, that existed at the time and place referred to
in the Complaint, and each alleged cause of action contained therein, which assumption of risk or
hazard was the proximate cause of the alleged damages sustained, if any there be.
TENTH AFFIRMATIVE DEFENSE
(Apportionment of Liability)
In the event Plaintiff recovers a judgment against Defendant, Defendant request that any such
liability be apportioned under equitable principles with that of any other defendants similarly held
responsible to Plaintiff.
ELEVENTH AFFIRMATIVE DEFENSE
(Setoff)
To the extent Plaintiff has been compensated for the alleged damages by receiving payment
from other persons or entities the amount of any such compensation should be set off against any
recovery Plaintiff may receive in this action.
TWELFTH AFFIRMATIVE DEFENSE ‘
(Fault of Non-Parties) |
The Complaint, and each purported cause of action alleged therein, where the incidents
alleged in the Complaint were cause by the fault of other persons and entities of other patties and/or
non-parties to this action, and Defendants liability, if any, should be reduced accordingly.
MW
DEFENDANT ELK GROVE FORD'S ANSWER TO COMPLAINT
=-4-THIRTEENTH AFFIRMATIVE DEFENSE
(Contribution)
Any physical harm alleged can be ultributed to several causes and the damages for this harm,
if any, should be apportioned among the various causes according to the contribution of each cause
to the harm sustained,
FOURTEENTH AFFIRMATIVE DEFENSE
(Personal Responsibility Act of 1996)
To the extent that Plaintiff was operating an uninsured vehicle, was in violation of Vehicle
Code Section 23152 or Section 23153, or the accident occurred while leaving the scene of a felony,
or in the course of a felony for which the Plaintiff was later convicted, Plaintiffs damages are limited
to economic damages, only, pursuant to Civil Code Section 3333.4, the "Personal Responsibility Act
of 1996,"
FIFTEENTH AFFIRMATIVE DEFENSE
(No Vicarious Liability)
Defendant hereby raiscs and preserves the defense of no vicarious liability under the holding
of Diaz v. Carcamo (2011) 51 Cal, 4th 1148, and its progeny.
SIXTEENTH AFFIRMATIVE DEFENSE
(Failure to Use Ordinary Care)
Plaintiff did not exercise ordinary care, caution, or prudence to avoid the accident and
resulting injuries sustained by Plaintiff, if any, which were proximately caused and contributed to by
i
the negligence of Plaintiff, and as such, Plaintiff is subject to the doctrine of comparative negligence,
and any award, if any, should be reduced by the amount of said negligence by which the Plaintiffs
proximately contributed,
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DEFENDANT EBL GROVE FORD'S ANSWER TO COMPLAINT23
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SEVENTEENTH AFFIRMATIVE DEFENSE
(Failure to State Claim for Emotional Distress)
The Complaint, and each purported cause of action therein, fails to allege facts sufficient to
state a viable claim for emotional distress against Defendant.
EIGHTEENTH AFFIRMATIVE DEFENSE
(Notice of Additional Affirmative Defense)
Defendant hereby gives notice that Defendant intends to rely upon such other affirmative
defenses as may become available or apparent during the course of discovery and thus reserve the
tight to amend their Answer to assert such defenses.
I.
PRAYER
WHEREFORE, Defendant ROSS SCOTT SMITH prays for judgment as follows:
1 That Plaintiffs take nothing by way of their Complaint on file herein;
2. That any damages sustained by Plaintiffs be reduced by the percentage of their
negligence or other wrongdoing and that of other parties and/or non-parties;
3. Thal Defendant be awarded costs of suit incurred herein, including reasonable
attorney's fees; and
4, For such other and further relief as the Court may deem just and proper.
Tv.
DEMAND FOR JURY TRIAL |
Defendant ELK GROVE FORD hereby demands a Trial by jury in this matter
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DEFENDANT ELK GROVE FORD'S ANSWER TO COMPLAINT24
DATED: January, 3021 THE COSTA LAW FIRM
Februany 5,202|
By: LS.
DANIEL P. COSTA, Esq.
Attorneys for Defendant
ELK GROVE FORD
DEFENDANT ELK GROVE FORD'S ANSWER TO COMPLAINT
~7-PROOF OF SERVICE
COURT: San Joaquin County Superior Court
CASE NAME: Arti Singh Ghotra v. Elk Grove Ford, et al.
CASE NO. STK-CV-UPL-20200000748
Tam employed in the County of Sacramento, State of California. I am over the age of 18 and
not a party to the within action. I am employed by The Costa Law Firm, 2489 Sunrise Boulevard,
Suite A, Gold River, California 95670.
Tam familiar with the regular mail collection and processing practice of said business, and in
the ordinary course of business the mail is deposited with the United States Postal Service that same
day.
On this date, I served the foregoing document described as:
DEFENDANT ELK GROVE FORD’S ANSWER TO COMPLAINT
on all parties in said action as addressed below by causing a true copy thereof to be:
] Telecopied Via Facsimile,
[ ] Placed in a sealed envelope with postage thereon fully prepaid in the
designated area for outgoing mail.
] Delivered By Hand.
J Sent Via Overnight Delivery.
j Sent Via Email,
scan
Attorney for Pluintiff:
David A. Kleczek
Kleczek Law Office
825 Washington Street, Suite 301
Oakland, CA 94607
Tel: (510) 663-7100
Fax: (510) 663-7102
David, Kleczek@kleezcklaw.com
i
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I declare under penalty of perjury under the laws of the State of California that the foregoing
is true and correct, Executed on February 5, 2021 at Gold River, California. |
LN Castro
PROOF OF SERVICE
Preview
a 23 24 221 FEB-5 PH.3: 48 THE COSTA LAW FIRM DANIEL P. COSTA, State Bar No, 110919 | BRANDON E. RILEY, CLERK 2489 Sunrise Blvd., Ste. A } . Gold River, California 95670 Tel: (916) 400-2734 Fax: (916) 400-2744 Attorneys for Defendant ELK GROVE FORD SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN JOAQUIN ARTI SINGH GHOTRA, Case No.: STK-CV-UPL-20200000748 Plaintiff, vs. DEFENDANT ELK GROVE FORD'S ANSWER TO COMPLAINT ELK GROVE FORD, FORD MOTOR COMPANY, PERFORMAN GROUP AUTO. GROUP, INC., CURRENT AUTO PERFORMANCE GROUP, INC.; and DOES 1 to 50, Complaint Filed: January 15, 2020 Defendants, COMES NOW Defendant ELK GROVE FORD ("Defendant”), and in answer to the Complaint (“Complaint”) on file herein and each cause of action therein states, admits, denies and alleges as follows: IL GENERAL, DENIAL Pursuant to Code of Civil Procedure Section 431.30(d), Defendant denies each and every, all | and singular, of the allegations contained in the Complaint, and each purported cause of action therein contained, and further denies that Plaintiff is, or will be injured in the sum or sums therein alleged or otherwise or at all. DEFENDANT ELK GROVE FORD'S ANSWER TO COMPLAINT -1- Filed by Fax10 11 IL. AFFIRMATIVE DEFENSES AS AND FOR SEPARATE AND DISTINCT AFFIRMATIVE DEFENSES, DEFENDANT] ALLEGES AS FOLLOWS: FIRST AFFIRMATIVE DEFENSE (Failure to State Cause of Action) The Complaint and each cause of action therein contained fails to state facts sufficient to constitute a cause of action against Defendant. SECOND AFFIRMATIVE DEFENSE (Statute of Limitations) The Complaint and each alleged cause of action therein contained is barred by the applicable Statutes of Limitations, including but not limited to, CCP §§ 335.1 and 340. THIRD AFFIRMATIVE DEFENSE (Unclean Hands) Plaintiff is barred from recovering on the grounds that they are guilty of unclean hands. FOURTH AFFIRMATIVE DEFENSE (Waiver and Estoppel by Conduct) Plaintiff has waived any and all claims which they seek to assert in this action and is estopped | by their own conduct and/or the conduct of their agents from seeking and/or obtaining a recovery against Defendant in reference to the incidents and occurrences described in the Complaint, Mt Wt “i DEFENDANT BLK GROVE FORD’S ANSWER ‘TO COMPLAINT ~2-FIFTH AFFIRMATIVE DEFENSE (failure to Mitigate Damages) Plaintiff's alleged damages, if any, were aggravated by their failuce lu use reasonable diligence to mitigate their injuries. SIXTH AFFIRMATIVE DEFENSE (Contributory Negligence) Plaintiff was careless and negligent and/or at fault in and about the matters alleged in the Complaint and were contributorily negligent with respect to the matters referred to in the Complaint, and cach alleged cause of action contained therein, which said carelessness, negligence and/or fault on said Plaintiffs own part were the proximate cause of the alleged injuties, losses and damages sustained, if any there be, and proximately contributed to the happening of the incident and to the injuries, losses and damages, if any there were, alleged in the Complaint on file herein. Under the doctrine of Li v. Yellow Cab Co, of California (1975) 13 Cal.3d 804 [119 Cal.Rptr, 858], American Motoreycle Association v. Superior Court of Los Angeles County (Viking Motorcycle Club) (1978) 20 Cal.3d 578 [146 Cal.Rptr. 182] and progeny, Plaintiffs’ contributory negligence and/or fault shall reduce any and all damages sustained by said Plaintiffs, if any there be. SEVENTH AFFIRMATIVE DEFENSE (Proximate Cause) The injuries alleged in Plaintiffs Complaint, and cach cause of action thereof, if they exist at all, resulted from a cause or causes not proximately related to any act or omission by Defendant. ' EIGHTH AFFIRMATIVE DEFENSE (Negligence of Others) Plaintiffs’ damages were either wholly, or in part, negligently caused by persons, firms, DEFENDANT ELK GROVE FORD'S ANSWER TO COMPLAINT ~-3-corporations, or entities other than Defendant and said negligence comparatively reduces the percentage of negligence, if any, of Defendant, NINTH AFFIRMATIVE DEFENSE (Assumption of Risk) Plaintiff assumed whatever risk or hazard, if any, that existed at the time and place referred to in the Complaint, and each alleged cause of action contained therein, which assumption of risk or hazard was the proximate cause of the alleged damages sustained, if any there be. TENTH AFFIRMATIVE DEFENSE (Apportionment of Liability) In the event Plaintiff recovers a judgment against Defendant, Defendant request that any such liability be apportioned under equitable principles with that of any other defendants similarly held responsible to Plaintiff. ELEVENTH AFFIRMATIVE DEFENSE (Setoff) To the extent Plaintiff has been compensated for the alleged damages by receiving payment from other persons or entities the amount of any such compensation should be set off against any recovery Plaintiff may receive in this action. TWELFTH AFFIRMATIVE DEFENSE ‘ (Fault of Non-Parties) | The Complaint, and each purported cause of action alleged therein, where the incidents alleged in the Complaint were cause by the fault of other persons and entities of other patties and/or non-parties to this action, and Defendants liability, if any, should be reduced accordingly. MW DEFENDANT ELK GROVE FORD'S ANSWER TO COMPLAINT =-4-THIRTEENTH AFFIRMATIVE DEFENSE (Contribution) Any physical harm alleged can be ultributed to several causes and the damages for this harm, if any, should be apportioned among the various causes according to the contribution of each cause to the harm sustained, FOURTEENTH AFFIRMATIVE DEFENSE (Personal Responsibility Act of 1996) To the extent that Plaintiff was operating an uninsured vehicle, was in violation of Vehicle Code Section 23152 or Section 23153, or the accident occurred while leaving the scene of a felony, or in the course of a felony for which the Plaintiff was later convicted, Plaintiffs damages are limited to economic damages, only, pursuant to Civil Code Section 3333.4, the "Personal Responsibility Act of 1996," FIFTEENTH AFFIRMATIVE DEFENSE (No Vicarious Liability) Defendant hereby raiscs and preserves the defense of no vicarious liability under the holding of Diaz v. Carcamo (2011) 51 Cal, 4th 1148, and its progeny. SIXTEENTH AFFIRMATIVE DEFENSE (Failure to Use Ordinary Care) Plaintiff did not exercise ordinary care, caution, or prudence to avoid the accident and resulting injuries sustained by Plaintiff, if any, which were proximately caused and contributed to by i the negligence of Plaintiff, and as such, Plaintiff is subject to the doctrine of comparative negligence, and any award, if any, should be reduced by the amount of said negligence by which the Plaintiffs proximately contributed, it Ut DEFENDANT EBL GROVE FORD'S ANSWER TO COMPLAINT23 24 SEVENTEENTH AFFIRMATIVE DEFENSE (Failure to State Claim for Emotional Distress) The Complaint, and each purported cause of action therein, fails to allege facts sufficient to state a viable claim for emotional distress against Defendant. EIGHTEENTH AFFIRMATIVE DEFENSE (Notice of Additional Affirmative Defense) Defendant hereby gives notice that Defendant intends to rely upon such other affirmative defenses as may become available or apparent during the course of discovery and thus reserve the tight to amend their Answer to assert such defenses. I. PRAYER WHEREFORE, Defendant ROSS SCOTT SMITH prays for judgment as follows: 1 That Plaintiffs take nothing by way of their Complaint on file herein; 2. That any damages sustained by Plaintiffs be reduced by the percentage of their negligence or other wrongdoing and that of other parties and/or non-parties; 3. Thal Defendant be awarded costs of suit incurred herein, including reasonable attorney's fees; and 4, For such other and further relief as the Court may deem just and proper. Tv. DEMAND FOR JURY TRIAL | Defendant ELK GROVE FORD hereby demands a Trial by jury in this matter Mt Mt DEFENDANT ELK GROVE FORD'S ANSWER TO COMPLAINT24 DATED: January, 3021 THE COSTA LAW FIRM Februany 5,202| By: LS. DANIEL P. COSTA, Esq. Attorneys for Defendant ELK GROVE FORD DEFENDANT ELK GROVE FORD'S ANSWER TO COMPLAINT ~7-PROOF OF SERVICE COURT: San Joaquin County Superior Court CASE NAME: Arti Singh Ghotra v. Elk Grove Ford, et al. CASE NO. STK-CV-UPL-20200000748 Tam employed in the County of Sacramento, State of California. I am over the age of 18 and not a party to the within action. I am employed by The Costa Law Firm, 2489 Sunrise Boulevard, Suite A, Gold River, California 95670. Tam familiar with the regular mail collection and processing practice of said business, and in the ordinary course of business the mail is deposited with the United States Postal Service that same day. On this date, I served the foregoing document described as: DEFENDANT ELK GROVE FORD’S ANSWER TO COMPLAINT on all parties in said action as addressed below by causing a true copy thereof to be: ] Telecopied Via Facsimile, [ ] Placed in a sealed envelope with postage thereon fully prepaid in the designated area for outgoing mail. ] Delivered By Hand. J Sent Via Overnight Delivery. j Sent Via Email, scan Attorney for Pluintiff: David A. Kleczek Kleczek Law Office 825 Washington Street, Suite 301 Oakland, CA 94607 Tel: (510) 663-7100 Fax: (510) 663-7102 David, Kleczek@kleezcklaw.com i | I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, Executed on February 5, 2021 at Gold River, California. | LN Castro PROOF OF SERVICE