Answer: ROSA KINZI et al VS. OPEN TOP SIGHTSEEING SAN FRANCISCO, LLC et al

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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

Document Scanning Lead Sheet
Apr-10-2014 02:33 pm

Case Number: CGC-13-534579
Filing Date: Apr-10-2014 02:32 pm
Filed by: WESLEY G. RAMIREZ
Juke Box: 001 Image: 04442993

ANSWER

ROSA KINZI et al VS. OPEN TOP SIGHTSEEING SAN FRANCISCO, LLC et a!

001004442993

Instructions:
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GREGORY B. MOUROUX (SBN: 231948)
AT&T SERVICES, INC. - LEGAL DEPT.
525 Market Street, Suite 2009

San Francisco, California 94105

Telephone: (415) 778-1359
Facsimile: (415) 882-4458

Attomey for Defendant, Cross-Complainant and

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Seti PBer Hence
APR 10 2014

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Cross-Defendant PACIFIC BELL TELEPHONE COMPANY
dba AT&T CALIFORNIA (erroneously sued and served as

“AT&T Corp.”)

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION

ROSA KINZL, JOHANN KINZL, MOLLY
FARREL and EDWARD FARREL,

Plaintiffs,

vs.
OPEN TOP SIGHTSEEING SAN
FRANCISCO, LLC, MANUEL GOMEZ
GUARDADO, and DOES 1-20, inclusive

Defendants.

OPEN TOP SIGHTSEEING SAN
FRANCISCO, LLC and MANUEL GOMEZ
GUARDADO,

Cross-Complainants,

vs.
ROES 1 through 5, inclusive,

Cross-Defendants.

Case No. CGC-13-534579

ANSWER OF CROSS-DEFENDANT
PACIFIC BELL TELEPHONE
COMPANY D/B/A AT&T CALIFORNIA
TO OPEN TOP SIGHTSEEING SAN
FRANCISCO, LLC AND MANUEL
GOMEZ GUARDADO’S CROSS-
COMPLAINT

Complaint Filed: September 30, 2013
Cross-Complaint Filed: Nov. 25, 2013
Trial Date: Not Set

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PACIFIC BELL'S ANSWER TO CROSS-COMPLAINToe YN DA HW BRB WH ee

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Cross-Defendant PACIFIC BELL TELEPHONE COMPANY dba AT&T California,
erroneously sued and served as Cross-Defendant “AT&T Corp.” (ROE 1) (“PBTC”), hereby
answers Cross-Complainants OPEN TOP SIGHTSEEING SAN FRANCISCO, LLC and
MANUEL GOMEZ GUARDADO’s (“Cross-Complainants”) Cross-Complaint on file herein,
and admits, denies and alleges as follows:

1. Pursuant to C.C.P. § 431.30, PBTC generally and specifically denies each and
every allegation and cause of action contained in the Cross-Complaint;

2. PBTC further denies that Cross-Complainants have been damaged or will be
damaged in any sum or at all, or that they are entitled to indemnity and contribution from PBTC.

AFFIRMATIVE DEFENSES
First Affirmative Defense
(Failure to State a Cause of Action)

L. As a first, separate, and affirmative defense, PBTC alleges that each and every
purported cause of action contained in the Cross-Complaint fails to state facts sufficient to
constitute a cause of action against PBTC.

Second Affirmative Defense
(Unclean Hands)

2. As a second, separate, and affirmative defense, PBTC alleges that each and

every purported cause of action contained in the Cross-Complaint is barred by the doctrine of

unclean hands.

ird Affirmativ. Se
(Estoppel)
3. As a third, separate, and affirmative defense, PBTC alleges that each and every
purported cause of action contained in the Cross-Complaint is barred by the doctrine of

estoppel.

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PACIFIC BELL'S ANSWER TO CROSS-COMPLAINT

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Fourth Aff tive Defe:

(Waiver)

4. As a fourth, separate, and affirmative defense, PBTC alleges that each and every

purported cause of action contained in the Cross-Complaint is barred by the doctrine of waiver.

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ffirmative Defense

(Laches)

5. As a fifth, separate, and affirmative defense, PBTC alleges that each and every

purported cause of action contained in the Cross-Complaint is barred by the doctrine of laches.

Sixth Affirmative Defense

(Failure to Mitigate)

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6. As a sixth, separate, and affirmative defense, PBTC alleges that each and every

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purported cause of action contained in the Cross-Complaint is barred by Cross-Complainants’

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failure to mitigate its damages.

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Seventh Affirmative Defense

(Comparative Fault)

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7. As a seventh, separate, and affirmative defense, PBTC alleges that each and

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every purported cause of action contained in the Cross-Complaint is barred and/or Cross-

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Complainant's right to recovery is precluded or reduced proportionally, in that any and all

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damages suffered by Cross-Complainant occurred as a result of Cross-Complainant’s own

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intentional, reckless, careless, and/or negligent conduct.

Eighth Affirmative Defense

(Spoliation)

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8. As an eighth, separate, and affirmative defense, PBTC alleges that each and

every purported cause of action contained in the Cross-Complaint is barred in that Cross-

Complainant intentionally, recklessly, and/or negligently failed to preserve the vehicle,

equipment, and/or other evidence from the alleged injury-causing incident from spoliation.

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PACIFIC BELL'S ANSWER TO CROSS-COMPLAINT© °

1 Ninth Affirmative Defense
(Prop. 51)

9. As a ninth, separate, and affirmative defense, PBTC alleges that each and every

purported cause of action contained in the Cross-Complaint is barred, in that any obligation,

loss or damage allegedly sustained by Cross-Complainant was either wholly or in part caused

by persons or entities other than PBTC. Under the principles formulated in the case of

American Motorcycle Association v. Superior Court, 20 Cal.3d 578 (1978), and under the

provisions of California Civil Code Sections 1431, et. seq., the percentage(s) of such third party

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contribution(s) should be established by special verdict or other procedure, and PBTC’s

10 | ultimate liability should be appropriately reduced or eliminated.

i Tenth Affirmative Defense

12 (Third Party Liability)

13 10. As a tenth, separate, and affirmative defense, PBTC alleges that each and every
14 | purported cause of action contained in the Cross-Complaint is barred, in that any and all

15 | damages suffered by Cross-Complainant occurred as a result of the intentional, reckless,

16 | careless, and/or negligent conduct of third parties, their agents, and/or employees.

" Eleventh Affirmative Defense

18 (Assumption of Risk)

19 11. As an eleventh, separate, and affirmative defense, PBTC alleges that each and
20 every purported cause of action contained in the Cross-Complaint is barred by Cross-

21 Complainant's assumption of risk.
22 Twelfth Affi ive
23 (No Duty)
24 12. As a twelfth, separate, and affirmative defense, PBTC alleges that each and
25 every purported cause of action in the Cross-Complaint is barred in that PBTC owed Cross-
26 Complainant no legal duty in regard to the incident alleged in the Complaint.
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PACIFIC BELL'S ANSWER TO CROSS-COMPLAINT© 8

Thirt Affirmativi

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(Statute of Limitations)
13. As a thirteenth, separate, and affirmative defense, PBTC alleges that each and every
purported cause of action contained in the Cross-Complaint is barred by the applicable statute

of limitations, including, but not limited to, Code of Civil Procedure Section 335.1.

Fourteenth Affirmative Defense

(Reservation of Defenses)

14. Asa fourteenth, separate, and affirmative defense, PBTC alleges that based on the

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ambiguous and conclusory nature of the allegations in the Cross-Complaint, PBTC cannot fully

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determine or anticipate all applicable affirmative defenses in this matter, and therefore reserves

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the right to assert additional affirmative defenses in this matter, as appropriate.

PRAYER
WHEREFORE, PBTC prays for a judgment against Cross-Complainants as follows:

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1. That Cross-Complainants take nothing by the Cross-Complaint;

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2. For all costs and attorneys’ fees; and

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3. For such other further relief as this Court may deem just and proper.

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DATE: April 9, 2014 AT&T SERVICES, INC. - LEGAL DEPT.

Y: Shen eg— H- Cernn Se
GREGORY B. MOUROUX

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Attomeys for Defendant, Cross-Complainant
and Cross-Defendant PACIFIC BELL
TELEPHONE COMPANY dba AT&T
CALIFORNIA (erroneously sued and served
as “AT&T Corp.”)

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PACIFIC BELL'S ANSWER TO CROSS-COMPLAINT© °

PROOF OF SERVICE

Re: osa Kinz, et al. v: Sightseein; Francisco, LLC, et al.

San Francisco County Superior Court, Civil No. CGC-13-534579

Tam a resident of the State of California, over the age of eighteen years, and not a party
to the within action. My business address is AT&T Services, Inc. Legal Dept., 525 Market
Street, 20" Floor, San Francisco, California 94105. On the date specified below, I served
ANSWER OF CROSS-DEFENDANT PACIFIC BELL TELEPHONE COMPANY D/B/A
AT&T CALIFORNIA TO OPEN TOP SIGHTSEEING SAN FRANCISCO, LLC AND
MANUEL GOMEZ GUARDADO’S CROSS-COMPLAINT

Q by transmitting via facsimile the document(s) listed above to the fax number(s) set
forth below, or as stated on the attached service list, on this date before 5:00 p.m.

by placing the document(s) listed above in a sealed envelope with postage thereon
fully prepaid, in the United States mail at San Francisco, CA addressed as set forth.

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O__ by causing personal delivery by of the document(s) listed above to the
person(s) at the address(es) set forth below.

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by personally delivering the document(s) listed above to the person(s) at the

address(es) set forth below.

Attorney for Plaintiffs Attorneys for Open Top Sightseeing San
Francisco, LLC, and Manuel Gomez

William B. Smith Guardado

Abramson Smith Waldsmith, LLP

44 Montgomery Street, Suite 3340 Norman La Force

San Francisco, CA 94104 Law Office of Samuel G. Grader
555 Mission Street, Suite 320

Telephone: (415) 421-7995 San Francisco, CA 94105

Facsimile: (415) 421-0912 Direct: (415) 932-7465

Tel: (415) 932-7200
Fax: (415) 853-8846

1am readily familiar with the firm's practice of collection and processing
correspondence for mailing. Under that practice it would be deposited with U.S. Postal Service
on that same day with postage thereon fully prepaid in the ordinary course of business.

I declare under penalty of perjury under the laws of the State of California that the

foregoing is true and correct.

Date: April fo, 2014 Ase $F

Willie Hernandez

608087 6
PACIFIC BELL'S ANSWER TO CROSS-COMPLAINT