Preview
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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Case Number: CGC-09-485780
Filing Date: Jul-08-2009 2:17
Juke Box: 001 Image: 02549077
ANSWER
PHILIP CHANT et al VS. FEDEX GROUND PACKAGE SYSTEM, INC, et al
001002549077
Instructions:
Please place this sheet on top of the document to be scanned.”
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DILLINGHAM & MURPHY, LLP
PATRICK J. HAGAN, ESQ. (SBN 68264
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JACK C. HENNING, ESQ. (SBN 139659 |
BROOKE S. PURCELL, ESQ. (SBN 260058)
225 BUSH STREET, 6TH FLOOR
SAN FRANCISCO, CALIFORNIA 94104-4207
Phone: 415) 397-2700
Facsimile: (415) 397-3300
Attorneys for Defendant |
FEDEX GROUND PACKAGE SYSTEM, INC. |
SUPERIOR COURT OF CALIFORNIA,
IN AND FOR THE COUNTY OF SAN FRANCISCO
PHILIP CHANT, et al., CASE NO. 09-485780
Plaintiffs, DEFENDANT FEDEX GROUND
PACKAGE SYSTEM, INC.’S
vs. ANSWER TO COMPLAINT
FEDERAL EXPRESS CORPORATION, et
al.,
Complaint filed: March 5, 2009
BY Fg)
COMES NOW defendant FEDEX GROUND PACKAGE SYSTEM, INC. FA)
(hereinafter "FedEx Ground”) and responds to the unverified complaint of Plaintiffs as
follows:
Pursuant to section 431.30 of the California Code of Civil Procedure, FedEx
Ground denies each and every allegation in the complaint.
SEPARATE AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
{Fallure to State a Claim)
Plaintiffs fail to state facts sufficient to constitute a cause of action against this
defendant.
MW
Page No. 1 — Case No. 09-485780
Defendant FedEx Ground Package System, Inc.’s Answer To Complaint~
fn
SECOND AFFIRMATIVE DEFENSE
(Comparative Negligence)
FedEx Ground alleges byway of a plea of comparative negligence that Plaintiffs
are negligent in and about the matters and activities alleged in the complaint; that said
6 negligence contributed to and was a proximate cause of Plaintiffs’ alleged injuries and
7 damages, if any, or was the sole cause thereof; and that if Plaintiffs are entitled to
8 jrecover damages against FedEx Ground, then FedEx Ground prays that the recovery
9 be diminished or extinguished by reason of the negligence of Plaintiffs in proportion to
10 the degree of fault attributable to Plaintiffs.
THIRD AFFIRMATIVE DEFENSE
(Contribution)
FedEx Ground alleges that the fault of persons other than FedEx Ground
contributed to and proximately caused the occurrence; and 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 §§ 1431, 1431.1,
1431.2 and 1431.3, FedEx Ground prays that the percentage of such contribution be
established by special verdict or other procedure, and that FedEx Ground’s ultimate
liability be reduced to the extent of such contribution.
FOURTH AFFIRMATIVE DEFENSE
20 (Statute of Limitations)
FedEx Ground alleges that the complaint and each and every cause of action
22 IItherein is barred by the statute of limitations as set forth in California Code of Civil
23 | Procedure § 335 ef seq., and related statutes, including, but not limited to 335.1 and
24 1338-340.
25 FIFTH AFFIRMATIVE DEFENSE
26 (Failure to Mitigate Damages)
27 FedEx Ground alleges that the complaint and each and every cause of action
28 || therein is barred because Plaintiffs failed to use reasonable diligence to mitigate
Page No. 2 — Case No. 09-485780
Defendant FedEx Ground Package System, Inc.'s Answer To Complaint
nn ee ee rr NE OE SU FU TT ND TRENany
|| damages allegedly sustained by Plaintiffs, and sald failure bars or reduces the
recovery, if any from FedEx Ground.
SIXTH AFFIRMATIVE DEFENSE
(Defendant’s Acts Not A Proximate Cause)
FedEx Ground states that any act or omission on the part of the answering
defendant was not the proximate cause of Plaintiffs’ injuries.
SEVENTH AFFIRMATIVE DEFENSE
(Ne Waance of Third Dartins Eaultabls and S¢. atutory indemnity £5:
esugence fenre OSMLSS © OGUNASS SiG Stat
other act or omission of third parties, and FedEx Ground is entitled to equitable arid
statutory indemnity from such third parties,
EIGHTH AFFIRMATIVE DEFENSE
{Denial of Damages)
FedEx Ground denies that Plaintiffs have been damaged In any sum or sums,
or otherwise, or at all, by reason of any act or omission of FedEx Ground.
NINTH AFFIRMATIVE DEFENSE
(Good Faith)
FedEx Ground alleges that the employees, officials and agents of FedEx
Ground were at all times material hereto acting with both subjective and objective
good faith, such that any claim for relief that Plaintiffs may have is barred by law.
TENTH AFFIRMATIVE DEFENSE
(Estoppel)
q
FedEx Ground states that Plaintiffs" injuries were caused by the negligence or
By reason of Plaintiffs’ own acts and omissions, Plaintiffs are estopped from
seeking any recovery from FedEx Ground by reason of the allegations set forth in the
I complaint.
ELEVENTH AFFIRMATIVE DEFENSE
(Claims Requirements)
The complaint and each cause of action therein Is barred by the doctrine of
collateral estoppel, resjudicata, and the case law prohibiting a plaintiff from “splitting”
claims os causes of action. Ferraro v. Southern Cal. Gas Co., 102 Cal. App.3d 33
Page No. 3 - Case No. 09-485780
Defendant FedEx Ground Package System, tnc.’s Answer To Complaint
a ee ee ee EEmo
en
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\| (4980).
TWELFTH AFFIRMATIVE DEFENSE
(Assumption of Risk)
Plaintiffs had full knowledge of the risk Involved in the activity in which Plaintiffs
were engaged at the time of the occurrence of the incident set forth in the complaint.
Plaintiffs votuntarily assumed all the risks incident to the activity engaged in at the time
and place mentioned In the complaint, and the loss cr damage, if any, sustained by
Plaintiffs was caused by sald risks.
THIRTEENTH AFFIRMATIVE DEFENSE
(Careless, Reckless, Wanton and Negligent Acts)
At all times mentioned in the complaint, Plaintiffs acted in a careless, reckless,
wanton and negligent manner in and about the matters set forth in the complaint; such
careless, reckless, wanton and negligent conduct proximately contributed to the.
injuries and damages, if any, sustained or claimed by Plaintiffs; that as a
consequence, Plaintiffs’ claim are barred.
FOURTEENTH AFFIRMATIVE DEFENSE
(Release)
Plaintiffs have released FedEx Ground of liability.
FIFTHEENTH AFFIRMATIVE DEFENSE
(Severai Liability)
In the event that FedEx Ground is found to be liable — which liability is
specifically denied and stated merely for the purposes of this affirmative defense —
{| such liability, if any, for non-economic damages shali be several, and not joint,
pursuant to the Califomia Fair Responsibility Act of 1986 (Proposition 51) as set forth
in Section 1432 et seq. of the California Civil Code. FedEx Ground requests that the
trier of fact be instructed that the amount of non-economic damages be allocated in
direct proportion to the percentage of fault, if any, assessed against each person or
entity to which the Act applies and that a separate judgment be rendered against each
Page No. 4 = Case No. 09-485780
Defendant FedEx Ground Package System, Inc.’s Answer To Complaint
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such person or entity in the amount of such non-economic damages attributable to that
person or entity.
SIXTEENTH AFFIRMATIVE DEFENSE
(Additional Affirmative Defenses)
FedEx Ground presently has insufficient knowledge or information on which to
form a belief as to whether it may have additional, as yet unstated, defenses available.
FedEx Ground reserves the right to assert additional defenses In the event that
discovery indicates that they would be appropriate.
SEVENTEENTH AFFIRMATIVE DEFENSE
(Workers’ Compensation)
Plaintiffs were in the course and scope of their employment. Hence, the
complaint is barred by the rules and laws applicable to workers’ compensation claims.
WHEREFORE, FedEx Ground prays for judgment as follows:
1. That Plaintiffs take nothing from FedEx Ground;
2. That the complaint be dismissed with prejudice;
3. That FedEx Ground recover costs of suit herein, including attomeys’
fees; and
4. For such other relief as is just and proper.
DATED: July 2, 2009
DILLINGHAM & MURPHY, LLP
PATRICK J. HAGAN, ESQ.
JACK C. HENNING, ESQ.
BROOKE S. PURCELL, ESQ.
*ACKAGE SYSTEM, INC.
Page No. 5 - Case No. 09-485780
Defendant FedEx Ground Package System, Inc.'s Answer To Complainten oar WN =
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PROOF OF SERVICE
lam a citizen of the United States, and employed in the City and County of
San Francisco. | am over the age of elghteen (18) years, and not a party to the within above-
entitled action. My business address Is 225 Bush Street, 6th Floor, San Francisco, California
94104-4207. On July 8, 2009, | served the following on each party listed below:
DEFENDANT FEDEX GROUND PACKAGE SYSTEM, INC.’S ANSWER TO
COMPLAINT
x
(BY MAIL) By depositing for collection and mailing, following ordinary business
practices, a true copy thereof enclosed in a sealed envelope with postage
thereon fully prepaid. | am readily familiar with this business’ practice for
collection and processing of correspondence for mailing with the U.S. Postal
Service, The correspondence is deposited with the U.S. Postal Service the
same day in the ordinary course of business.
(BY PERSONAL SERVICE} By causing a true copy thereof enclosed ina
sealed envelope, to be personally delivered on the date indicated below.
(BY OVERNIGHT DELIVERY) By causing a true copy thereof, enclosed in a
sealed envelope, to be delivered via overnight courier service.
(BY FEDERAL EXPRESS NEXT DAY DELIVERY) By causing a true copy
thereof, enclosed in a sealed envelope, to be delivered via overnight courier
service.
(BY FAX) By sending a true copy thereof by facsimile machine to the numbers
listed below, and then depositing for collection and mailing, following ordinary
business practices, a true copy thereof, enclosed in a seated envelope with
postage thereon fully prepaid.
(BY FAX AND MAIL) By sending a true copy thereof by facsimile machine to
the numbers listed below, and then depositing for collection and mailing,
following ordinary business practices, a true copy thereof enclosed in a sealed
envelope with postage thereon fully prepaid. | am readily famitiar with this
business’ practice for collection and processing of correspondence for mailing
with the U.S. Postal Service. The correspondence is deposited with the U.S.
Postal Service the same day in the ordinary course of business
(BY ELECTRONIC DELIVERY) By sending a true copy thereof in pdf format
electronically the party(ies) listed below at the appropriate email address(es).
Sandra L. Ribera, Esq.
Law Officesof Amold Laub, APC
807 Montgomery Street
San Francisco, CA 94133
Fax: 415-296-8841
\ declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Page No. 6 - Case No. 09-485780
Defendant FedEx Ground Package System, Inc.’s Answer To Complaint
ne ee ere ETE TE OOS SHE wey BHI TTT TTT SEDsos Se eS
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Executed on July 8, 2009, at San Francisco, Califomia.
Page No. 7 - Case No. 09-485780
Defendant FedEx Ground Package System, Inc.'s Answer To Complaint
Preview
HT SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Case Number: CGC-09-485780 Filing Date: Jul-08-2009 2:17 Juke Box: 001 Image: 02549077 ANSWER PHILIP CHANT et al VS. FEDEX GROUND PACKAGE SYSTEM, INC, et al 001002549077 Instructions: Please place this sheet on top of the document to be scanned.” = oo NN Oa ff WO N € DILLINGHAM & MURPHY, LLP PATRICK J. HAGAN, ESQ. (SBN 68264 i 1 | | ! | JACK C. HENNING, ESQ. (SBN 139659 | BROOKE S. PURCELL, ESQ. (SBN 260058) 225 BUSH STREET, 6TH FLOOR SAN FRANCISCO, CALIFORNIA 94104-4207 Phone: 415) 397-2700 Facsimile: (415) 397-3300 Attorneys for Defendant | FEDEX GROUND PACKAGE SYSTEM, INC. | SUPERIOR COURT OF CALIFORNIA, IN AND FOR THE COUNTY OF SAN FRANCISCO PHILIP CHANT, et al., CASE NO. 09-485780 Plaintiffs, DEFENDANT FEDEX GROUND PACKAGE SYSTEM, INC.’S vs. ANSWER TO COMPLAINT FEDERAL EXPRESS CORPORATION, et al., Complaint filed: March 5, 2009 BY Fg) COMES NOW defendant FEDEX GROUND PACKAGE SYSTEM, INC. FA) (hereinafter "FedEx Ground”) and responds to the unverified complaint of Plaintiffs as follows: Pursuant to section 431.30 of the California Code of Civil Procedure, FedEx Ground denies each and every allegation in the complaint. SEPARATE AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE {Fallure to State a Claim) Plaintiffs fail to state facts sufficient to constitute a cause of action against this defendant. MW Page No. 1 — Case No. 09-485780 Defendant FedEx Ground Package System, Inc.’s Answer To Complaint~ fn SECOND AFFIRMATIVE DEFENSE (Comparative Negligence) FedEx Ground alleges byway of a plea of comparative negligence that Plaintiffs are negligent in and about the matters and activities alleged in the complaint; that said 6 negligence contributed to and was a proximate cause of Plaintiffs’ alleged injuries and 7 damages, if any, or was the sole cause thereof; and that if Plaintiffs are entitled to 8 jrecover damages against FedEx Ground, then FedEx Ground prays that the recovery 9 be diminished or extinguished by reason of the negligence of Plaintiffs in proportion to 10 the degree of fault attributable to Plaintiffs. THIRD AFFIRMATIVE DEFENSE (Contribution) FedEx Ground alleges that the fault of persons other than FedEx Ground contributed to and proximately caused the occurrence; and 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 §§ 1431, 1431.1, 1431.2 and 1431.3, FedEx Ground prays that the percentage of such contribution be established by special verdict or other procedure, and that FedEx Ground’s ultimate liability be reduced to the extent of such contribution. FOURTH AFFIRMATIVE DEFENSE 20 (Statute of Limitations) FedEx Ground alleges that the complaint and each and every cause of action 22 IItherein is barred by the statute of limitations as set forth in California Code of Civil 23 | Procedure § 335 ef seq., and related statutes, including, but not limited to 335.1 and 24 1338-340. 25 FIFTH AFFIRMATIVE DEFENSE 26 (Failure to Mitigate Damages) 27 FedEx Ground alleges that the complaint and each and every cause of action 28 || therein is barred because Plaintiffs failed to use reasonable diligence to mitigate Page No. 2 — Case No. 09-485780 Defendant FedEx Ground Package System, Inc.'s Answer To Complaint nn ee ee rr NE OE SU FU TT ND TRENany || damages allegedly sustained by Plaintiffs, and sald failure bars or reduces the recovery, if any from FedEx Ground. SIXTH AFFIRMATIVE DEFENSE (Defendant’s Acts Not A Proximate Cause) FedEx Ground states that any act or omission on the part of the answering defendant was not the proximate cause of Plaintiffs’ injuries. SEVENTH AFFIRMATIVE DEFENSE (Ne Waance of Third Dartins Eaultabls and S¢. atutory indemnity £5: esugence fenre OSMLSS © OGUNASS SiG Stat other act or omission of third parties, and FedEx Ground is entitled to equitable arid statutory indemnity from such third parties, EIGHTH AFFIRMATIVE DEFENSE {Denial of Damages) FedEx Ground denies that Plaintiffs have been damaged In any sum or sums, or otherwise, or at all, by reason of any act or omission of FedEx Ground. NINTH AFFIRMATIVE DEFENSE (Good Faith) FedEx Ground alleges that the employees, officials and agents of FedEx Ground were at all times material hereto acting with both subjective and objective good faith, such that any claim for relief that Plaintiffs may have is barred by law. TENTH AFFIRMATIVE DEFENSE (Estoppel) q FedEx Ground states that Plaintiffs" injuries were caused by the negligence or By reason of Plaintiffs’ own acts and omissions, Plaintiffs are estopped from seeking any recovery from FedEx Ground by reason of the allegations set forth in the I complaint. ELEVENTH AFFIRMATIVE DEFENSE (Claims Requirements) The complaint and each cause of action therein Is barred by the doctrine of collateral estoppel, resjudicata, and the case law prohibiting a plaintiff from “splitting” claims os causes of action. Ferraro v. Southern Cal. Gas Co., 102 Cal. App.3d 33 Page No. 3 - Case No. 09-485780 Defendant FedEx Ground Package System, tnc.’s Answer To Complaint a ee ee ee EEmo en " \| (4980). TWELFTH AFFIRMATIVE DEFENSE (Assumption of Risk) Plaintiffs had full knowledge of the risk Involved in the activity in which Plaintiffs were engaged at the time of the occurrence of the incident set forth in the complaint. Plaintiffs votuntarily assumed all the risks incident to the activity engaged in at the time and place mentioned In the complaint, and the loss cr damage, if any, sustained by Plaintiffs was caused by sald risks. THIRTEENTH AFFIRMATIVE DEFENSE (Careless, Reckless, Wanton and Negligent Acts) At all times mentioned in the complaint, Plaintiffs acted in a careless, reckless, wanton and negligent manner in and about the matters set forth in the complaint; such careless, reckless, wanton and negligent conduct proximately contributed to the. injuries and damages, if any, sustained or claimed by Plaintiffs; that as a consequence, Plaintiffs’ claim are barred. FOURTEENTH AFFIRMATIVE DEFENSE (Release) Plaintiffs have released FedEx Ground of liability. FIFTHEENTH AFFIRMATIVE DEFENSE (Severai Liability) In the event that FedEx Ground is found to be liable — which liability is specifically denied and stated merely for the purposes of this affirmative defense — {| such liability, if any, for non-economic damages shali be several, and not joint, pursuant to the Califomia Fair Responsibility Act of 1986 (Proposition 51) as set forth in Section 1432 et seq. of the California Civil Code. FedEx Ground requests that the trier of fact be instructed that the amount of non-economic damages be allocated in direct proportion to the percentage of fault, if any, assessed against each person or entity to which the Act applies and that a separate judgment be rendered against each Page No. 4 = Case No. 09-485780 Defendant FedEx Ground Package System, Inc.’s Answer To Complaint ee ee NE SES FORE TITTLE1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I Cc & such person or entity in the amount of such non-economic damages attributable to that person or entity. SIXTEENTH AFFIRMATIVE DEFENSE (Additional Affirmative Defenses) FedEx Ground presently has insufficient knowledge or information on which to form a belief as to whether it may have additional, as yet unstated, defenses available. FedEx Ground reserves the right to assert additional defenses In the event that discovery indicates that they would be appropriate. SEVENTEENTH AFFIRMATIVE DEFENSE (Workers’ Compensation) Plaintiffs were in the course and scope of their employment. Hence, the complaint is barred by the rules and laws applicable to workers’ compensation claims. WHEREFORE, FedEx Ground prays for judgment as follows: 1. That Plaintiffs take nothing from FedEx Ground; 2. That the complaint be dismissed with prejudice; 3. That FedEx Ground recover costs of suit herein, including attomeys’ fees; and 4. For such other relief as is just and proper. DATED: July 2, 2009 DILLINGHAM & MURPHY, LLP PATRICK J. HAGAN, ESQ. JACK C. HENNING, ESQ. BROOKE S. PURCELL, ESQ. *ACKAGE SYSTEM, INC. Page No. 5 - Case No. 09-485780 Defendant FedEx Ground Package System, Inc.'s Answer To Complainten oar WN = q amy é PROOF OF SERVICE lam a citizen of the United States, and employed in the City and County of San Francisco. | am over the age of elghteen (18) years, and not a party to the within above- entitled action. My business address Is 225 Bush Street, 6th Floor, San Francisco, California 94104-4207. On July 8, 2009, | served the following on each party listed below: DEFENDANT FEDEX GROUND PACKAGE SYSTEM, INC.’S ANSWER TO COMPLAINT x (BY MAIL) By depositing for collection and mailing, following ordinary business practices, a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid. | am readily familiar with this business’ practice for collection and processing of correspondence for mailing with the U.S. Postal Service, The correspondence is deposited with the U.S. Postal Service the same day in the ordinary course of business. (BY PERSONAL SERVICE} By causing a true copy thereof enclosed ina sealed envelope, to be personally delivered on the date indicated below. (BY OVERNIGHT DELIVERY) By causing a true copy thereof, enclosed in a sealed envelope, to be delivered via overnight courier service. (BY FEDERAL EXPRESS NEXT DAY DELIVERY) By causing a true copy thereof, enclosed in a sealed envelope, to be delivered via overnight courier service. (BY FAX) By sending a true copy thereof by facsimile machine to the numbers listed below, and then depositing for collection and mailing, following ordinary business practices, a true copy thereof, enclosed in a seated envelope with postage thereon fully prepaid. (BY FAX AND MAIL) By sending a true copy thereof by facsimile machine to the numbers listed below, and then depositing for collection and mailing, following ordinary business practices, a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid. | am readily famitiar with this business’ practice for collection and processing of correspondence for mailing with the U.S. Postal Service. The correspondence is deposited with the U.S. Postal Service the same day in the ordinary course of business (BY ELECTRONIC DELIVERY) By sending a true copy thereof in pdf format electronically the party(ies) listed below at the appropriate email address(es). Sandra L. Ribera, Esq. Law Officesof Amold Laub, APC 807 Montgomery Street San Francisco, CA 94133 Fax: 415-296-8841 \ declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Page No. 6 - Case No. 09-485780 Defendant FedEx Ground Package System, Inc.’s Answer To Complaint ne ee ere ETE TE OOS SHE wey BHI TTT TTT SEDsos Se eS | = Ee my Executed on July 8, 2009, at San Francisco, Califomia. Page No. 7 - Case No. 09-485780 Defendant FedEx Ground Package System, Inc.'s Answer To Complaint