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1000 Broadway, Oakland, CA 94607
510-465-1000
BY FAX ace attorney service
623-1325
Oakland, ¢
11] Grand Avenue, Suite 11-100, Oakland, California 94612
Mail: P.O. BOX 243;
CALIFORNIA DEPARTMENT OF TRANSPORTATION - LEGAL DIVISI
Telephone: (510) 433-
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ERIN E. HOLBROOK, Chief Counsel le Ee
G. MICHAEL HARRINGTON, Deputy Chief Counsel L, ] IL Ie
LANDA LOW, Assistant Chief Counsel
California Department of Transportation — Legal Division
111 Grand Avenue, Suite 11-100, Oakland, CA 94612
ROSEMARY LOVE, Deputy Attorney (SBN 257907) NOV -2 2020
Mail: P.O. BOX 24325, Oakland, CA 94623-1325 oy wo
Telephone: (510) 433-9100, Facsimile: (510) 433-9167 ee
Attorneys for Defendant STATE OF CALIFORNIA, D. WAGNER
by and through the DEPARTMENT OF TRANSPORTATION
Exempt from filing fees
under Government Code § 6103
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF CONTRA COSTA
SANDRA HERNANDEZ-PEREZ, individually CASE No. C20-01144
and as successor interest to Jesus Berrios II,
JENILEE BERRIOS, individually and as DEFENDANT CALTRANS’ ANSWER
‘successor in interest to Jesus Berrios II TO FIRST AMENDED COMPLAINT
Plaintiffs,
VS.
CALTRANS (CALIFORNIA DEPARTMENT
OF TRANSPORTATION), JESUS BERRIOS, Complaint filed: June 30, 2020
and DOES 1-75 Trial Date: N/A
Defendants.
Defendant CALTRANS, also referred to as the STATE OF CALIFORNIA, acting by and
through the DEPARTMENT OF TRANSPORTATION, hereby answers the unverified complaint
of plaintiffs SANDRA HERNANDEZ-PEREZ and JENILEE BERRIOS. Defendant CALTRANS
denies each and every allegation of the complaint, and of each cause of action contained therein,
all and singular, generally and specifically, and deny that complainant has been damaged in the
sum or sums alleged, or in any sum or sums, or at all.
As separate and affirmative defenses to the complaint, and to all causes of action therein,
defendant alleges the following affirmative defenses:
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DEFENDANT CALTRANS’
ANSWER TO FIRST AMENDED COMPLAINT“a
Malt: P.O, BOX 24325, Oakland, CA 94623-1325
Telephone: (510} 429-9100, Facsimile: (510) 433.9167
(CALIFORNIA DEPARTMENT OF TRANSPORTATION - LEGAL DIVISION
111 Grand Avenue, Suite 11-100, Oakland, California 94612
FIRST AFFIRMATIVE DEFENSE
The complaint, and each of its causes of action, fails to set forth facts sufficient to constitute
a cause of action against defendant.
SECOND AFFIRMATIVE DEFENSE
At the times and places alleged in the complaint, the decedent was careless and negligent in
and about the matters set forth in the complaint and such negligence consequently caused and
contributed to the damages complained of, if any.
THIRD AFFIRMATIVE DEFENSE
The occurrence, injury and damages of plaintiffs, if any, were caused or contributed to by
decedent’s own negligence and/or by the negligence of other persons and entities whose identities
are presently unknown, and therefore any recovery against CALTRANS should be no greater than its
allocable share, if any, of the total responsibility of all persons and entities, whether parties herein or
not, who proximately caused or contributed to the occurrence, injuries or damages, if any.
FOURTH AFFIRMATIVE DEFENSE
Defendant’s liability, if any, for plaintiffs’ non-economic damages is limited to CALTRANS’
proportionate share of fault in accordance with Civil Code §1431.2.
FIFTH AFFIRMATIVE DEFENSE
At the time and place complained of, decedent realizing and appreciating the specific dangers
involved, voluntarily and knowingly placed himself in a position of peril, and the alleged injuries
sustained, if any, were proximately caused by his conduct in so doing.
SIXTH AFFIRMATIVE DEFENSE
Plaintiffs failed to mitigate damages, if any there were.
SEVENTH AFFIRMATIVE DEFENSE
The alleged condition of property was created by construction in accordance with a plan or
design of construction or of improvement to public property, and said plan or design was approved.
in advance of construction or improvement by an officer or employee of a public entity vested with
discretionary authority to approve said plan or design or was prepared in conformity with standards
previously so approved, and said approvals were reasonable; therefore CALTRANS is not liable
2 |
DEFENDANT CALTRANS’
ANSWER TO FIRST AMENDED COMPLAINT11-100, Oakland, California 94612
0) 4
Mail: P.O. BOX
CALIFORNIA DEPARTMENT OF TRANSPORTATION - LEGAL DIVISION
Telephone:
pursuant to Government Code §830.6.
EIGHTH AFFIRMATIVE DEFENSE
Any and all alleged acts or omissions of CALTRANS, through its agents or employees, were
the result of an exercise of discretion vested in such agents and employees, and therefore
CALTRANS is not liable pursuant to Government Code §820.2.
NINTH AFFIRMATIVE DEFENSE
The alleged act or omission by CALTRANS, through its agents or employees, which
allegedly created the condition of property was reasonable and therefore CALTRANS is not liable
pursuant to Government Code §§835.4(a) and 840.6(a).
TENTH AFFIRMATIVE DEFENSE
The action or lack thereof by CALTRANS, through its agents or employees, to protect
against the risk of injury allegedly created by the condition of property was reasonable and therefore
CALTRANS is not liable pursuant to Government Code §§835.4(b) and 840.6(b).
ELEVENTH AFFIRMATIVE DEFENSE
The alleged injuries and damages allegedly resulted from an inadequate or negligent
inspection of property, other than State property, for the purpose of assessing compliance with
enactments or ascertaining the existence of health or safety hazards, and therefore CALTRANS is
not liable for the alleged injuries and damages pursuant to Government Code §§818.6, 821.4 and
830(c).
TWELFTH AFFIRMATIVE DEFENSE
The alleged condition of property did not constitute a dangerous condition as it did not pose a
substantial risk of injury, and, if there was any risk involved, it was merely a minor, trivial, or
insignificant risk, and therefore, CALTRANS is not liable pursuant to Government Code §830.2.
THIRTEENTH AFFIRMATIVE DEFENSE
The alleged condition of property was allegedly the result of a failure to provide regulatory
and/or warning signals, signs, markings, or other devices, and therefore CALTRANS is not liable
pursuant to Government Code §§830.4 and 830.8.
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DEFENDANT CALTRANS’
ANSWER TO FIRST AMENDED COMPLAINT-100, Oakland, California 94612
CALIFORNIA DEPARTMENT OF TRANSPORTATION - LEGAL DIVISION
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FOURTEENTH AFFIRMATIVE DEFENSE
The alleged condition of property was the result of the effect, reasonably apparent to or
anticipated by a person exercising due care, of weather conditions on the use of the highway in
question, and therefore CALTRANS is not liable pursuant to Government Code §831.
FIFTEENTH AFFIRMATIVE DEFENSE
Defendant has immunity for the acts or omissions of other persons pursuant to Government
Code §820.8.
SIXTEENTH AFFIRMATIVE DEFENSE
Plaintiffs are equitably estopped from asserting the claims set forth in the complaint by
reason of his own acts or omissions and/or the acts or omissions of others.
SEVENTEENTH AFFIRMATIVE DEFENSE
The complaint and each cause of action contained therein is barred by the applicable statutes
of limitation, including but not limited to Government Code §945.6.
EIGHTEENTH AFFIRMATIVE DEFENSE
The complaint alleges matters not contained in a claim presented to the Government Claims
Program. Said allegations are barred, and to that extent, the complaint fails to state a cause of action
and violates the provisions of Government Code §900, et. seq. This answering defendant reserves its
right to strike said allegations and to object to any evidence directed to proof of said allegations.
NINETEENTH AFFIRMATIVE DEFENSE
The complaint and each cause of action contained therein is barred by plaintiffs’ non-
compliance with the applicable claims statutes, including but not limited to Government Code
§§911.2, 911.4 and 945.4.
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DEFENDANT CALTRANS’
ANSWER TO FIRST AMENDED COMPLAINTCALIFORNIA DEPARTMENT OF TRANSPORTATION - LEGAL DIVISION
111 Grand Avenue, Suite 11-100, Oakland, California 94612
Mail: P.O. BOX 24325, Oakland, CA 94623-1325
Telephone: (510) 433-9100, Facsimile: (510) 433-9167
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WHEREFORE, defendant prays that plaintiffs take nothing by the complaint; that the State
of California, acting by and through the Department of Transportation (CALTRANS) be dismissed
and awarded costs; and for such other and further relief as the Court deems proper.
DATED: October 29, 2020 ERIN HOLBROOK
G. MICHAEL HARRINGTON
LANDA LOW
ROSEMARY LOVE
ROSEMARY LOVE
Attorney for Defendant STATE OF
CALIFORNIA, by and through the Department
of Transportation
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DEFENDANT CALTRANS’
ANSWER TO FIRST AMENDED COMPLAINTP.O, Box 24325, Oakland, CA 9462:
Telephone: (510) 433-9100, Facsimile: (°
111 Grand Avenue, Suite 11-100, Oakland, California 94612
CALIFORNIA DEPARTMENT OF TRANSPORTATION - LEGAL DIVISION
Case Name: Sandra Hernandez-Perez, et al. v. State of California, et al.
Case No.: Contra Costa County Superior Court No. C20-01144
PROOF OF SERVICE
I, the undersigned, say: I am, and was at all times herein mentioned, employed in the City
of Oakland and County of Alameda, over the age of 18 years and not a party to the within action
or proceedings; that my business address is 111 Grand Avenue, Suite 11-100, Oakland, California
pou Male P.O. Box 24325, Oakland, CA 94623-1325; that on the date set forth below, I served
the within
DEFENDANT CALTRANS’ ANSWER TO FIRST AMENDED COMPLAINT
on the interested parties listed below to said action by the following means:
[\] (BY ELECTRONIC-MAIL) By attaching a copy of the document(s) in PDF format sent
from genoveva.mercado@dot.ca.gov to the email addresses of the parties listed below. No
hard copies will follow.
William E. Weiss, Esq. Attorneys for Plaintiffs SANDRA
LAW OFFICES OF WILLIAM E. WEISS HERNANDEZ-PEREZ, et al.
140 Geary Street, Seventh Floor
San Francisco, CA 94108 weisslaw1@williamweisslaw.com
Telephone: (415) 362-6765
Facsimile: (415) 362-2405
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
EXECUTED on October 29, 2020, at Oakland, California.
peas Wurcade
GENOVEVA MERCADO, Declarant
1
PROOF OF SERVICE
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1000 Broadway, Oakland, CA 94607 510-465-1000 BY FAX ace attorney service 623-1325 Oakland, ¢ 11] Grand Avenue, Suite 11-100, Oakland, California 94612 Mail: P.O. BOX 243; CALIFORNIA DEPARTMENT OF TRANSPORTATION - LEGAL DIVISI Telephone: (510) 433- | ERIN E. HOLBROOK, Chief Counsel le Ee G. MICHAEL HARRINGTON, Deputy Chief Counsel L, ] IL Ie LANDA LOW, Assistant Chief Counsel California Department of Transportation — Legal Division 111 Grand Avenue, Suite 11-100, Oakland, CA 94612 ROSEMARY LOVE, Deputy Attorney (SBN 257907) NOV -2 2020 Mail: P.O. BOX 24325, Oakland, CA 94623-1325 oy wo Telephone: (510) 433-9100, Facsimile: (510) 433-9167 ee Attorneys for Defendant STATE OF CALIFORNIA, D. WAGNER by and through the DEPARTMENT OF TRANSPORTATION Exempt from filing fees under Government Code § 6103 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF CONTRA COSTA SANDRA HERNANDEZ-PEREZ, individually CASE No. C20-01144 and as successor interest to Jesus Berrios II, JENILEE BERRIOS, individually and as DEFENDANT CALTRANS’ ANSWER ‘successor in interest to Jesus Berrios II TO FIRST AMENDED COMPLAINT Plaintiffs, VS. CALTRANS (CALIFORNIA DEPARTMENT OF TRANSPORTATION), JESUS BERRIOS, Complaint filed: June 30, 2020 and DOES 1-75 Trial Date: N/A Defendants. Defendant CALTRANS, also referred to as the STATE OF CALIFORNIA, acting by and through the DEPARTMENT OF TRANSPORTATION, hereby answers the unverified complaint of plaintiffs SANDRA HERNANDEZ-PEREZ and JENILEE BERRIOS. Defendant CALTRANS denies each and every allegation of the complaint, and of each cause of action contained therein, all and singular, generally and specifically, and deny that complainant has been damaged in the sum or sums alleged, or in any sum or sums, or at all. As separate and affirmative defenses to the complaint, and to all causes of action therein, defendant alleges the following affirmative defenses: Mt Mt Mt 1 DEFENDANT CALTRANS’ ANSWER TO FIRST AMENDED COMPLAINT“a Malt: P.O, BOX 24325, Oakland, CA 94623-1325 Telephone: (510} 429-9100, Facsimile: (510) 433.9167 (CALIFORNIA DEPARTMENT OF TRANSPORTATION - LEGAL DIVISION 111 Grand Avenue, Suite 11-100, Oakland, California 94612 FIRST AFFIRMATIVE DEFENSE The complaint, and each of its causes of action, fails to set forth facts sufficient to constitute a cause of action against defendant. SECOND AFFIRMATIVE DEFENSE At the times and places alleged in the complaint, the decedent was careless and negligent in and about the matters set forth in the complaint and such negligence consequently caused and contributed to the damages complained of, if any. THIRD AFFIRMATIVE DEFENSE The occurrence, injury and damages of plaintiffs, if any, were caused or contributed to by decedent’s own negligence and/or by the negligence of other persons and entities whose identities are presently unknown, and therefore any recovery against CALTRANS should be no greater than its allocable share, if any, of the total responsibility of all persons and entities, whether parties herein or not, who proximately caused or contributed to the occurrence, injuries or damages, if any. FOURTH AFFIRMATIVE DEFENSE Defendant’s liability, if any, for plaintiffs’ non-economic damages is limited to CALTRANS’ proportionate share of fault in accordance with Civil Code §1431.2. FIFTH AFFIRMATIVE DEFENSE At the time and place complained of, decedent realizing and appreciating the specific dangers involved, voluntarily and knowingly placed himself in a position of peril, and the alleged injuries sustained, if any, were proximately caused by his conduct in so doing. SIXTH AFFIRMATIVE DEFENSE Plaintiffs failed to mitigate damages, if any there were. SEVENTH AFFIRMATIVE DEFENSE The alleged condition of property was created by construction in accordance with a plan or design of construction or of improvement to public property, and said plan or design was approved. in advance of construction or improvement by an officer or employee of a public entity vested with discretionary authority to approve said plan or design or was prepared in conformity with standards previously so approved, and said approvals were reasonable; therefore CALTRANS is not liable 2 | DEFENDANT CALTRANS’ ANSWER TO FIRST AMENDED COMPLAINT11-100, Oakland, California 94612 0) 4 Mail: P.O. BOX CALIFORNIA DEPARTMENT OF TRANSPORTATION - LEGAL DIVISION Telephone: pursuant to Government Code §830.6. EIGHTH AFFIRMATIVE DEFENSE Any and all alleged acts or omissions of CALTRANS, through its agents or employees, were the result of an exercise of discretion vested in such agents and employees, and therefore CALTRANS is not liable pursuant to Government Code §820.2. NINTH AFFIRMATIVE DEFENSE The alleged act or omission by CALTRANS, through its agents or employees, which allegedly created the condition of property was reasonable and therefore CALTRANS is not liable pursuant to Government Code §§835.4(a) and 840.6(a). TENTH AFFIRMATIVE DEFENSE The action or lack thereof by CALTRANS, through its agents or employees, to protect against the risk of injury allegedly created by the condition of property was reasonable and therefore CALTRANS is not liable pursuant to Government Code §§835.4(b) and 840.6(b). ELEVENTH AFFIRMATIVE DEFENSE The alleged injuries and damages allegedly resulted from an inadequate or negligent inspection of property, other than State property, for the purpose of assessing compliance with enactments or ascertaining the existence of health or safety hazards, and therefore CALTRANS is not liable for the alleged injuries and damages pursuant to Government Code §§818.6, 821.4 and 830(c). TWELFTH AFFIRMATIVE DEFENSE The alleged condition of property did not constitute a dangerous condition as it did not pose a substantial risk of injury, and, if there was any risk involved, it was merely a minor, trivial, or insignificant risk, and therefore, CALTRANS is not liable pursuant to Government Code §830.2. THIRTEENTH AFFIRMATIVE DEFENSE The alleged condition of property was allegedly the result of a failure to provide regulatory and/or warning signals, signs, markings, or other devices, and therefore CALTRANS is not liable pursuant to Government Code §§830.4 and 830.8. Mf 3 DEFENDANT CALTRANS’ ANSWER TO FIRST AMENDED COMPLAINT-100, Oakland, California 94612 CALIFORNIA DEPARTMENT OF TRANSPORTATION - LEGAL DIVISION vu we FOURTEENTH AFFIRMATIVE DEFENSE The alleged condition of property was the result of the effect, reasonably apparent to or anticipated by a person exercising due care, of weather conditions on the use of the highway in question, and therefore CALTRANS is not liable pursuant to Government Code §831. FIFTEENTH AFFIRMATIVE DEFENSE Defendant has immunity for the acts or omissions of other persons pursuant to Government Code §820.8. SIXTEENTH AFFIRMATIVE DEFENSE Plaintiffs are equitably estopped from asserting the claims set forth in the complaint by reason of his own acts or omissions and/or the acts or omissions of others. SEVENTEENTH AFFIRMATIVE DEFENSE The complaint and each cause of action contained therein is barred by the applicable statutes of limitation, including but not limited to Government Code §945.6. EIGHTEENTH AFFIRMATIVE DEFENSE The complaint alleges matters not contained in a claim presented to the Government Claims Program. Said allegations are barred, and to that extent, the complaint fails to state a cause of action and violates the provisions of Government Code §900, et. seq. This answering defendant reserves its right to strike said allegations and to object to any evidence directed to proof of said allegations. NINETEENTH AFFIRMATIVE DEFENSE The complaint and each cause of action contained therein is barred by plaintiffs’ non- compliance with the applicable claims statutes, including but not limited to Government Code §§911.2, 911.4 and 945.4. Ml Mf Ml Mt Mf Mt 4 DEFENDANT CALTRANS’ ANSWER TO FIRST AMENDED COMPLAINTCALIFORNIA DEPARTMENT OF TRANSPORTATION - LEGAL DIVISION 111 Grand Avenue, Suite 11-100, Oakland, California 94612 Mail: P.O. BOX 24325, Oakland, CA 94623-1325 Telephone: (510) 433-9100, Facsimile: (510) 433-9167 27 28 WHEREFORE, defendant prays that plaintiffs take nothing by the complaint; that the State of California, acting by and through the Department of Transportation (CALTRANS) be dismissed and awarded costs; and for such other and further relief as the Court deems proper. DATED: October 29, 2020 ERIN HOLBROOK G. MICHAEL HARRINGTON LANDA LOW ROSEMARY LOVE ROSEMARY LOVE Attorney for Defendant STATE OF CALIFORNIA, by and through the Department of Transportation 5 DEFENDANT CALTRANS’ ANSWER TO FIRST AMENDED COMPLAINTP.O, Box 24325, Oakland, CA 9462: Telephone: (510) 433-9100, Facsimile: (° 111 Grand Avenue, Suite 11-100, Oakland, California 94612 CALIFORNIA DEPARTMENT OF TRANSPORTATION - LEGAL DIVISION Case Name: Sandra Hernandez-Perez, et al. v. State of California, et al. Case No.: Contra Costa County Superior Court No. C20-01144 PROOF OF SERVICE I, the undersigned, say: I am, and was at all times herein mentioned, employed in the City of Oakland and County of Alameda, over the age of 18 years and not a party to the within action or proceedings; that my business address is 111 Grand Avenue, Suite 11-100, Oakland, California pou Male P.O. Box 24325, Oakland, CA 94623-1325; that on the date set forth below, I served the within DEFENDANT CALTRANS’ ANSWER TO FIRST AMENDED COMPLAINT on the interested parties listed below to said action by the following means: [\] (BY ELECTRONIC-MAIL) By attaching a copy of the document(s) in PDF format sent from genoveva.mercado@dot.ca.gov to the email addresses of the parties listed below. No hard copies will follow. William E. Weiss, Esq. Attorneys for Plaintiffs SANDRA LAW OFFICES OF WILLIAM E. WEISS HERNANDEZ-PEREZ, et al. 140 Geary Street, Seventh Floor San Francisco, CA 94108 weisslaw1@williamweisslaw.com Telephone: (415) 362-6765 Facsimile: (415) 362-2405 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. EXECUTED on October 29, 2020, at Oakland, California. peas Wurcade GENOVEVA MERCADO, Declarant 1 PROOF OF SERVICE