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Michael E. Lehman, #133523
TYSON
& MENDES
5200 N. Palm Ave., Ste. 311
Fresno, CA 93704
Phone: (559) 500-2294
Attomeys for Intervenor NATIONAL GENERAL INSURANCE COMPANY on behalf of JUAN
CARLOS ANDRADE - TRINIDAD and PLAZA and SONS CONSTRUCTION CORPORATION, a
suspended California corporation
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF KERN
10
DANIEL SCHOENE, CASE NO.: BCV-22-100085
11 Complaint Filed: January 12, 2022
12 Plaintiffs, NATIONAL GENERAL INSURANCE
COMPANY’S COMPLAINT IN
13 INTERVENTION ON BEHALF OF JUAN
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CARLOS ANDRADE-TRINIDAD AND PLAZA
AND SONS CONSTRUCTION CORPORATION
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BA Se 15
JUAN CARLOS ANDRADE-TRINIDAD;
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PLAZA AND SON CONSTRUCTION
CORPORATION; and DOES 1 to 20, Inclusive.
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17 Defendants
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21 Intervenor, NATIONAL GENERAL INSURANCE COMPANY (hereinafter “NGIC”), pursuant
22 to Code of Civil Procedure § 387, and by leave of Court, alleges:
23 1 Intervenor is, and at all times relevant herein was, a corporation duly organized and
24 existing under the laws of the State of California and authorized to transact business in the State of
25 California. Intervenor is authorized to transact multiple lines of insurance, including commercial general
26 liability insurance.
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NATIONAL GENERAL INSURANCE COMPANY’S COMPLAINT IN INTERVENTION ON BEHALF OF JUAN
CARLOS ANDRADE-TRINIDAD AND PLAZA AND SONS CONSTRUCTION CORPORATION
2 The above-entitled action was initiated by Plaintiff DANIEL SCHOENE (hereinafter
“SCHOENE”), who filed suit against JUAN CARLOS ANDRADE-TRINIDAD and PLAZA AND
SONS CONSTRUCTION CORPORATION, Defendants herein.
3 NGIC is informed and believes and thereon alleges that PLAZA’s employee, JUAN
CARLOS ANDRADE-TRINIDAD was involved in a motor vehicle accident with SCHOENE. NGIC
has agreed to defend defendants in the above-captioned action subject to a full and complete reservation
of rights, wherein applicable.
4. NGIC is further informed and believes and thereon alleges defendant PLAZA AND
SONS CONSTRUCTION CORPORATION is a suspended corporation and, as such, is barred from
10 defending itself against these claims and/or prosecuting an action for indemnity against any of the parties
11 hereto. NGIC intervenes in this action on the ground that it guarantees insurance policy(ies) issued to
12 PLAZA, under the California Insurance Code, and may be obligated to discharge any liability of
13 PLAZA, so entry of judgment herein against defendants could potentially affect the pecuniary interest
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a 15 5 NGIC denies any liability of PLAZA whatsoever to SCHOENE in connection with the
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16 matter alleged in the Complaint and alleges that if held liable to SCHOENE, said liability was and is the
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17 result in total or in part of SCHOENE’s comparative negligence.
18 6 NGIC unites with the interests of Defendants in resisting the claims of Plaintiff, but if
19 Plaintiff is awarded damages as a result of an act, omission, and/or negligence of NGIC’s insured,
20 PLAZA, NGIC demands indemnity and/or contribution, in whole or in part, as to the Defendants herein
21 on a comparative fault basis.
22 7 NGIC has incurred costs, expenses and attorneys’ fees in the investigation, defense and
23 prosecution of the claim in this action and additional costs, expenses, and attorneys’ fees will necessarily
24 be incurred herein.
25 8 NGIC participates in the defense of defendants by way of this intervention under an
26 express reservation of rights, reserving all rights and defenses available to it under Califomia law and
27 does not waive any of its rights as a result of its defense of defendants herein.
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NATIONAL GENERAL INSURANCE COMPANY’S COMPLAINT IN INTERVENTION ON BEHALF OF JUAN
CARLOS ANDRADE-TRINIDAD AND PLAZA AND SONS CONSTRUCTION CORPORATION
9 NGIC’S intervention will not enlarge the issues in this case; it is intervening for the
purpose of defending defendants against claims of liability and damages against defendants and to assert
defendants’ rights and defenses with respect to same.
10. It is understood by intervening that: (1) NGIC does not waive its rights to assert any and
all claims and defenses under the applicable policies including, but not limited to, any applicable
exclusions or failure(s) of defendants to cooperate in past and subsequent proceedings; (2) NGIC is
permitted to litigate all elements of liability and damages that have not been determined by the trier of
fact in this action in any subsequent proceeding(s) to determine coverage under any applicable
policy(ies); (3) NGIC’S intervention is solely to defend defendants pursuant to the terms and conditions
10 of the applicable policy(ies) and within its applicable policy limits; and, (4) NGIC will not become subject
11 to a judgment directly against it; and its responsibility, if any, for any judgment against defendnats is
12 contingent upon a determination in a subsequent action that there is coverage available under any
13 applicable policy of insurance and within the applicable policy limits, and pursuant to the relevant
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age 14 Califomia Insurance Code provisions.
£265
BA Se 15 11. Should trial prove necessary in this action, NGIC seeks to appear at trial under the name
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16 of defendants, in compliance with Califomia Evidence Code § 1155 and other applicable law.
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17 12. By leave of Court, NGIC hereby answers, on behalf of defendants, the allegations of
18 Plaintiff’s Complaint against defendants as follows:
19 GENERAL DENIAL
20 NGIC, on behalf of defendants, generally deny each and every, all and singular, generally and
21 specific, the allegations contained in the Complaint and denies that Plaintiff has sustained any injury or
22 damage as a result of the conduct alleged as against defendants.
23 SEPARATE AFFIRMATIVE DEFENSES
24 NGIC, ON BEHALF OF DEFENDANTS, HEREBY ASSERT THE FOLLOWING
25 SEPARATE AND DISTINCT AFFIRMATIVE DEFENSES
TO PLAINTIFF’S COMPLAINT ON
26 FILE HEREIN AND TO EACH AND EVERY CAUSE OF ACTION THEREIN.
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NATIONAL GENERAL INSURANCE COMPANY’S COMPLAINT IN INTERVENTION ON BEHALF OF JUAN
CARLOS ANDRADE-TRINIDAD AND PLAZA AND SONS CONSTRUCTION CORPORATION
FIRST AFFIRMATIVE DEFENSE
[Apportionment of Fault]
13. As and for a separate and affirmative defense to the Complaint and to each purported cause
of action contained therein, these answering Defendants are informed and believe and based thereon
allege: Defendants deny they were negligent in any fashion with respect to the damages, losses, injuries
and debts claimed by the Plaintiff in the Complaint on file herein; however, if these answering Defendants
are found to be negligent (which supposition is denied and merely stated for the purpose of this
affirmative defense), then these answering Defendants provisionally allege that Defendants’ negligence
is not the sole and proximate cause of the resultant damages, losses and injuries alleged by Plaintiff and
10 that the damages awarded to Plaintiff, if any, be apportioned according to the respective fault of the
11 parties, persons, and entities, or their agents, servants, and employees who contributed to and/or caused
12 said resultant damages as alleged, according to the proof presented at the time of trial. That to assess any
13 greater percentage of fault and damages against these answering Defendants in excess of these answering
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age 14 Defendants’ percentage of fault would be a denial of California equal protection and due process and
£265
BA Se 15 Federal equal protection and due process, all guaranteed by the respective Constitutions.
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16 SECOND AFFIRMATIVE DEFENSE
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17 [Comparative Fault]
18 14. As and for a separate and affirmative defense to the Complaint and to each purported cause
19 of action contained therein, these answering Defendants are informed and believe and based thereon
20 allege: The injuries to the Plaintiff, if any, were sustained in that Plaintiff failed to exercise ordinary
21 and reasonable care or caution concerning the matters alleged in the Complaint; and such negligence
22 on Plaintiff’s part constitutes a bar to any recovery by said Plaintiff, or in the alternative, the recovery, if
23 any, by said Plaintiff should be reduced in proportion to the extent such negligence was a cause of
24 Plaintiff’s injuries and damages, if any.
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NATIONAL GENERAL INSURANCE COMPANY’S COMPLAINT IN INTERVENTION ON BEHALF OF JUAN
CARLOS ANDRADE-TRINIDAD AND PLAZA AND SONS CONSTRUCTION CORPORATION
THIRD AFFIRMATIVE DEFENSE
[Assumption of Risk]
15. As and for a separate and affirmative defense to the Complaint, and to each purported
cause of action contained therein, these answering Defendants are informed and believe and based
thereon allege: Plaintiff knowingly, willingly and voluntarily assumed the risk of all damages, if any.
FOURTH AFFIRMATIVE DEFENSE
[Equitable Indemnity]
16. Asand for separate and affirmative defense to the Complaint, and to each purported cause
10 of action contained therein, these answering Defendants are informed and believe and based thereon
11 allege: Any and all events, happenings, injuries and damages set forth in the Complaint, if any, were
12 proximately caused and contributed to by the acts and/or omissions of Plaintiff, and such acts and/or
13 omissions totally bar or reduce any recovery on the part of Plaintiff.
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age 14 FIFTH AFFIRMATIVE DEFENSE
£265
BA Se 15 [No Duty]
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16 17. As and for a separate and affirmative defense to the Complaint, and to each purported
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17 cause of action contained therein, these answering Defendants are informed and believe and based
18 thereon allege: Any recovery on the Complaint, or any claim for relief averred therein, is barred to the
19 extent these answering Defendants owed no duty to Plaintiff.
20 SIXTH AFFIRMATIVE DEFENSE
21 [No Causation]
22 18. As and for a separate and affirmative defense to the Complaint, and to each purported
23 cause of action contained therein, these answering Defendants are informed and believes and based
24 thereon allege: To the extent Plaintiff suffered damages, which Defendants deny, such injury or damage
25 was not proximately caused by any conduct or inaction of these answering Defendants, or was not
26 foreseeable, or both.
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NATIONAL GENERAL INSURANCE COMPANY’S COMPLAINT IN INTERVENTION ON BEHALF OF JUAN
CARLOS ANDRADE-TRINIDAD AND PLAZA AND SONS CONSTRUCTION CORPORATION
SEVENTH AFFIRMATIVE DEFENSE
[Alleged Injury or Damage Caused by Others]
19. As and for a separate and affirmative defense to the Complaint, and to each purported
cause of action contained therein, these answering Defendants are informed and believe and based
thereon allege: To the extent Plaintiff suffered injury or damage, which Defendants deny, such injury or
damage was caused by the action or conduct of others, not these answering Defendants.
EIGHTH AFFIRMATIVE DEFENSE
[Existing Prior Injury]
20. As and for a separate and affirmative defense to the Complaint, and to each purported
10 cause of action contained therein, these answering Defendants are informed and believe and based
11 thereon allege: To the extent Plaintiff suffered injury or damage, which Defendants deny, such injury or
12 damage was sustained prior to the incident alleged by the Plaintiff in the Complaint on file herein.
13 NINTH AFFIRMATIVE DEFENSE
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age 14 [Uncertainty]
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BA Se 15 21. As and for a separate and affirmative defense to the Complaint, and to each purported
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16 cause of action contained therein, these answering Defendants are informed and believe and based
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17 thereon allege: Plaintiffs Complaint and the allegations thereof are uncertain, vague and ambiguous.
18 TENTH AFFIRMATIVE DEFENSE
19 [Limitation on Damages]
20 22. As and for a separate and affirmative defense to the Complaint, and to each purported
21 cause of action contained therein, these answering Defendants are informed and believe and based
22 thereon allege: Plaintiff’s Complaint seeks an award of improper damages, including but not limited to
23 medical damages beyond those permitted by law.
24 ELEVENTH AFFIRMATIVE DEFENSE
25 [Offset]
26 23. As and for a separate and affirmative defense to the Complaint, and to each purported
27 cause of action contained therein, these answering Defendants are informed and believe and based
28 thereon allege: The costs incurred, or paid by the Plaintiff, if any, for repair of property damage, medical
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NATIONAL GENERAL INSURANCE COMPANY’S COMPLAINT IN INTERVENTION ON BEHALF OF JUAN
CARLOS ANDRADE-TRINIDAD AND PLAZA AND SONS CONSTRUCTION CORPORATION
care, dental care, custodial care or rehabilitation services, loss of earning or other economic loss, in the
past or future, were or will, with reasonable certainty be replaced or indemnified, in whole or in part,
from one or more collateral source, including by or through insurance available to the Plaintiff under the
terms of the Patient Protection and Affordable Care Act, and as such the Defendants are entitled to have
any award reduced in the amount of such payments.
TWELFTH AFFIRMATIVE DEFENSE
[Howell v. Hamilton Meats]
24. As and for a separate and affirmative defense to the Complaint and to each purported
cause of action contained therein, these answering Defendants are informed and believe and based
10 thereon allege: Plaintiff’s recovery for past medical expenses or other economic loss or benefit, if any, is
11 limited to the lesser of the amount paid or the reasonable value of those services or benefits.
12 THIRTEENTH AFFIRMATIVE DEFENSE
13 [Patient Protection and Affordable Care Act]
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age 14 25. As and for a separate and affirmative defense to the Complaint and to each purported
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BA Se 15 cause of action contained therein, these answering Defendants are informed and believe and based
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16 thereon allege: Plaintiff is excluded from recovering any amounts which have been, or will, indemnify
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17 Plaintiff, for any past or future claimed medical expenses, health care, life care, or other economic loss
18 or benefit that is offered, or provided under or in connection with the Patient Protection and Affordable
19 Care Act.
20 FOURTEENTH AFFIRMATIVE DEFENSE
21 [Failure to Obtain Health Insurance]
22 26. As and for a separate and affirmative defense to the Complaint and to each purported
23 cause of action contained therein, these answering Defendants are informed and believe and based
24 thereon allege: In the event Plaintiff has failed to obtain health insurance coverage available to Plaintiff,
25 which he is eligible to obtain under the Patient Protection and Affordable Care Act, Plaintiff has failed
26 to mitigate Plaintiff’s damages and cannot recover for such failure.
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NATIONAL GENERAL INSURANCE COMPANY’S COMPLAINT IN INTERVENTION ON BEHALF OF JUAN
CARLOS ANDRADE-TRINIDAD AND PLAZA AND SONS CONSTRUCTION CORPORATION
FIFTEENTH AFFIRMATIVE DEFENSE
[Failure to Utilize Health Insurance Benefits]
27. As and for a separate and affirmative defense to the Complaint and to each purported
cause of action contained therein, these answering Defendants are informed and believe and based
thereon allege: To the extent Plaintiff failed to take reasonable steps to utilize the resources, service
benefits, and coverage available to Plaintiff under the Patient Protection and Affordable Care Act,
Plaintiff has failed to mitigate Plaintiff's damages and cannot recover for such failure.
SIXTEENTH AFFIRMATIVE DEFENSE
[Affordable Care Act and Future Damages]
10 28. As and for a separate and affirmative defense to the Complaint and to each purported
11 cause of action contained therein, these answering Defendants are informed and believe and based
12 thereon allege: Plaintiff will be limited to the reasonable value, if any, of future medical services available
13 to Plaintiff under the Affordable Care A ct.
ne
age 14 SEVENTEENTH AFFIRMATIVE DEFENSE
£265
BA Se 15 [No Injury or Damage]
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16 29. As and for a separate and affirmative defense to the Complaint, and to each purported
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17 cause of action contained therein, these answering Defendants are informed and believe and based
18 thereon allege: These answering Defendants deny Plaintiff suffered any injury or damage whatsoever,
19 and further deny they are liable to Plaintiff for any injury or damage claimed or for any injury or damage
20 whatsoever.
21 EIGHTEENTH AFFIRMATIVE DEFENSE
22 [No Seatbelt Usage]
23 30. As and for a separate and affirmative defense to the Complaint, and to each purported
24 cause of action therein, these answering Defendants are informed and believe and based thereon allege:
25 Plaintiff's recovery is barred or proportionately reduced due to Plaintiff’s failure to wear the available
26 restraining device or to wear it properly.
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NATIONAL GENERAL INSURANCE COMPANY’S COMPLAINT IN INTERVENTION ON BEHALF OF JUAN
CARLOS ANDRADE-TRINIDAD AND PLAZA AND SONS CONSTRUCTION CORPORATION
NINETEENTH AFFIRMATIVE DEFENSE
[Sudden Emergency Doctrine]
31. As and for a separate affirmative defense to the Complaint, and to each purported cause
of action contained therein, these answering Defendants are informed and believe and based thereon
allege: Any and all claims that Plaintiff may have or have had against Defendants have been or will be
barred by the sudden emergency doctrine.
TWENTIETH AFFIRMATIVE DEFENSE
[Statute of Limitations]
32. As and for a separate and affirmative defense to the Complaint and to each purported
10 cause of action contained therein, these answering Defendants are informed and believe and based
11 thereon allege: Each said cause of action is barred by the applicable statute of limitations, including but
12 not limited to, California Code of Civil Procedure Sections 335.1, 337, 337.1, 337.15, 338, 339, 340
13 and/or 343.
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age 14 TWENTY-FIRST AFFIRMATIVE DEFENSE
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16 33. As and for a separate and affirmative defense to the Complaint, and to each purported
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17 cause of action contained therein, these answering Defendants are informed and believe and based
18 thereon allege: If Plaintiff suffered any damage as a result of the allegations set forth in the Complaint,
19 Plaintiff is not entitled to recover from these answering Defendants any sum of damages due to Plaintiff’s
20 failure to take reasonable efforts to mitigate the damages said Plaintiff allegedly incurred.
21 TWENTY -SECOND AFFIRMATIVE DEFENSE
22 [Estoppel]
23 34. As and for a separate and affirmative defense to the Complaint, and to each purported
24 cause of action contained therein, these answering Defendants are informed and believe and based
25 thereon allege: Each and every cause of action or purported cause of action contained in the Complaint
26 is barred by the Doctrine of Estoppel.
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NATIONAL GENERAL INSURANCE COMPANY’S COMPLAINT IN INTERVENTION ON BEHALF OF JUAN
CARLOS ANDRADE-TRINIDAD AND PLAZA AND SONS CONSTRUCTION CORPORATION
TWENTY-THIRD AFFIRMATIVE DEFENSE
[Waiver]
35. As and for a separate and affirmative defense to the Complaint, and to each purported
cause of action contained therein, these answering Defendants are informed and believe and based
thereon allege: Each and every cause of action or purported cause of action contained in the Complaint
is barred by the Doctrine of Waiver.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
[Laches]
36. As and for a separate and affirmative defense to the Complaint, and to each purported
10 cause of action contained therein, these answering Defendants are informed and believe and based
11 thereon allege: Each and every cause of action or purported cause of action contained in the Complaint
12 is barred by the Doctrine of Laches.
13 TWENTY-FIFTH AFFIRMATIVE DEFENSE
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age 14 [Unclean Hands]
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BA Se 15 37. As and for a separate and affirmative defense to the Complaint, and to each purported
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16 cause of action contained therein, these answering Defendants are informed and believe and based
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17 thereon allege: Each and every cause of action or purported cause of action contained in the Complaint
18 is barred by the Doctrine of Unclean Hands.
19 TWENTY-SIXTH AFFIRMATIVE DEFENSE
20 [Collateral Estoppel]
21 38. As and for a separate and affirmative defense to the Complaint, and to each purported
22 cause of action contained therein, these answering Defendants are informed and believe and based
23 thereon allege: Each and every cause of action or purported cause of action contained in the Complaint
24 is barred by the Doctrine of Collateral Estoppel.
25 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
26 [Voluntary Conduct]
27 39. As and for a separate and affirmative defense to the Complaint, and to each purported
28 cause of action contained therein these answering Defendants are informed and believe and based thereon
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NATIONAL GENERAL INSURANCE COMPANY’S COMPLAINT IN INTERVENTION ON BEHALF OF JUAN
CARLOS ANDRADE-TRINIDAD AND PLAZA AND SONS CONSTRUCTION CORPORATION
allege: Plaintiff has engaged in conduct with respectto the activities and/or property which are the subject
of the Complaint, and by reason of said activities and conduct, is estopped from asserting any claims or
damages or seeking any other relief against these answering Defendants.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
[Damages Uncertain]
40. As and for a separate and affirmative defense to the Complaint, and to each purported
cause of action contained therein these answering Defendants are informed and believes and based
thereon allege: Plaintiff’s damages, if any, are speculative, uncertain and not capable of being determined
by a trier of fact.
10 TWENTY-NINTH AFFIRMATIVE DEFENSE
11 [Intervening Superseding C auses]
12 41. As and for a separate and affirmative defense to the Complaint, and to each purported
13 cause of action contained therein these answering Defendants are informed and believe and based thereon
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age 14 allege: The damages of which Plaintiff complains were proximately caused or contributed to by the acts
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BA Se 15 of other Defendants, persons and/or other entities. Such acts were an intervening, supervening and
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16 superseding cause of the injuries and damages, if any, of which the Plaintiff complains, thus barring
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17 Plaintiff from any recovery against these answering Defendants.
18 THIRTIETH AFFIRMATIVE DEFENSE
19 [Consent]
20 42. As and for a separate and affirmative defense to the Complaint, and to each purported
21 cause of action contained therein these answering Defendants are informed and believe and based thereon
22 allege: Each and every cause of action or purported cause of action contained in the Complaint is barred
23 due to the consent by Plaintiff to all actions alleged therein.
24 THIRTY -FIRST AFFIRMATIVE DEFENSE
25 [J oint and Several Liability]
26 43. As and for a separate and affirmative defense, these answering Defendants allege that the
27 liability of these answering Defendants for the non-economic damages claimed or proven by Plaintiff
28 shall be and is limited by Califomia Civil Code § 1431.2.
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NATIONAL GENERAL INSURANCE COMPANY’S COMPLAINT IN INTERVENTION ON BEHALF OF JUAN
CARLOS ANDRADE-TRINIDAD AND PLAZA AND SONS CONSTRUCTION CORPORATION
THIRTY -SECOND AFFIRMATIVE DEFENSE
[Failure to State C ause of Action]
44, As and for a separate and affirmative defense to the Complaint, a separate and distinct
affirmative defense, these answering Defendants are informed and believe and thereon allege: The
Complaint, and each and every cause of action therein alleged against Defendants fail to set forth facts
sufficient to constitute a cause of action against these answering Defendants.
THIRTY-THIRD AFFIRMATIVE DEFENSE
[Reserved Defenses]
45. As and for a separate and affirmative defense to the Complaint, and to each purported
10 cause of action contained therein, these answering Defendants allege that they presently have insufficient
11 knowledge or insufficient information upon which to form a belief as to whether it may have additional,
12 yet unasserted, affirmative defenses. Defendants therefore reserve the right to assert additional
13 affirmative defenses in the event discovery indicates it would be appropriate.
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ne 14 PRAYER
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a 15 WHEREFORE, NGIC as intervener and insurer for these answering Defendants pray for
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16 judgment as follows:
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17 1 That Plaintiff takes nothing by virtue of Plaintiff’s Complaint;
18 2 For costs of suit incurred herein; and
19 3 For such other and further relief as the court may deem just and proper.
20
21 DATED: March 20, 2024 TYSON & MENDES
22
py, — Mitac Lae
23 Michael Lehman
Attomey for Intervenor NATIONAL
24 GENERAL INSURANCE COMPANY on
25 behalf of JUAN CARLOS ANDRADE —
TRINIDAD and PLAZA and SONS
26 CONSTRUCTION CORPORATION, a
suspended California corporation
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NATIONAL GENERAL INSURANCE COMPANY’S COMPLAINT IN INTERVENTION ON BEHALF OF JUAN
CARLOS ANDRADE-TRINIDAD AND PLAZA AND SONS CONSTRUCTION CORPORATION
PROOF OF SERVICE
I, the undersigned, declare that I am over the age of 18 years and not a party to the within action
or proceeding. I am employed in and am a resident of Fresno County where the mailing occurs; and my
business address is 5200 N. Palm Ave., Ste. 311, Fresno, CA 93704.
On March 20, 2024, I caused to be served the following document(s):
NATIONAL GENERAL INSURANCE COMPANY’S COMPLAINT IN INTERVENTION ON
BEHALF OF JUAN CARLOS ANDRADE-TRINIDAD AND PLAZA AND SONS
CONSTRUCTION CORPORATION
on the interested parties in this action by:
—— BY MAIL: I further declare that I am readily familiar with the firm's business practice of
10 collection and processing of correspondence for mailing with the United States Postal Service,
and that the correspondence shall be deposited with the United States Postal Service this same
11 day in the ordinary course of business pursuant to Code of Civil Procedure section 1013(a).
I then sealed each envelope and, with postage thereon fully prepaid, placed each for deposit
12 in the United States Postal Service, this same day, at my business address shown above,
following ordinary business practices.
13
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age 14 —--- BY FACSIMILE SERVICE: I transmitted the document(s) described above to the person(s)
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and facsimile number(s) identified below pursuant to California Rules of Court, Rule 2006.
The facsimile machine I used complied with California Rules of Court, Rule 2003 and no
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error was reported by machine.
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—--- BY PERSONAL SERVICE: I emailed the documents identified above to a courier service,
17
Name of Service, to be delivered by personal service to the parties at the addresses listed
18 below. That
19 AL ELECTRONIC SERVICE: I transmitted the document(s) described above to the person(s)
and email addresses identified below pursuant to California Rules of Court.
20
—--- OVERNIGHT MAIL: I further declare that I am readily familiar with the firm’s business
21
practice of collection and processing of overnight delivery for mailing, and that the
22 correspondence shall be deposited with the overnight delivery service, Federal Express, to
be delivered by overnight delivery to the parties at the address listed below.
23
24 I declare under penalty of perjury under the laws of the State of California that the foregoing is
true and correct. Executed on March 20, 2024, at Fresno, California.
25
26
Sally Myrick
27 Holly Myrick
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NATIONAL GENERAL INSURANCE COMPANY’S COMPLAINT IN INTERVENTION ON BEHALF OF JUAN
CARLOS ANDRADE-TRINIDAD AND PLAZA AND SONS CONSTRUCTION CORPORATION
SERVICE LIST
Schoene v. Plaza and Sons Construction
Case No.: BCV-22-100085
David Shay Attomey for Plaintiff, DANIEL SCHOENE
Vaziri Law Group, A.P.C.
5757 Wilshire Blvd., Suite 670
Los Angeles, CA 90036
Email: dsteam@ vazirilaw.com
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NATIONAL GENERAL INSURANCE COMPANY’S COMPLAINT IN INTERVENTION ON BEHALF OF JUAN
CARLOS ANDRADE-TRINIDAD AND PLAZA AND SONS CONSTRUCTION CORPORATION
PROOF OF SERVICE
I, the undersigned, declare that I am over the age of 18 years and not a party to the within action
or proceeding. Iam employed in and am a resident of Fresno County where the mailing occurs; and my
business address is 5200 N. Palm Ave., Ste. 311, Fresno, CA 93704.
On April 16, 2024, I caused to be served the following document(s):
NATIONAL GENERAL INSURANCE COMPANY’S COMPLAINT IN INTERVENTION ON
BEHALF OF JUAN CARLOS ANDRADE-TRINIDAD AND PLAZA AND SONS
CONSTRUCTION CORPORATION on the interested parties in this action by:
—— BY MAIL: | further declare that I am readily familiar with the firm's business practice of
collection and processing of correspondence for mailing with the United States Postal Service,
and that the correspondence shall be deposited with the United States Postal Service this same
day in the ordinary course of business pursuant to Code of Civil Procedure section 1013(a).
I then sealed each envelope and, with postage thereon fully prepaid, placed each for deposit
10 in the United States Postal Service, this same day, at my business address shown above,
following ordinary business practices.
11
BY FACSIMILE SERVICE: I transmitted the document(s) described above to the person(s)
12
and facsimile number(s) identified below pursuant to California Rules of Court, Rule 2006.
am 13 The facsimile machine I used complied with California Rules of Court, Rule 2003 and no
augFox error was reported by machine.
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ayaa
425¢
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220s BY PERSONAL SERVICE: I emailed the documents identified above to a courier service,
2425 15
Zag240 Name of Service, to be delivered by personal service to the parties at the addresses listed
27k below. That
cs 16
a
17 ELECTRONIC SERVICE: I transmitted the document(s) described above to the person(s)
and email addresses identified below pursuant to California Rules of Court.
18
OVERNIGHT MAIL: I further declare that I am readily familiar with the firm’s business
19 practice of collection and processing of overnight delivery for mailing, and that the
correspondence shall be deposited with the overnight delivery service, Federal Express, to
20
be delivered by overnight delivery to the parties at the address listed below.
21
22 I declare under penalty of perjury under the laws of the State of California that the foregoing is
true and correct. Executed on April 16, 2024, at Fresno, California.
24
/S/Ber nice R. Meisner
25
Bernice R. Meisner
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SERVICE LIST
Schoene v. Plaza and Sons Construction
Case No.: BCV-22-100085
David Shay Attorney
for Plaintiff; DANIEL SCHOENE
Vaziri Law Group, A.P.C.
5757 Wilshire Blvd., Suite 670
Los Angeles, CA 90036
Email: dsteam@vazirilaw.com
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Preview
Michael E. Lehman, #133523 TYSON & MENDES 5200 N. Palm Ave., Ste. 311 Fresno, CA 93704 Phone: (559) 500-2294 Attomeys for Intervenor NATIONAL GENERAL INSURANCE COMPANY on behalf of JUAN CARLOS ANDRADE - TRINIDAD and PLAZA and SONS CONSTRUCTION CORPORATION, a suspended California corporation SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF KERN 10 DANIEL SCHOENE, CASE NO.: BCV-22-100085 11 Complaint Filed: January 12, 2022 12 Plaintiffs, NATIONAL GENERAL INSURANCE COMPANY’S COMPLAINT IN 13 INTERVENTION ON BEHALF OF JUAN ne age 14 CARLOS ANDRADE-TRINIDAD AND PLAZA AND SONS CONSTRUCTION CORPORATION £265 BA Se 15 JUAN CARLOS ANDRADE-TRINIDAD; Ze PLAZA AND SON CONSTRUCTION CORPORATION; and DOES 1 to 20, Inclusive. 16 fa 17 Defendants 18 19 20 21 Intervenor, NATIONAL GENERAL INSURANCE COMPANY (hereinafter “NGIC”), pursuant 22 to Code of Civil Procedure § 387, and by leave of Court, alleges: 23 1 Intervenor is, and at all times relevant herein was, a corporation duly organized and 24 existing under the laws of the State of California and authorized to transact business in the State of 25 California. Intervenor is authorized to transact multiple lines of insurance, including commercial general 26 liability insurance. 27 Mil 28 Mil “1 NATIONAL GENERAL INSURANCE COMPANY’S COMPLAINT IN INTERVENTION ON BEHALF OF JUAN CARLOS ANDRADE-TRINIDAD AND PLAZA AND SONS CONSTRUCTION CORPORATION 2 The above-entitled action was initiated by Plaintiff DANIEL SCHOENE (hereinafter “SCHOENE”), who filed suit against JUAN CARLOS ANDRADE-TRINIDAD and PLAZA AND SONS CONSTRUCTION CORPORATION, Defendants herein. 3 NGIC is informed and believes and thereon alleges that PLAZA’s employee, JUAN CARLOS ANDRADE-TRINIDAD was involved in a motor vehicle accident with SCHOENE. NGIC has agreed to defend defendants in the above-captioned action subject to a full and complete reservation of rights, wherein applicable. 4. NGIC is further informed and believes and thereon alleges defendant PLAZA AND SONS CONSTRUCTION CORPORATION is a suspended corporation and, as such, is barred from 10 defending itself against these claims and/or prosecuting an action for indemnity against any of the parties 11 hereto. NGIC intervenes in this action on the ground that it guarantees insurance policy(ies) issued to 12 PLAZA, under the California Insurance Code, and may be obligated to discharge any liability of 13 PLAZA, so entry of judgment herein against defendants could potentially affect the pecuniary interest age ne 14 of NGIC. £265Se a 15 5 NGIC denies any liability of PLAZA whatsoever to SCHOENE in connection with the Ze 16 matter alleged in the Complaint and alleges that if held liable to SCHOENE, said liability was and is the fa 17 result in total or in part of SCHOENE’s comparative negligence. 18 6 NGIC unites with the interests of Defendants in resisting the claims of Plaintiff, but if 19 Plaintiff is awarded damages as a result of an act, omission, and/or negligence of NGIC’s insured, 20 PLAZA, NGIC demands indemnity and/or contribution, in whole or in part, as to the Defendants herein 21 on a comparative fault basis. 22 7 NGIC has incurred costs, expenses and attorneys’ fees in the investigation, defense and 23 prosecution of the claim in this action and additional costs, expenses, and attorneys’ fees will necessarily 24 be incurred herein. 25 8 NGIC participates in the defense of defendants by way of this intervention under an 26 express reservation of rights, reserving all rights and defenses available to it under Califomia law and 27 does not waive any of its rights as a result of its defense of defendants herein. 28 Mil -2- NATIONAL GENERAL INSURANCE COMPANY’S COMPLAINT IN INTERVENTION ON BEHALF OF JUAN CARLOS ANDRADE-TRINIDAD AND PLAZA AND SONS CONSTRUCTION CORPORATION 9 NGIC’S intervention will not enlarge the issues in this case; it is intervening for the purpose of defending defendants against claims of liability and damages against defendants and to assert defendants’ rights and defenses with respect to same. 10. It is understood by intervening that: (1) NGIC does not waive its rights to assert any and all claims and defenses under the applicable policies including, but not limited to, any applicable exclusions or failure(s) of defendants to cooperate in past and subsequent proceedings; (2) NGIC is permitted to litigate all elements of liability and damages that have not been determined by the trier of fact in this action in any subsequent proceeding(s) to determine coverage under any applicable policy(ies); (3) NGIC’S intervention is solely to defend defendants pursuant to the terms and conditions 10 of the applicable policy(ies) and within its applicable policy limits; and, (4) NGIC will not become subject 11 to a judgment directly against it; and its responsibility, if any, for any judgment against defendnats is 12 contingent upon a determination in a subsequent action that there is coverage available under any 13 applicable policy of insurance and within the applicable policy limits, and pursuant to the relevant ne age 14 Califomia Insurance Code provisions. £265 BA Se 15 11. Should trial prove necessary in this action, NGIC seeks to appear at trial under the name Ze 16 of defendants, in compliance with Califomia Evidence Code § 1155 and other applicable law. fa 17 12. By leave of Court, NGIC hereby answers, on behalf of defendants, the allegations of 18 Plaintiff’s Complaint against defendants as follows: 19 GENERAL DENIAL 20 NGIC, on behalf of defendants, generally deny each and every, all and singular, generally and 21 specific, the allegations contained in the Complaint and denies that Plaintiff has sustained any injury or 22 damage as a result of the conduct alleged as against defendants. 23 SEPARATE AFFIRMATIVE DEFENSES 24 NGIC, ON BEHALF OF DEFENDANTS, HEREBY ASSERT THE FOLLOWING 25 SEPARATE AND DISTINCT AFFIRMATIVE DEFENSES TO PLAINTIFF’S COMPLAINT ON 26 FILE HEREIN AND TO EACH AND EVERY CAUSE OF ACTION THEREIN. 27 Mil 28 Mil -3- NATIONAL GENERAL INSURANCE COMPANY’S COMPLAINT IN INTERVENTION ON BEHALF OF JUAN CARLOS ANDRADE-TRINIDAD AND PLAZA AND SONS CONSTRUCTION CORPORATION FIRST AFFIRMATIVE DEFENSE [Apportionment of Fault] 13. As and for a separate and affirmative defense to the Complaint and to each purported cause of action contained therein, these answering Defendants are informed and believe and based thereon allege: Defendants deny they were negligent in any fashion with respect to the damages, losses, injuries and debts claimed by the Plaintiff in the Complaint on file herein; however, if these answering Defendants are found to be negligent (which supposition is denied and merely stated for the purpose of this affirmative defense), then these answering Defendants provisionally allege that Defendants’ negligence is not the sole and proximate cause of the resultant damages, losses and injuries alleged by Plaintiff and 10 that the damages awarded to Plaintiff, if any, be apportioned according to the respective fault of the 11 parties, persons, and entities, or their agents, servants, and employees who contributed to and/or caused 12 said resultant damages as alleged, according to the proof presented at the time of trial. That to assess any 13 greater percentage of fault and damages against these answering Defendants in excess of these answering ne age 14 Defendants’ percentage of fault would be a denial of California equal protection and due process and £265 BA Se 15 Federal equal protection and due process, all guaranteed by the respective Constitutions. Ze 16 SECOND AFFIRMATIVE DEFENSE fa 17 [Comparative Fault] 18 14. As and for a separate and affirmative defense to the Complaint and to each purported cause 19 of action contained therein, these answering Defendants are informed and believe and based thereon 20 allege: The injuries to the Plaintiff, if any, were sustained in that Plaintiff failed to exercise ordinary 21 and reasonable care or caution concerning the matters alleged in the Complaint; and such negligence 22 on Plaintiff’s part constitutes a bar to any recovery by said Plaintiff, or in the alternative, the recovery, if 23 any, by said Plaintiff should be reduced in proportion to the extent such negligence was a cause of 24 Plaintiff’s injuries and damages, if any. 25 Mil 26 Mil 27 Mil 28 Mil -4. NATIONAL GENERAL INSURANCE COMPANY’S COMPLAINT IN INTERVENTION ON BEHALF OF JUAN CARLOS ANDRADE-TRINIDAD AND PLAZA AND SONS CONSTRUCTION CORPORATION THIRD AFFIRMATIVE DEFENSE [Assumption of Risk] 15. As and for a separate and affirmative defense to the Complaint, and to each purported cause of action contained therein, these answering Defendants are informed and believe and based thereon allege: Plaintiff knowingly, willingly and voluntarily assumed the risk of all damages, if any. FOURTH AFFIRMATIVE DEFENSE [Equitable Indemnity] 16. Asand for separate and affirmative defense to the Complaint, and to each purported cause 10 of action contained therein, these answering Defendants are informed and believe and based thereon 11 allege: Any and all events, happenings, injuries and damages set forth in the Complaint, if any, were 12 proximately caused and contributed to by the acts and/or omissions of Plaintiff, and such acts and/or 13 omissions totally bar or reduce any recovery on the part of Plaintiff. ne age 14 FIFTH AFFIRMATIVE DEFENSE £265 BA Se 15 [No Duty] Ze 16 17. As and for a separate and affirmative defense to the Complaint, and to each purported fa 17 cause of action contained therein, these answering Defendants are informed and believe and based 18 thereon allege: Any recovery on the Complaint, or any claim for relief averred therein, is barred to the 19 extent these answering Defendants owed no duty to Plaintiff. 20 SIXTH AFFIRMATIVE DEFENSE 21 [No Causation] 22 18. As and for a separate and affirmative defense to the Complaint, and to each purported 23 cause of action contained therein, these answering Defendants are informed and believes and based 24 thereon allege: To the extent Plaintiff suffered damages, which Defendants deny, such injury or damage 25 was not proximately caused by any conduct or inaction of these answering Defendants, or was not 26 foreseeable, or both. 27 Mil 28 Mil -5- NATIONAL GENERAL INSURANCE COMPANY’S COMPLAINT IN INTERVENTION ON BEHALF OF JUAN CARLOS ANDRADE-TRINIDAD AND PLAZA AND SONS CONSTRUCTION CORPORATION SEVENTH AFFIRMATIVE DEFENSE [Alleged Injury or Damage Caused by Others] 19. As and for a separate and affirmative defense to the Complaint, and to each purported cause of action contained therein, these answering Defendants are informed and believe and based thereon allege: To the extent Plaintiff suffered injury or damage, which Defendants deny, such injury or damage was caused by the action or conduct of others, not these answering Defendants. EIGHTH AFFIRMATIVE DEFENSE [Existing Prior Injury] 20. As and for a separate and affirmative defense to the Complaint, and to each purported 10 cause of action contained therein, these answering Defendants are informed and believe and based 11 thereon allege: To the extent Plaintiff suffered injury or damage, which Defendants deny, such injury or 12 damage was sustained prior to the incident alleged by the Plaintiff in the Complaint on file herein. 13 NINTH AFFIRMATIVE DEFENSE ne age 14 [Uncertainty] £265 BA Se 15 21. As and for a separate and affirmative defense to the Complaint, and to each purported Ze 16 cause of action contained therein, these answering Defendants are informed and believe and based fa 17 thereon allege: Plaintiffs Complaint and the allegations thereof are uncertain, vague and ambiguous. 18 TENTH AFFIRMATIVE DEFENSE 19 [Limitation on Damages] 20 22. As and for a separate and affirmative defense to the Complaint, and to each purported 21 cause of action contained therein, these answering Defendants are informed and believe and based 22 thereon allege: Plaintiff’s Complaint seeks an award of improper damages, including but not limited to 23 medical damages beyond those permitted by law. 24 ELEVENTH AFFIRMATIVE DEFENSE 25 [Offset] 26 23. As and for a separate and affirmative defense to the Complaint, and to each purported 27 cause of action contained therein, these answering Defendants are informed and believe and based 28 thereon allege: The costs incurred, or paid by the Plaintiff, if any, for repair of property damage, medical -6- NATIONAL GENERAL INSURANCE COMPANY’S COMPLAINT IN INTERVENTION ON BEHALF OF JUAN CARLOS ANDRADE-TRINIDAD AND PLAZA AND SONS CONSTRUCTION CORPORATION care, dental care, custodial care or rehabilitation services, loss of earning or other economic loss, in the past or future, were or will, with reasonable certainty be replaced or indemnified, in whole or in part, from one or more collateral source, including by or through insurance available to the Plaintiff under the terms of the Patient Protection and Affordable Care Act, and as such the Defendants are entitled to have any award reduced in the amount of such payments. TWELFTH AFFIRMATIVE DEFENSE [Howell v. Hamilton Meats] 24. As and for a separate and affirmative defense to the Complaint and to each purported cause of action contained therein, these answering Defendants are informed and believe and based 10 thereon allege: Plaintiff’s recovery for past medical expenses or other economic loss or benefit, if any, is 11 limited to the lesser of the amount paid or the reasonable value of those services or benefits. 12 THIRTEENTH AFFIRMATIVE DEFENSE 13 [Patient Protection and Affordable Care Act] ne age 14 25. As and for a separate and affirmative defense to the Complaint and to each purported £265 BA Se 15 cause of action contained therein, these answering Defendants are informed and believe and based Ze 16 thereon allege: Plaintiff is excluded from recovering any amounts which have been, or will, indemnify fa 17 Plaintiff, for any past or future claimed medical expenses, health care, life care, or other economic loss 18 or benefit that is offered, or provided under or in connection with the Patient Protection and Affordable 19 Care Act. 20 FOURTEENTH AFFIRMATIVE DEFENSE 21 [Failure to Obtain Health Insurance] 22 26. As and for a separate and affirmative defense to the Complaint and to each purported 23 cause of action contained therein, these answering Defendants are informed and believe and based 24 thereon allege: In the event Plaintiff has failed to obtain health insurance coverage available to Plaintiff, 25 which he is eligible to obtain under the Patient Protection and Affordable Care Act, Plaintiff has failed 26 to mitigate Plaintiff’s damages and cannot recover for such failure. 27 Mil 28 Mil -7- NATIONAL GENERAL INSURANCE COMPANY’S COMPLAINT IN INTERVENTION ON BEHALF OF JUAN CARLOS ANDRADE-TRINIDAD AND PLAZA AND SONS CONSTRUCTION CORPORATION FIFTEENTH AFFIRMATIVE DEFENSE [Failure to Utilize Health Insurance Benefits] 27. As and for a separate and affirmative defense to the Complaint and to each purported cause of action contained therein, these answering Defendants are informed and believe and based thereon allege: To the extent Plaintiff failed to take reasonable steps to utilize the resources, service benefits, and coverage available to Plaintiff under the Patient Protection and Affordable Care Act, Plaintiff has failed to mitigate Plaintiff's damages and cannot recover for such failure. SIXTEENTH AFFIRMATIVE DEFENSE [Affordable Care Act and Future Damages] 10 28. As and for a separate and affirmative defense to the Complaint and to each purported 11 cause of action contained therein, these answering Defendants are informed and believe and based 12 thereon allege: Plaintiff will be limited to the reasonable value, if any, of future medical services available 13 to Plaintiff under the Affordable Care A ct. ne age 14 SEVENTEENTH AFFIRMATIVE DEFENSE £265 BA Se 15 [No Injury or Damage] Ze 16 29. As and for a separate and affirmative defense to the Complaint, and to each purported fa 17 cause of action contained therein, these answering Defendants are informed and believe and based 18 thereon allege: These answering Defendants deny Plaintiff suffered any injury or damage whatsoever, 19 and further deny they are liable to Plaintiff for any injury or damage claimed or for any injury or damage 20 whatsoever. 21 EIGHTEENTH AFFIRMATIVE DEFENSE 22 [No Seatbelt Usage] 23 30. As and for a separate and affirmative defense to the Complaint, and to each purported 24 cause of action therein, these answering Defendants are informed and believe and based thereon allege: 25 Plaintiff's recovery is barred or proportionately reduced due to Plaintiff’s failure to wear the available 26 restraining device or to wear it properly. 27 Mil 28 Mil -8- NATIONAL GENERAL INSURANCE COMPANY’S COMPLAINT IN INTERVENTION ON BEHALF OF JUAN CARLOS ANDRADE-TRINIDAD AND PLAZA AND SONS CONSTRUCTION CORPORATION NINETEENTH AFFIRMATIVE DEFENSE [Sudden Emergency Doctrine] 31. As and for a separate affirmative defense to the Complaint, and to each purported cause of action contained therein, these answering Defendants are informed and believe and based thereon allege: Any and all claims that Plaintiff may have or have had against Defendants have been or will be barred by the sudden emergency doctrine. TWENTIETH AFFIRMATIVE DEFENSE [Statute of Limitations] 32. As and for a separate and affirmative defense to the Complaint and to each purported 10 cause of action contained therein, these answering Defendants are informed and believe and based 11 thereon allege: Each said cause of action is barred by the applicable statute of limitations, including but 12 not limited to, California Code of Civil Procedure Sections 335.1, 337, 337.1, 337.15, 338, 339, 340 13 and/or 343. ne age 14 TWENTY-FIRST AFFIRMATIVE DEFENSE £265 BA Se 15 [Failure to Mitigate L oss] Ze 16 33. As and for a separate and affirmative defense to the Complaint, and to each purported fa 17 cause of action contained therein, these answering Defendants are informed and believe and based 18 thereon allege: If Plaintiff suffered any damage as a result of the allegations set forth in the Complaint, 19 Plaintiff is not entitled to recover from these answering Defendants any sum of damages due to Plaintiff’s 20 failure to take reasonable efforts to mitigate the damages said Plaintiff allegedly incurred. 21 TWENTY -SECOND AFFIRMATIVE DEFENSE 22 [Estoppel] 23 34. As and for a separate and affirmative defense to the Complaint, and to each purported 24 cause of action contained therein, these answering Defendants are informed and believe and based 25 thereon allege: Each and every cause of action or purported cause of action contained in the Complaint 26 is barred by the Doctrine of Estoppel. 27 Mil 28 Mil -9- NATIONAL GENERAL INSURANCE COMPANY’S COMPLAINT IN INTERVENTION ON BEHALF OF JUAN CARLOS ANDRADE-TRINIDAD AND PLAZA AND SONS CONSTRUCTION CORPORATION TWENTY-THIRD AFFIRMATIVE DEFENSE [Waiver] 35. As and for a separate and affirmative defense to the Complaint, and to each purported cause of action contained therein, these answering Defendants are informed and believe and based thereon allege: Each and every cause of action or purported cause of action contained in the Complaint is barred by the Doctrine of Waiver. TWENTY-FOURTH AFFIRMATIVE DEFENSE [Laches] 36. As and for a separate and affirmative defense to the Complaint, and to each purported 10 cause of action contained therein, these answering Defendants are informed and believe and based 11 thereon allege: Each and every cause of action or purported cause of action contained in the Complaint 12 is barred by the Doctrine of Laches. 13 TWENTY-FIFTH AFFIRMATIVE DEFENSE ne age 14 [Unclean Hands] £265 BA Se 15 37. As and for a separate and affirmative defense to the Complaint, and to each purported Ze 16 cause of action contained therein, these answering Defendants are informed and believe and based fa 17 thereon allege: Each and every cause of action or purported cause of action contained in the Complaint 18 is barred by the Doctrine of Unclean Hands. 19 TWENTY-SIXTH AFFIRMATIVE DEFENSE 20 [Collateral Estoppel] 21 38. As and for a separate and affirmative defense to the Complaint, and to each purported 22 cause of action contained therein, these answering Defendants are informed and believe and based 23 thereon allege: Each and every cause of action or purported cause of action contained in the Complaint 24 is barred by the Doctrine of Collateral Estoppel. 25 TWENTY-SEVENTH AFFIRMATIVE DEFENSE 26 [Voluntary Conduct] 27 39. As and for a separate and affirmative defense to the Complaint, and to each purported 28 cause of action contained therein these answering Defendants are informed and believe and based thereon -10- NATIONAL GENERAL INSURANCE COMPANY’S COMPLAINT IN INTERVENTION ON BEHALF OF JUAN CARLOS ANDRADE-TRINIDAD AND PLAZA AND SONS CONSTRUCTION CORPORATION allege: Plaintiff has engaged in conduct with respectto the activities and/or property which are the subject of the Complaint, and by reason of said activities and conduct, is estopped from asserting any claims or damages or seeking any other relief against these answering Defendants. TWENTY-EIGHTH AFFIRMATIVE DEFENSE [Damages Uncertain] 40. As and for a separate and affirmative defense to the Complaint, and to each purported cause of action contained therein these answering Defendants are informed and believes and based thereon allege: Plaintiff’s damages, if any, are speculative, uncertain and not capable of being determined by a trier of fact. 10 TWENTY-NINTH AFFIRMATIVE DEFENSE 11 [Intervening Superseding C auses] 12 41. As and for a separate and affirmative defense to the Complaint, and to each purported 13 cause of action contained therein these answering Defendants are informed and believe and based thereon ne age 14 allege: The damages of which Plaintiff complains were proximately caused or contributed to by the acts £265 BA Se 15 of other Defendants, persons and/or other entities. Such acts were an intervening, supervening and Ze 16 superseding cause of the injuries and damages, if any, of which the Plaintiff complains, thus barring fa 17 Plaintiff from any recovery against these answering Defendants. 18 THIRTIETH AFFIRMATIVE DEFENSE 19 [Consent] 20 42. As and for a separate and affirmative defense to the Complaint, and to each purported 21 cause of action contained therein these answering Defendants are informed and believe and based thereon 22 allege: Each and every cause of action or purported cause of action contained in the Complaint is barred 23 due to the consent by Plaintiff to all actions alleged therein. 24 THIRTY -FIRST AFFIRMATIVE DEFENSE 25 [J oint and Several Liability] 26 43. As and for a separate and affirmative defense, these answering Defendants allege that the 27 liability of these answering Defendants for the non-economic damages claimed or proven by Plaintiff 28 shall be and is limited by Califomia Civil Code § 1431.2. -11- NATIONAL GENERAL INSURANCE COMPANY’S COMPLAINT IN INTERVENTION ON BEHALF OF JUAN CARLOS ANDRADE-TRINIDAD AND PLAZA AND SONS CONSTRUCTION CORPORATION THIRTY -SECOND AFFIRMATIVE DEFENSE [Failure to State C ause of Action] 44, As and for a separate and affirmative defense to the Complaint, a separate and distinct affirmative defense, these answering Defendants are informed and believe and thereon allege: The Complaint, and each and every cause of action therein alleged against Defendants fail to set forth facts sufficient to constitute a cause of action against these answering Defendants. THIRTY-THIRD AFFIRMATIVE DEFENSE [Reserved Defenses] 45. As and for a separate and affirmative defense to the Complaint, and to each purported 10 cause of action contained therein, these answering Defendants allege that they presently have insufficient 11 knowledge or insufficient information upon which to form a belief as to whether it may have additional, 12 yet unasserted, affirmative defenses. Defendants therefore reserve the right to assert additional 13 affirmative defenses in the event discovery indicates it would be appropriate. age ne 14 PRAYER £265Se a 15 WHEREFORE, NGIC as intervener and insurer for these answering Defendants pray for Ze 16 judgment as follows: fa 17 1 That Plaintiff takes nothing by virtue of Plaintiff’s Complaint; 18 2 For costs of suit incurred herein; and 19 3 For such other and further relief as the court may deem just and proper. 20 21 DATED: March 20, 2024 TYSON & MENDES 22 py, — Mitac Lae 23 Michael Lehman Attomey for Intervenor NATIONAL 24 GENERAL INSURANCE COMPANY on 25 behalf of JUAN CARLOS ANDRADE — TRINIDAD and PLAZA and SONS 26 CONSTRUCTION CORPORATION, a suspended California corporation 27 28 -12- NATIONAL GENERAL INSURANCE COMPANY’S COMPLAINT IN INTERVENTION ON BEHALF OF JUAN CARLOS ANDRADE-TRINIDAD AND PLAZA AND SONS CONSTRUCTION CORPORATION PROOF OF SERVICE I, the undersigned, declare that I am over the age of 18 years and not a party to the within action or proceeding. I am employed in and am a resident of Fresno County where the mailing occurs; and my business address is 5200 N. Palm Ave., Ste. 311, Fresno, CA 93704. On March 20, 2024, I caused to be served the following document(s): NATIONAL GENERAL INSURANCE COMPANY’S COMPLAINT IN INTERVENTION ON BEHALF OF JUAN CARLOS ANDRADE-TRINIDAD AND PLAZA AND SONS CONSTRUCTION CORPORATION on the interested parties in this action by: —— BY MAIL: I further declare that I am readily familiar with the firm's business practice of 10 collection and processing of correspondence for mailing with the United States Postal Service, and that the correspondence shall be deposited with the United States Postal Service this same 11 day in the ordinary course of business pursuant to Code of Civil Procedure section 1013(a). I then sealed each envelope and, with postage thereon fully prepaid, placed each for deposit 12 in the United States Postal Service, this same day, at my business address shown above, following ordinary business practices. 13 ne age 14 —--- BY FACSIMILE SERVICE: I transmitted the document(s) described above to the person(s) £265 BA Se 15 and facsimile number(s) identified below pursuant to California Rules of Court, Rule 2006. The facsimile machine I used complied with California Rules of Court, Rule 2003 and no Ze error was reported by machine. 16 fa —--- BY PERSONAL SERVICE: I emailed the documents identified above to a courier service, 17 Name of Service, to be delivered by personal service to the parties at the addresses listed 18 below. That 19 AL ELECTRONIC SERVICE: I transmitted the document(s) described above to the person(s) and email addresses identified below pursuant to California Rules of Court. 20 —--- OVERNIGHT MAIL: I further declare that I am readily familiar with the firm’s business 21 practice of collection and processing of overnight delivery for mailing, and that the 22 correspondence shall be deposited with the overnight delivery service, Federal Express, to be delivered by overnight delivery to the parties at the address listed below. 23 24 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on March 20, 2024, at Fresno, California. 25 26 Sally Myrick 27 Holly Myrick 28 -13- NATIONAL GENERAL INSURANCE COMPANY’S COMPLAINT IN INTERVENTION ON BEHALF OF JUAN CARLOS ANDRADE-TRINIDAD AND PLAZA AND SONS CONSTRUCTION CORPORATION SERVICE LIST Schoene v. Plaza and Sons Construction Case No.: BCV-22-100085 David Shay Attomey for Plaintiff, DANIEL SCHOENE Vaziri Law Group, A.P.C. 5757 Wilshire Blvd., Suite 670 Los Angeles, CA 90036 Email: dsteam@ vazirilaw.com 10 11 12 13 ne age 14 £265 BA Se 15 Ze 16 fa 17 18 19 20 21 22 23 24 25 26 27 28 -14- NATIONAL GENERAL INSURANCE COMPANY’S COMPLAINT IN INTERVENTION ON BEHALF OF JUAN CARLOS ANDRADE-TRINIDAD AND PLAZA AND SONS CONSTRUCTION CORPORATION PROOF OF SERVICE I, the undersigned, declare that I am over the age of 18 years and not a party to the within action or proceeding. Iam employed in and am a resident of Fresno County where the mailing occurs; and my business address is 5200 N. Palm Ave., Ste. 311, Fresno, CA 93704. On April 16, 2024, I caused to be served the following document(s): NATIONAL GENERAL INSURANCE COMPANY’S COMPLAINT IN INTERVENTION ON BEHALF OF JUAN CARLOS ANDRADE-TRINIDAD AND PLAZA AND SONS CONSTRUCTION CORPORATION on the interested parties in this action by: —— BY MAIL: | further declare that I am readily familiar with the firm's business practice of collection and processing of correspondence for mailing with the United States Postal Service, and that the correspondence shall be deposited with the United States Postal Service this same day in the ordinary course of business pursuant to Code of Civil Procedure section 1013(a). I then sealed each envelope and, with postage thereon fully prepaid, placed each for deposit 10 in the United States Postal Service, this same day, at my business address shown above, following ordinary business practices. 11 BY FACSIMILE SERVICE: I transmitted the document(s) described above to the person(s) 12 and facsimile number(s) identified below pursuant to California Rules of Court, Rule 2006. am 13 The facsimile machine I used complied with California Rules of Court, Rule 2003 and no augFox error was reported by machine. ZaRS ayaa 425¢ 14 220s BY PERSONAL SERVICE: I emailed the documents identified above to a courier service, 2425 15 Zag240 Name of Service, to be delivered by personal service to the parties at the addresses listed 27k below. That cs 16 a 17 ELECTRONIC SERVICE: I transmitted the document(s) described above to the person(s) and email addresses identified below pursuant to California Rules of Court. 18 OVERNIGHT MAIL: I further declare that I am readily familiar with the firm’s business 19 practice of collection and processing of overnight delivery for mailing, and that the correspondence shall be deposited with the overnight delivery service, Federal Express, to 20 be delivered by overnight delivery to the parties at the address listed below. 21 22 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on April 16, 2024, at Fresno, California. 24 /S/Ber nice R. Meisner 25 Bernice R. Meisner 26 27 28 -l- SERVICE LIST Schoene v. Plaza and Sons Construction Case No.: BCV-22-100085 David Shay Attorney for Plaintiff; DANIEL SCHOENE Vaziri Law Group, A.P.C. 5757 Wilshire Blvd., Suite 670 Los Angeles, CA 90036 Email: dsteam@vazirilaw.com 10 11 12 13 oe BS ga 14 aes os sa ge aD 15 a8 ge 16 a 17 18 19 20 21 22 23 24 25 26 27 28 -2-