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1 JASON M. HEATH, State Bar No. 180501
County Counsel
2 MELISSA C. SHAW, State Bar No. 232775
Assistant County Counsel
3 MICHAEL J. DE SMIDT, State Bar No. 327439
Assistant County Counsel
4 Office of the Santa Cruz County Counsel
701 Ocean Street, Room 505
5 Santa Cruz, California 95060
Telephone: (831) 454-2040
6 Fax: (831) 454-2115
Email: melissa.shaw@santacruzcountyca.gov
7 michael.desmidt@santacruzcountyca.gov
8 Attorneys for Defendant
County of Santa Cruz
9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
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FOR THE COUNTY OF SANTA CRUZ
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SHANE TUCKER, Case No. 24CV00445
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Plaintiff,
14 v. DEFENDANT COUNTY OF SANTA
CRUZ’S ANSWER TO PLAINTIFF’S
15 COMPLAINT FOR DAMAGES
16 PACIFIC GAS AND ELECTRIC COMPANY;
STATE OF CALIFORNIA; COUNTY OF
17 SANTA CRUZ; TAMMY MCKENNA;
DENNIS MCKENNA; AND DOES 1
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THROUGH 100,
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Defendants.
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22 Defendant COUNTY OF SANTA CRUZ (“County”) hereby answers the Plaintiff’s
23 Complaint as follows:
24 GENERAL DENIAL
25 Pursuant to Section 431.30(d) of the Code of Civil Procedure, Defendant generally and
26 specifically denies each and every allegation contained in the first amended complaint.
27 The County denies that Plaintiff has sustained damages in any sum or amount, or otherwise,
28 or at all, due to any act or omission of the County.
Tucker, Shane.; PG&E; State of CA; County of Santa Cruz, et al.
Case No. 24CV00445 Dft County’s Answer to Ptf’s Complaint for Damages
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1 AFFIRMATIVE DEFENSES
2 FIRST AFFIRMATIVE DEFENSE
3 The complaint and each cause of action therein fail to allege facts sufficient to constitute a
4 cause of action against the County.
5 SECOND AFFIRMATIVE DEFENSE
6 The County is immune from Plaintiff’s first amended complaint under any and all
7 applicable immunities set forth within the California Tort Claims Act, Government Code sections
8 810, et seq., including but not limited to Govt. Code Sections 815, 815.2, 818, 816, 820.2, 820.4,
9 820.8, 821.4, 830.2, 830.4, 830.6, 830.8, 831.4 and 831.7.
10 THIRD AFFIRMATIVE DEFENSE
11 The County asserts that to the extent that Plaintiff recover damages on any claim brought
12 under state law County is entitled to have the amount abated, apportioned, or reduced to the extent
13 that any other party’s, entity, or individual’s negligence caused or contributed to damages, if any.
14 To the extent that the first amended complaint herein seeks recovery on any common law tort
15 theory, any liability for common law tort must be diminished in proportion to the amount of fault
16 attributable to Plaintiff and others.
17 FOURTH AFFIRMATIVE DEFENSE
18 The action is barred to the extent Plaintiff failed to precede the action with a claim as
19 required by Government Code sections 945.4, 911.2, 905.2, and 950.2.
20 FIFTH AFFIRMATIVE DEFENSE
21 If and to the extent that the allegations of the first amended complaint attempt to enlarge
22 upon the facts and contentions set forth in the Government Tort Claim, if any there was, said
23 amended complaint fails to state a cause of action and is barred by Government Code sections
24 905.2, 911.2 and 950.2.
25 SIXTH AFFIRMATIVE DEFENSE
26 The first amended complaint and each cause of action therein are barred by any applicable
27 statute of limitations.
28 ///
Tucker, Shane.; PG&E; State of CA; County of Santa Cruz, et al.
Case No. 24CV00445 Dft County’s Answer to Ptf’s Complaint for Damages
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1 SEVENTH AFFIRMATIVE DEFENSE
2 All happenings and events, damages and injuries, if any, referred to in the complaint were
3 proximately caused and contributed to by the negligent acts or omissions of Plaintiff and others,
4 each and all of whom failed to exercise ordinary care at the times and places alleged in the first
5 amended complaint.
6 EIGHTH AFFIRMATIVE DEFENSE
7 The first amended complaint and each cause of action therein is barred by the doctrines of
8 estoppel, laches and unclean hands.
9 NINTH AFFIRMATIVE DEFENSE
10 At all relevant times, Plaintiff failed to or insufficiently mitigated injury and damages.
11 TENTH AFFIRMATIVE DEFENSE
12 Plaintiff’s claimed damages are barred since they do not reasonably or foreseeably result
13 from the actions as alleged in the first amended complaint.
14 ELEVENTH AFFIRMATIVE DEFENSE
15 The County’s liability, if any, or its responsibility, if any, for any non-economic damages is
16 limited to its proportionate share of fault, if any, as provided by Civil Code §§ 1431.1 through
17 1431.5.
18 TWELTH AFFIRMATIVE DEFENSE
19 Because the first amended complaint is couched in conclusory terms, the answering County
20 cannot fully anticipate all affirmative defenses that may be applicable to this matter. Accordingly,
21 the right to assert separate affirmative defenses, if and to the extent such affirmative defenses are
22 applicable, is hereby reserved.
23 THIRTEENTH AFFIRMATIVE DEFENSE
24 The County and its employees are not liable for negligent acts of omissions off the County
25 or its employees except as provided by statute under Government Code § 815(a).
26 REQUEST FOR RELIEF
27 WHEREFORE, the County prays as follows:
28
Tucker, Shane.; PG&E; State of CA; County of Santa Cruz, et al.
Case No. 24CV00445 Dft County’s Answer to Ptf’s Complaint for Damages
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1 1. That judgment be entered in favor of the County and against Plaintiff on the
2 Complaint as a whole, and each cause of action therein, and that Plaintiff takes nothing by way of
3 the Complaint;
4 2. That the Complaint, and each cause of action therein, be dismissed with prejudice;
5 3. That the County be awarded judgment in this action;
6 4. That the County be awarded the costs, expenses and attorney fees as allowed by law
7 and incurred in this action; and
8 5. That the court grant such additional relief as it deems proper.
9
10 Dated: April 23, 2024 JASON M. HEATH, COUNTY COUNSEL
11
12 By:
MELISSA C. SHAW
13 MICHAEL J. DE SMIDT
14 Assistant County Counsels
Attorneys for Defendant
15 COUNTY OF SANTA CRUZ
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Tucker, Shane.; PG&E; State of CA; County of Santa Cruz, et al.
Case No. 24CV00445 Dft County’s Answer to Ptf’s Complaint for Damages
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1 PROOF OF SERVICE
2 I, the undersigned, state that I am a citizen of the United States and employed in the County
3 of Santa Cruz, State of California. I am over the age of 18 years and not a party to the within action.
4 My business address is 701 Ocean Street, Room 505, Santa Cruz, California 95060. On the date set
5 out below, I served a true copy of the following on the person(s)/entity(ies) listed below:
6 DEFENDANT COUNTY OF SANTA CRUZ’S ANSWER TO PLAINTIFF’S COMPLAINT
FOR DAMAGES
7
by service by mail by placing said copy enclosed in a sealed envelope and depositing the sealed
8 envelope with the United States Postal Service with the postage fully prepaid.
9 X by service by mail by placing said copy enclosed in a sealed envelope and placing the envelope
◇
for collection and mailing on the date and at the place shown below following our ordinary business
10 practices. I am readily familiar with this business's practice for collecting and processing
correspondence for mailing. On the same day that correspondence is placed for collection and
11 mailing, it is deposited in the ordinary course of business with the United States Postal Service with
postage fully prepaid.
12
by express or overnight mail by arranging for pick-up by an employee of an express/overnight
13 mail company on:
14 by email by transmitting said copy electronically to the email address(es) listed below from my
email account administered by the County of Santa Cruz. The electronic transmission was
15 successful with no reported rejections.
16 by express or overnight mail by depositing a copy in a post office, mailbox, sub-post office,
substation, mail chute, or other like facility regularly maintained by the United States Postal Service
17 for receipt of express mail or a mailbox, mail chute, or other like facility regularly maintained by an
overnight mail company, in a sealed envelope, with express mail postage paid addressed to the
18 below listed person(s).
19 by facsimile service at the number listed below and have confirmation that it was received by:
20 Dan C. Schaar, Esq. Jennifer K. Thai, Esq.
Eva D. Silva, Esq. SEGAL McCAMBRIDGE SINGER & MAHONEY
21 SCHAAR & SILVA LLP 505 Montgomery Street, 11th Floor
22 548 Market Street, PMB 76421 San Francisco, CA 94111
San Francisco, CA 94104-5401 Email: jthai@smsm.com
23 Attorneys for Plaintiff Shane Tucker Attorneys for Defendant Pacific Gas and
Electric Company
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25 I declare under penalty of perjury under the laws of the State of California that the foregoing
26 is true and correct. Executed on April 23, 2024 at Santa Cruz, California.
27
28
NESSA WRIGHT
Tucker, Shane.; PG&E; State of CA; County of Santa Cruz, et al.
Case No. 24CV00445 Dft County’s Answer to Ptf’s Complaint for Damages
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Preview
1 JASON M. HEATH, State Bar No. 180501 County Counsel 2 MELISSA C. SHAW, State Bar No. 232775 Assistant County Counsel 3 MICHAEL J. DE SMIDT, State Bar No. 327439 Assistant County Counsel 4 Office of the Santa Cruz County Counsel 701 Ocean Street, Room 505 5 Santa Cruz, California 95060 Telephone: (831) 454-2040 6 Fax: (831) 454-2115 Email: melissa.shaw@santacruzcountyca.gov 7 michael.desmidt@santacruzcountyca.gov 8 Attorneys for Defendant County of Santa Cruz 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 FOR THE COUNTY OF SANTA CRUZ 11 12 SHANE TUCKER, Case No. 24CV00445 13 Plaintiff, 14 v. DEFENDANT COUNTY OF SANTA CRUZ’S ANSWER TO PLAINTIFF’S 15 COMPLAINT FOR DAMAGES 16 PACIFIC GAS AND ELECTRIC COMPANY; STATE OF CALIFORNIA; COUNTY OF 17 SANTA CRUZ; TAMMY MCKENNA; DENNIS MCKENNA; AND DOES 1 18 THROUGH 100, 19 Defendants. 20 21 22 Defendant COUNTY OF SANTA CRUZ (“County”) hereby answers the Plaintiff’s 23 Complaint as follows: 24 GENERAL DENIAL 25 Pursuant to Section 431.30(d) of the Code of Civil Procedure, Defendant generally and 26 specifically denies each and every allegation contained in the first amended complaint. 27 The County denies that Plaintiff has sustained damages in any sum or amount, or otherwise, 28 or at all, due to any act or omission of the County. Tucker, Shane.; PG&E; State of CA; County of Santa Cruz, et al. Case No. 24CV00445 Dft County’s Answer to Ptf’s Complaint for Damages -1- 1 AFFIRMATIVE DEFENSES 2 FIRST AFFIRMATIVE DEFENSE 3 The complaint and each cause of action therein fail to allege facts sufficient to constitute a 4 cause of action against the County. 5 SECOND AFFIRMATIVE DEFENSE 6 The County is immune from Plaintiff’s first amended complaint under any and all 7 applicable immunities set forth within the California Tort Claims Act, Government Code sections 8 810, et seq., including but not limited to Govt. Code Sections 815, 815.2, 818, 816, 820.2, 820.4, 9 820.8, 821.4, 830.2, 830.4, 830.6, 830.8, 831.4 and 831.7. 10 THIRD AFFIRMATIVE DEFENSE 11 The County asserts that to the extent that Plaintiff recover damages on any claim brought 12 under state law County is entitled to have the amount abated, apportioned, or reduced to the extent 13 that any other party’s, entity, or individual’s negligence caused or contributed to damages, if any. 14 To the extent that the first amended complaint herein seeks recovery on any common law tort 15 theory, any liability for common law tort must be diminished in proportion to the amount of fault 16 attributable to Plaintiff and others. 17 FOURTH AFFIRMATIVE DEFENSE 18 The action is barred to the extent Plaintiff failed to precede the action with a claim as 19 required by Government Code sections 945.4, 911.2, 905.2, and 950.2. 20 FIFTH AFFIRMATIVE DEFENSE 21 If and to the extent that the allegations of the first amended complaint attempt to enlarge 22 upon the facts and contentions set forth in the Government Tort Claim, if any there was, said 23 amended complaint fails to state a cause of action and is barred by Government Code sections 24 905.2, 911.2 and 950.2. 25 SIXTH AFFIRMATIVE DEFENSE 26 The first amended complaint and each cause of action therein are barred by any applicable 27 statute of limitations. 28 /// Tucker, Shane.; PG&E; State of CA; County of Santa Cruz, et al. Case No. 24CV00445 Dft County’s Answer to Ptf’s Complaint for Damages -2- 1 SEVENTH AFFIRMATIVE DEFENSE 2 All happenings and events, damages and injuries, if any, referred to in the complaint were 3 proximately caused and contributed to by the negligent acts or omissions of Plaintiff and others, 4 each and all of whom failed to exercise ordinary care at the times and places alleged in the first 5 amended complaint. 6 EIGHTH AFFIRMATIVE DEFENSE 7 The first amended complaint and each cause of action therein is barred by the doctrines of 8 estoppel, laches and unclean hands. 9 NINTH AFFIRMATIVE DEFENSE 10 At all relevant times, Plaintiff failed to or insufficiently mitigated injury and damages. 11 TENTH AFFIRMATIVE DEFENSE 12 Plaintiff’s claimed damages are barred since they do not reasonably or foreseeably result 13 from the actions as alleged in the first amended complaint. 14 ELEVENTH AFFIRMATIVE DEFENSE 15 The County’s liability, if any, or its responsibility, if any, for any non-economic damages is 16 limited to its proportionate share of fault, if any, as provided by Civil Code §§ 1431.1 through 17 1431.5. 18 TWELTH AFFIRMATIVE DEFENSE 19 Because the first amended complaint is couched in conclusory terms, the answering County 20 cannot fully anticipate all affirmative defenses that may be applicable to this matter. Accordingly, 21 the right to assert separate affirmative defenses, if and to the extent such affirmative defenses are 22 applicable, is hereby reserved. 23 THIRTEENTH AFFIRMATIVE DEFENSE 24 The County and its employees are not liable for negligent acts of omissions off the County 25 or its employees except as provided by statute under Government Code § 815(a). 26 REQUEST FOR RELIEF 27 WHEREFORE, the County prays as follows: 28 Tucker, Shane.; PG&E; State of CA; County of Santa Cruz, et al. Case No. 24CV00445 Dft County’s Answer to Ptf’s Complaint for Damages -3- 1 1. That judgment be entered in favor of the County and against Plaintiff on the 2 Complaint as a whole, and each cause of action therein, and that Plaintiff takes nothing by way of 3 the Complaint; 4 2. That the Complaint, and each cause of action therein, be dismissed with prejudice; 5 3. That the County be awarded judgment in this action; 6 4. That the County be awarded the costs, expenses and attorney fees as allowed by law 7 and incurred in this action; and 8 5. That the court grant such additional relief as it deems proper. 9 10 Dated: April 23, 2024 JASON M. HEATH, COUNTY COUNSEL 11 12 By: MELISSA C. SHAW 13 MICHAEL J. DE SMIDT 14 Assistant County Counsels Attorneys for Defendant 15 COUNTY OF SANTA CRUZ 16 17 18 19 20 21 22 23 24 25 26 27 28 Tucker, Shane.; PG&E; State of CA; County of Santa Cruz, et al. Case No. 24CV00445 Dft County’s Answer to Ptf’s Complaint for Damages -4- 1 PROOF OF SERVICE 2 I, the undersigned, state that I am a citizen of the United States and employed in the County 3 of Santa Cruz, State of California. I am over the age of 18 years and not a party to the within action. 4 My business address is 701 Ocean Street, Room 505, Santa Cruz, California 95060. On the date set 5 out below, I served a true copy of the following on the person(s)/entity(ies) listed below: 6 DEFENDANT COUNTY OF SANTA CRUZ’S ANSWER TO PLAINTIFF’S COMPLAINT FOR DAMAGES 7 by service by mail by placing said copy enclosed in a sealed envelope and depositing the sealed 8 envelope with the United States Postal Service with the postage fully prepaid. 9 X by service by mail by placing said copy enclosed in a sealed envelope and placing the envelope ◇ for collection and mailing on the date and at the place shown below following our ordinary business 10 practices. I am readily familiar with this business's practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and 11 mailing, it is deposited in the ordinary course of business with the United States Postal Service with postage fully prepaid. 12 by express or overnight mail by arranging for pick-up by an employee of an express/overnight 13 mail company on: 14 by email by transmitting said copy electronically to the email address(es) listed below from my email account administered by the County of Santa Cruz. The electronic transmission was 15 successful with no reported rejections. 16 by express or overnight mail by depositing a copy in a post office, mailbox, sub-post office, substation, mail chute, or other like facility regularly maintained by the United States Postal Service 17 for receipt of express mail or a mailbox, mail chute, or other like facility regularly maintained by an overnight mail company, in a sealed envelope, with express mail postage paid addressed to the 18 below listed person(s). 19 by facsimile service at the number listed below and have confirmation that it was received by: 20 Dan C. Schaar, Esq. Jennifer K. Thai, Esq. Eva D. Silva, Esq. SEGAL McCAMBRIDGE SINGER & MAHONEY 21 SCHAAR & SILVA LLP 505 Montgomery Street, 11th Floor 22 548 Market Street, PMB 76421 San Francisco, CA 94111 San Francisco, CA 94104-5401 Email: jthai@smsm.com 23 Attorneys for Plaintiff Shane Tucker Attorneys for Defendant Pacific Gas and Electric Company 24 25 I declare under penalty of perjury under the laws of the State of California that the foregoing 26 is true and correct. Executed on April 23, 2024 at Santa Cruz, California. 27 28 NESSA WRIGHT Tucker, Shane.; PG&E; State of CA; County of Santa Cruz, et al. Case No. 24CV00445 Dft County’s Answer to Ptf’s Complaint for Damages -5-