No Value: Charles Zelnik, JR vs. City of San Bruno, et al

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                                1   KEVIN J. DEHOFF.SB No. 252106
       kdehoff@akk-law.com
 2   ANGELO, KILDAY & KILDUFF, LLP
 3   Attorneys at Law
     601 University Avenue, Suite 150
 4   Sacramento, CA 95825
     Telephone: (916) 564-6100
 5   Telecopier: (916) 564-6263

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     Attorneys for Defendant CITY OF SAN BRUNO
 7   PUBLIC ENTITY, FILING FEES WAIVED PURSUANT TO GOV’T CODE §6103

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                                   SUPERIOR COURT OF CALIFORNIA
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10                                      COUNTY OF SAN MATEO

11   CHARLES ZELNIK, JR.,                            ) Case No.: 24-CIV-01147
12                                                   )
                                     Plaintiff,      )
13                                                   ) DEFENDANT CITY OF SAN BRUNO’S
                             vs.                     ) ANSWER TO COMPLAINT
14                                                   )
15   CITY OF SAN BRUNO,                              )
                                                     )
16                                   Defendants.     )
                                                     )
17                                                   )
18                                                   )

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20           COMES NOW Defendant CITY OF SAN BRUNO (hereinafter “Defendant”) in answer to
21   Plaintiff’s Complaint on file herein and each alleged cause of action thereof, admits, denies, and
22   alleges as follows:
23                                           GENERAL DENIAL
24           Pursuant to Code of Civil Procedure section 431.30(d), Defendant denies each and every,
25   all and singular, generally and specifically the allegations in said Complaint, and in each alleged
26   cause of action thereof; denying generally and specifically that Plaintiff has been damaged in the
27   sum or sums alleged or in any sum whatsoever.
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                                                     -1-
                         DEFENDANT CITY OF SAN BRUNO’S ANSWER TO COMPLAINT
 1                                      AFFIRMATIVE DEFENSES
 2           This answering Defendant alleges the following separate and distinct affirmative defenses:
 3           1.      The Complaint fails to state a claim against this answering Defendant upon which
 4   relief can be granted;
 5           2.      Plaintiff failed to comply with the claim presentation requirements of the
 6   Government Claims Act and therefore, the Complaint is barred;
 7           3.      Plaintiff himself was careless and negligent in and about the matter described in
 8   said Complaint in that such negligence and carelessness on the part of Plaintiff proximately caused
 9   the damages he seeks herein, if any there were;
10           4.      Defendant asserts that if Defendant is adjudged, decreed, or otherwise determined
11   to be liable to Plaintiff, then in that event, Defendant will be entitled to apportion the degree of its
12   fault or responsibility for said accident attributable to Plaintiff, or to any other Defendants, Cross-
13   Defendants, or third parties, named herein or yet to be named. The amount of damages attributable
14   to this answering Defendant is to be abated, reduced, or eliminated, to the extent that Plaintiff’s
15   own negligence, or the negligence of any other Defendants, Cross-Defendants, or third parties,
16   contributed to Plaintiff’s claimed damages, if any there were. This apportionment of damages is
17   to be administered in accordance with the principles of equity and pursuant to the doctrine of
18   comparative negligence and pursuant to Civil Code section 1431.2;
19           5.      That at all times mentioned in the Complaint on file herein and immediately prior
20   thereto, third parties not associated with Defendant were careless and negligent in and about the
21   matters referred to in the Complaint and the third parties’ carelessness and negligence directly and
22   proximately contributed to and caused the incidents described in the Complaint, if said incidents
23   occurred, and proximately caused the damages, if any;
24           6.      The damages claimed are barred to the extent Plaintiff failed to mitigate them;
25           7.      The Complaint is barred, in whole or in part, because Defendant is immune from
26   liability for any and all injuries and damages alleged in the Complaint on file herein, the defenses
27   and all rights granted to it by virtue of the provisions of Government Code sections 810-996.6,
28   inclusive;
                                                       -2-
                        DEFENDANT CITY OF SAN BRUNO’S ANSWER TO COMPLAINT
 1             8.    Defendant contends that it is not vicariously liable for any act or omission of
 2   another person by way of respondeat superior or otherwise;
 3             9.    Defendant contends that it is not liable for any harm suffered by Plaintiff to the
 4   extent that a third party’s criminal conduct or intentional tort amounted to a superseding cause of
 5   the harm;
 6             10.   Defendant contends that Plaintiff willingly, voluntarily, and knowingly assumed
 7   each and every risk and hazard involved in the activities referred to in the Complaint;
 8             11.   Pursuant to Government Code section 835.4, even if any aspect of the park
 9   constituted a dangerous condition, liability is barred because any failure to take remedial action
10   was reasonable in light of the low risk of foreseeable injury relative to the practicability and costs
11   of alternative measures;
12             12.   To the extent that the Complaint seeks to impose liability for the design of the
13   location where the purported accident occurred, the Complaint is barred, in whole or in part,
14   because Defendant is immune from suit for the design of the incident scene under Government
15   Code § 830.6;
16             13.   Defendant contends that it cannot fully anticipate all affirmative defenses that may
17   be applicable to this action based upon the conclusory terms used in Plaintiff’s Complaint.
18   Accordingly, Defendant expressly reserves the right to assert additional affirmative defenses if and
19   to the extent that such affirmative defenses become applicable.
20             WHEREFORE, Defendant CITY OF SAN BRUNO prays this Court grant the following
21   relief:
22             1.    That Plaintiff take nothing under his Complaint for damages;
23             2.    That this action be dismissed in its entirety with prejudice;
24             3.    That judgment be entered in favor of Defendant, and against Plaintiff;
25             4.    That Defendant be awarded cost of suit herein incurred in this action;
26             5.    That Defendant be awarded attorney’s fees and costs and other sanctions under and
27   by virtue of the California Code of Civil Procedure sections 128.5, 128.7 and 1038; and
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                        DEFENDANT CITY OF SAN BRUNO’S ANSWER TO COMPLAINT
 1        6.     For such other and further relief as the Court may deem just and proper.
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 3   Dated: April 23, 2024                             ANGELO, KILDAY & KILDUFF, LLP
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 6                                                     By:_________________________________
                                                          KEVIN J. DEHOFF
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                                                          Attorneys for Defendant
 8                                                        CITY OF SAN BRUNO

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                                                 -4-
                     DEFENDANT CITY OF SAN BRUNO’S ANSWER TO COMPLAINT
 1   CASE NAME:            Zelnick v. San Bruno
     COURT:                San Mateo County Superior Court
 2   CASE NO.              24-CIV-01147
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 4                                       PROOF OF SERVICE
 5          I am a citizen of the United States, employed in the County of Sacramento, State of
 6   California. My business address is 601 University Avenue, Suite 150, Sacramento, California
     95825. I am over the age of 18 years and not a party to the above-entitled action.
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           On April 23, 2024, I served the parties in this action listed below the following
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     document(s) described as: DEFENDANT CITY OF SAN BRUNO’S ANSWER TO
 9   COMPLAINT

10          The above-named document(s) were served by the following means (specify):
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             MAIL - I am readily familiar with Angelo, Kilday & Kilduff’s practice for collection and
12   processing of correspondence for mailing with the United States Postal Service. Pursuant to said
     practice, each document is placed in an envelope, the envelope is sealed, the appropriate postage
13   is placed thereon and the sealed envelope is placed in the office mail receptacle. Each day’s mail
     is collected and deposited in a U.S. mailbox at or before the close of each day’s business. (Code
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     Civ. Proc. section 1013a(3)) or Fed.R.Civ.P. 5(a) and 4.1; USDC (E.D. CA) L.R. 5-135(a).)
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             BY ELECTRONIC SERVICE (to individual persons) - By electronically transmitting the
16   document(s) listed above to the email address(es) of the person(s) set forth below, based on court
17   order or agreement of the parties to accept service via electronic transmission. The email address
     I used to transmit these documents is RKHAN@akk-law.com on this date. I did not receive, within
18   a reasonable time after the transmission, any electronic message or other indication that the
     transmission was unsuccessful. (CRC 2.251 or Fed.R.Civ.P.5(b)(E); Civ. Proc. section 1010.6.)
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20                                           SERVICE LIST
      Attorneys for Plaintiff:
21    Gregory C. Cattermole
      Law Office of Gregory Cattermole
22    477 Ninth Ave
23    Suite 101
      San Mateo, CA 94402
24    greg@cattermolelaw.com
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                       DEFENDANT CITY OF SAN BRUNO’S ANSWER TO COMPLAINT
 1            I declare under penalty of perjury under the laws of the State of California that the above
     is true and correct.
 2            Executed on April 23, 2024 at Sacramento, California.
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                       DEFENDANT CITY OF SAN BRUNO’S ANSWER TO COMPLAINT