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1 Michael W. Carruth, State Bar No. 249263
Kevin J. Gramling, State Bar No. 188335
2 Frederick M. Heiser, State Bar No. 232582
KLINEDINST PC
3 801 K Street, Suite 2100
Sacramento, California 95814
4 (916) 282-0100/Fax (916) 444-7544
mcarruth@klinedinstlaw.com
5 kgramling@klinedinstlaw.com
fheiser@klinedinstlaw.com
6
Attorneys for Defendants DAVE &
7 BUSTER’S OF CALIFORNIA, INC. and
CHARLIE COOK
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF SAN MATEO
11
SACRAMENTO, CALIFORNIA 95814
12 ELEANOR PATRICIA VINSON, Case No. 24-CIV-00454
801 K STREET, SUITE 2100
13 Plaintiff, DEFENDANTS DAVE & BUSTER’S OF
KLINEDINST PC
CALIFORNIA, INC. AND CHARLIE
14 v. COOK’S ANSWER TO THE COMPLAINT
15 DAVE & BUSTER’S OF CALIFORNIA, Judge: Hon. Nancy L. Finman
INC., CHARLIE COOK and DOES 1 to 100, Dept.: 4
16 Action Filed: 1/30/2024
Defendants.
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19 Defendants DAVE & BUSTER’S OF CALIFORNIA, INC. and CHARLIE COOK
20 (“Defendants”) hereby generally and specifically deny and answer the Complaint filed by Plaintiff
21 ELEANOR PATRICIA VINSON (“Plaintiff”), and each cause of action and allegation contained
22 therein as follows:
23 Pursuant to Code of Civil Procedure section 431.30(d), Defendants deny, both generally and
24 specifically, each and every allegation of the Complaint, in the conjunctive and disjunctive, and each
25 purported cause of action therein, and the whole thereof, and further generally and specifically deny
26 that Plaintiff has sustained any loss, injury or damage or at all.
27 In addition to this general denial, Defendants assert the following affirmative defenses to the
28 Complaint, and to each and every cause of action contained therein:
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DEFENDANTS DAVE & BUSTER’S OF CALIFORNIA, INC. AND CHARLIE COOK’S
ANSWER TO THE COMPLAINT
1 FIRST AFFIRMATIVE DEFENSE
2 (Failure to State Cause of Action)
3 As a separate affirmative defense, Defendants allege that the Complaint, and each and every
4 cause of action therein, fails to state facts sufficient to constitute a cause of action against these
5 answering Defendants.
6 SECOND AFFIRMATIVE DEFENSE
7 (Exercise of Reasonable Care by Defendant)
8 As a separate affirmative defense, Defendants allege that, at all times relevant herein, they
9 exercised reasonable care and did not know, and in the exercise of reasonable care could not have
10 known, of the occurrence of the alleged acts or allegations in connection with the conditions which
11 are the subject of the Complaint.
SACRAMENTO, CALIFORNIA 95814
12 THIRD AFFIRMATIVE DEFENSE
801 K STREET, SUITE 2100
13 (Failure to Exercise Ordinary Care)
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14 As a separate, affirmative defense, Defendants allege that, at all times and places alleged in
15 said Complaint, Plaintiff failed to exercise ordinary and reasonable care on her own behalf and that
16 such negligence and carelessness was a proximate cause of some portion, up to and including the
17 whole of, Plaintiff’s own alleged injuries and damages, if any, and Plaintiff’s recovery, therefore,
18 should be barred or reduced according to law, up to and including the whole thereof.
19 FOURTH AFFIRMATIVE DEFENSE
20 (No Breach of Duty)
21 As a separate affirmative defense, Defendants allege that the state of the medical, scientific,
22 and industrial knowledge and practice was at all material times such that Defendants neither breached
23 any alleged duty owed to Plaintiff, nor knew or could have known that its product(s) presented a
24 foreseeable risk of harm to Plaintiff in the normal and expected use of such product(s).
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DEFENDANTS DAVE & BUSTER’S OF CALIFORNIA, INC. AND CHARLIE COOK’S
ANSWER TO THE COMPLAINT
1 FIFTH AFFIRMATIVE DEFENSE
2 (No Notice)
3 As a separate affirmative defense, Defendants allege that they did not have actual or
4 constructive notice of the defects or conditions alleged in the Complaint, such that they should not be
5 liable to Plaintiff for her damages.
6 SIXTH AFFIRMATIVE DEFENSE
7 (No Duty)
8 As a separate affirmative defense, Defendants allege that they did not owe Plaintiff a legal
9 duty for the actions alleged in the Complaint, and were not the legal or proximate cause of damages
10 to Plaintiff, if any.
11 SEVENTH AFFIRMATIVE DEFENSE
SACRAMENTO, CALIFORNIA 95814
12 (Obvious Danger)
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13 As a separate, affirmative defense, Defendants allege that Plaintiff failed to exercise
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14 reasonable and ordinary care, caution, or prudence for her own safety in order to avoid the alleged
15 accident. The resulting injuries and damages, if any, sustained by Plaintiff were proximately caused
16 and contributed to by the negligence of Plaintiff, in that any possible danger with regard to the accident
17 in question was obvious to anyone using reasonable care
18 EIGHTH AFFIRMATIVE DEFENSE
19 (Failure of Others to Exercise Reasonable Care)
20 As a separate affirmative defense, Defendants allege that Plaintiff’s damages, if any, are due
21 in whole, or in part, to the failure of other parties or persons, known or unknown at this time, to
22 exercise ordinary and reasonable care with regard to their acts and/or omissions, and any recovery
23 obtained by Plaintiff should be barred or reduced according to law, up to and including the whole
24 thereof.
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DEFENDANTS DAVE & BUSTER’S OF CALIFORNIA, INC. AND CHARLIE COOK’S
ANSWER TO THE COMPLAINT
1 NINTH AFFIRMATIVE DEFENSE
2 (Active and Passive Conduct)
3 As a separate affirmative defense, Defendants allege that if it is determined that they were
4 negligent, said negligence was secondary and passive, as contrasted with the active and primary
5 negligence of the other parties or persons, including Plaintiff, and therefore, Plaintiff is not, as a matter
6 of law, entitled to recovery from these answering Defendants.
7 TENTH AFFIRMATIVE DEFENSE
8 (Estoppel)
9 As a separate affirmative defense, Defendants allege that Plaintiff, by her own acts and/or
10 omissions, is estopped from recovering at all against this answering Defendant.
11 ELEVENTH AFFIRMATIVE DEFENSE
SACRAMENTO, CALIFORNIA 95814
12 (Waiver)
801 K STREET, SUITE 2100
13 As a separate affirmative defense, Defendants allege that Plaintiff, by her own acts and/or
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14 omissions, has waived her rights, if any, to recover against these answering Defendants.
15 TWELFTH AFFIRMATIVE DEFENSE
16 (Laches)
17 As a separate affirmative defense, Defendants allege that the causes of action contained in the
18 Complaint, and each of them, are barred by the doctrine of laches, in that Plaintiff has unreasonably
19 delayed in bringing these claims, and said delays have prejudiced these answering Defendants.
20 THIRTEENTH AFFIRMATIVE DEFENSE
21 (Unclean Hands)
22 As a separate affirmative defense, Defendants allege that, by reason of her own conduct,
23 Plaintiff is barred by the doctrine of unclean hands from taking any relief sought in their Complaint
24 against these answering Defendants.
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DEFENDANTS DAVE & BUSTER’S OF CALIFORNIA, INC. AND CHARLIE COOK’S
ANSWER TO THE COMPLAINT
1 FOURTEENTH AFFIRMATIVE DEFENSE
2 (Statute of Limitations)
3 As a separate affirmative defense, Defendants allege that the Complaint, and each and every
4 purported cause of action contained therein, is barred by all applicable statutes of limitation, including
5 but not limited to, Code of Civil Procedure sections 335.1 and 343.
6 FIFTEENTH AFFIRMATIVE DEFENSE
7 (Apportionment of Fault)
8 As a separate affirmative defense, Defendants allege that other parties and/or third persons
9 were negligent or legally responsible or otherwise at fault for the damages alleged in the Complaint.
10 Defendants therefore request that in the event of the finding of any liability, settlement or judgment
11 against these answering Defendants, an apportionment of fault be made among all parties by the Court
SACRAMENTO, CALIFORNIA 95814
12 or jury as permitted by law. Defendants further request a judgment declaration of partial
801 K STREET, SUITE 2100
13 indemnification and contribution against all other parties and/or third persons in accordance with the
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14 apportionment of fault.
15 SIXTEENTH AFFIRMATIVE DEFENSE
16 (No Causation)
17 As a separate affirmative defense, Defendants allege that their actions, if any, were not the
18 legal cause of any damages allegedly suffered by Plaintiff.
19 SEVENTEENTH AFFIRMATIVE DEFENSE
20 (Speculative Damages)
21 As a separate affirmative defense, Defendants allege that Plaintiff’s damages, if any, as alleged
22 in the Complaint are speculative and uncertain and not capable of being determined by a finder of
23 fact.
24 EIGHTEENTH AFFIRMATIVE DEFENSE
25 (Uncertainty)
26 As a separate affirmative defense, Defendants allege that the causes of action in Plaintiff’s
27 Complaint are uncertain and ambiguous as to Plaintiff’s claim for damages against these Defendants.
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DEFENDANTS DAVE & BUSTER’S OF CALIFORNIA, INC. AND CHARLIE COOK’S
ANSWER TO THE COMPLAINT
1 NINETEENTH AFFIRMATIVE DEFENSE
2 (Assumption of Risk)
3 As a separate affirmative defense, Defendants allege that at all times mentioned in the
4 Complaint, Plaintiff, with full knowledge of all risks attendant thereto, voluntarily and knowingly
5 assumed any and all risks attendant upon her conduct, including any purported damages alleged to be
6 related and proximately caused by her conduct.
7 TWENTIETH AFFIRMATIVE DEFENSE
8 (Failure to Mitigate Damages)
9 As a separate affirmative defense, Defendants allege that Plaintiff has failed to mitigate her
10 damages, if any, in connection with the matters referred to in the Complaint, and that such failure to
11 mitigate bars and/or diminishes their recovery against these answering Defendants.
SACRAMENTO, CALIFORNIA 95814
12 TWENTY-FIRST AFFIRMATIVE DEFENSE
801 K STREET, SUITE 2100
13 (Joint and Several Liability)
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14 As a separate affirmative defense, Defendants allege that each occurrence of which Plaintiff
15 complains was proximately caused by the breach of a legal duty on the part of persons other than
16 Defendants. Accordingly, Defendants must not be held legally responsible for any non-economic
17 damages other than those in direct proportion to the percentage of fault, if any, which may be adjudged
18 as against this answering Defendants pursuant to Civil Code section 1431.2.
19 TWENTY-SECOND AFFIRMATIVE DEFENSE
20 (Failure to Name Indispensable Parties)
21 As a separate affirmative defense, Defendants allege that the Complaint, and each and every
22 cause of action therein, fails to name indispensable parties to this action.
23 TWENTY-THIRD AFFIRMATIVE DEFENSE
24 (Misjoinder)
25 As a separate affirmative defense, Defendants allege that it is not a proper party to this action,
26 and has no connection to the alleged wrongful acts.
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DEFENDANTS DAVE & BUSTER’S OF CALIFORNIA, INC. AND CHARLIE COOK’S
ANSWER TO THE COMPLAINT
1 TWENTY-FOURTH AFFIRMATIVE DEFENSE
2 (Implied Indemnity and Recovery of Attorneys’ Fees)
3 As a separate affirmative defense, Defendants allege that as a result of the tort(s) of third
4 parties, they have been required to act in the protection of their interests by defending the Complaint,
5 and each and every cause of action therein. By way of this Answer and/or separate tenders of defense
6 and indemnity, such third parties have been properly notified of this Defendants’ demand to provide
7 a defense, and if such third parties did not avail themselves of the opportunity to do so and Defendants
8 are without fault in this case, then Defendants are entitled to recovery of attorneys’ fees and costs
9 from each of the third parties, as set forth in Code of Civil Procedure section 1021.6.
10 TWENTY-FIFTH AFFIRMATIVE DEFENSE
11 (Acts of Other Parties)
SACRAMENTO, CALIFORNIA 95814
12 As a separate affirmative defense, Defendants allege that if they are subjected to any liability
801 K STREET, SUITE 2100
13 to Plaintiff, it will be due in whole or in part to the acts and/or omissions of other parties or persons
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14 unknown at this time, and any recovery obtained by Plaintiff should be barred or reduced according
15 to law, up to and including the whole thereof.
16 TWENTY-SIXTH AFFIRMATIVE DEFENSE
17 (Comparative Negligence)
18 As a separate affirmative defense, Defendants allege that prior to and at the time of the incident
19 as alleged in Plaintiff’s Complaint, Plaintiff or other persons were careless and negligent in the manner
20 in which they conducted themselves and failed to use ordinary care under the conditions and
21 circumstances existing prior to and at the time and place of the alleged incident. Their own
22 carelessness and negligence proximately caused and contributed to the occurrence of the incident and
23 the damages, if any, sustained by Plaintiff and as such, bars or proportionately reduces any potential
24 recovery to said Plaintiff.
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DEFENDANTS DAVE & BUSTER’S OF CALIFORNIA, INC. AND CHARLIE COOK’S
ANSWER TO THE COMPLAINT
1 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
2 (Intervening and/or Superseding Acts of Others)
3 As a separate affirmative defense, Defendants allege that the injuries and damages sustained
4 by Plaintiff, if any, were proximately caused by the intervening and superseding actions of others,
5 which intervening and superseding actions bar and/or diminish Plaintiff’s recovery, if any, against
6 these answering Defendants. Any comparative fault on the part of the answering Defendants is not a
7 substantial factor in bringing about the alleged injuries and damages, and was therefore not a
8 contributing cause thereof, but was superseded by the fault of Plaintiff, other parties or other persons.
9 TWENTY-EIGHTH AFFIRMATIVE DEFENSE
10 (Open and Obvious Condition)
11 As a separate affirmative defense, Defendants allege that Plaintiff’s recovery, if any, is barred
SACRAMENTO, CALIFORNIA 95814
12 or reduced by Plaintiff’s negligence in failing to notice an open and obvious condition on the subject
801 K STREET, SUITE 2100
13 property.
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14 TWENTY-NINTH AFFIRMATIVE DEFENSE
15 (Offset)
16 As a separate affirmative defense, Defendants allege that if Plaintiff has received or will
17 receive monies or compensation from any sources other than Defendants, Defendants are entitled to
18 an offset against Plaintiff’s recovery, if any, against Defendants.
19 THIRTIETH AFFIRMATIVE DEFENSE
20 (No Notice of Defect)
21 As a separate affirmative defense, Defendants allege that it had no constructive or actual
22 knowledge of the alleged defects that purportedly caused Plaintiff’s alleged damages, and, through
23 the use of reasonable diligence, could not have known of any allegedly dangerous or defective
24 conditions.
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DEFENDANTS DAVE & BUSTER’S OF CALIFORNIA, INC. AND CHARLIE COOK’S
ANSWER TO THE COMPLAINT
1 THIRTY-FIRST AFFIRMATIVE DEFENSE
2 (Warnings Provided)
3 As a separate affirmative defense, Defendants allege that that Plaintiff was advised, informed,
4 and warned of any potential hazards and/or dangers, if there were any, associated with the normal or
5 foreseeable use or handling of the condition described in the Complaint.
6 THIRTY-SECOND AFFIRMATIVE DEFENSE
7 (Trivial Defect)
8 As a separate affirmative defense, Defendants alleges that any defect of which Plaintiff
9 complains is trivial, and this Defendant is not liable for any injuries sustained by Plaintiff.
10 THIRTY-THIRD AFFIRMATIVE DEFENSE
11 (American Motorcycle)
SACRAMENTO, CALIFORNIA 95814
12 As a separate affirmative defense, Defendants allege that at the time and place of the events
801 K STREET, SUITE 2100
13 described in said Complaint, Plaintiff was careless, negligent, and/or otherwise legally at fault, and
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14 that such carelessness, negligence or other legal fault on the part of Plaintiff proximately caused or
15 contributed, in whole or in part, to the injuries, losses and damages of which she complains, if any
16 there are; by reason of this alleged accident, Defendants herein respectfully request that damages be
17 apportioned according to the principles of comparative fault as set forth in American Motor Cycle
18 Association v. Superior Court (1978) 20 Cal.3d 578, and that Plaintiff’s recovery be reduced in direct
19 proportion to the amounts of said contributory or other legal fault.
20 THIRTY-FOURTH AFFIRMATIVE DEFENSE
21 (Res Judicata/Collateral Estoppel)
22 As a separate affirmative defense, Defendants allege that the Complaint is barred by the
23 doctrine of collateral estoppel and/or res judicata.
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DEFENDANTS DAVE & BUSTER’S OF CALIFORNIA, INC. AND CHARLIE COOK’S
ANSWER TO THE COMPLAINT
1 THIRTY-FIFTH AFFIRMATIVE DEFENSE
2 (Failure to Exercise Reasonable Care)
3 As a separate affirmative defense, Defendants allege that at all times and places alleged in the
4 Complaint, Plaintiff failed to exercise ordinary and reasonable care on her own behalf and such
5 negligence and carelessness was a proximate cause of some portion, up to and including the whole of,
6 her own alleged damages, if any, and Plaintiff’s recovery therefore should be barred or reduced
7 according to law, up to and including the whole thereof.
8 THIRTY-SIXTH AFFIRMATIVE DEFENSE
9 (Conditions Did Not Create a Substantial Risk of Injury)
10 As a separate affirmative defense, Defendants allege that any and all acts or omissions of
11 Defendants, its agents or employees, which allegedly created the condition of property at the time and
SACRAMENTO, CALIFORNIA 95814
12 place alleged in the Complaint, did not constitute a substantial risk of injury, but, if any risk at all,
801 K STREET, SUITE 2100
13 merely constitutes a minor, trivial, or insignificant risk which did not create a dangerous condition at
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14 the property.
15 THIRTY-SEVENTH AFFIRMATIVE DEFENSE
16 (Conditions Did Not Create a Substantial Risk of Injury When Used with Due Care)
17 As a separate affirmative defense, Defendants allege that the conditions complained of in
18 Plaintiff’s Complaint are not and were not dangerous conditions and did not create a substantial risk
19 of injury when it was used with due care and in a manner in which it was reasonably foreseeable that
20 it would be used.
21 THIRTY-EIGHTH AFFIRMATIVE DEFENSE
22 (Force Majeure)
23 As a separate affirmative defense, Defendants allege that Plaintiff is barred from any relief or
24 remedy and/or Defendants were prevented and/or excused from performing any duty or obligation to
25 him, by force majeure.
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DEFENDANTS DAVE & BUSTER’S OF CALIFORNIA, INC. AND CHARLIE COOK’S
ANSWER TO THE COMPLAINT
1 THIRTY-NINTH AFFIRMATIVE DEFENSE
2 (Damages Caused by Acts or Omissions Beyond Defendants’ Control)
3 Defendants allege that the damages Plaintiff sustained, if any, were proximately caused by
4 acts, omissions, negligence, fraud, and/or breach of obligations by persons other than these answering
5 Defendants and beyond these Defendants’ supervision and control.
6 FORTIETH AFFIRMATIVE DEFENSE
7 (Additional Defenses)
8 As a separate affirmative defense, Defendants allege that it may have additional defenses that
9 cannot be articulated due to Plaintiff’s failure to particularize her claims, due to the fact that
10 Defendants do not have copies of certain documents bearing on Plaintiff’s alleged claims and due to
11 Plaintiff’s failure to provide more specific information concerning the nature of the damages for which
SACRAMENTO, CALIFORNIA 95814
12 Plaintiff alleges that Defendants may share some responsibility. These answering Defendants
801 K STREET, SUITE 2100
13 therefore reserve the right to assert additional defenses upon further particularizations of Plaintiff’s
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14 claims, upon examination of the documents provided, upon discovery of further information
15 concerning the alleged damage claims and claims for costs and upon the development of other
16 pertinent information.
17 FORTY-FIRST AFFIRMATIVE DEFENSE
18 (Right to Amend Answer)
19 As a separate affirmative defense, Defendants reserve the right to amend Defendants’ answer
20 herein, including the addition of affirmative defenses after pleading and discovery in preparation for
21 trial.
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DEFENDANTS DAVE & BUSTER’S OF CALIFORNIA, INC. AND CHARLIE COOK’S
ANSWER TO THE COMPLAINT
1 WHEREFORE, Defendants pray for judgment against Plaintiff as follows:
2 1. That Plaintiff take nothing by way of this action;
3 2. That the Complaint be dismissed with prejudice;
4 3. That Defendants be awarded costs of suit incurred; and
5 4. For such other and further relief as the court deems just and proper.
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9 DATED: April 26, 2024 By:
Michael W. Carruth
10 Kevin J. Gramling
Frederick M. Heiser
11
Attorneys for Defendant, DAVE & BUSTER’S
SACRAMENTO, CALIFORNIA 95814
12 OF CALIFORNIA, INC.
801 K STREET, SUITE 2100
24985917.1
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DEFENDANTS DAVE & BUSTER’S OF CALIFORNIA, INC. AND CHARLIE COOK’S
ANSWER TO THE COMPLAINT
1 PROOF OF SERVICE
2 Eleanor Patricia Vinson v. Dave & Buster's of California, Inc., et al.
San Mateo Superior Court Case No. 24-CIV-00454
3
STATE OF CALIFORNIA, COUNTY OF SACRAMENTO
4
At the time of service, I was over 18 years of age and not a party to this action. I am
5 employed in the County of Sacramento, State of California. My business address is 801 K Street,
Suite 2100, Sacramento, California 95814.
6
On April 26, 2024, I served true copies of the following document(s) described as
7 DEFENDANTS DAVE & BUSTER’S OF CALIFORNIA, INC. AND CHARLIE COOK’S
ANSWER TO THE COMPLAINT on the interested parties in this action as follows:
8
David A. Kleczek Attorneys for Plaintiff,
9 KLECZEK LAW OFFICE ELEANOR PATRICIA VINSON
825 Washington Street, Suite 301
10 Oakland, CA 94602
(510) 663-7100/Fax (510) 633-7102
11 David.Kleczek@kleczeklaw.com
SACRAMENTO, CALIFORNIA 95814
12 BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the
801 K STREET, SUITE 2100
persons at the addresses listed in the Service List and placed the envelope for collection and mailing,
13 following our ordinary business practices. I am readily familiar with the practice of Klinedinst PC
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for collecting and processing correspondence for mailing. On the same day that correspondence is
14 placed for collection and mailing, it is deposited in the ordinary course of business with the United
States Postal Service, in a sealed envelope with postage fully prepaid. I am a resident or employed
15 in the county where the mailing occurred. The envelope was placed in the mail at Sacramento,
California.
16
BY E-MAIL OR ELECTRONIC TRANSMISSION: I caused a copy of the document(s)
17 to be sent from e-mail address ejohnson@klinedinstlaw.com to the persons at the e-mail addresses
listed in the Service List. I did not receive, within a reasonable time after the transmission, any
18 electronic message or other indication that the transmission was unsuccessful.
19 I declare under penalty of perjury under the laws of the State of California that the foregoing
is true and correct.
20
Executed on April 26, 2024, at Sacramento, California.
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23 Eula R. Johnson
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DEFENDANTS DAVE & BUSTER’S OF CALIFORNIA, INC. AND CHARLIE COOK’S
ANSWER TO THE COMPLAINT
Preview
1 Michael W. Carruth, State Bar No. 249263 Kevin J. Gramling, State Bar No. 188335 2 Frederick M. Heiser, State Bar No. 232582 KLINEDINST PC 3 801 K Street, Suite 2100 Sacramento, California 95814 4 (916) 282-0100/Fax (916) 444-7544 mcarruth@klinedinstlaw.com 5 kgramling@klinedinstlaw.com fheiser@klinedinstlaw.com 6 Attorneys for Defendants DAVE & 7 BUSTER’S OF CALIFORNIA, INC. and CHARLIE COOK 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SAN MATEO 11 SACRAMENTO, CALIFORNIA 95814 12 ELEANOR PATRICIA VINSON, Case No. 24-CIV-00454 801 K STREET, SUITE 2100 13 Plaintiff, DEFENDANTS DAVE & BUSTER’S OF KLINEDINST PC CALIFORNIA, INC. AND CHARLIE 14 v. COOK’S ANSWER TO THE COMPLAINT 15 DAVE & BUSTER’S OF CALIFORNIA, Judge: Hon. Nancy L. Finman INC., CHARLIE COOK and DOES 1 to 100, Dept.: 4 16 Action Filed: 1/30/2024 Defendants. 17 18 19 Defendants DAVE & BUSTER’S OF CALIFORNIA, INC. and CHARLIE COOK 20 (“Defendants”) hereby generally and specifically deny and answer the Complaint filed by Plaintiff 21 ELEANOR PATRICIA VINSON (“Plaintiff”), and each cause of action and allegation contained 22 therein as follows: 23 Pursuant to Code of Civil Procedure section 431.30(d), Defendants deny, both generally and 24 specifically, each and every allegation of the Complaint, in the conjunctive and disjunctive, and each 25 purported cause of action therein, and the whole thereof, and further generally and specifically deny 26 that Plaintiff has sustained any loss, injury or damage or at all. 27 In addition to this general denial, Defendants assert the following affirmative defenses to the 28 Complaint, and to each and every cause of action contained therein: 1 DEFENDANTS DAVE & BUSTER’S OF CALIFORNIA, INC. AND CHARLIE COOK’S ANSWER TO THE COMPLAINT 1 FIRST AFFIRMATIVE DEFENSE 2 (Failure to State Cause of Action) 3 As a separate affirmative defense, Defendants allege that the Complaint, and each and every 4 cause of action therein, fails to state facts sufficient to constitute a cause of action against these 5 answering Defendants. 6 SECOND AFFIRMATIVE DEFENSE 7 (Exercise of Reasonable Care by Defendant) 8 As a separate affirmative defense, Defendants allege that, at all times relevant herein, they 9 exercised reasonable care and did not know, and in the exercise of reasonable care could not have 10 known, of the occurrence of the alleged acts or allegations in connection with the conditions which 11 are the subject of the Complaint. SACRAMENTO, CALIFORNIA 95814 12 THIRD AFFIRMATIVE DEFENSE 801 K STREET, SUITE 2100 13 (Failure to Exercise Ordinary Care) KLINEDINST PC 14 As a separate, affirmative defense, Defendants allege that, at all times and places alleged in 15 said Complaint, Plaintiff failed to exercise ordinary and reasonable care on her own behalf and that 16 such negligence and carelessness was a proximate cause of some portion, up to and including the 17 whole of, Plaintiff’s own alleged injuries and damages, if any, and Plaintiff’s recovery, therefore, 18 should be barred or reduced according to law, up to and including the whole thereof. 19 FOURTH AFFIRMATIVE DEFENSE 20 (No Breach of Duty) 21 As a separate affirmative defense, Defendants allege that the state of the medical, scientific, 22 and industrial knowledge and practice was at all material times such that Defendants neither breached 23 any alleged duty owed to Plaintiff, nor knew or could have known that its product(s) presented a 24 foreseeable risk of harm to Plaintiff in the normal and expected use of such product(s). 25 / / / 26 / / / 27 / / / 28 / / / 2 DEFENDANTS DAVE & BUSTER’S OF CALIFORNIA, INC. AND CHARLIE COOK’S ANSWER TO THE COMPLAINT 1 FIFTH AFFIRMATIVE DEFENSE 2 (No Notice) 3 As a separate affirmative defense, Defendants allege that they did not have actual or 4 constructive notice of the defects or conditions alleged in the Complaint, such that they should not be 5 liable to Plaintiff for her damages. 6 SIXTH AFFIRMATIVE DEFENSE 7 (No Duty) 8 As a separate affirmative defense, Defendants allege that they did not owe Plaintiff a legal 9 duty for the actions alleged in the Complaint, and were not the legal or proximate cause of damages 10 to Plaintiff, if any. 11 SEVENTH AFFIRMATIVE DEFENSE SACRAMENTO, CALIFORNIA 95814 12 (Obvious Danger) 801 K STREET, SUITE 2100 13 As a separate, affirmative defense, Defendants allege that Plaintiff failed to exercise KLINEDINST PC 14 reasonable and ordinary care, caution, or prudence for her own safety in order to avoid the alleged 15 accident. The resulting injuries and damages, if any, sustained by Plaintiff were proximately caused 16 and contributed to by the negligence of Plaintiff, in that any possible danger with regard to the accident 17 in question was obvious to anyone using reasonable care 18 EIGHTH AFFIRMATIVE DEFENSE 19 (Failure of Others to Exercise Reasonable Care) 20 As a separate affirmative defense, Defendants allege that Plaintiff’s damages, if any, are due 21 in whole, or in part, to the failure of other parties or persons, known or unknown at this time, to 22 exercise ordinary and reasonable care with regard to their acts and/or omissions, and any recovery 23 obtained by Plaintiff should be barred or reduced according to law, up to and including the whole 24 thereof. 25 / / / 26 / / / 27 / / / 28 / / / 3 DEFENDANTS DAVE & BUSTER’S OF CALIFORNIA, INC. AND CHARLIE COOK’S ANSWER TO THE COMPLAINT 1 NINTH AFFIRMATIVE DEFENSE 2 (Active and Passive Conduct) 3 As a separate affirmative defense, Defendants allege that if it is determined that they were 4 negligent, said negligence was secondary and passive, as contrasted with the active and primary 5 negligence of the other parties or persons, including Plaintiff, and therefore, Plaintiff is not, as a matter 6 of law, entitled to recovery from these answering Defendants. 7 TENTH AFFIRMATIVE DEFENSE 8 (Estoppel) 9 As a separate affirmative defense, Defendants allege that Plaintiff, by her own acts and/or 10 omissions, is estopped from recovering at all against this answering Defendant. 11 ELEVENTH AFFIRMATIVE DEFENSE SACRAMENTO, CALIFORNIA 95814 12 (Waiver) 801 K STREET, SUITE 2100 13 As a separate affirmative defense, Defendants allege that Plaintiff, by her own acts and/or KLINEDINST PC 14 omissions, has waived her rights, if any, to recover against these answering Defendants. 15 TWELFTH AFFIRMATIVE DEFENSE 16 (Laches) 17 As a separate affirmative defense, Defendants allege that the causes of action contained in the 18 Complaint, and each of them, are barred by the doctrine of laches, in that Plaintiff has unreasonably 19 delayed in bringing these claims, and said delays have prejudiced these answering Defendants. 20 THIRTEENTH AFFIRMATIVE DEFENSE 21 (Unclean Hands) 22 As a separate affirmative defense, Defendants allege that, by reason of her own conduct, 23 Plaintiff is barred by the doctrine of unclean hands from taking any relief sought in their Complaint 24 against these answering Defendants. 25 / / / 26 / / / 27 / / / 28 / / / 4 DEFENDANTS DAVE & BUSTER’S OF CALIFORNIA, INC. AND CHARLIE COOK’S ANSWER TO THE COMPLAINT 1 FOURTEENTH AFFIRMATIVE DEFENSE 2 (Statute of Limitations) 3 As a separate affirmative defense, Defendants allege that the Complaint, and each and every 4 purported cause of action contained therein, is barred by all applicable statutes of limitation, including 5 but not limited to, Code of Civil Procedure sections 335.1 and 343. 6 FIFTEENTH AFFIRMATIVE DEFENSE 7 (Apportionment of Fault) 8 As a separate affirmative defense, Defendants allege that other parties and/or third persons 9 were negligent or legally responsible or otherwise at fault for the damages alleged in the Complaint. 10 Defendants therefore request that in the event of the finding of any liability, settlement or judgment 11 against these answering Defendants, an apportionment of fault be made among all parties by the Court SACRAMENTO, CALIFORNIA 95814 12 or jury as permitted by law. Defendants further request a judgment declaration of partial 801 K STREET, SUITE 2100 13 indemnification and contribution against all other parties and/or third persons in accordance with the KLINEDINST PC 14 apportionment of fault. 15 SIXTEENTH AFFIRMATIVE DEFENSE 16 (No Causation) 17 As a separate affirmative defense, Defendants allege that their actions, if any, were not the 18 legal cause of any damages allegedly suffered by Plaintiff. 19 SEVENTEENTH AFFIRMATIVE DEFENSE 20 (Speculative Damages) 21 As a separate affirmative defense, Defendants allege that Plaintiff’s damages, if any, as alleged 22 in the Complaint are speculative and uncertain and not capable of being determined by a finder of 23 fact. 24 EIGHTEENTH AFFIRMATIVE DEFENSE 25 (Uncertainty) 26 As a separate affirmative defense, Defendants allege that the causes of action in Plaintiff’s 27 Complaint are uncertain and ambiguous as to Plaintiff’s claim for damages against these Defendants. 28 / / / 5 DEFENDANTS DAVE & BUSTER’S OF CALIFORNIA, INC. AND CHARLIE COOK’S ANSWER TO THE COMPLAINT 1 NINETEENTH AFFIRMATIVE DEFENSE 2 (Assumption of Risk) 3 As a separate affirmative defense, Defendants allege that at all times mentioned in the 4 Complaint, Plaintiff, with full knowledge of all risks attendant thereto, voluntarily and knowingly 5 assumed any and all risks attendant upon her conduct, including any purported damages alleged to be 6 related and proximately caused by her conduct. 7 TWENTIETH AFFIRMATIVE DEFENSE 8 (Failure to Mitigate Damages) 9 As a separate affirmative defense, Defendants allege that Plaintiff has failed to mitigate her 10 damages, if any, in connection with the matters referred to in the Complaint, and that such failure to 11 mitigate bars and/or diminishes their recovery against these answering Defendants. SACRAMENTO, CALIFORNIA 95814 12 TWENTY-FIRST AFFIRMATIVE DEFENSE 801 K STREET, SUITE 2100 13 (Joint and Several Liability) KLINEDINST PC 14 As a separate affirmative defense, Defendants allege that each occurrence of which Plaintiff 15 complains was proximately caused by the breach of a legal duty on the part of persons other than 16 Defendants. Accordingly, Defendants must not be held legally responsible for any non-economic 17 damages other than those in direct proportion to the percentage of fault, if any, which may be adjudged 18 as against this answering Defendants pursuant to Civil Code section 1431.2. 19 TWENTY-SECOND AFFIRMATIVE DEFENSE 20 (Failure to Name Indispensable Parties) 21 As a separate affirmative defense, Defendants allege that the Complaint, and each and every 22 cause of action therein, fails to name indispensable parties to this action. 23 TWENTY-THIRD AFFIRMATIVE DEFENSE 24 (Misjoinder) 25 As a separate affirmative defense, Defendants allege that it is not a proper party to this action, 26 and has no connection to the alleged wrongful acts. 27 / / / 28 / / / 6 DEFENDANTS DAVE & BUSTER’S OF CALIFORNIA, INC. AND CHARLIE COOK’S ANSWER TO THE COMPLAINT 1 TWENTY-FOURTH AFFIRMATIVE DEFENSE 2 (Implied Indemnity and Recovery of Attorneys’ Fees) 3 As a separate affirmative defense, Defendants allege that as a result of the tort(s) of third 4 parties, they have been required to act in the protection of their interests by defending the Complaint, 5 and each and every cause of action therein. By way of this Answer and/or separate tenders of defense 6 and indemnity, such third parties have been properly notified of this Defendants’ demand to provide 7 a defense, and if such third parties did not avail themselves of the opportunity to do so and Defendants 8 are without fault in this case, then Defendants are entitled to recovery of attorneys’ fees and costs 9 from each of the third parties, as set forth in Code of Civil Procedure section 1021.6. 10 TWENTY-FIFTH AFFIRMATIVE DEFENSE 11 (Acts of Other Parties) SACRAMENTO, CALIFORNIA 95814 12 As a separate affirmative defense, Defendants allege that if they are subjected to any liability 801 K STREET, SUITE 2100 13 to Plaintiff, it will be due in whole or in part to the acts and/or omissions of other parties or persons KLINEDINST PC 14 unknown at this time, and any recovery obtained by Plaintiff should be barred or reduced according 15 to law, up to and including the whole thereof. 16 TWENTY-SIXTH AFFIRMATIVE DEFENSE 17 (Comparative Negligence) 18 As a separate affirmative defense, Defendants allege that prior to and at the time of the incident 19 as alleged in Plaintiff’s Complaint, Plaintiff or other persons were careless and negligent in the manner 20 in which they conducted themselves and failed to use ordinary care under the conditions and 21 circumstances existing prior to and at the time and place of the alleged incident. Their own 22 carelessness and negligence proximately caused and contributed to the occurrence of the incident and 23 the damages, if any, sustained by Plaintiff and as such, bars or proportionately reduces any potential 24 recovery to said Plaintiff. 25 / / / 26 / / / 27 / / / 28 / / / 7 DEFENDANTS DAVE & BUSTER’S OF CALIFORNIA, INC. AND CHARLIE COOK’S ANSWER TO THE COMPLAINT 1 TWENTY-SEVENTH AFFIRMATIVE DEFENSE 2 (Intervening and/or Superseding Acts of Others) 3 As a separate affirmative defense, Defendants allege that the injuries and damages sustained 4 by Plaintiff, if any, were proximately caused by the intervening and superseding actions of others, 5 which intervening and superseding actions bar and/or diminish Plaintiff’s recovery, if any, against 6 these answering Defendants. Any comparative fault on the part of the answering Defendants is not a 7 substantial factor in bringing about the alleged injuries and damages, and was therefore not a 8 contributing cause thereof, but was superseded by the fault of Plaintiff, other parties or other persons. 9 TWENTY-EIGHTH AFFIRMATIVE DEFENSE 10 (Open and Obvious Condition) 11 As a separate affirmative defense, Defendants allege that Plaintiff’s recovery, if any, is barred SACRAMENTO, CALIFORNIA 95814 12 or reduced by Plaintiff’s negligence in failing to notice an open and obvious condition on the subject 801 K STREET, SUITE 2100 13 property. KLINEDINST PC 14 TWENTY-NINTH AFFIRMATIVE DEFENSE 15 (Offset) 16 As a separate affirmative defense, Defendants allege that if Plaintiff has received or will 17 receive monies or compensation from any sources other than Defendants, Defendants are entitled to 18 an offset against Plaintiff’s recovery, if any, against Defendants. 19 THIRTIETH AFFIRMATIVE DEFENSE 20 (No Notice of Defect) 21 As a separate affirmative defense, Defendants allege that it had no constructive or actual 22 knowledge of the alleged defects that purportedly caused Plaintiff’s alleged damages, and, through 23 the use of reasonable diligence, could not have known of any allegedly dangerous or defective 24 conditions. 25 / / / 26 / / / 27 / / / 28 / / / 8 DEFENDANTS DAVE & BUSTER’S OF CALIFORNIA, INC. AND CHARLIE COOK’S ANSWER TO THE COMPLAINT 1 THIRTY-FIRST AFFIRMATIVE DEFENSE 2 (Warnings Provided) 3 As a separate affirmative defense, Defendants allege that that Plaintiff was advised, informed, 4 and warned of any potential hazards and/or dangers, if there were any, associated with the normal or 5 foreseeable use or handling of the condition described in the Complaint. 6 THIRTY-SECOND AFFIRMATIVE DEFENSE 7 (Trivial Defect) 8 As a separate affirmative defense, Defendants alleges that any defect of which Plaintiff 9 complains is trivial, and this Defendant is not liable for any injuries sustained by Plaintiff. 10 THIRTY-THIRD AFFIRMATIVE DEFENSE 11 (American Motorcycle) SACRAMENTO, CALIFORNIA 95814 12 As a separate affirmative defense, Defendants allege that at the time and place of the events 801 K STREET, SUITE 2100 13 described in said Complaint, Plaintiff was careless, negligent, and/or otherwise legally at fault, and KLINEDINST PC 14 that such carelessness, negligence or other legal fault on the part of Plaintiff proximately caused or 15 contributed, in whole or in part, to the injuries, losses and damages of which she complains, if any 16 there are; by reason of this alleged accident, Defendants herein respectfully request that damages be 17 apportioned according to the principles of comparative fault as set forth in American Motor Cycle 18 Association v. Superior Court (1978) 20 Cal.3d 578, and that Plaintiff’s recovery be reduced in direct 19 proportion to the amounts of said contributory or other legal fault. 20 THIRTY-FOURTH AFFIRMATIVE DEFENSE 21 (Res Judicata/Collateral Estoppel) 22 As a separate affirmative defense, Defendants allege that the Complaint is barred by the 23 doctrine of collateral estoppel and/or res judicata. 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 9 DEFENDANTS DAVE & BUSTER’S OF CALIFORNIA, INC. AND CHARLIE COOK’S ANSWER TO THE COMPLAINT 1 THIRTY-FIFTH AFFIRMATIVE DEFENSE 2 (Failure to Exercise Reasonable Care) 3 As a separate affirmative defense, Defendants allege that at all times and places alleged in the 4 Complaint, Plaintiff failed to exercise ordinary and reasonable care on her own behalf and such 5 negligence and carelessness was a proximate cause of some portion, up to and including the whole of, 6 her own alleged damages, if any, and Plaintiff’s recovery therefore should be barred or reduced 7 according to law, up to and including the whole thereof. 8 THIRTY-SIXTH AFFIRMATIVE DEFENSE 9 (Conditions Did Not Create a Substantial Risk of Injury) 10 As a separate affirmative defense, Defendants allege that any and all acts or omissions of 11 Defendants, its agents or employees, which allegedly created the condition of property at the time and SACRAMENTO, CALIFORNIA 95814 12 place alleged in the Complaint, did not constitute a substantial risk of injury, but, if any risk at all, 801 K STREET, SUITE 2100 13 merely constitutes a minor, trivial, or insignificant risk which did not create a dangerous condition at KLINEDINST PC 14 the property. 15 THIRTY-SEVENTH AFFIRMATIVE DEFENSE 16 (Conditions Did Not Create a Substantial Risk of Injury When Used with Due Care) 17 As a separate affirmative defense, Defendants allege that the conditions complained of in 18 Plaintiff’s Complaint are not and were not dangerous conditions and did not create a substantial risk 19 of injury when it was used with due care and in a manner in which it was reasonably foreseeable that 20 it would be used. 21 THIRTY-EIGHTH AFFIRMATIVE DEFENSE 22 (Force Majeure) 23 As a separate affirmative defense, Defendants allege that Plaintiff is barred from any relief or 24 remedy and/or Defendants were prevented and/or excused from performing any duty or obligation to 25 him, by force majeure. 26 / / / 27 / / / 28 / / / 10 DEFENDANTS DAVE & BUSTER’S OF CALIFORNIA, INC. AND CHARLIE COOK’S ANSWER TO THE COMPLAINT 1 THIRTY-NINTH AFFIRMATIVE DEFENSE 2 (Damages Caused by Acts or Omissions Beyond Defendants’ Control) 3 Defendants allege that the damages Plaintiff sustained, if any, were proximately caused by 4 acts, omissions, negligence, fraud, and/or breach of obligations by persons other than these answering 5 Defendants and beyond these Defendants’ supervision and control. 6 FORTIETH AFFIRMATIVE DEFENSE 7 (Additional Defenses) 8 As a separate affirmative defense, Defendants allege that it may have additional defenses that 9 cannot be articulated due to Plaintiff’s failure to particularize her claims, due to the fact that 10 Defendants do not have copies of certain documents bearing on Plaintiff’s alleged claims and due to 11 Plaintiff’s failure to provide more specific information concerning the nature of the damages for which SACRAMENTO, CALIFORNIA 95814 12 Plaintiff alleges that Defendants may share some responsibility. These answering Defendants 801 K STREET, SUITE 2100 13 therefore reserve the right to assert additional defenses upon further particularizations of Plaintiff’s KLINEDINST PC 14 claims, upon examination of the documents provided, upon discovery of further information 15 concerning the alleged damage claims and claims for costs and upon the development of other 16 pertinent information. 17 FORTY-FIRST AFFIRMATIVE DEFENSE 18 (Right to Amend Answer) 19 As a separate affirmative defense, Defendants reserve the right to amend Defendants’ answer 20 herein, including the addition of affirmative defenses after pleading and discovery in preparation for 21 trial. 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 11 DEFENDANTS DAVE & BUSTER’S OF CALIFORNIA, INC. AND CHARLIE COOK’S ANSWER TO THE COMPLAINT 1 WHEREFORE, Defendants pray for judgment against Plaintiff as follows: 2 1. That Plaintiff take nothing by way of this action; 3 2. That the Complaint be dismissed with prejudice; 4 3. That Defendants be awarded costs of suit incurred; and 5 4. For such other and further relief as the court deems just and proper. 6 KLINEDINST PC 7 8 9 DATED: April 26, 2024 By: Michael W. Carruth 10 Kevin J. Gramling Frederick M. Heiser 11 Attorneys for Defendant, DAVE & BUSTER’S SACRAMENTO, CALIFORNIA 95814 12 OF CALIFORNIA, INC. 801 K STREET, SUITE 2100 24985917.1 13 KLINEDINST PC 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 DEFENDANTS DAVE & BUSTER’S OF CALIFORNIA, INC. AND CHARLIE COOK’S ANSWER TO THE COMPLAINT 1 PROOF OF SERVICE 2 Eleanor Patricia Vinson v. Dave & Buster's of California, Inc., et al. San Mateo Superior Court Case No. 24-CIV-00454 3 STATE OF CALIFORNIA, COUNTY OF SACRAMENTO 4 At the time of service, I was over 18 years of age and not a party to this action. I am 5 employed in the County of Sacramento, State of California. My business address is 801 K Street, Suite 2100, Sacramento, California 95814. 6 On April 26, 2024, I served true copies of the following document(s) described as 7 DEFENDANTS DAVE & BUSTER’S OF CALIFORNIA, INC. AND CHARLIE COOK’S ANSWER TO THE COMPLAINT on the interested parties in this action as follows: 8 David A. Kleczek Attorneys for Plaintiff, 9 KLECZEK LAW OFFICE ELEANOR PATRICIA VINSON 825 Washington Street, Suite 301 10 Oakland, CA 94602 (510) 663-7100/Fax (510) 633-7102 11 David.Kleczek@kleczeklaw.com SACRAMENTO, CALIFORNIA 95814 12 BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the 801 K STREET, SUITE 2100 persons at the addresses listed in the Service List and placed the envelope for collection and mailing, 13 following our ordinary business practices. I am readily familiar with the practice of Klinedinst PC KLINEDINST PC for collecting and processing correspondence for mailing. On the same day that correspondence is 14 placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. I am a resident or employed 15 in the county where the mailing occurred. The envelope was placed in the mail at Sacramento, California. 16 BY E-MAIL OR ELECTRONIC TRANSMISSION: I caused a copy of the document(s) 17 to be sent from e-mail address ejohnson@klinedinstlaw.com to the persons at the e-mail addresses listed in the Service List. I did not receive, within a reasonable time after the transmission, any 18 electronic message or other indication that the transmission was unsuccessful. 19 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 20 Executed on April 26, 2024, at Sacramento, California. 21 22 23 Eula R. Johnson 24 25 26 27 28 13 DEFENDANTS DAVE & BUSTER’S OF CALIFORNIA, INC. AND CHARLIE COOK’S ANSWER TO THE COMPLAINT