Preview
HANSON BRIDGETT LLP
1
SHANNON M. NESSIER, SBN 267644
2 snessier@hansonbridgett.com
KAYLEN KADOTANI, SBN 294114
3 kkadotani@hansonbridgett.com
CARSON R. NIELLO, SBN 329970
4 cniello@hansonbridgett.com
425 Market Street, 26th Floor
5
San Francisco, CA 94105
6 Telephone: (415) 777-3200
Facsimile: (415) 541-9366
7
NILAN JOHNSON LEWIS PA
8 KATHLEEN K. CURTIS, Pro Hac Vice Forthcoming
9 kcurtis@nilanjohnson.com
250 Marquette Avenue South, Suite 800
10 Minneapolis, MN 55401
Telephone: (612) 305-7500
11 Facsimile: (612) 305-7501
12 Attorneys for Defendant Future Motion, Inc.
13
SUPERIOR COURT OF THE STATE OF CALIFORNIA
14
COUNTY OF SANTA CRUZ
15
KURT BOEKER, Case No.: 24CV00926
16
17 Plaintiff, Honorable Syda Kosofsky Cogliati
Dept. 5
18 v.
DEFENDANT FUTURE MOTION, INC.’S
19 FUTURE MOTION, INC., and DOES 1 - 100, ANSWER AND AFFIRMATIVE
DEFENSES TO PLAINTIFF’S
20
Defendants. COMPLAINT
21
Complaint Filed: 04/02/24
22 Trial Date: None
23
24
25
26
27
28
-1-
DEFENDANT FUTURE MOTION, INC.’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S
COMPLAINT
20831959.1
1 Defendant Future Motion, Inc. (“FM” or “Defendant”), for its Answer to Plaintiff Kurt
2 Boeker’s Complaint (hereinafter, the “Complaint”), states and alleges as follows:
3 GENERAL DENIAL
4 Pursuant to the provisions of California Code of Civil Procedure Section 431.30, Defendant
5 denies, generally and specifically, each and every allegation, statement, matter and purported cause
6 of action contained in the Complaint and each and every part thereof, including denying that
7 Plaintiff was damaged in the manner or sums alleged, or in any way at all.
8 Defendant denies that any act, omission, fault or conduct on its part caused any injury or
9 damage to Plaintiff in any manner or amount. Defendant denies that it was at fault in any way, has
10 any liability on any of Plaintiff’s claims, including for negligence, strict liability, breach of implied
11 warranty, punitive damages, or otherwise has any liability or responsibility for any of the
12 allegations or claims in this case.
13 AFFIRMATIVE DEFENSES
14 Defendant pleads the following separate defenses in response to Plaintiff’s Complaint.
15 Defendant reserves the right to amend or withdraw any or all defenses or to raise any and all
16 additional defenses as or after they may become known during the course of investigation,
17 discovery or trial. No assertion of any affirmative defense shall constitute either (a) an admission
18 that Plaintiff does not bear the burden of proof or the burden of producing evidence on any element
19 of any cause of action or claim for relief or on any issue as to which a plaintiff bears the burden of
20 proof or the burden of producing evidence as a matter of law, or (b) a waiver of any defendant's
21 right to require that Plaintiff satisfy any burden of proof or burden of producing evidence.
22 FIRST AFFIRMATIVE DEFENSE
23 (Failure to State a Claim)
24 The Complaint, and each and every claim and cause of action alleged therein, is barred
25 because it fails to state a cause of action against Defendant.
26 ///
27 ///
28
-2-
DEFENDANT FUTURE MOTION, INC.’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S
COMPLAINT
20831959.1
1 SECOND AFFIRMATIVE DEFENSE
2 (Failure to Preserve Evidence)
3 The Complaint, and each and every claim and cause of action alleged therein, is barred
4 because Plaintiff may have altered, spoliated or failed to preserve evidence without proper notice
5 to Defendant.
6 THIRD AFFIRMATIVE DEFENSE
7 (Statute of Limitations)
8 The Complaint may be barred, in whole or in part, by the applicable statute(s) of limitations
9 or repose, including, but not limited to Code of Civil Procedure sections 335.1, 337, 338, 339, 340,
10 583.210, 583.310, 583.410, and other applicable statutes and/or by any applicable contractual time
11 limitations for the commence of suit.
12 FOURTH AFFIRMATIVE DEFENSE
13 (Laches)
14 The Complaint may be barred, in whole or in part, by the doctrine of laches.
15 FIFTH AFFIRMATIVE DEFENSE
16 (No Control Over Responsible Parties)
17 The Complaint, and each and every claim and cause of action alleged therein, is barred
18 because Plaintiff’s damages, if any, were caused by the acts or omissions of third parties over whom
19 Defendant had no control and for whose acts Defendant is not responsible.
20 SIXTH AFFIRMATIVE DEFENSE
21 (Assumption of Risk)
22 The Complaint, and each and every claim and cause of action alleged therein, is barred
23 because Plaintiff assumed the risk of any damages he may have sustained in both the primary and
24 secondary sense.
25 SEVENTH AFFIRMATIVE DEFENSE
26 (Open and Obvious)
27 The Complaint, and each and every claim and cause of action alleged therein, is barred
28
-3-
DEFENDANT FUTURE MOTION, INC.’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S
COMPLAINT
20831959.1
1 because Plaintiff’s damages, if any, were the result of an open and obvious risk of which Plaintiff
2 was or should have been aware.
3 EIGHTH AFFIRMATIVE DEFENSE
4 (Intervening and Superseding Cause)
5 The Complaint, and each and every claim and cause of action alleged therein, is barred
6 because Plaintiff’s damages, if any were the result of intervening and/or superseding acts or
7 negligence of persons, parties or entities over whom Defendant had no control.
8 NINTH AFFIRMATIVE DEFENSE
9 (Modification of Product)
10 The Complaint, and each and every claim and cause of action alleged therein, is barred
11 because the product complained of was substantially modified, altered and/or damaged after it left
12 Defendant’s control.
13 TENTH AFFIRMATIVE DEFENSE
14 (Misuse)
15 The Complaint, and each and every claim and cause of action alleged therein, is barred
16 because the incident and Plaintiff’s damages, if any, were cause by the unforeseeable and
17 unanticipated misuse of the product.
18 ELEVENTH AFFIRMATIVE DEFENSE
19 (No Alternative Design)
20 The Complaint, and each and every claim and cause of action alleged therein, is barred
21 because at the time the product left the control of Defendant there was not a practical and technically
22 feasible alternative design that would have prevented the alleged harm without substantially
23 impairing the reasonably anticipated or intended function of the product.
24 TWELFTH AFFIRMATIVE DEFENSE
25 (Negligence or Comparative Fault of Others)
26 Plaintiff’s injuries, if and to the extent they occurred, were caused by the comparative
27 negligence and/or comparative fault of other persons and/or entities, and therefore Plaintiff’s
28
-4-
DEFENDANT FUTURE MOTION, INC.’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S
COMPLAINT
20831959.1
1 recovery, if any, must be reduced by the comparative fault of such other persons or entities.
2 THIRTEENTH AFFIRMATIVE DEFENSE
3 (Negligence or Comparative Fault of Plaintiff)
4 Plaintiff’s injuries, if and to the extent they occurred, were caused or contributed to by
5 Plaintiff’s own recklessness, carelessness, and/or negligence, and therefore Plaintiff’s recovery, if
6 any, must be reduced by his comparative fault. Additionally, Plaintiff is barred from recovery
7 and/or is limited to recovery in accordance with the provisions of the New Jersey Comparative
8 Negligence Act, N.J.S.A. §2A:15-5.1, et seq.
9 FOURTEENTH AFFIRMATIVE DEFENSE
10 (Unauthorized Use)
11 The Complaint, and each and every claim and cause of action alleged therein, is barred
12 because the incident and injury, if any, were caused by the unauthorized, unintended, or improper
13 use of the product complained of and as a result of the failure to exercise reasonable and ordinary
14 care, caution or vigilance.
15 FIFTEENTH AFFIRMATIVE DEFENSE
16 (Disregard of Warnings)
17 The Complaint, and each and every claim and cause of action alleged therein, is barred for
18 failure to follow warnings and/or instructions provided by Defendant.
19 SIXTEENTH AFFIRMATIVE DEFENSE
20 (Waiver and Estoppel)
21 The Complaint, and each and every claim and cause of action alleged therein, is barred by
22 estoppel and/or waiver.
23 SEVENTEENTH AFFIRMATIVE DEFENSE
24 (Release)
25 The Complaint, and each and every claim and cause of action alleged therein, is barred by
26 the defense of release.
27 ///
28
-5-
DEFENDANT FUTURE MOTION, INC.’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S
COMPLAINT
20831959.1
1 EIGHTEENTH AFFIRMATIVE DEFENSE
2 (No Breach)
3 The Complaint, and each and every claim and cause of action alleged therein, is barred
4 because Defendant did not breach any duty it may have owed to Plaintiff.
5 NINETEENTH AFFIRMATIVE DEFENSE
6 (Compliance with the Law)
7 The Complaint, and each and every claim and cause of action alleged therein, is barred
8 because at all times relevant to this litigation, Defendant complied with all applicable laws,
9 regulations and standards.
10 TWENTIETH AFFIRMATIVE DEFENSE
11 (State of the Art)
12 The Complaint, and each and every claim and cause of action alleged therein, is barred
13 because the product was designed and manufactured consistent with the state of the art for similar
14 products at the time of its design and manufacture.
15 TWENTY-FIRST AFFIRMATIVE DEFENSE
16 (Failure to Mitigate)
17 In the event Plaintiff failed to mitigate his damages, he is barred from recovering those
18 damages from Defendant.
19 TWENTY-SECOND AFFIRMATIVE DEFENSE
20 (Setoff)
21 Plaintiff’s damages, if any, must be set off against any payments received from a collateral
22 source.
23 TWENTY-THIRD AFFIRMATIVE DEFENSE
24 (Force Majeure)
25 The Complaint, and each and every claim and cause of action alleged therein, is barred
26 because any injuries and/or losses alleged by Plaintiff were caused in whole or in part through the
27 operation of nature or other intervening causes or both.
28
-6-
DEFENDANT FUTURE MOTION, INC.’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S
COMPLAINT
20831959.1
1 TWENTY-FOURTH AFFIRMATIVE DEFENSE
2 (No Damages)
3 The Complaint, and each and every claim and cause of action alleged therein, is barred
4 because Plaintiff has neither incurred nor paid any medical expenses as alleged.
5 TWENTY-FIFTH AFFIRMATIVE DEFENSE
6 (Settlement Offsets)
7 Defendant is entitled to a setoff amount for all sums of money recovered by or on behalf of
8 Plaintiff by way of any settlement, judgment or otherwise which were entered into or received by
9 Plaintiff from any party or non-party in this action.
10 TWENTY-SIXTH AFFIRMATIVE DEFENSE
11 (Evidence Barred)
12 If Plaintiff or any other party has failed or fails to preserve evidence pertaining to the
13 allegedly defective product, then Plaintiff and/or the other party may not introduce evidence related
14 to or based upon such lost, destroyed or altered evidence and, therefore, some or all of the claims
15 asserted by Plaintiff and/or other parties may be barred.
16 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
17 (Standing)
18 The Complaint is barred, in whole or in part, because Plaintiff lacks standing to pursue one
19 or more of the causes of actions asserted.
20 TWENTY-EIGHTH AFFIRMATIVE DEFENSE
21 (Defendant Fulfilled Duty to Warn)
22 The Complaint, and each and every claim and cause of action alleged therein, is barred
23 because Defendant discharged its duty to warn of dangers embodied in the subject product, if any
24 such duty or dangers existed, by providing adequate warnings and instructions to Plaintiff.
25 TWENTY-NINTH AFFIRMATIVE DEFENSE
26 (Lack of Causation)
27 The Complaint is barred, in whole or in part, because Plaintiff cannot establish that the
28
-7-
DEFENDANT FUTURE MOTION, INC.’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S
COMPLAINT
20831959.1
1 conduct of Defendant was the cause in fact or the proximate cause of any injuries or damages
2 alleged by Plaintiff.
3 THIRTIETH AFFIRMATIVE DEFENSE
4 (Inherent Risk – No Duty)
5 Defendant alleges that Plaintiff's alleged injuries and damages, if any, resulted from
6 inherent risks of the activity in which Plaintiff voluntarily engaged and as to which Defendant owed
7 no duty.
8 THIRTY - FIRST AFFIRMATIVE DEFENSE
9 (Several Liability)
10 Defendant contends that if liability is assessed against them, pursuant to Civil Code section
11 1431 et seq., they shall be liable only for the amount of non-economic damages allocated to them
12 in direct proportion to the percentage of fault assessed against them by the trier of fact. Further,
13 Defendant requests that a separate judgment be rendered against them for that amount; but
14 Defendant, in setting forth this affirmative defense, make no admission that they are liable to
15 Plaintiff in any amount or in any proportion; and Defendant, in setting forth this affirmative
16 defense, makes no admission that Plaintiff has been damaged in any sum or sums at all.
17 THIRTY - SECOND AFFIRMATIVE DEFENSE
18 (Punitive Damages Limited)
19 For Plaintiff’s claim for punitive damages, Defendant specifically incorporates by reference
20 any and all standards of limitations regarding the determination and/or enforceability of punitive
21 damages awards that arose in the decisions of BMW of No. America v. Gore, 517 U.S. 559 (1996);
22 Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001); State Farm Mut.
23 Auto Ins. Co. v. Campbell, 123 S. Ct. 1513 (2003); and Exxon Shipping Co. v. Baker, No. 07-219,
24 2008 U.S. LEXIS 5263 (U.S. June 25, 2008) and their progeny, as well as other similar cases under
25 both federal and state law.
26 ///
27 ///
28
-8-
DEFENDANT FUTURE MOTION, INC.’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S
COMPLAINT
20831959.1
1 THIRTY - THIRD AFFIRMATIVE DEFENSE
2 (No Punitive Damages)
3 Plaintiff is not entitled to punitive damages because an award of punitive damages violates
4 the Fifth and Fourteenth Amendments to the United States Constitution and the applicable State’s
5 Constitution.
6 THIRTY - FOURTH AFFIRMATIVE DEFENSE
7 (Punitive Damages Barred)
8 The Complaint fails to properly state a claim for punitive damages under Cal. Civ. Code
9 sections 3294, et seq., or otherwise.
10 THIRTY - FIFTH AFFIRMATIVE DEFENSE
11 (N.J.S.A. 2A:58(c)-1)
12 Plaintiff’s claims are subject to the New Jersey Products Liability Act, N.J.S.A. 2A:58(c)-
13 1, et seq., which provides the exclusive remedy, if any, with respect to Plaintiff’s claims, and
14 therefore all other claims must be dismissed.
15 THIRTY - SIXTH AFFIRMATIVE DEFENSE
16 (Right to Amend)
17 Defendant reserves the right to amend their Answer and to rely upon affirmative defenses
18 as may hereafter be disclosed by further investigation and discovery.
19 Prayer for Relief
20 WHEREFORE, Defendant Future Motion prays that:
21 a. Plaintiff’s Complaint be dismissed with prejudice, that Plaintiff takes nothing
22 thereby, and that judgment be entered against Plaintiff and in favor of Defendant;
23 b. Defendant be awarded its costs and reasonable attorneys’ fees incurred in
24 connection with the defense of this action; and
25 ///
26 ///
27 ///
28
-9-
DEFENDANT FUTURE MOTION, INC.’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S
COMPLAINT
20831959.1
1 c. Defendant be awarded such other and further relief as the Court deems just and
2 proper.
3 DEFENDANT DEMANDS A JURY TRIAL
4 DATED: May 20, 2024 HANSON BRIDGETT LLP
5
6
By:
7 SHANNON M. NESSIER
KAYLEN KADOTANI
8 CARSON R. NIELLO
Attorneys for Defendant
9 FUTURE MOTION, INC.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-10-
DEFENDANT FUTURE MOTION, INC.’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S
COMPLAINT
20831959.1
PROOF OF SERVICE
1
2 Kurt Boeker v. Future Motion, Inc., et al.
Santa Cruz County Superior Court Case No.: 24CV00926
3
At the time of service, I was over 18 years of age and not a party to this action. I am
4 employed in the County of San Francisco, State of California. My business address is 425 Market
Street, 26th Floor, San Francisco, CA 94105.
5
6 On May 20, 2024, I served true copies of the following document(s) described as:
7 DEFENDANT FUTURE MOTION, INC.’S ANSWER AND AFFIRMATIVE DEFENSES
TO PLAINTIFF’S COMPLAINT
8
9 on the interested parties in this action as follows:
10 Timothy F. Pearce Attorneys for Plaintiff
Stuart B. Lewis
11 Anya Fuchs
Hannah B. Oxley
12 PEARCE LEWIS LLP
13 423 Washington Street, Suite 510
San Francisco, CA 94111
14 PLOnewheel@pearcelewis.com
15
BY E-MAIL OR ELECTRONIC TRANSMISSION: I caused a copy of the document(s)
16 to be sent from e-mail address gmohr@hansonbridgett.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
17 electronic message or other indication that the transmission was unsuccessful.
18 I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
19
Executed on May 20, 2024.
20
21
22 Grace M. Mohr
23
24
25
26
27
28
-11-
DEFENDANT FUTURE MOTION, INC.’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S
COMPLAINT
20831959.1
Preview
HANSON BRIDGETT LLP 1 SHANNON M. NESSIER, SBN 267644 2 snessier@hansonbridgett.com KAYLEN KADOTANI, SBN 294114 3 kkadotani@hansonbridgett.com CARSON R. NIELLO, SBN 329970 4 cniello@hansonbridgett.com 425 Market Street, 26th Floor 5 San Francisco, CA 94105 6 Telephone: (415) 777-3200 Facsimile: (415) 541-9366 7 NILAN JOHNSON LEWIS PA 8 KATHLEEN K. CURTIS, Pro Hac Vice Forthcoming 9 kcurtis@nilanjohnson.com 250 Marquette Avenue South, Suite 800 10 Minneapolis, MN 55401 Telephone: (612) 305-7500 11 Facsimile: (612) 305-7501 12 Attorneys for Defendant Future Motion, Inc. 13 SUPERIOR COURT OF THE STATE OF CALIFORNIA 14 COUNTY OF SANTA CRUZ 15 KURT BOEKER, Case No.: 24CV00926 16 17 Plaintiff, Honorable Syda Kosofsky Cogliati Dept. 5 18 v. DEFENDANT FUTURE MOTION, INC.’S 19 FUTURE MOTION, INC., and DOES 1 - 100, ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S 20 Defendants. COMPLAINT 21 Complaint Filed: 04/02/24 22 Trial Date: None 23 24 25 26 27 28 -1- DEFENDANT FUTURE MOTION, INC.’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S COMPLAINT 20831959.1 1 Defendant Future Motion, Inc. (“FM” or “Defendant”), for its Answer to Plaintiff Kurt 2 Boeker’s Complaint (hereinafter, the “Complaint”), states and alleges as follows: 3 GENERAL DENIAL 4 Pursuant to the provisions of California Code of Civil Procedure Section 431.30, Defendant 5 denies, generally and specifically, each and every allegation, statement, matter and purported cause 6 of action contained in the Complaint and each and every part thereof, including denying that 7 Plaintiff was damaged in the manner or sums alleged, or in any way at all. 8 Defendant denies that any act, omission, fault or conduct on its part caused any injury or 9 damage to Plaintiff in any manner or amount. Defendant denies that it was at fault in any way, has 10 any liability on any of Plaintiff’s claims, including for negligence, strict liability, breach of implied 11 warranty, punitive damages, or otherwise has any liability or responsibility for any of the 12 allegations or claims in this case. 13 AFFIRMATIVE DEFENSES 14 Defendant pleads the following separate defenses in response to Plaintiff’s Complaint. 15 Defendant reserves the right to amend or withdraw any or all defenses or to raise any and all 16 additional defenses as or after they may become known during the course of investigation, 17 discovery or trial. No assertion of any affirmative defense shall constitute either (a) an admission 18 that Plaintiff does not bear the burden of proof or the burden of producing evidence on any element 19 of any cause of action or claim for relief or on any issue as to which a plaintiff bears the burden of 20 proof or the burden of producing evidence as a matter of law, or (b) a waiver of any defendant's 21 right to require that Plaintiff satisfy any burden of proof or burden of producing evidence. 22 FIRST AFFIRMATIVE DEFENSE 23 (Failure to State a Claim) 24 The Complaint, and each and every claim and cause of action alleged therein, is barred 25 because it fails to state a cause of action against Defendant. 26 /// 27 /// 28 -2- DEFENDANT FUTURE MOTION, INC.’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S COMPLAINT 20831959.1 1 SECOND AFFIRMATIVE DEFENSE 2 (Failure to Preserve Evidence) 3 The Complaint, and each and every claim and cause of action alleged therein, is barred 4 because Plaintiff may have altered, spoliated or failed to preserve evidence without proper notice 5 to Defendant. 6 THIRD AFFIRMATIVE DEFENSE 7 (Statute of Limitations) 8 The Complaint may be barred, in whole or in part, by the applicable statute(s) of limitations 9 or repose, including, but not limited to Code of Civil Procedure sections 335.1, 337, 338, 339, 340, 10 583.210, 583.310, 583.410, and other applicable statutes and/or by any applicable contractual time 11 limitations for the commence of suit. 12 FOURTH AFFIRMATIVE DEFENSE 13 (Laches) 14 The Complaint may be barred, in whole or in part, by the doctrine of laches. 15 FIFTH AFFIRMATIVE DEFENSE 16 (No Control Over Responsible Parties) 17 The Complaint, and each and every claim and cause of action alleged therein, is barred 18 because Plaintiff’s damages, if any, were caused by the acts or omissions of third parties over whom 19 Defendant had no control and for whose acts Defendant is not responsible. 20 SIXTH AFFIRMATIVE DEFENSE 21 (Assumption of Risk) 22 The Complaint, and each and every claim and cause of action alleged therein, is barred 23 because Plaintiff assumed the risk of any damages he may have sustained in both the primary and 24 secondary sense. 25 SEVENTH AFFIRMATIVE DEFENSE 26 (Open and Obvious) 27 The Complaint, and each and every claim and cause of action alleged therein, is barred 28 -3- DEFENDANT FUTURE MOTION, INC.’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S COMPLAINT 20831959.1 1 because Plaintiff’s damages, if any, were the result of an open and obvious risk of which Plaintiff 2 was or should have been aware. 3 EIGHTH AFFIRMATIVE DEFENSE 4 (Intervening and Superseding Cause) 5 The Complaint, and each and every claim and cause of action alleged therein, is barred 6 because Plaintiff’s damages, if any were the result of intervening and/or superseding acts or 7 negligence of persons, parties or entities over whom Defendant had no control. 8 NINTH AFFIRMATIVE DEFENSE 9 (Modification of Product) 10 The Complaint, and each and every claim and cause of action alleged therein, is barred 11 because the product complained of was substantially modified, altered and/or damaged after it left 12 Defendant’s control. 13 TENTH AFFIRMATIVE DEFENSE 14 (Misuse) 15 The Complaint, and each and every claim and cause of action alleged therein, is barred 16 because the incident and Plaintiff’s damages, if any, were cause by the unforeseeable and 17 unanticipated misuse of the product. 18 ELEVENTH AFFIRMATIVE DEFENSE 19 (No Alternative Design) 20 The Complaint, and each and every claim and cause of action alleged therein, is barred 21 because at the time the product left the control of Defendant there was not a practical and technically 22 feasible alternative design that would have prevented the alleged harm without substantially 23 impairing the reasonably anticipated or intended function of the product. 24 TWELFTH AFFIRMATIVE DEFENSE 25 (Negligence or Comparative Fault of Others) 26 Plaintiff’s injuries, if and to the extent they occurred, were caused by the comparative 27 negligence and/or comparative fault of other persons and/or entities, and therefore Plaintiff’s 28 -4- DEFENDANT FUTURE MOTION, INC.’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S COMPLAINT 20831959.1 1 recovery, if any, must be reduced by the comparative fault of such other persons or entities. 2 THIRTEENTH AFFIRMATIVE DEFENSE 3 (Negligence or Comparative Fault of Plaintiff) 4 Plaintiff’s injuries, if and to the extent they occurred, were caused or contributed to by 5 Plaintiff’s own recklessness, carelessness, and/or negligence, and therefore Plaintiff’s recovery, if 6 any, must be reduced by his comparative fault. Additionally, Plaintiff is barred from recovery 7 and/or is limited to recovery in accordance with the provisions of the New Jersey Comparative 8 Negligence Act, N.J.S.A. §2A:15-5.1, et seq. 9 FOURTEENTH AFFIRMATIVE DEFENSE 10 (Unauthorized Use) 11 The Complaint, and each and every claim and cause of action alleged therein, is barred 12 because the incident and injury, if any, were caused by the unauthorized, unintended, or improper 13 use of the product complained of and as a result of the failure to exercise reasonable and ordinary 14 care, caution or vigilance. 15 FIFTEENTH AFFIRMATIVE DEFENSE 16 (Disregard of Warnings) 17 The Complaint, and each and every claim and cause of action alleged therein, is barred for 18 failure to follow warnings and/or instructions provided by Defendant. 19 SIXTEENTH AFFIRMATIVE DEFENSE 20 (Waiver and Estoppel) 21 The Complaint, and each and every claim and cause of action alleged therein, is barred by 22 estoppel and/or waiver. 23 SEVENTEENTH AFFIRMATIVE DEFENSE 24 (Release) 25 The Complaint, and each and every claim and cause of action alleged therein, is barred by 26 the defense of release. 27 /// 28 -5- DEFENDANT FUTURE MOTION, INC.’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S COMPLAINT 20831959.1 1 EIGHTEENTH AFFIRMATIVE DEFENSE 2 (No Breach) 3 The Complaint, and each and every claim and cause of action alleged therein, is barred 4 because Defendant did not breach any duty it may have owed to Plaintiff. 5 NINETEENTH AFFIRMATIVE DEFENSE 6 (Compliance with the Law) 7 The Complaint, and each and every claim and cause of action alleged therein, is barred 8 because at all times relevant to this litigation, Defendant complied with all applicable laws, 9 regulations and standards. 10 TWENTIETH AFFIRMATIVE DEFENSE 11 (State of the Art) 12 The Complaint, and each and every claim and cause of action alleged therein, is barred 13 because the product was designed and manufactured consistent with the state of the art for similar 14 products at the time of its design and manufacture. 15 TWENTY-FIRST AFFIRMATIVE DEFENSE 16 (Failure to Mitigate) 17 In the event Plaintiff failed to mitigate his damages, he is barred from recovering those 18 damages from Defendant. 19 TWENTY-SECOND AFFIRMATIVE DEFENSE 20 (Setoff) 21 Plaintiff’s damages, if any, must be set off against any payments received from a collateral 22 source. 23 TWENTY-THIRD AFFIRMATIVE DEFENSE 24 (Force Majeure) 25 The Complaint, and each and every claim and cause of action alleged therein, is barred 26 because any injuries and/or losses alleged by Plaintiff were caused in whole or in part through the 27 operation of nature or other intervening causes or both. 28 -6- DEFENDANT FUTURE MOTION, INC.’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S COMPLAINT 20831959.1 1 TWENTY-FOURTH AFFIRMATIVE DEFENSE 2 (No Damages) 3 The Complaint, and each and every claim and cause of action alleged therein, is barred 4 because Plaintiff has neither incurred nor paid any medical expenses as alleged. 5 TWENTY-FIFTH AFFIRMATIVE DEFENSE 6 (Settlement Offsets) 7 Defendant is entitled to a setoff amount for all sums of money recovered by or on behalf of 8 Plaintiff by way of any settlement, judgment or otherwise which were entered into or received by 9 Plaintiff from any party or non-party in this action. 10 TWENTY-SIXTH AFFIRMATIVE DEFENSE 11 (Evidence Barred) 12 If Plaintiff or any other party has failed or fails to preserve evidence pertaining to the 13 allegedly defective product, then Plaintiff and/or the other party may not introduce evidence related 14 to or based upon such lost, destroyed or altered evidence and, therefore, some or all of the claims 15 asserted by Plaintiff and/or other parties may be barred. 16 TWENTY-SEVENTH AFFIRMATIVE DEFENSE 17 (Standing) 18 The Complaint is barred, in whole or in part, because Plaintiff lacks standing to pursue one 19 or more of the causes of actions asserted. 20 TWENTY-EIGHTH AFFIRMATIVE DEFENSE 21 (Defendant Fulfilled Duty to Warn) 22 The Complaint, and each and every claim and cause of action alleged therein, is barred 23 because Defendant discharged its duty to warn of dangers embodied in the subject product, if any 24 such duty or dangers existed, by providing adequate warnings and instructions to Plaintiff. 25 TWENTY-NINTH AFFIRMATIVE DEFENSE 26 (Lack of Causation) 27 The Complaint is barred, in whole or in part, because Plaintiff cannot establish that the 28 -7- DEFENDANT FUTURE MOTION, INC.’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S COMPLAINT 20831959.1 1 conduct of Defendant was the cause in fact or the proximate cause of any injuries or damages 2 alleged by Plaintiff. 3 THIRTIETH AFFIRMATIVE DEFENSE 4 (Inherent Risk – No Duty) 5 Defendant alleges that Plaintiff's alleged injuries and damages, if any, resulted from 6 inherent risks of the activity in which Plaintiff voluntarily engaged and as to which Defendant owed 7 no duty. 8 THIRTY - FIRST AFFIRMATIVE DEFENSE 9 (Several Liability) 10 Defendant contends that if liability is assessed against them, pursuant to Civil Code section 11 1431 et seq., they shall be liable only for the amount of non-economic damages allocated to them 12 in direct proportion to the percentage of fault assessed against them by the trier of fact. Further, 13 Defendant requests that a separate judgment be rendered against them for that amount; but 14 Defendant, in setting forth this affirmative defense, make no admission that they are liable to 15 Plaintiff in any amount or in any proportion; and Defendant, in setting forth this affirmative 16 defense, makes no admission that Plaintiff has been damaged in any sum or sums at all. 17 THIRTY - SECOND AFFIRMATIVE DEFENSE 18 (Punitive Damages Limited) 19 For Plaintiff’s claim for punitive damages, Defendant specifically incorporates by reference 20 any and all standards of limitations regarding the determination and/or enforceability of punitive 21 damages awards that arose in the decisions of BMW of No. America v. Gore, 517 U.S. 559 (1996); 22 Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001); State Farm Mut. 23 Auto Ins. Co. v. Campbell, 123 S. Ct. 1513 (2003); and Exxon Shipping Co. v. Baker, No. 07-219, 24 2008 U.S. LEXIS 5263 (U.S. June 25, 2008) and their progeny, as well as other similar cases under 25 both federal and state law. 26 /// 27 /// 28 -8- DEFENDANT FUTURE MOTION, INC.’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S COMPLAINT 20831959.1 1 THIRTY - THIRD AFFIRMATIVE DEFENSE 2 (No Punitive Damages) 3 Plaintiff is not entitled to punitive damages because an award of punitive damages violates 4 the Fifth and Fourteenth Amendments to the United States Constitution and the applicable State’s 5 Constitution. 6 THIRTY - FOURTH AFFIRMATIVE DEFENSE 7 (Punitive Damages Barred) 8 The Complaint fails to properly state a claim for punitive damages under Cal. Civ. Code 9 sections 3294, et seq., or otherwise. 10 THIRTY - FIFTH AFFIRMATIVE DEFENSE 11 (N.J.S.A. 2A:58(c)-1) 12 Plaintiff’s claims are subject to the New Jersey Products Liability Act, N.J.S.A. 2A:58(c)- 13 1, et seq., which provides the exclusive remedy, if any, with respect to Plaintiff’s claims, and 14 therefore all other claims must be dismissed. 15 THIRTY - SIXTH AFFIRMATIVE DEFENSE 16 (Right to Amend) 17 Defendant reserves the right to amend their Answer and to rely upon affirmative defenses 18 as may hereafter be disclosed by further investigation and discovery. 19 Prayer for Relief 20 WHEREFORE, Defendant Future Motion prays that: 21 a. Plaintiff’s Complaint be dismissed with prejudice, that Plaintiff takes nothing 22 thereby, and that judgment be entered against Plaintiff and in favor of Defendant; 23 b. Defendant be awarded its costs and reasonable attorneys’ fees incurred in 24 connection with the defense of this action; and 25 /// 26 /// 27 /// 28 -9- DEFENDANT FUTURE MOTION, INC.’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S COMPLAINT 20831959.1 1 c. Defendant be awarded such other and further relief as the Court deems just and 2 proper. 3 DEFENDANT DEMANDS A JURY TRIAL 4 DATED: May 20, 2024 HANSON BRIDGETT LLP 5 6 By: 7 SHANNON M. NESSIER KAYLEN KADOTANI 8 CARSON R. NIELLO Attorneys for Defendant 9 FUTURE MOTION, INC. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -10- DEFENDANT FUTURE MOTION, INC.’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S COMPLAINT 20831959.1 PROOF OF SERVICE 1 2 Kurt Boeker v. Future Motion, Inc., et al. Santa Cruz County Superior Court Case No.: 24CV00926 3 At the time of service, I was over 18 years of age and not a party to this action. I am 4 employed in the County of San Francisco, State of California. My business address is 425 Market Street, 26th Floor, San Francisco, CA 94105. 5 6 On May 20, 2024, I served true copies of the following document(s) described as: 7 DEFENDANT FUTURE MOTION, INC.’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S COMPLAINT 8 9 on the interested parties in this action as follows: 10 Timothy F. Pearce Attorneys for Plaintiff Stuart B. Lewis 11 Anya Fuchs Hannah B. Oxley 12 PEARCE LEWIS LLP 13 423 Washington Street, Suite 510 San Francisco, CA 94111 14 PLOnewheel@pearcelewis.com 15 BY E-MAIL OR ELECTRONIC TRANSMISSION: I caused a copy of the document(s) 16 to be sent from e-mail address gmohr@hansonbridgett.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 17 electronic message or other indication that the transmission was unsuccessful. 18 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 19 Executed on May 20, 2024. 20 21 22 Grace M. Mohr 23 24 25 26 27 28 -11- DEFENDANT FUTURE MOTION, INC.’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S COMPLAINT 20831959.1