Preview
1 MESSNER REEVES LLP
AARON N. SOLEIMANI (SBN: 323674)
2 611 Anton Boulevard, Suite 450
3 Costa Mesa, California 92626
Telephone: (949) 612-9128
4 Facsimile: (949) 438-2304
Email: asoleimani@messner.com
5
Attorneys for Defendants
6 RUBEN JAMES ABEYTA, DOROTHY R. ABEYTA
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SAN MATEO – SOUTHERN COURT
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11 JUAN JIMENEZ LOZANO, Case No. 23-CIV-00529
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Plaintiff, DEFENDANTS RUBEN JAMES ABEYTA
13 AND DOROTHY R. ABEYTA’S ANSWER
v. TO PLAINTIFF’S COMPLAINT;
14 DEMAND FOR JURY TRIAL
RONALD EMANUEL CLAY; THE CITY
15 Assigned for All Purposes to:
OF SAN BRUNO; THE COUNTY OF SAN
Hon. V. Raymond Swope, Dept. 23
16 MATEO; THE STATE OF CALIFORNIA;
WEST COAST ARBORISTS, INC.; AND
17 DOES 1 TO 100, Action Filed: February 3, 2023
Trial Date: None
18 Defendants.
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20 Pursuant to Sections 431.10, et seq., of the California Code of Civil Procedure,
21 Defendants Ruben James Abeyta and Dorothy R. Abeyta ("Defendants") answers the Complaint
22 of Plaintiff Juan Jimenez Lozano ("Plaintiff'). Defendants deny, both generally and specifically,
23 each and every allegation of the Complaint and denies that Plaintiff is entitled to any relief
24 whatsoever.
25 GENERAL DENIAL
26 Pursuant to the terms of California Code of Civil Procedure §431.30, Defendants
27 Ruben James Abeyta and Dorothy R. Abeyta generally and specifically deny each and every
28 allegation, all and singular, of Plaintiff
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DEFENDANTS RUBEN JAMES ABEYTA AND DOROTHY R. ABEYTA’S ANSWER TO PLAINTIFF’S
COMPLAINT; DEMAND FOR JURY TRIAL
1 Juan Jimenez Lozano’s ("Plaintiff') Complaint. Defendants further specifically deny that Plaintiff
2 has been damaged in any sum, whatsoever or at all, and specifically denies that Defendants are
3 liable to Plaintiff in any sum or sums whatsoever, or at all. Further answering Plaintiff’s
4 Complaint on file herein and the whole thereof, Defendants deny that Plaintiff has sustained any
5 injury, damages or loss, if any, by reason of any act or omission of Defendants or their agents or
6 employees.
7 AFFIRMATIVE AND OTHER DEFENSES
8 Plaintiff’s Complaint is drafted in conclusory terms; accordingly, Defendants herein
9 reserve the right to assert additional affirmative defenses to the extent such affirmative defenses
10 are applicable to this action. Without admitting any of the allegations of the Complaint and
11 without admitting or acknowledging that Defendants bear any burden of proof as to any of them,
12 Defendants assert the following additional defenses, which they designate as "affirmative" and/or
13 "separate" defenses. Defendants’ designation of their defenses as "affirmative" is not intended in
14 any way to alter Plaintiff’s burden of proof with regard to any element of the causes of action.
15 Defendants intend to rely upon any additional defenses that become available or apparent during
16 pretrial proceedings and discovery in this action and hereby reserve the right to amend this
17 Answer to assert all such further defenses.
18 FIRST AFFIRMATIVE DEFENSE
19 (Assumption of Risk)
20 1. As a separate and first affirmative defense to the Complaint and each purported
21 cause of action contained therein, Defendants allege that Plaintiff, and/or the persons and/or
22 entities acting on Plaintiff’s behalf, assumed the risk of all conduct of the Plaintiff or her agents.
23 SECOND AFFIRMATIVE DEFENSE
24 (Breach of Contract)
25 2. As a separate and second affirmative defense to the Complaint and each purported
26 cause of action contained therein, Defendants allege that any obligations owed by him under any
27 alleged contract were excused by Plaintiff’s breach of the alleged contract.
28 THIRD AFFIRMATIVE DEFENSE
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DEFENDANTS RUBEN JAMES ABEYTA AND DOROTHY R. ABEYTA’S ANSWER TO PLAINTIFF’S
COMPLAINT; DEMAND FOR JURY TRIAL
1 (Comparative Fault)
2 3. As a separate and third affirmative defense to the Complaint and each purported
3 cause of action contained therein, Defendants allege that Plaintiff’s damages, if any, were caused
4 by the primary negligence and/or acquiescence in the acts and omissions alleged in the Complaint
5 by the Plaintiff, and Plaintiff’s agents, employees, representatives, relatives, heirs, assigns,
6 attorneys, and/or any others acting on Plaintiffs behalf. By reason thereof, Plaintiff is not entitled
7 to damages or any other relief whatsoever as against Defendants.
8 FOURTH AFFIRMATIVE DEFENSE
9 (Consent)
10 4. As a separate and fourth affirmative defense to the Complaint and each purported
11 cause of action contained therein, Defendants allege that Plaintiff is barred from prosecuting the
12 purported causes of action set forth in the Complaint because Plaintiff, and/or the persons and/or
13 entities acting on his behalf, consented to and acquiesced in the subject conduct.
14 FIFTH AFFIRMATIVE DEFENSE
15 (Failure of Condition Precedent)
16 5. As a separate and fifth affirmative defense to the Complaint and each purported
17 cause of action contained therein, Defendants allege that Plaintiff’s causes of action are barred by
18 Plaintiff’s failure to perform all conditions precedent to Plaintiff’s purported right to recover.
19 SIXTH AFFIRMATIVE DEFENSE
20 (Failure to Mitigate)
21 6. As a separate and sixth affirmative defense to the Complaint and each purported
22 cause of action contained therein, Defendants allege that Plaintiff’s claims, if any, are barred for
23 his failure, and/or the failure of the persons and/or entities acting on his behalf, to mitigate any
24 purported damages.
25 SEVENTH AFFIRMATIVE DEFENSE
26 (Failure to State a Claim)
27 7. As a separate and seventh affirmative defense to the Complaint, and to the
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DEFENDANTS RUBEN JAMES ABEYTA AND DOROTHY R. ABEYTA’S ANSWER TO PLAINTIFF’S
COMPLAINT; DEMAND FOR JURY TRIAL
1 purported causes of action set forth therein, Defendants allege that the Complaint fails to state
2 facts sufficient to constitute a cause of action.
3 EIGHTH AFFIRMATIVE DEFENSE
4 (Intervening and Superseding Cause)
5 8. As a separate and eighth affirmative defense to the Complaint and each purported
6 cause of action contained therein, Defendants allege that if Plaintiff suffered or sustained any loss,
7 damage or injury as alleged in the Complaint, such loss, damage or injury was legally caused or
8 contributed to by the negligence or wrongful conduct of other parties, persons or entities, and that
9 their negligence or wrongful conduct was an intervening and superseding cause of the loss,
10 damage or injury of which Plaintiff complains.
11 NINTH AFFIRMATIVE DEFENSE
12 (No Contractual Relationship)
13 9. As a separate and ninth affirmative defense to the Complaint and each purported
14 cause of action contained therein, Defendants allege that no contractual relationship exists
15 between Plaintiff and Defendants and, therefore, Plaintiff’s claims for breach of contract and
16 breach of the implied covenant of good faith and fair dealing fails to state a claim upon which
17 relief can be granted against said Defendants, insofar as Plaintiff purports to assert those claims
18 against said Defendants.
19 TENTH AFFIRMATIVE DEFENSE
20 (Proximate Cause - Other Persons)
21 10. As a separate and tenth affirmative defense to the Complaint and each purported
22 cause of action contained therein, Defendants allege that the damages alleged to have been
23 suffered by Plaintiff in the Complaint were proximately caused or contributed to by acts or failures
24 to act of persons other than this answering Defendants, which acts or failures to act constitute an
25 intervening and superseding cause of the damages alleged in the Complaint.
26 ELEVENTH AFFIRMATIVE DEFENSE
27 (Proximate Cause - Plaintiff)
28 11. As a separate and eleventh affirmative defense to the Complaint and each purported
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DEFENDANTS RUBEN JAMES ABEYTA AND DOROTHY R. ABEYTA’S ANSWER TO PLAINTIFF’S
COMPLAINT; DEMAND FOR JURY TRIAL
1 cause of action contained therein, Defendants allege that the injuries and damages alleged in the
2 Complaint by Plaintiff occurred, were proximately caused by and/or were contributed to by
3 Plaintiff’s own acts or failures to act and that Plaintiff’s recovery, if any, should be reduced by an
4 amount proportionate to the amount by which said acts caused or contributed to said alleged injury
5 or damages.
6 TWELFTH AFFIRMATIVE DEFENSE
7 (Waiver and Estoppel)
8 12. As a separate and twelfth affirmative defense to the Complaint and each purported
9 cause of action contained therein, Defendants allege that as a result of his own acts and/or
10 omissions, Plaintiff has waived any right which she may have had to recover, and/or is estopped
11 from recovering, any relief sought against Defendants.
12 THIRTEENTH AFFIRMATIVE DEFENSE
13 (Statute of Limitations)
14 13. The Complaint as a whole, and each purported cause of action alleged therein, is
15 barred in whole or in part by the applicable statute of limitations, including but not limited to
16 California Code of Civil Procedure sections 335.1.
17 FOURTEENTH AFFIRMATIVE DEFENSE
18 (Trivial Defects)
19 14. That any defects or conditions of the subject PREMISES, if any and which
20 Defendants deny, were trivial in nature, kind and existence.
21 FIFTEENTH AFFIRMATIVE DEFENSE
22 (Open and Obvious)
23 15. That any defects or conditions of the PREMISES that Plaintiff claims caused them
24 injuries or damages, which Defendants deny generally and specifically, were at all time open and
25 obvious.
26 SIXTEENTH AFFIRMATIVE DEFENSE
27 (Avoidable Consequences Doctrine)
28 16. Defendants allege the Complaint, and each and every cause of action alleged
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DEFENDANTS RUBEN JAMES ABEYTA AND DOROTHY R. ABEYTA’S ANSWER TO PLAINTIFF’S
COMPLAINT; DEMAND FOR JURY TRIAL
1 therein, is barred on the ground that, without admitting that it engaged in any of the acts or
2 conduct attributed to it in the Complaint, that Plaintiff’s claims and damages are barred in whole
3 or in part by Plaintiff’s failure to take reasonable and necessary steps to avoid the harm and/or
4 consequences she allegedly suffered. Plaintiff is barred from recovering any damages that she
5 could have avoided with reasonable effort.
6 SEVENTEENTH AFFIRMATIVE DEFENSE
7 (No Severe Emotional Distress)
8 17. Plaintiff did not suffer severe emotional distress as a result of any alleged
9 Defendants’ alleged acts. Nor has Plaintiff alleged nor can they allege or establish that any
10 conduct alleged by the Defendants was outrageous, intentional or extreme.
11 EIGHTEENTH AFFIRMATIVE DEFENSE
12 (No Punitive Damages)
13 18. Defendants allege that Plaintiff is not entitled to recover the punitive damages as
14 alleged in the Complaint as she has not only failed to sufficiently plead facts in support of such
15 damages but the alleged acts of Defendants were not outrageous, intentional, or reckless, and this
16 Complaint seeking an award of punitive damages would violate Defendants’ rights under the
17 Constitution of the United States of America and under the Constitution of the State of California,
18 and further, such a claim for punitive damages impedes, interferes with and violates Defendants’
19 rights and privileges including Defendants’ rights to (1) procedural due process under the
20 Fourteenth Amendment of the United States Constitution and the Constitution of the State of
21 California; (2) protection for "excessive fines" as provided in the Eighth Amendment of the United
22 States Constitution and Article I, Section 17 of the Constitution of the State of California; and (3)
23 substantive due process provided in the Fifth and Fourteenth Amendments of the United States of
24 America Constitution and the Constitution of the State of California.
25 NINETEENTH AFFIRMATIVE DEFENSE
26 (Not Damaged)
27 19. Defendants hereby deny each and every allegation contained in the Complaint of
28 Plaintiff filed herein and further denies that Plaintiff has been damaged in the amounts therein set
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DEFENDANTS RUBEN JAMES ABEYTA AND DOROTHY R. ABEYTA’S ANSWER TO PLAINTIFF’S
COMPLAINT; DEMAND FOR JURY TRIAL
1 forth or in any other manner or amount whatsoever or at all by reason of any act or omission on the
2 part of Defendants nor is Plaintiff entitled to the relief sought by way of the Complaint nor any other
3 relief whatsoever or at all from Defendants.
4 TWENTIETH AFFIRMATIVE DEFENSE
5 (No Economic Damages)
6 20. Defendants allege that under and pursuant to the terms of Civil Code Sections 1431.1
7 through 1431.5, Plaintiff is barred and precluded from recovery against the answering Defendants
8 for any non-economic damages except those allocated in direct proportion to the percentage of fault
9 allocated to answering Defendants, if any.
10 TWENTY-FIRST AFFIRMATIVE DEFENSE
11 (Failure to State Cause of Action)
12 21. Defendants allege that Plaintiff failed to state facts sufficient to constitute any cause
13 of action against it.
14 TWENTY-SECOND AFFIRMATIVE DEFENSE
15 (Proportional Fault)
16 22. The responding Defendants are informed and believes, and thereon alleges, that any
17 loss, damage or injury alleged in the complaint was proximately caused or contributed to by the
18 negligence or wrongful conduct of other persons or entities, and that the liability of Defendants, if
19 any, is limited in direct proportion to the percentage of fault actually attributed to Defendants, if
20 any.
21 TWENTY-THIRD AFFIRMATIVE DEFENSE
22 (Active Negligence)
23 23. The Defendants are informed and believes, and thereon alleges, that Plaintiff’s
24 conduct as alleged in the principal complaint was such that any and all liability based thereunder
25 was active and primary in nature so as to preclude any indemnification sought in the present
26 complaint.
27 / / /
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DEFENDANTS RUBEN JAMES ABEYTA AND DOROTHY R. ABEYTA’S ANSWER TO PLAINTIFF’S
COMPLAINT; DEMAND FOR JURY TRIAL
1 TWENTY-FOURTH AFFIRMATIVE DEFENSE
2 (Unclean Hands)
3 24. The Defendants allege that Plaintiff has not come to court with clean hands. As a
4 result, Plaintiff is not entitled to the relief requested in the complaint.
5 TWENTY-FIFTH AFFIRMATIVE DEFENSE
6 (Laches)
7 25. The responding Defendants are informed and believes, and thereon alleges, that the
8 Plaintiff herein is barred by the doctrine of laches
9 TWENTY-SIXTH AFFIRMATIVE DEFENSE
10 (Indemnity Claim Void)
11 26. The responding Defendants allege that Plaintiff’s complaint and each cause of action
12 thereof is barred by the provisions of California Civil Code section 2782.
13 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
14 (No Legal Cause)
15 27. Defendants allege that its acts, omissions, and conduct were not the legal cause of
16 any losses, damages, or injuries.
17 TWENTY-EIGHTH AFFIRMATIVE DEFENSE
18 (No Joint and Several Liability for Non-Economic Losses)
19 28. Defendants allege that pursuant to Civil Code section 1431.2, if liability is found, a
20 Plaintiff may be held liable for non-economic damages in only direct proportion to the percentage
21 of fault.
22 TWENTY-NINETH AFFIRMATIVE DEFENSE
23 (Unasserted Affirmative Defenses)
24 29. Defendants allege that he presently has insufficient knowledge or information upon
25 which to form a belief as to whether they may have additional, as yet unstated, defenses available
26 to them and, accordingly, hereby reserve the right to assert additional and different defenses as they
27 become known.
28 / / /
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DEFENDANTS RUBEN JAMES ABEYTA AND DOROTHY R. ABEYTA’S ANSWER TO PLAINTIFF’S
COMPLAINT; DEMAND FOR JURY TRIAL
1 THIRTIETH AFFIRMATIVE DEFENSE
2 (Facts Insufficient to State Any Cause of Action)
3 30. Defendants allege that he presently has insufficient knowledge or information upon
4 which to form a belief as to whether they may have additional, as yet unstated, defenses available
5 to them and, accordingly, hereby reserve the right to assert additional and different defenses as they
6 become known.
7 THIRTY-FIRST AFFIRMATIVE DEFENSE
8 (Comparative Negligence)
9 31. That at all times Plaintiff and each of them by her own actions, conduct, omissions
10 or affirmative efforts caused, contributed to or created any conditions, defects or Plaintiff claims
11 caused her injuries or damages, if any, which Defendants deny generally and specifically.
12 THIRTY-SECOND AFFIRMATIVE DEFENSE
13 32. The answering Defendants allege that Plaintiff assumed the risk of harm or injury,
14 if any there was, incurred by them as alleged in the Complaint. Plaintiff had actual knowledge of
15 the particular danger and knew and understood the degree of the risk involved, and he voluntarily
16 assumed such risk.
17 THIRTY-THIRD AFFIRMATIVE DEFENSE
18 33. The Complaint, and each purported cause of action contained herein, is barred
19 against the answering Defendants, because they are not personally indebted to Plaintiff in any
20 amount, nor have they had any dealings with Plaintiff in an individual capacity.
21 THIRTY-FOURTH AFFIRMATIVE DEFENSE
22 34. The provisions of the "Fair Responsibility Act of 1986" ( commonly known
23 as Proposition 51,Civi!CodeSections 1430, 1431, 1431.1, 1431.2, 1431.3, 1431.4, 1431.5
24 and 1432) are applicable to this action to the extent that Plaintiffs injuries and damages, if
25 any, were legally caused or contributed to by the negligence or fault of persons or entities
26 other than Defendants.
27 THIRTY-FIFTH AFFIRMATIVE DEFENSE
28 35. The answering Defendants alleges that to the extent Plaintiff's injuries were
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DEFENDANTS RUBEN JAMES ABEYTA AND DOROTHY R. ABEYTA’S ANSWER TO PLAINTIFF’S
COMPLAINT; DEMAND FOR JURY TRIAL
1 caused by the intentional acts of others, Plaintiffs recovery against the answering Defendants are
2 diminished and/or barred.
3 THIRTY-SIXTH AFFIRMATIVE DEFENSE
4 36. Plaintiff’s claims are barred, in whole or in part, because the parties have
5 extinguished any and all alleged obligation(s) by accord and satisfaction.
6 THIRTY-SEVENTH AFFIRMATIVE DEFENSE
7 37. Plaintiff’s equitable cause of action and prayer for equitable relief is barred because
8 Plaintiff has an adequate remedy at law.
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10 THIRTY-EIGHTH AFFIRMATIVE DEFENSE
11 38. Defendants allege Plaintiffs prayer for the recovery of damages is barred by
12 Defendants’ good faith, substantial compliance with all applicable local ordinances and state laws.
13 THIRTY-NINETH AFFIRMATIVE DEFENSE
14 39. Plaintiff’s alleged damages, if any, were not caused by any alleged statutory
15 violations, acts or omissions by Defendants.
16 FORTIETH AFFIRMATIVE DEFENSE
17 40. Plaintiff’s Complaint's causes of action are not "ripe" and fail to allege a "concrete,
18 justiciable controversy."
19 FORTY-FIRST AFFIRMATIVE DEFENSE
20 41. Plaintiff has failed to state a claim upon which attorneys’ fees can be awarded.
21 FORTY-SECOND AFFIRMATIVE DEFENSE
22 (Cross Liability)
23 42. As a separate, distinct affirmative defense, Defendants state and deny that any
24 act or omission to act on their part, or any act or omission to act on the part of any person or any
25 entity for whose actions or omissions it is or may establish to be legally responsible, actually or
26 proximately caused or contributed in any manner or to any degree, to any losses or damages for
27 which recovery is sought in the Complaint.
28 / / /
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DEFENDANTS RUBEN JAMES ABEYTA AND DOROTHY R. ABEYTA’S ANSWER TO PLAINTIFF’S
COMPLAINT; DEMAND FOR JURY TRIAL
1 FORTY-THIRD AFFIRMATIVE DEFENSE
2 (Cross Liability-Causation)
3 43. As a separate, distinct affirmative defense, Defendants state and allege that
4 should loss, damages or detriment have occurred as alleged in the Complaint, then said loss,
5 damage or detriment was actually and proximately caused or contributed to by the negligence or
6 wrongful and/or careless action or omission to act and/or other tortious conduct of persons or
7 entities other than Defendants.
8 FORTY-THIRD AFFIRMATIVE DEFENSE
9 (Lack of Causation)
10 43. As a separate, distinct affirmative defense, Defendants state and allege that
11 Plaintiff’s alleged losses or damages, if any, were not proximately caused or contributed to by any
12 acts or omissions of Defendants.
13 FORTY-FOURTH AFFIRMATIVE DEFENSE
14 (Comparative Liability)
15 44. As a separate, distinct affirmative defense, Defendants state and allege that
16 Plaintiff was careless and negligent in or about the matters alleged in Plaintiff’s Complaint, and
17 that said carelessness and negligence on the part of plaintiff actually or proximately caused, or
18 contributed, in whole or in part, the happening of the events and to the alleged losses and damages
19 complained of, if any. Accordingly, the losses and damages alleged by Plaintiff must be
20 diminished in proportion to the amount of fault properly attributed to Plaintiff’s comparative and
21 contributory carelessness, negligence and wrongdoing.
22 FORTY-FIFTH AFFIRMATIVE DEFENSE
23 (Lack of Notice)
24 45. As a separate, distinct affirmative defense to Plaintiff’s Complaint and each cause
25 of action contained therein, Defendants deny that the condition(s) as alleged in Plaintiff’s
26 Complaint constituted a hazardous or defective condition; however, if a hazardous or defective
27 condition is found to exist, Defendants did not have actual or constructive notice of the same
28 prior to the incident herein, and therefore did not have a reasonable opportunity to repair or
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DEFENDANTS RUBEN JAMES ABEYTA AND DOROTHY R. ABEYTA’S ANSWER TO PLAINTIFF’S
COMPLAINT; DEMAND FOR JURY TRIAL
1 remedy said condition.
2 FORTY-SIXTH AFFIRMATIVE DEFENSE
3 (Non-delegable Duty)
4 46. As a separate, distinct affirmative defense to Plaintiff’s Complaint and each cause
5 of action contained therein, Defendants state and allege that of persons or entities other than
6 Defendants have a non-delegable duty with respect to maintenance of the premises which is the
7 subject of Plaintiff’s action.
8 FORTY-SEVENTH AFFIRMATIVE DEFENSE
9 (Implied Assumption of the Risk- Bodily Injury)
10 47. As a separate, distinct affirmative defense, Defendants state and allege that at the
11 time and place referred to in the Complaint, and before such event, Plaintiff knew the risk
12 involved in placing herself in the position which she then assumed, and voluntarily assumed such
13 risk, including but not limited to the risk of suffering personal bodily injury.
14 FORTY-EIGTH AFFIRMATIVE DEFENSE
15 (Unavoidable Accident)
16 48. As a separate, distinct affirmative defense, Defendants state and allege that the
17 damages sustained by Plaintiff, if any, were the result of an unavoidable accident insofar as
18 Defendants are concerned, and occurred without any negligence, want of care, default, or other
19 breach of duty to plaintiff on the part of Defendants.
20 FORTY-NINTH AFFIRMATIVE DEFENSE
21 (Lack of Control of Premises Where Injury Occurred)
22 49. As a separate, distinct affirmative defense, Defendants state and allege that
23 Defendants did not have control of the portion of the premises where the plaintiff was allegedly
24 injured.
25 FIFTIETH AFFIRMATIVE DEFENSE
26 (Unforeseeable Injury as Consequence of Dangerous Condition of Property)
27 50. As a separate, distinct affirmative defense, Defendants state and allege that the
28 injury to Plaintiff did not occur in a way, which was reasonably foreseeable as a consequence of
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DEFENDANTS RUBEN JAMES ABEYTA AND DOROTHY R. ABEYTA’S ANSWER TO PLAINTIFF’S
COMPLAINT; DEMAND FOR JURY TRIAL
1 the alleged dangerous condition of the property.
2 FIFTY-FIRST AFFIRMATIVE DEFENSE
3 (Indispensable Parties)
4 51. Plaintiff’s action is barred by the failure of Plaintiff to join, in a timely fashion,
5 indispensable and/or necessary parties.
6 FIFTY-SECOND AFFIRMATIVE DEFENSE
7 (Lack of Duty-Privity of Contract)
8 52. Defendants allege Plaintiff is barred from recovery, in whole or in part, from this
9 answering Defendants as the result of lack of privity of contract given this answering Defendants
10 owed no duty of care to Plaintiff pursuant to contract related to its work, if any, on the subject tree
11 FIFTY-THIRD AFFIRMATIVE DEFENSE
12 (Lacks Standing)
13 53. Plaintiff’s action is barred because plaintiff lacks standing.
14 RESERVATION OF RIGHTS
15 Defendants reserve the right to amend or add any additional defenses or counterclaims
16 which may become known during the course of discovery.
17 WHEREFORE , Defendants prays as follows:
18 1. That Plaintiff take nothing by the way of his Complaint;
19 2. That Defendants be awarded his costs, including reasonable attorney's fees, of
20 suit incurred herein; and
21 3. For such other and further relief as the Court deems just and proper.
22 DEMAND FOR JURY TRIAL
23 Defendants hereby demands a trial by jury.
24 / / /
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DEFENDANTS RUBEN JAMES ABEYTA AND DOROTHY R. ABEYTA’S ANSWER TO PLAINTIFF’S
COMPLAINT; DEMAND FOR JURY TRIAL
1 DATED: May 21, 2024 MESSNER REEVES LLP
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AARON N. SOLEIMANI
4 Attorneys for Defendants
5 RUBEN JAMES ABEYTA
DOROTHY R. ABEYTA
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DEFENDANTS RUBEN JAMES ABEYTA AND DOROTHY R. ABEYTA’S ANSWER TO PLAINTIFF’S
COMPLAINT; DEMAND FOR JURY TRIAL
1 PROOF OF SERVICE
2 At the time of service, I was over 18 years of age and not a party to this action. I am
employed in the County of Orange, State of California. My business address is 611 Anton Blvd.,
3 Suite 450, Costa Mesa, California 92626.
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On May 21, 2024, I served true copies of the following document described as
5 DEFENDANTS RUBEN JAMES ABEYTA AND DOROTHY R. ABEYTA’S ANSWER TO
PLAINTIFF’S COMPLAINT; DEMAND FOR JURY TRIAL on the interested parties in this
6 action as follows:
7 SEE ATTACHED SERVICE LIST
8
[X] BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to
9 the persons at the addresses listed in the Service List and placed the envelope for collection and
mailing, following our ordinary business practices. I am readily familiar with the practice of
10 Messner Reeves LLP for collecting and processing correspondence for mailing. On the same day
that correspondence is placed for collection and mailing, it is deposited in the ordinary course of
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business with the United States Postal Service, in a sealed envelope with postage fully prepaid. I
12 am a resident or employed in the county where the mailing occurred. The envelope was placed in
the mail at Orange, California.
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[X] BY E-MAIL OR ELECTRONIC TRANSMISSION: Based on a court order or an
14 agreement of the parties to accept service by e-mail or electronic transmission, I caused the
document to be sent from e-mail address retownes@messner.com to the persons at the e-mail
15 addresses listed in the Service List. I did not receive, within a reasonable time after the
16 transmission, any electronic message or other indication that the transmission was unsuccessful.
17 I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
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Executed on May 21, 2024, at Costa Mesa, California.
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/s/ Rosa Townes
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DEFENDANTS RUBEN JAMES ABEYTA AND DOROTHY R. ABEYTA’S ANSWER TO PLAINTIFF’S
COMPLAINT; DEMAND FOR JURY TRIAL
1 SERVICE LIST
2 Brian G . Beecher, Esq. Vivian Rivera, Esq.
THE LAW OFFICES OF ARASH Martin S. McMahan, Esq.
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KHORSANDI, PC YOKA & SMITH
4 2960 Wilshire Boulevard, Third Floor 445 South Figueroa St., 38th Fl.
Los Angeles, California 90010 Los Angeles, CA 90071
5 Email: service@arashlaw.com E-Mail: vrivera@vokasmith.com
bbeecher@arashlaw.com mmcmahan@vokasmith.com
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7 Counsel for Plaintiff, Juan Jimenez Lozano Counsel for Defendant, West Coast Arborists,
Inc.
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Philip A. Segal, Esq.
9 Grace M. Harriett, Esq.
KERN SEGAL & MURRAY
10 15 Southgate Ave., Suite 200
Daly City, CA 94015
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Email: phil@kernlaw.com
12 gharriett@kernlaw.com
ssears@kernlaw.com
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Counsel for Defendant, Ronald Emanuel Clay
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DEFENDANTS RUBEN JAMES ABEYTA AND DOROTHY R. ABEYTA’S ANSWER TO PLAINTIFF’S
COMPLAINT; DEMAND FOR JURY TRIAL
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1 MESSNER REEVES LLP AARON N. SOLEIMANI (SBN: 323674) 2 611 Anton Boulevard, Suite 450 3 Costa Mesa, California 92626 Telephone: (949) 612-9128 4 Facsimile: (949) 438-2304 Email: asoleimani@messner.com 5 Attorneys for Defendants 6 RUBEN JAMES ABEYTA, DOROTHY R. ABEYTA 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SAN MATEO – SOUTHERN COURT 10 11 JUAN JIMENEZ LOZANO, Case No. 23-CIV-00529 12 Plaintiff, DEFENDANTS RUBEN JAMES ABEYTA 13 AND DOROTHY R. ABEYTA’S ANSWER v. TO PLAINTIFF’S COMPLAINT; 14 DEMAND FOR JURY TRIAL RONALD EMANUEL CLAY; THE CITY 15 Assigned for All Purposes to: OF SAN BRUNO; THE COUNTY OF SAN Hon. V. Raymond Swope, Dept. 23 16 MATEO; THE STATE OF CALIFORNIA; WEST COAST ARBORISTS, INC.; AND 17 DOES 1 TO 100, Action Filed: February 3, 2023 Trial Date: None 18 Defendants. 19 20 Pursuant to Sections 431.10, et seq., of the California Code of Civil Procedure, 21 Defendants Ruben James Abeyta and Dorothy R. Abeyta ("Defendants") answers the Complaint 22 of Plaintiff Juan Jimenez Lozano ("Plaintiff'). Defendants deny, both generally and specifically, 23 each and every allegation of the Complaint and denies that Plaintiff is entitled to any relief 24 whatsoever. 25 GENERAL DENIAL 26 Pursuant to the terms of California Code of Civil Procedure §431.30, Defendants 27 Ruben James Abeyta and Dorothy R. Abeyta generally and specifically deny each and every 28 allegation, all and singular, of Plaintiff 1 DEFENDANTS RUBEN JAMES ABEYTA AND DOROTHY R. ABEYTA’S ANSWER TO PLAINTIFF’S COMPLAINT; DEMAND FOR JURY TRIAL 1 Juan Jimenez Lozano’s ("Plaintiff') Complaint. Defendants further specifically deny that Plaintiff 2 has been damaged in any sum, whatsoever or at all, and specifically denies that Defendants are 3 liable to Plaintiff in any sum or sums whatsoever, or at all. Further answering Plaintiff’s 4 Complaint on file herein and the whole thereof, Defendants deny that Plaintiff has sustained any 5 injury, damages or loss, if any, by reason of any act or omission of Defendants or their agents or 6 employees. 7 AFFIRMATIVE AND OTHER DEFENSES 8 Plaintiff’s Complaint is drafted in conclusory terms; accordingly, Defendants herein 9 reserve the right to assert additional affirmative defenses to the extent such affirmative defenses 10 are applicable to this action. Without admitting any of the allegations of the Complaint and 11 without admitting or acknowledging that Defendants bear any burden of proof as to any of them, 12 Defendants assert the following additional defenses, which they designate as "affirmative" and/or 13 "separate" defenses. Defendants’ designation of their defenses as "affirmative" is not intended in 14 any way to alter Plaintiff’s burden of proof with regard to any element of the causes of action. 15 Defendants intend to rely upon any additional defenses that become available or apparent during 16 pretrial proceedings and discovery in this action and hereby reserve the right to amend this 17 Answer to assert all such further defenses. 18 FIRST AFFIRMATIVE DEFENSE 19 (Assumption of Risk) 20 1. As a separate and first affirmative defense to the Complaint and each purported 21 cause of action contained therein, Defendants allege that Plaintiff, and/or the persons and/or 22 entities acting on Plaintiff’s behalf, assumed the risk of all conduct of the Plaintiff or her agents. 23 SECOND AFFIRMATIVE DEFENSE 24 (Breach of Contract) 25 2. As a separate and second affirmative defense to the Complaint and each purported 26 cause of action contained therein, Defendants allege that any obligations owed by him under any 27 alleged contract were excused by Plaintiff’s breach of the alleged contract. 28 THIRD AFFIRMATIVE DEFENSE 2 DEFENDANTS RUBEN JAMES ABEYTA AND DOROTHY R. ABEYTA’S ANSWER TO PLAINTIFF’S COMPLAINT; DEMAND FOR JURY TRIAL 1 (Comparative Fault) 2 3. As a separate and third affirmative defense to the Complaint and each purported 3 cause of action contained therein, Defendants allege that Plaintiff’s damages, if any, were caused 4 by the primary negligence and/or acquiescence in the acts and omissions alleged in the Complaint 5 by the Plaintiff, and Plaintiff’s agents, employees, representatives, relatives, heirs, assigns, 6 attorneys, and/or any others acting on Plaintiffs behalf. By reason thereof, Plaintiff is not entitled 7 to damages or any other relief whatsoever as against Defendants. 8 FOURTH AFFIRMATIVE DEFENSE 9 (Consent) 10 4. As a separate and fourth affirmative defense to the Complaint and each purported 11 cause of action contained therein, Defendants allege that Plaintiff is barred from prosecuting the 12 purported causes of action set forth in the Complaint because Plaintiff, and/or the persons and/or 13 entities acting on his behalf, consented to and acquiesced in the subject conduct. 14 FIFTH AFFIRMATIVE DEFENSE 15 (Failure of Condition Precedent) 16 5. As a separate and fifth affirmative defense to the Complaint and each purported 17 cause of action contained therein, Defendants allege that Plaintiff’s causes of action are barred by 18 Plaintiff’s failure to perform all conditions precedent to Plaintiff’s purported right to recover. 19 SIXTH AFFIRMATIVE DEFENSE 20 (Failure to Mitigate) 21 6. As a separate and sixth affirmative defense to the Complaint and each purported 22 cause of action contained therein, Defendants allege that Plaintiff’s claims, if any, are barred for 23 his failure, and/or the failure of the persons and/or entities acting on his behalf, to mitigate any 24 purported damages. 25 SEVENTH AFFIRMATIVE DEFENSE 26 (Failure to State a Claim) 27 7. As a separate and seventh affirmative defense to the Complaint, and to the 28 3 DEFENDANTS RUBEN JAMES ABEYTA AND DOROTHY R. ABEYTA’S ANSWER TO PLAINTIFF’S COMPLAINT; DEMAND FOR JURY TRIAL 1 purported causes of action set forth therein, Defendants allege that the Complaint fails to state 2 facts sufficient to constitute a cause of action. 3 EIGHTH AFFIRMATIVE DEFENSE 4 (Intervening and Superseding Cause) 5 8. As a separate and eighth affirmative defense to the Complaint and each purported 6 cause of action contained therein, Defendants allege that if Plaintiff suffered or sustained any loss, 7 damage or injury as alleged in the Complaint, such loss, damage or injury was legally caused or 8 contributed to by the negligence or wrongful conduct of other parties, persons or entities, and that 9 their negligence or wrongful conduct was an intervening and superseding cause of the loss, 10 damage or injury of which Plaintiff complains. 11 NINTH AFFIRMATIVE DEFENSE 12 (No Contractual Relationship) 13 9. As a separate and ninth affirmative defense to the Complaint and each purported 14 cause of action contained therein, Defendants allege that no contractual relationship exists 15 between Plaintiff and Defendants and, therefore, Plaintiff’s claims for breach of contract and 16 breach of the implied covenant of good faith and fair dealing fails to state a claim upon which 17 relief can be granted against said Defendants, insofar as Plaintiff purports to assert those claims 18 against said Defendants. 19 TENTH AFFIRMATIVE DEFENSE 20 (Proximate Cause - Other Persons) 21 10. As a separate and tenth affirmative defense to the Complaint and each purported 22 cause of action contained therein, Defendants allege that the damages alleged to have been 23 suffered by Plaintiff in the Complaint were proximately caused or contributed to by acts or failures 24 to act of persons other than this answering Defendants, which acts or failures to act constitute an 25 intervening and superseding cause of the damages alleged in the Complaint. 26 ELEVENTH AFFIRMATIVE DEFENSE 27 (Proximate Cause - Plaintiff) 28 11. As a separate and eleventh affirmative defense to the Complaint and each purported 4 DEFENDANTS RUBEN JAMES ABEYTA AND DOROTHY R. ABEYTA’S ANSWER TO PLAINTIFF’S COMPLAINT; DEMAND FOR JURY TRIAL 1 cause of action contained therein, Defendants allege that the injuries and damages alleged in the 2 Complaint by Plaintiff occurred, were proximately caused by and/or were contributed to by 3 Plaintiff’s own acts or failures to act and that Plaintiff’s recovery, if any, should be reduced by an 4 amount proportionate to the amount by which said acts caused or contributed to said alleged injury 5 or damages. 6 TWELFTH AFFIRMATIVE DEFENSE 7 (Waiver and Estoppel) 8 12. As a separate and twelfth affirmative defense to the Complaint and each purported 9 cause of action contained therein, Defendants allege that as a result of his own acts and/or 10 omissions, Plaintiff has waived any right which she may have had to recover, and/or is estopped 11 from recovering, any relief sought against Defendants. 12 THIRTEENTH AFFIRMATIVE DEFENSE 13 (Statute of Limitations) 14 13. The Complaint as a whole, and each purported cause of action alleged therein, is 15 barred in whole or in part by the applicable statute of limitations, including but not limited to 16 California Code of Civil Procedure sections 335.1. 17 FOURTEENTH AFFIRMATIVE DEFENSE 18 (Trivial Defects) 19 14. That any defects or conditions of the subject PREMISES, if any and which 20 Defendants deny, were trivial in nature, kind and existence. 21 FIFTEENTH AFFIRMATIVE DEFENSE 22 (Open and Obvious) 23 15. That any defects or conditions of the PREMISES that Plaintiff claims caused them 24 injuries or damages, which Defendants deny generally and specifically, were at all time open and 25 obvious. 26 SIXTEENTH AFFIRMATIVE DEFENSE 27 (Avoidable Consequences Doctrine) 28 16. Defendants allege the Complaint, and each and every cause of action alleged 5 DEFENDANTS RUBEN JAMES ABEYTA AND DOROTHY R. ABEYTA’S ANSWER TO PLAINTIFF’S COMPLAINT; DEMAND FOR JURY TRIAL 1 therein, is barred on the ground that, without admitting that it engaged in any of the acts or 2 conduct attributed to it in the Complaint, that Plaintiff’s claims and damages are barred in whole 3 or in part by Plaintiff’s failure to take reasonable and necessary steps to avoid the harm and/or 4 consequences she allegedly suffered. Plaintiff is barred from recovering any damages that she 5 could have avoided with reasonable effort. 6 SEVENTEENTH AFFIRMATIVE DEFENSE 7 (No Severe Emotional Distress) 8 17. Plaintiff did not suffer severe emotional distress as a result of any alleged 9 Defendants’ alleged acts. Nor has Plaintiff alleged nor can they allege or establish that any 10 conduct alleged by the Defendants was outrageous, intentional or extreme. 11 EIGHTEENTH AFFIRMATIVE DEFENSE 12 (No Punitive Damages) 13 18. Defendants allege that Plaintiff is not entitled to recover the punitive damages as 14 alleged in the Complaint as she has not only failed to sufficiently plead facts in support of such 15 damages but the alleged acts of Defendants were not outrageous, intentional, or reckless, and this 16 Complaint seeking an award of punitive damages would violate Defendants’ rights under the 17 Constitution of the United States of America and under the Constitution of the State of California, 18 and further, such a claim for punitive damages impedes, interferes with and violates Defendants’ 19 rights and privileges including Defendants’ rights to (1) procedural due process under the 20 Fourteenth Amendment of the United States Constitution and the Constitution of the State of 21 California; (2) protection for "excessive fines" as provided in the Eighth Amendment of the United 22 States Constitution and Article I, Section 17 of the Constitution of the State of California; and (3) 23 substantive due process provided in the Fifth and Fourteenth Amendments of the United States of 24 America Constitution and the Constitution of the State of California. 25 NINETEENTH AFFIRMATIVE DEFENSE 26 (Not Damaged) 27 19. Defendants hereby deny each and every allegation contained in the Complaint of 28 Plaintiff filed herein and further denies that Plaintiff has been damaged in the amounts therein set 6 DEFENDANTS RUBEN JAMES ABEYTA AND DOROTHY R. ABEYTA’S ANSWER TO PLAINTIFF’S COMPLAINT; DEMAND FOR JURY TRIAL 1 forth or in any other manner or amount whatsoever or at all by reason of any act or omission on the 2 part of Defendants nor is Plaintiff entitled to the relief sought by way of the Complaint nor any other 3 relief whatsoever or at all from Defendants. 4 TWENTIETH AFFIRMATIVE DEFENSE 5 (No Economic Damages) 6 20. Defendants allege that under and pursuant to the terms of Civil Code Sections 1431.1 7 through 1431.5, Plaintiff is barred and precluded from recovery against the answering Defendants 8 for any non-economic damages except those allocated in direct proportion to the percentage of fault 9 allocated to answering Defendants, if any. 10 TWENTY-FIRST AFFIRMATIVE DEFENSE 11 (Failure to State Cause of Action) 12 21. Defendants allege that Plaintiff failed to state facts sufficient to constitute any cause 13 of action against it. 14 TWENTY-SECOND AFFIRMATIVE DEFENSE 15 (Proportional Fault) 16 22. The responding Defendants are informed and believes, and thereon alleges, that any 17 loss, damage or injury alleged in the complaint was proximately caused or contributed to by the 18 negligence or wrongful conduct of other persons or entities, and that the liability of Defendants, if 19 any, is limited in direct proportion to the percentage of fault actually attributed to Defendants, if 20 any. 21 TWENTY-THIRD AFFIRMATIVE DEFENSE 22 (Active Negligence) 23 23. The Defendants are informed and believes, and thereon alleges, that Plaintiff’s 24 conduct as alleged in the principal complaint was such that any and all liability based thereunder 25 was active and primary in nature so as to preclude any indemnification sought in the present 26 complaint. 27 / / / 28 / / / 7 DEFENDANTS RUBEN JAMES ABEYTA AND DOROTHY R. ABEYTA’S ANSWER TO PLAINTIFF’S COMPLAINT; DEMAND FOR JURY TRIAL 1 TWENTY-FOURTH AFFIRMATIVE DEFENSE 2 (Unclean Hands) 3 24. The Defendants allege that Plaintiff has not come to court with clean hands. As a 4 result, Plaintiff is not entitled to the relief requested in the complaint. 5 TWENTY-FIFTH AFFIRMATIVE DEFENSE 6 (Laches) 7 25. The responding Defendants are informed and believes, and thereon alleges, that the 8 Plaintiff herein is barred by the doctrine of laches 9 TWENTY-SIXTH AFFIRMATIVE DEFENSE 10 (Indemnity Claim Void) 11 26. The responding Defendants allege that Plaintiff’s complaint and each cause of action 12 thereof is barred by the provisions of California Civil Code section 2782. 13 TWENTY-SEVENTH AFFIRMATIVE DEFENSE 14 (No Legal Cause) 15 27. Defendants allege that its acts, omissions, and conduct were not the legal cause of 16 any losses, damages, or injuries. 17 TWENTY-EIGHTH AFFIRMATIVE DEFENSE 18 (No Joint and Several Liability for Non-Economic Losses) 19 28. Defendants allege that pursuant to Civil Code section 1431.2, if liability is found, a 20 Plaintiff may be held liable for non-economic damages in only direct proportion to the percentage 21 of fault. 22 TWENTY-NINETH AFFIRMATIVE DEFENSE 23 (Unasserted Affirmative Defenses) 24 29. Defendants allege that he presently has insufficient knowledge or information upon 25 which to form a belief as to whether they may have additional, as yet unstated, defenses available 26 to them and, accordingly, hereby reserve the right to assert additional and different defenses as they 27 become known. 28 / / / 8 DEFENDANTS RUBEN JAMES ABEYTA AND DOROTHY R. ABEYTA’S ANSWER TO PLAINTIFF’S COMPLAINT; DEMAND FOR JURY TRIAL 1 THIRTIETH AFFIRMATIVE DEFENSE 2 (Facts Insufficient to State Any Cause of Action) 3 30. Defendants allege that he presently has insufficient knowledge or information upon 4 which to form a belief as to whether they may have additional, as yet unstated, defenses available 5 to them and, accordingly, hereby reserve the right to assert additional and different defenses as they 6 become known. 7 THIRTY-FIRST AFFIRMATIVE DEFENSE 8 (Comparative Negligence) 9 31. That at all times Plaintiff and each of them by her own actions, conduct, omissions 10 or affirmative efforts caused, contributed to or created any conditions, defects or Plaintiff claims 11 caused her injuries or damages, if any, which Defendants deny generally and specifically. 12 THIRTY-SECOND AFFIRMATIVE DEFENSE 13 32. The answering Defendants allege that Plaintiff assumed the risk of harm or injury, 14 if any there was, incurred by them as alleged in the Complaint. Plaintiff had actual knowledge of 15 the particular danger and knew and understood the degree of the risk involved, and he voluntarily 16 assumed such risk. 17 THIRTY-THIRD AFFIRMATIVE DEFENSE 18 33. The Complaint, and each purported cause of action contained herein, is barred 19 against the answering Defendants, because they are not personally indebted to Plaintiff in any 20 amount, nor have they had any dealings with Plaintiff in an individual capacity. 21 THIRTY-FOURTH AFFIRMATIVE DEFENSE 22 34. The provisions of the "Fair Responsibility Act of 1986" ( commonly known 23 as Proposition 51,Civi!CodeSections 1430, 1431, 1431.1, 1431.2, 1431.3, 1431.4, 1431.5 24 and 1432) are applicable to this action to the extent that Plaintiffs injuries and damages, if 25 any, were legally caused or contributed to by the negligence or fault of persons or entities 26 other than Defendants. 27 THIRTY-FIFTH AFFIRMATIVE DEFENSE 28 35. The answering Defendants alleges that to the extent Plaintiff's injuries were 9 DEFENDANTS RUBEN JAMES ABEYTA AND DOROTHY R. ABEYTA’S ANSWER TO PLAINTIFF’S COMPLAINT; DEMAND FOR JURY TRIAL 1 caused by the intentional acts of others, Plaintiffs recovery against the answering Defendants are 2 diminished and/or barred. 3 THIRTY-SIXTH AFFIRMATIVE DEFENSE 4 36. Plaintiff’s claims are barred, in whole or in part, because the parties have 5 extinguished any and all alleged obligation(s) by accord and satisfaction. 6 THIRTY-SEVENTH AFFIRMATIVE DEFENSE 7 37. Plaintiff’s equitable cause of action and prayer for equitable relief is barred because 8 Plaintiff has an adequate remedy at law. 9 10 THIRTY-EIGHTH AFFIRMATIVE DEFENSE 11 38. Defendants allege Plaintiffs prayer for the recovery of damages is barred by 12 Defendants’ good faith, substantial compliance with all applicable local ordinances and state laws. 13 THIRTY-NINETH AFFIRMATIVE DEFENSE 14 39. Plaintiff’s alleged damages, if any, were not caused by any alleged statutory 15 violations, acts or omissions by Defendants. 16 FORTIETH AFFIRMATIVE DEFENSE 17 40. Plaintiff’s Complaint's causes of action are not "ripe" and fail to allege a "concrete, 18 justiciable controversy." 19 FORTY-FIRST AFFIRMATIVE DEFENSE 20 41. Plaintiff has failed to state a claim upon which attorneys’ fees can be awarded. 21 FORTY-SECOND AFFIRMATIVE DEFENSE 22 (Cross Liability) 23 42. As a separate, distinct affirmative defense, Defendants state and deny that any 24 act or omission to act on their part, or any act or omission to act on the part of any person or any 25 entity for whose actions or omissions it is or may establish to be legally responsible, actually or 26 proximately caused or contributed in any manner or to any degree, to any losses or damages for 27 which recovery is sought in the Complaint. 28 / / / 10 DEFENDANTS RUBEN JAMES ABEYTA AND DOROTHY R. ABEYTA’S ANSWER TO PLAINTIFF’S COMPLAINT; DEMAND FOR JURY TRIAL 1 FORTY-THIRD AFFIRMATIVE DEFENSE 2 (Cross Liability-Causation) 3 43. As a separate, distinct affirmative defense, Defendants state and allege that 4 should loss, damages or detriment have occurred as alleged in the Complaint, then said loss, 5 damage or detriment was actually and proximately caused or contributed to by the negligence or 6 wrongful and/or careless action or omission to act and/or other tortious conduct of persons or 7 entities other than Defendants. 8 FORTY-THIRD AFFIRMATIVE DEFENSE 9 (Lack of Causation) 10 43. As a separate, distinct affirmative defense, Defendants state and allege that 11 Plaintiff’s alleged losses or damages, if any, were not proximately caused or contributed to by any 12 acts or omissions of Defendants. 13 FORTY-FOURTH AFFIRMATIVE DEFENSE 14 (Comparative Liability) 15 44. As a separate, distinct affirmative defense, Defendants state and allege that 16 Plaintiff was careless and negligent in or about the matters alleged in Plaintiff’s Complaint, and 17 that said carelessness and negligence on the part of plaintiff actually or proximately caused, or 18 contributed, in whole or in part, the happening of the events and to the alleged losses and damages 19 complained of, if any. Accordingly, the losses and damages alleged by Plaintiff must be 20 diminished in proportion to the amount of fault properly attributed to Plaintiff’s comparative and 21 contributory carelessness, negligence and wrongdoing. 22 FORTY-FIFTH AFFIRMATIVE DEFENSE 23 (Lack of Notice) 24 45. As a separate, distinct affirmative defense to Plaintiff’s Complaint and each cause 25 of action contained therein, Defendants deny that the condition(s) as alleged in Plaintiff’s 26 Complaint constituted a hazardous or defective condition; however, if a hazardous or defective 27 condition is found to exist, Defendants did not have actual or constructive notice of the same 28 prior to the incident herein, and therefore did not have a reasonable opportunity to repair or 11 DEFENDANTS RUBEN JAMES ABEYTA AND DOROTHY R. ABEYTA’S ANSWER TO PLAINTIFF’S COMPLAINT; DEMAND FOR JURY TRIAL 1 remedy said condition. 2 FORTY-SIXTH AFFIRMATIVE DEFENSE 3 (Non-delegable Duty) 4 46. As a separate, distinct affirmative defense to Plaintiff’s Complaint and each cause 5 of action contained therein, Defendants state and allege that of persons or entities other than 6 Defendants have a non-delegable duty with respect to maintenance of the premises which is the 7 subject of Plaintiff’s action. 8 FORTY-SEVENTH AFFIRMATIVE DEFENSE 9 (Implied Assumption of the Risk- Bodily Injury) 10 47. As a separate, distinct affirmative defense, Defendants state and allege that at the 11 time and place referred to in the Complaint, and before such event, Plaintiff knew the risk 12 involved in placing herself in the position which she then assumed, and voluntarily assumed such 13 risk, including but not limited to the risk of suffering personal bodily injury. 14 FORTY-EIGTH AFFIRMATIVE DEFENSE 15 (Unavoidable Accident) 16 48. As a separate, distinct affirmative defense, Defendants state and allege that the 17 damages sustained by Plaintiff, if any, were the result of an unavoidable accident insofar as 18 Defendants are concerned, and occurred without any negligence, want of care, default, or other 19 breach of duty to plaintiff on the part of Defendants. 20 FORTY-NINTH AFFIRMATIVE DEFENSE 21 (Lack of Control of Premises Where Injury Occurred) 22 49. As a separate, distinct affirmative defense, Defendants state and allege that 23 Defendants did not have control of the portion of the premises where the plaintiff was allegedly 24 injured. 25 FIFTIETH AFFIRMATIVE DEFENSE 26 (Unforeseeable Injury as Consequence of Dangerous Condition of Property) 27 50. As a separate, distinct affirmative defense, Defendants state and allege that the 28 injury to Plaintiff did not occur in a way, which was reasonably foreseeable as a consequence of 12 DEFENDANTS RUBEN JAMES ABEYTA AND DOROTHY R. ABEYTA’S ANSWER TO PLAINTIFF’S COMPLAINT; DEMAND FOR JURY TRIAL 1 the alleged dangerous condition of the property. 2 FIFTY-FIRST AFFIRMATIVE DEFENSE 3 (Indispensable Parties) 4 51. Plaintiff’s action is barred by the failure of Plaintiff to join, in a timely fashion, 5 indispensable and/or necessary parties. 6 FIFTY-SECOND AFFIRMATIVE DEFENSE 7 (Lack of Duty-Privity of Contract) 8 52. Defendants allege Plaintiff is barred from recovery, in whole or in part, from this 9 answering Defendants as the result of lack of privity of contract given this answering Defendants 10 owed no duty of care to Plaintiff pursuant to contract related to its work, if any, on the subject tree 11 FIFTY-THIRD AFFIRMATIVE DEFENSE 12 (Lacks Standing) 13 53. Plaintiff’s action is barred because plaintiff lacks standing. 14 RESERVATION OF RIGHTS 15 Defendants reserve the right to amend or add any additional defenses or counterclaims 16 which may become known during the course of discovery. 17 WHEREFORE , Defendants prays as follows: 18 1. That Plaintiff take nothing by the way of his Complaint; 19 2. That Defendants be awarded his costs, including reasonable attorney's fees, of 20 suit incurred herein; and 21 3. For such other and further relief as the Court deems just and proper. 22 DEMAND FOR JURY TRIAL 23 Defendants hereby demands a trial by jury. 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 13 DEFENDANTS RUBEN JAMES ABEYTA AND DOROTHY R. ABEYTA’S ANSWER TO PLAINTIFF’S COMPLAINT; DEMAND FOR JURY TRIAL 1 DATED: May 21, 2024 MESSNER REEVES LLP 2 3 AARON N. SOLEIMANI 4 Attorneys for Defendants 5 RUBEN JAMES ABEYTA DOROTHY R. ABEYTA 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 DEFENDANTS RUBEN JAMES ABEYTA AND DOROTHY R. ABEYTA’S ANSWER TO PLAINTIFF’S COMPLAINT; DEMAND FOR JURY TRIAL 1 PROOF OF SERVICE 2 At the time of service, I was over 18 years of age and not a party to this action. I am employed in the County of Orange, State of California. My business address is 611 Anton Blvd., 3 Suite 450, Costa Mesa, California 92626. 4 On May 21, 2024, I served true copies of the following document described as 5 DEFENDANTS RUBEN JAMES ABEYTA AND DOROTHY R. ABEYTA’S ANSWER TO PLAINTIFF’S COMPLAINT; DEMAND FOR JURY TRIAL on the interested parties in this 6 action as follows: 7 SEE ATTACHED SERVICE LIST 8 [X] BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to 9 the persons at the addresses listed in the Service List and placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with the practice of 10 Messner Reeves LLP for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of 11 business with the United States Postal Service, in a sealed envelope with postage fully prepaid. I 12 am a resident or employed in the county where the mailing occurred. The envelope was placed in the mail at Orange, California. 13 [X] BY E-MAIL OR ELECTRONIC TRANSMISSION: Based on a court order or an 14 agreement of the parties to accept service by e-mail or electronic transmission, I caused the document to be sent from e-mail address retownes@messner.com to the persons at the e-mail 15 addresses listed in the Service List. I did not receive, within a reasonable time after the 16 transmission, any electronic message or other indication that the transmission was unsuccessful. 17 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 18 Executed on May 21, 2024, at Costa Mesa, California. 19 20 21 /s/ Rosa Townes 22 Rosa Townes 23 24 25 26 27 28 15 DEFENDANTS RUBEN JAMES ABEYTA AND DOROTHY R. ABEYTA’S ANSWER TO PLAINTIFF’S COMPLAINT; DEMAND FOR JURY TRIAL 1 SERVICE LIST 2 Brian G . Beecher, Esq. Vivian Rivera, Esq. THE LAW OFFICES OF ARASH Martin S. McMahan, Esq. 3 KHORSANDI, PC YOKA & SMITH 4 2960 Wilshire Boulevard, Third Floor 445 South Figueroa St., 38th Fl. Los Angeles, California 90010 Los Angeles, CA 90071 5 Email: service@arashlaw.com E-Mail: vrivera@vokasmith.com bbeecher@arashlaw.com mmcmahan@vokasmith.com 6 7 Counsel for Plaintiff, Juan Jimenez Lozano Counsel for Defendant, West Coast Arborists, Inc. 8 Philip A. Segal, Esq. 9 Grace M. Harriett, Esq. KERN SEGAL & MURRAY 10 15 Southgate Ave., Suite 200 Daly City, CA 94015 11 Email: phil@kernlaw.com 12 gharriett@kernlaw.com ssears@kernlaw.com 13 Counsel for Defendant, Ronald Emanuel Clay 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 DEFENDANTS RUBEN JAMES ABEYTA AND DOROTHY R. ABEYTA’S ANSWER TO PLAINTIFF’S COMPLAINT; DEMAND FOR JURY TRIAL