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
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CHANTEL PARSONS and JONTHAN Case No.: 24CV01096
16 PARSONS,
17 Honorable Syda Kosofsky Cogliati
Plaintiffs, Dept. 5
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v. DEFENDANT FUTURE MOTION, INC.’S
19 ANSWER AND AFFIRMATIVE
FUTURE MOTION, INC., and DOES 1 - 100, DEFENSES TO PLAINTIFFS’
20
COMPLAINT
21 Defendants.
Complaint Filed: 04/16/24
22 Trial Date: None
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DEFENDANT FUTURE MOTION, INC.’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S
COMPLAINT
20831227.1
1 Defendant Future Motion, Inc. (“FM” or “Defendant”), for its Answer to Plaintiffs Chantal
2 Parsons and Jonathan Parsons’ Complaint (hereinafter, the “Complaint”), states and alleges as
3 follows:
4 GENERAL DENIAL
5 Pursuant to the provisions of California Code of Civil Procedure Section 431.30, Defendant
6 denies, generally and specifically, each and every allegation, statement, matter and purported cause
7 of action contained in the Complaint and each and every part thereof, including denying that
8 Plaintiffs were damaged in the manner or sums alleged, or in any way at all.
9 Defendant denies that any act, omission, fault or conduct on its part caused any injury or
10 damage to Plaintiffs in any manner or amount. Defendant denies that it was at fault in any way,
11 has any liability on any of Plaintiffs’ claims, including for negligence, strict liability, breach of
12 implied warranty, punitive damages, or otherwise has any liability or responsibility for any of the
13 allegations or claims in this case.
14 AFFIRMATIVE DEFENSES
15 Defendant pleads the following separate defenses in response to Plaintiffs’ Complaint.
16 Defendant reserves the right to amend or withdraw any or all defenses or to raise any and all
17 additional defenses as or after they may become known during the course of investigation,
18 discovery or trial. No assertion of any affirmative defense shall constitute either (a) an admission
19 that Plaintiffs do not bear the burden of proof or the burden of producing evidence on any element
20 of any cause of action or claim for relief or on any issue as to which a plaintiff bears the burden of
21 proof or the burden of producing evidence as a matter of law, or (b) a waiver of any defendant's
22 right to require that Plaintiffs satisfy any burden of proof or burden of producing evidence.
23 FIRST AFFIRMATIVE DEFENSE
24 (Failure to State a Claim)
25 The Complaint, and each and every claim and cause of action alleged therein, is barred
26 because it fails to state a cause of action against Defendant.
27 ///
28 ///
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DEFENDANT FUTURE MOTION, INC.’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S
COMPLAINT
20831227.1
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 Plaintiffs 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 Plaintiffs 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 Plaintiffs 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 because Plaintiffs damages, if any, were the result of an open and obvious risk of which Plaintiffs
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DEFENDANT FUTURE MOTION, INC.’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S
COMPLAINT
20831227.1
1 were or should have been aware.
2 EIGHTH AFFIRMATIVE DEFENSE
3 (Intervening and Superseding Cause)
4 The Complaint, and each and every claim and cause of action alleged therein, is barred
5 because Plaintiffs damages, if any were the result of intervening and/or superseding acts or
6 negligence of persons, parties or entities over whom Defendant had no control.
7 NINTH AFFIRMATIVE DEFENSE
8 (Modification of Product)
9 The Complaint, and each and every claim and cause of action alleged therein, is barred
10 because the product complained of was substantially modified, altered and/or damaged after it left
11 Defendant’s control.
12 TENTH AFFIRMATIVE DEFENSE
13 (Misuse)
14 The Complaint, and each and every claim and cause of action alleged therein, is barred
15 because the incident and Plaintiffs damages, if any, were cause by the unforeseeable and
16 unanticipated misuse of the product.
17 ELEVENTH AFFIRMATIVE DEFENSE
18 (No Alternative Design)
19 The Complaint, and each and every claim and cause of action alleged therein, is barred
20 because at the time the product left the control of Defendant there was not a practical and technically
21 feasible alternative design that would have prevented the alleged harm without substantially
22 impairing the reasonably anticipated or intended function of the product.
23 TWELFTH AFFIRMATIVE DEFENSE
24 (Negligence or Comparative Fault of Others)
25 Plaintiffs injuries, if and to the extent they occurred, were caused by the comparative
26 negligence and/or comparative fault of other persons and/or entities, and therefore Plaintiffs’
27 recovery, if any, must be reduced by the comparative fault of such other persons or entities.
28 ///
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DEFENDANT FUTURE MOTION, INC.’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S
COMPLAINT
20831227.1
1 THIRTEENTH AFFIRMATIVE DEFENSE
2 (Negligence or Comparative Fault of Plaintiffs)
3 Plaintiffs’ injuries, if and to the extent they occurred, were caused or contributed to by
4 Plaintiffs own recklessness, carelessness, and/or negligence, and therefore Plaintiffs’ recovery, if
5 any, must be reduced by their comparative fault.
6 FOURTEENTH AFFIRMATIVE DEFENSE
7 (Unauthorized Use)
8 The Complaint, and each and every claim and cause of action alleged therein, is barred
9 because the incident and injury, if any, were caused by the unauthorized, unintended, or improper
10 use of the product complained of and as a result of the failure to exercise reasonable and ordinary
11 care, caution or vigilance.
12 FIFTEENTH AFFIRMATIVE DEFENSE
13 (Disregard of Warnings)
14 The Complaint, and each and every claim and cause of action alleged therein, is barred for
15 failure to follow warnings and/or instructions provided by Defendant.
16 SIXTEENTH AFFIRMATIVE DEFENSE
17 (Waiver and Estoppel)
18 The Complaint, and each and every claim and cause of action alleged therein, is barred by
19 estoppel and/or waiver.
20 SEVENTEENTH AFFIRMATIVE DEFENSE
21 (Release)
22 The Complaint, and each and every claim and cause of action alleged therein, is barred by
23 the defense of release.
24 EIGHTEENTH AFFIRMATIVE DEFENSE
25 (No Breach)
26 The Complaint, and each and every claim and cause of action alleged therein, is barred
27 because Defendant did not breach any duty it may have owed to Plaintiffs.
28 ///
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DEFENDANT FUTURE MOTION, INC.’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S
COMPLAINT
20831227.1
1 NINETEENTH AFFIRMATIVE DEFENSE
2 (Compliance with the Law)
3 The Complaint, and each and every claim and cause of action alleged therein, is barred
4 because at all times relevant to this litigation, Defendant complied with all applicable laws,
5 regulations and standards.
6 TWENTIETH AFFIRMATIVE DEFENSE
7 (State of the Art)
8 The Complaint, and each and every claim and cause of action alleged therein, is barred
9 because the product was designed and manufactured consistent with the state of the art for similar
10 products at the time of its design and manufacture.
11 TWENTY-FIRST AFFIRMATIVE DEFENSE
12 (Failure to Mitigate)
13 In the event Plaintiffs failed to mitigate their damages, they are barred from recovering those
14 damages from Defendant.
15 TWENTY-SECOND AFFIRMATIVE DEFENSE
16 (Setoff)
17 Plaintiffs damages, if any, must be set off against any payments received from a collateral
18 source.
19 TWENTY-THIRD AFFIRMATIVE DEFENSE
20 (Force Majeure)
21 The Complaint, and each and every claim and cause of action alleged therein, is barred
22 because any injuries and/or losses alleged by Plaintiffs were caused in whole or in part through the
23 operation of nature or other intervening causes or both.
24 TWENTY-FOURTH AFFIRMATIVE DEFENSE
25 (No Damages)
26 The Complaint, and each and every claim and cause of action alleged therein, is barred
27 because Plaintiffs has neither incurred nor paid any medical expenses as alleged.
28 ///
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DEFENDANT FUTURE MOTION, INC.’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S
COMPLAINT
20831227.1
1 TWENTY-FIFTH AFFIRMATIVE DEFENSE
2 (Settlement Offsets)
3 Defendant is entitled to a setoff amount for all sums of money recovered by or on behalf of
4 Plaintiffs by way of any settlement, judgment or otherwise which were entered into or received by
5 Plaintiffs from any party or non-party in this action.
6 TWENTY-SIXTH AFFIRMATIVE DEFENSE
7 (Evidence Barred)
8 If Plaintiffs or any other party has failed or fails to preserve evidence pertaining to the
9 allegedly defective product, then Plaintiffs and/or the other party may not introduce evidence
10 related to or based upon such lost, destroyed or altered evidence and, therefore, some or all of the
11 claims asserted by Plaintiffs and/or other parties may be barred.
12 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
13 (Standing)
14 The Complaint is barred, in whole or in part, because Plaintiffs lack standing to pursue one
15 or more of the causes of actions asserted.
16 TWENTY-EIGHTH AFFIRMATIVE DEFENSE
17 (Defendant Fulfilled Duty to Warn)
18 The Complaint, and each and every claim and cause of action alleged therein, is barred
19 because Defendant discharged its duty to warn of dangers embodied in the subject product, if any
20 such duty or dangers existed, by providing adequate warnings and instructions to Plaintiffs.
21 TWENTY-NINTH AFFIRMATIVE DEFENSE
22 (Lack of Causation)
23 The Complaint is barred, in whole or in part, because Plaintiff cannot establish that the
24 conduct of Defendant was the cause in fact or the proximate cause of any injuries or damages
25 alleged by Plaintiffs.
26 THIRTIETH AFFIRMATIVE DEFENSE
27 (Inherent Risk – No Duty)
28 Defendant alleges that Plaintiffs alleged injuries and damages, if any, resulted from inherent
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DEFENDANT FUTURE MOTION, INC.’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S
COMPLAINT
20831227.1
1 risks of the activity in which Plaintiffs voluntarily engaged and as to which Defendant owed no
2 duty.
3 THIRTY - FIRST AFFIRMATIVE DEFENSE
4 (Several Liability)
5 Defendant contends that if liability is assessed against them, pursuant to Civil Code section
6 1431 et seq., they shall be liable only for the amount of non-economic damages allocated to them
7 in direct proportion to the percentage of fault assessed against them by the trier of fact. Further,
8 Defendant requests that a separate judgment be rendered against them for that amount; but
9 Defendant, in setting forth this affirmative defense, make no admission that they are liable to
10 Plaintiffs in any amount or in any proportion; and Defendant, in setting forth this affirmative
11 defense, makes no admission that Plaintiffs have been damaged in any sum or sums at all.
12 THIRTY - SECOND AFFIRMATIVE DEFENSE
13 (Punitive Damages Limited)
14 For Plaintiffs’ claim for punitive damages, Defendant specifically incorporates by reference
15 any and all standards of limitations regarding the determination and/or enforceability of punitive
16 damages awards that arose in the decisions of BMW of No. America v. Gore, 517 U.S. 559 (1996);
17 Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001); State Farm Mut.
18 Auto Ins. Co. v. Campbell, 123 S. Ct. 1513 (2003); and Exxon Shipping Co. v. Baker, No. 07-219,
19 2008 U.S. LEXIS 5263 (U.S. June 25, 2008) and their progeny, as well as other similar cases under
20 both federal and state law.
21 THIRTY - THIRD AFFIRMATIVE DEFENSE
22 (No Punitive Damages)
23 Plaintiffs are not entitled to punitive damages because an award of punitive damages
24 violates the Fifth and Fourteenth Amendments to the United States Constitution and the applicable
25 State’s Constitution.
26 THIRTY - FOURTH AFFIRMATIVE DEFENSE
27 (Punitive Damages Barred)
28 The Complaint fails to properly state a claim for punitive damages under Cal. Civ. Code
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DEFENDANT FUTURE MOTION, INC.’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S
COMPLAINT
20831227.1
1 sections 3294, et seq., or otherwise.
2 THIRTY - FIFTH AFFIRMATIVE DEFENSE
3 (Right to Amend)
4 Defendant reserves the right to amend their Answer and to rely upon affirmative defenses
5 as may hereafter be disclosed by further investigation and discovery.
6 Prayer for Relief
7 WHEREFORE, Defendant Future Motion prays that:
8 a. Plaintiffs’ Complaint be dismissed with prejudice, that Plaintiffs take nothing
9 thereby, and that judgment be entered against Plaintiffs and in favor of Defendant;
10 b. Defendant be awarded its costs and reasonable attorneys’ fees incurred in
11 connection with the defense of this action; and
12 c. Defendant be awarded such other and further relief as the Court deems just and
13 proper.
14 DEFENDANT DEMANDS A JURY TRIAL
15 DATED: May 21, 2024 HANSON BRIDGETT LLP
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17
By:
18 SHANNON M. NESSIER
19 KAYLEN KADOTANI
CARSON R. NIELLO
20 Attorneys for Defendant
FUTURE MOTION, INC.
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DEFENDANT FUTURE MOTION, INC.’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S
COMPLAINT
20831227.1
PROOF OF SERVICE
1
2 Chantal Parsons, et al. v. Future Motion, Inc., et al.
Santa Cruz County Superior Court Case No.: 24CV01096
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
On May 21, 2024, I served true copies of the following document(s) described as:
6
DEFENDANT FUTURE MOTION, INC.’S ANSWER AND AFFIRMATIVE DEFENSES
7
TO PLAINTIFF’S COMPLAINT
8
on the interested parties in this action as follows:
9 Timothy F. Pearce Attorneys for Plaintiff
Stuart B. Lewis
10 Anya Fuchs
11 Hannah B. Oxley
PEARCE LEWIS LLP
12 423 Washington Street, Suite 510
San Francisco, CA 94111
13 PLOnewheel@pearcelewis.com
14
Aaron Heckaman Attorneys for Plaintiff
15
Robert W. Cowan
16 BAILEY COWAN HECKAMAN PLLC
1360 Post Oak Blvd., Suite 2300
17 Houston, TX 77056
onewheel@bchlaw.com
18
19
BY E-MAIL OR ELECTRONIC TRANSMISSION: I caused a copy of the document(s)
20 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
21 electronic message or other indication that the transmission was unsuccessful.
22 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.
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26 Grace M. Mohr
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DEFENDANT FUTURE MOTION, INC.’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S
COMPLAINT
20831227.1
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 CHANTEL PARSONS and JONTHAN Case No.: 24CV01096 16 PARSONS, 17 Honorable Syda Kosofsky Cogliati Plaintiffs, Dept. 5 18 v. DEFENDANT FUTURE MOTION, INC.’S 19 ANSWER AND AFFIRMATIVE FUTURE MOTION, INC., and DOES 1 - 100, DEFENSES TO PLAINTIFFS’ 20 COMPLAINT 21 Defendants. Complaint Filed: 04/16/24 22 Trial Date: None 23 24 25 26 27 28 DEFENDANT FUTURE MOTION, INC.’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S COMPLAINT 20831227.1 1 Defendant Future Motion, Inc. (“FM” or “Defendant”), for its Answer to Plaintiffs Chantal 2 Parsons and Jonathan Parsons’ Complaint (hereinafter, the “Complaint”), states and alleges as 3 follows: 4 GENERAL DENIAL 5 Pursuant to the provisions of California Code of Civil Procedure Section 431.30, Defendant 6 denies, generally and specifically, each and every allegation, statement, matter and purported cause 7 of action contained in the Complaint and each and every part thereof, including denying that 8 Plaintiffs were damaged in the manner or sums alleged, or in any way at all. 9 Defendant denies that any act, omission, fault or conduct on its part caused any injury or 10 damage to Plaintiffs in any manner or amount. Defendant denies that it was at fault in any way, 11 has any liability on any of Plaintiffs’ claims, including for negligence, strict liability, breach of 12 implied warranty, punitive damages, or otherwise has any liability or responsibility for any of the 13 allegations or claims in this case. 14 AFFIRMATIVE DEFENSES 15 Defendant pleads the following separate defenses in response to Plaintiffs’ Complaint. 16 Defendant reserves the right to amend or withdraw any or all defenses or to raise any and all 17 additional defenses as or after they may become known during the course of investigation, 18 discovery or trial. No assertion of any affirmative defense shall constitute either (a) an admission 19 that Plaintiffs do not bear the burden of proof or the burden of producing evidence on any element 20 of any cause of action or claim for relief or on any issue as to which a plaintiff bears the burden of 21 proof or the burden of producing evidence as a matter of law, or (b) a waiver of any defendant's 22 right to require that Plaintiffs satisfy any burden of proof or burden of producing evidence. 23 FIRST AFFIRMATIVE DEFENSE 24 (Failure to State a Claim) 25 The Complaint, and each and every claim and cause of action alleged therein, is barred 26 because it fails to state a cause of action against Defendant. 27 /// 28 /// -1- DEFENDANT FUTURE MOTION, INC.’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S COMPLAINT 20831227.1 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 Plaintiffs 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 Plaintiffs 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 Plaintiffs 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 because Plaintiffs damages, if any, were the result of an open and obvious risk of which Plaintiffs -2- DEFENDANT FUTURE MOTION, INC.’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S COMPLAINT 20831227.1 1 were or should have been aware. 2 EIGHTH AFFIRMATIVE DEFENSE 3 (Intervening and Superseding Cause) 4 The Complaint, and each and every claim and cause of action alleged therein, is barred 5 because Plaintiffs damages, if any were the result of intervening and/or superseding acts or 6 negligence of persons, parties or entities over whom Defendant had no control. 7 NINTH AFFIRMATIVE DEFENSE 8 (Modification of Product) 9 The Complaint, and each and every claim and cause of action alleged therein, is barred 10 because the product complained of was substantially modified, altered and/or damaged after it left 11 Defendant’s control. 12 TENTH AFFIRMATIVE DEFENSE 13 (Misuse) 14 The Complaint, and each and every claim and cause of action alleged therein, is barred 15 because the incident and Plaintiffs damages, if any, were cause by the unforeseeable and 16 unanticipated misuse of the product. 17 ELEVENTH AFFIRMATIVE DEFENSE 18 (No Alternative Design) 19 The Complaint, and each and every claim and cause of action alleged therein, is barred 20 because at the time the product left the control of Defendant there was not a practical and technically 21 feasible alternative design that would have prevented the alleged harm without substantially 22 impairing the reasonably anticipated or intended function of the product. 23 TWELFTH AFFIRMATIVE DEFENSE 24 (Negligence or Comparative Fault of Others) 25 Plaintiffs injuries, if and to the extent they occurred, were caused by the comparative 26 negligence and/or comparative fault of other persons and/or entities, and therefore Plaintiffs’ 27 recovery, if any, must be reduced by the comparative fault of such other persons or entities. 28 /// -3- DEFENDANT FUTURE MOTION, INC.’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S COMPLAINT 20831227.1 1 THIRTEENTH AFFIRMATIVE DEFENSE 2 (Negligence or Comparative Fault of Plaintiffs) 3 Plaintiffs’ injuries, if and to the extent they occurred, were caused or contributed to by 4 Plaintiffs own recklessness, carelessness, and/or negligence, and therefore Plaintiffs’ recovery, if 5 any, must be reduced by their comparative fault. 6 FOURTEENTH AFFIRMATIVE DEFENSE 7 (Unauthorized Use) 8 The Complaint, and each and every claim and cause of action alleged therein, is barred 9 because the incident and injury, if any, were caused by the unauthorized, unintended, or improper 10 use of the product complained of and as a result of the failure to exercise reasonable and ordinary 11 care, caution or vigilance. 12 FIFTEENTH AFFIRMATIVE DEFENSE 13 (Disregard of Warnings) 14 The Complaint, and each and every claim and cause of action alleged therein, is barred for 15 failure to follow warnings and/or instructions provided by Defendant. 16 SIXTEENTH AFFIRMATIVE DEFENSE 17 (Waiver and Estoppel) 18 The Complaint, and each and every claim and cause of action alleged therein, is barred by 19 estoppel and/or waiver. 20 SEVENTEENTH AFFIRMATIVE DEFENSE 21 (Release) 22 The Complaint, and each and every claim and cause of action alleged therein, is barred by 23 the defense of release. 24 EIGHTEENTH AFFIRMATIVE DEFENSE 25 (No Breach) 26 The Complaint, and each and every claim and cause of action alleged therein, is barred 27 because Defendant did not breach any duty it may have owed to Plaintiffs. 28 /// -4- DEFENDANT FUTURE MOTION, INC.’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S COMPLAINT 20831227.1 1 NINETEENTH AFFIRMATIVE DEFENSE 2 (Compliance with the Law) 3 The Complaint, and each and every claim and cause of action alleged therein, is barred 4 because at all times relevant to this litigation, Defendant complied with all applicable laws, 5 regulations and standards. 6 TWENTIETH AFFIRMATIVE DEFENSE 7 (State of the Art) 8 The Complaint, and each and every claim and cause of action alleged therein, is barred 9 because the product was designed and manufactured consistent with the state of the art for similar 10 products at the time of its design and manufacture. 11 TWENTY-FIRST AFFIRMATIVE DEFENSE 12 (Failure to Mitigate) 13 In the event Plaintiffs failed to mitigate their damages, they are barred from recovering those 14 damages from Defendant. 15 TWENTY-SECOND AFFIRMATIVE DEFENSE 16 (Setoff) 17 Plaintiffs damages, if any, must be set off against any payments received from a collateral 18 source. 19 TWENTY-THIRD AFFIRMATIVE DEFENSE 20 (Force Majeure) 21 The Complaint, and each and every claim and cause of action alleged therein, is barred 22 because any injuries and/or losses alleged by Plaintiffs were caused in whole or in part through the 23 operation of nature or other intervening causes or both. 24 TWENTY-FOURTH AFFIRMATIVE DEFENSE 25 (No Damages) 26 The Complaint, and each and every claim and cause of action alleged therein, is barred 27 because Plaintiffs has neither incurred nor paid any medical expenses as alleged. 28 /// -5- DEFENDANT FUTURE MOTION, INC.’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S COMPLAINT 20831227.1 1 TWENTY-FIFTH AFFIRMATIVE DEFENSE 2 (Settlement Offsets) 3 Defendant is entitled to a setoff amount for all sums of money recovered by or on behalf of 4 Plaintiffs by way of any settlement, judgment or otherwise which were entered into or received by 5 Plaintiffs from any party or non-party in this action. 6 TWENTY-SIXTH AFFIRMATIVE DEFENSE 7 (Evidence Barred) 8 If Plaintiffs or any other party has failed or fails to preserve evidence pertaining to the 9 allegedly defective product, then Plaintiffs and/or the other party may not introduce evidence 10 related to or based upon such lost, destroyed or altered evidence and, therefore, some or all of the 11 claims asserted by Plaintiffs and/or other parties may be barred. 12 TWENTY-SEVENTH AFFIRMATIVE DEFENSE 13 (Standing) 14 The Complaint is barred, in whole or in part, because Plaintiffs lack standing to pursue one 15 or more of the causes of actions asserted. 16 TWENTY-EIGHTH AFFIRMATIVE DEFENSE 17 (Defendant Fulfilled Duty to Warn) 18 The Complaint, and each and every claim and cause of action alleged therein, is barred 19 because Defendant discharged its duty to warn of dangers embodied in the subject product, if any 20 such duty or dangers existed, by providing adequate warnings and instructions to Plaintiffs. 21 TWENTY-NINTH AFFIRMATIVE DEFENSE 22 (Lack of Causation) 23 The Complaint is barred, in whole or in part, because Plaintiff cannot establish that the 24 conduct of Defendant was the cause in fact or the proximate cause of any injuries or damages 25 alleged by Plaintiffs. 26 THIRTIETH AFFIRMATIVE DEFENSE 27 (Inherent Risk – No Duty) 28 Defendant alleges that Plaintiffs alleged injuries and damages, if any, resulted from inherent -6- DEFENDANT FUTURE MOTION, INC.’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S COMPLAINT 20831227.1 1 risks of the activity in which Plaintiffs voluntarily engaged and as to which Defendant owed no 2 duty. 3 THIRTY - FIRST AFFIRMATIVE DEFENSE 4 (Several Liability) 5 Defendant contends that if liability is assessed against them, pursuant to Civil Code section 6 1431 et seq., they shall be liable only for the amount of non-economic damages allocated to them 7 in direct proportion to the percentage of fault assessed against them by the trier of fact. Further, 8 Defendant requests that a separate judgment be rendered against them for that amount; but 9 Defendant, in setting forth this affirmative defense, make no admission that they are liable to 10 Plaintiffs in any amount or in any proportion; and Defendant, in setting forth this affirmative 11 defense, makes no admission that Plaintiffs have been damaged in any sum or sums at all. 12 THIRTY - SECOND AFFIRMATIVE DEFENSE 13 (Punitive Damages Limited) 14 For Plaintiffs’ claim for punitive damages, Defendant specifically incorporates by reference 15 any and all standards of limitations regarding the determination and/or enforceability of punitive 16 damages awards that arose in the decisions of BMW of No. America v. Gore, 517 U.S. 559 (1996); 17 Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001); State Farm Mut. 18 Auto Ins. Co. v. Campbell, 123 S. Ct. 1513 (2003); and Exxon Shipping Co. v. Baker, No. 07-219, 19 2008 U.S. LEXIS 5263 (U.S. June 25, 2008) and their progeny, as well as other similar cases under 20 both federal and state law. 21 THIRTY - THIRD AFFIRMATIVE DEFENSE 22 (No Punitive Damages) 23 Plaintiffs are not entitled to punitive damages because an award of punitive damages 24 violates the Fifth and Fourteenth Amendments to the United States Constitution and the applicable 25 State’s Constitution. 26 THIRTY - FOURTH AFFIRMATIVE DEFENSE 27 (Punitive Damages Barred) 28 The Complaint fails to properly state a claim for punitive damages under Cal. Civ. Code -7- DEFENDANT FUTURE MOTION, INC.’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S COMPLAINT 20831227.1 1 sections 3294, et seq., or otherwise. 2 THIRTY - FIFTH AFFIRMATIVE DEFENSE 3 (Right to Amend) 4 Defendant reserves the right to amend their Answer and to rely upon affirmative defenses 5 as may hereafter be disclosed by further investigation and discovery. 6 Prayer for Relief 7 WHEREFORE, Defendant Future Motion prays that: 8 a. Plaintiffs’ Complaint be dismissed with prejudice, that Plaintiffs take nothing 9 thereby, and that judgment be entered against Plaintiffs and in favor of Defendant; 10 b. Defendant be awarded its costs and reasonable attorneys’ fees incurred in 11 connection with the defense of this action; and 12 c. Defendant be awarded such other and further relief as the Court deems just and 13 proper. 14 DEFENDANT DEMANDS A JURY TRIAL 15 DATED: May 21, 2024 HANSON BRIDGETT LLP 16 17 By: 18 SHANNON M. NESSIER 19 KAYLEN KADOTANI CARSON R. NIELLO 20 Attorneys for Defendant FUTURE MOTION, INC. 21 22 23 24 25 26 27 28 -8- DEFENDANT FUTURE MOTION, INC.’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S COMPLAINT 20831227.1 PROOF OF SERVICE 1 2 Chantal Parsons, et al. v. Future Motion, Inc., et al. Santa Cruz County Superior Court Case No.: 24CV01096 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 On May 21, 2024, I served true copies of the following document(s) described as: 6 DEFENDANT FUTURE MOTION, INC.’S ANSWER AND AFFIRMATIVE DEFENSES 7 TO PLAINTIFF’S COMPLAINT 8 on the interested parties in this action as follows: 9 Timothy F. Pearce Attorneys for Plaintiff Stuart B. Lewis 10 Anya Fuchs 11 Hannah B. Oxley PEARCE LEWIS LLP 12 423 Washington Street, Suite 510 San Francisco, CA 94111 13 PLOnewheel@pearcelewis.com 14 Aaron Heckaman Attorneys for Plaintiff 15 Robert W. Cowan 16 BAILEY COWAN HECKAMAN PLLC 1360 Post Oak Blvd., Suite 2300 17 Houston, TX 77056 onewheel@bchlaw.com 18 19 BY E-MAIL OR ELECTRONIC TRANSMISSION: I caused a copy of the document(s) 20 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 21 electronic message or other indication that the transmission was unsuccessful. 22 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 23 Executed on May 21, 2024. 24 25 26 Grace M. Mohr 27 28 -9- DEFENDANT FUTURE MOTION, INC.’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S COMPLAINT 20831227.1