Preview
1 LEWIS BRISBOIS BISGAARD & SMITH LLP
JOHN S. LOWENTHAL, SB# 120628
2 E-Mail: John.Lowenthal@lewisbrisbois.com
MANUEL SARMIENTO, SB# 252419
3 E-Mail: Manuel.Sarmiento@lewisbrisbois.com
650 East Hospitality Lane, Suite 600
4 San Bernardino, California 92408
Telephone: 909.387.1130
5 Facsimile: 909.387.1138
6 Attorneys for Defendant
ONKAR TRUCKING, INC.
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF KERN
10
11 MARIO JUNIOR AVILA, Case No. BCV-24-101092
12 Plaintiff, DEFENDANT ONKAR TRUCKING,
INC.’S ANSWER TO COMPLAINT
13 vs.
Action Filed: 4/3/2024
14 ONKAR TRUCKING INC.; ERIC Trial Date: None Set
DEWAYNE WILLIAMS; et al.,
15
Defendant.
16
17 COMES NOW Defendant ONKAR TRUCKING, INC. (hereinafter “Defendant”), and
18 answering Plaintiff MARIO JUNIOR AVILA’s (hereinafter “Plaintiff”), Complaint on file herein
19 admits, denies, and alleges as follows:
20 GENERAL DENIAL
21 In accordance with California Code of Civil Procedure section 431.30, this answering
22 Defendant generally and specifically denies each and every allegation set forth in Plaintiff’s
23 Complaint, and the whole thereof, and each and every alleged cause of action therein. Defendant
24 further denies that Plaintiff sustained damages in the sums alleged, or in any other sum at all, by
25 reason of any act, omission, or breach of Defendant.
26 / / /
27 / / /
28 / / /
LEWIS
BRISBOIS
BISGAARD 140559459.1
& SMITH LLP
ATTORNEYS AT LAW DEFENDANT ONKAR TRUCKING, INC.’S ANSWER TO COMPLAINT
1 FIRST AFFIRMATIVE DEFENSE
2 (Failure to State a Cause of Action)
3 1. The Complaint, and each cause of action contained therein, fails to state facts
4 sufficient to constitute a cause of action against this answering Defendant.
5 SECOND AFFIRMATIVE DEFENSE
6 (Uncertainty)
7 2. The Complaint, and each and every purported cause of action contained therein, are
8 uncertain, vague, ambiguous, and unintelligible.
9 THIRD AFFIRMATIVE DEFENSE
10 (Civil Code Section 1431.2)
11 3. In the event Defendant is found liable to Plaintiff, liability should be reduced by the
12 percentage of fault attributable to Plaintiff and all others; and said liability for non-economic losses
13 of this answering Defendant in several only, and not joint, such that Defendant shall be responsible
14 only for the amount of non-economic losses allocated to it in direct proportion to its percentage of
15 fault pursuant to the provisions of California Civil Code, Sections 1431.1 and 1431.2.
16 FOURTH AFFIRMATIVE DEFENSE
17 (Comparative Negligence)
18 4. Defendant alleges that Plaintiff was negligent, and that Plaintiff’s acts or omissions,
19 or failure to exercise reasonable care, in a manner expected of a reasonably prudent person,
20 contributed to the injuries complained of, if any; this negligence proximately caused, in whole or in
21 part, the damages alleged in the Complaint. In the event Plaintiff is entitled to any damages, the
22 amount of those damages should be reduced by the comparative fault of Plaintiff.
23 FIFTH AFFIRMATIVE DEFENSE
24 (Assumption of Risk)
25 5. That Plaintiff voluntarily and knowingly exposed himself to a known danger and
26 thereby assumed the risk of any injury or damage resulting from said danger.
27 / / /
28 / / /
LEWIS
BRISBOIS
BISGAARD
& SMITH LLP
140559459.1 2
ATTORNEYS AT LAW DEFENDANT ONKAR TRUCKING, INC.’S ANSWER TO COMPLAINT
1 SIXTH AFFIRMATIVE DEFENSE
2 (Failure to Mitigate)
3 6. Plaintiff failed to mitigate his alleged damages, if any, and said failure to mitigate
4 has proximately caused or contributed to the matters complained of and the damages alleged in the
5 Complaint, if any. Therefore, the amount of damages to which Plaintiff may be entitled, if any,
6 should be reduced by the amount of damages which would have otherwise been mitigated.
7 SEVENTH AFFIRMATIVE DEFENSE
8 (Negligence of Others)
9 7. The injuries alleged by Plaintiff, if any, were proximately caused by the negligence
10 and liability of other persons or entities, and this answering Defendant requests that an allocation of
11 such negligence and liability be made among such persons or entities, and that if any liability is
12 found on the part of this answering Defendant, judgment against said Defendant be only in the
13 amount which is proportionate to the extent and percentage by which this answering Defendant’s
14 acts or omissions contributed to the injuries or damages alleged by Plaintiff.
15 EIGHTH AFFIRMATIVE DEFENSE
16 (Intervening/Superseding Cause)
17 8. Defendant alleges that if Plaintiff suffered or sustained any loss, injury, damage or
18 detriment, the same was directly and proximately caused and contributed to by the intervening
19 and/or superseding acts of other parties, either served or unserved, and not this answering Defendant,
20 thus barring any recovery against Defendant.
21 NINTH AFFIRMATIVE DEFENSE
22 (Force Majeure)
23 9. This answering Defendant, its agents or employees, are not liable for the damages, if
24 any, alleged in the Complaint of Plaintiff in that such damages, if any, were the result of no human
25 intervention, but were solely caused by the irresistible, superhuman cause, or Act of God, which
26 was unforeseeable and whose effects could not be prevented by the exercise of prudence, diligence
27 and care.
28 / / /
LEWIS
BRISBOIS
BISGAARD
& SMITH LLP
140559459.1 3
ATTORNEYS AT LAW DEFENDANT ONKAR TRUCKING, INC.’S ANSWER TO COMPLAINT
1 TENTH AFFIRMATIVE DEFENSE
2 (Estoppel)
3 10. The Plaintiff’s own conduct estops him from seeking the relief claimed in this
4 lawsuit.
5 ELEVENTH AFFIRMATIVE DEFENSE
6 (Additional Defenses)
7 11. Defendant presently has insufficient knowledge or information on which to form a
8 belief as to whether there may be additional, as yet, unstated affirmative defenses available.
9 Defendant reserves herein the right to assert additional defenses in the event that discovery indicates
10 they would be appropriate
11 PRAYER FOR RELIEF
12 WHEREFORE, Defendant prays that this Honorable Court:
13 1. Dismiss the Complaint against this answering Defendant in its entirety, with
14 prejudice, and order that Plaintiff take nothing by way of the Complaint.
15 2. Enter judgment in favor of Defendant.
16 3. Award Defendant costs of suit, including its attorney’s fees and Court costs.
17 4. In the event Plaintiff should prove the right to recover damages from Defendant, that
18 the Court reduce any award, verdict, or judgment in favor of Plaintiff in proportion to that degree of
19 fault found to be the proximate cause of Plaintiff’s injuries and/or damages which are attributable
20 to Plaintiff and/or others; and
21 5. Award Defendant with such other and further relief as this Honorable Court may
22 deem proper.
23 / / /
24 / / /
25 / / /
26
27
28
LEWIS
BRISBOIS
BISGAARD
& SMITH LLP
140559459.1 4
ATTORNEYS AT LAW DEFENDANT ONKAR TRUCKING, INC.’S ANSWER TO COMPLAINT
1 JURY DEMAND
2 These answering Defendants demand a jury trial in this matter.
3 DATED: May 21, 2024 LEWIS BRISBOIS BISGAARD & SMITH LLP
4
5
By:
6 MANUEL SARMIENTO
Attorneys for Defendant
7 ONKAR TRUCKING, INC.
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
LEWIS
BRISBOIS
BISGAARD
& SMITH LLP
140559459.1 5
ATTORNEYS AT LAW DEFENDANT ONKAR TRUCKING, INC.’S ANSWER TO COMPLAINT
1 CALIFORNIA STATE COURT PROOF OF SERVICE
2
STATE OF CALIFORNIA, COUNTY OF SAN BERNARDINO
3
At the time of service, I was over 18 years of age and not a party to this action. My
4 business address is 650 East Hospitality Lane, Suite 600, San Bernardino, CA 92408.
5 On May 21, 2024, I served true copies of the following document(s): DEFENDANT
ONKAR TRUCKING, INC.’S ANSWER TO COMPLAINT
6
I served the documents on the following persons at the following addresses (including fax
7 numbers and e-mail addresses, if applicable):
8 SEE ATTACHED SERVICE LIST
9 The documents were served by the following means:
10 (BY E-MAIL OR ELECTRONIC TRANSMISSION) Based on a court order or an
agreement of the parties to accept service by e-mail or electronic transmission, I caused the
11 documents to be sent from e-mail address SHARON.MOORE-
DUNCAN@LEWISBRISBOIS.COM to the persons at the e-mail addresses listed above. I
12 did not receive, within a reasonable time after the transmission, any electronic message or
other indication that the transmission was unsuccessful.
13
I declare under penalty of perjury under the laws of the State of California that the
14 foregoing is true and correct.
15 Executed on May 21, 2024, at San Bernardino, California.
16
17
18 SHARON DENISE MOORE-DUNCAN
19
20
21
22
23
24
25
26
27
28
LEWIS
BRISBOIS
BISGAARD
& SMITH LLP
140559459.1 6
ATTORNEYS AT LAW DEFENDANT ONKAR TRUCKING, INC.’S ANSWER TO COMPLAINT
1 SERVICE LIST
2
3 John Ksajikian, Esquire
MEGEREDCHIAN LAW, APC
4 350 North Glenoaks Boulevard, Fl.3
Burbank, California 91502
5 litigation@megeredchianlaw.com
erika@megeredchianlaw.com
6 monika@megeredchianlaw.com
alex@megeredchianlaw.com
7 john@megeredchianlaw.com
karin@megeredchianlaw.com
8 Attorneys for Plaintiff
MARIO JUNIOR AVILA
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
LEWIS
BRISBOIS
BISGAARD
& SMITH LLP
140559459.1 7
ATTORNEYS AT LAW DEFENDANT ONKAR TRUCKING, INC.’S ANSWER TO COMPLAINT
Preview
1 LEWIS BRISBOIS BISGAARD & SMITH LLP JOHN S. LOWENTHAL, SB# 120628 2 E-Mail: John.Lowenthal@lewisbrisbois.com MANUEL SARMIENTO, SB# 252419 3 E-Mail: Manuel.Sarmiento@lewisbrisbois.com 650 East Hospitality Lane, Suite 600 4 San Bernardino, California 92408 Telephone: 909.387.1130 5 Facsimile: 909.387.1138 6 Attorneys for Defendant ONKAR TRUCKING, INC. 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF KERN 10 11 MARIO JUNIOR AVILA, Case No. BCV-24-101092 12 Plaintiff, DEFENDANT ONKAR TRUCKING, INC.’S ANSWER TO COMPLAINT 13 vs. Action Filed: 4/3/2024 14 ONKAR TRUCKING INC.; ERIC Trial Date: None Set DEWAYNE WILLIAMS; et al., 15 Defendant. 16 17 COMES NOW Defendant ONKAR TRUCKING, INC. (hereinafter “Defendant”), and 18 answering Plaintiff MARIO JUNIOR AVILA’s (hereinafter “Plaintiff”), Complaint on file herein 19 admits, denies, and alleges as follows: 20 GENERAL DENIAL 21 In accordance with California Code of Civil Procedure section 431.30, this answering 22 Defendant generally and specifically denies each and every allegation set forth in Plaintiff’s 23 Complaint, and the whole thereof, and each and every alleged cause of action therein. Defendant 24 further denies that Plaintiff sustained damages in the sums alleged, or in any other sum at all, by 25 reason of any act, omission, or breach of Defendant. 26 / / / 27 / / / 28 / / / LEWIS BRISBOIS BISGAARD 140559459.1 & SMITH LLP ATTORNEYS AT LAW DEFENDANT ONKAR TRUCKING, INC.’S ANSWER TO COMPLAINT 1 FIRST AFFIRMATIVE DEFENSE 2 (Failure to State a Cause of Action) 3 1. The Complaint, and each cause of action contained therein, fails to state facts 4 sufficient to constitute a cause of action against this answering Defendant. 5 SECOND AFFIRMATIVE DEFENSE 6 (Uncertainty) 7 2. The Complaint, and each and every purported cause of action contained therein, are 8 uncertain, vague, ambiguous, and unintelligible. 9 THIRD AFFIRMATIVE DEFENSE 10 (Civil Code Section 1431.2) 11 3. In the event Defendant is found liable to Plaintiff, liability should be reduced by the 12 percentage of fault attributable to Plaintiff and all others; and said liability for non-economic losses 13 of this answering Defendant in several only, and not joint, such that Defendant shall be responsible 14 only for the amount of non-economic losses allocated to it in direct proportion to its percentage of 15 fault pursuant to the provisions of California Civil Code, Sections 1431.1 and 1431.2. 16 FOURTH AFFIRMATIVE DEFENSE 17 (Comparative Negligence) 18 4. Defendant alleges that Plaintiff was negligent, and that Plaintiff’s acts or omissions, 19 or failure to exercise reasonable care, in a manner expected of a reasonably prudent person, 20 contributed to the injuries complained of, if any; this negligence proximately caused, in whole or in 21 part, the damages alleged in the Complaint. In the event Plaintiff is entitled to any damages, the 22 amount of those damages should be reduced by the comparative fault of Plaintiff. 23 FIFTH AFFIRMATIVE DEFENSE 24 (Assumption of Risk) 25 5. That Plaintiff voluntarily and knowingly exposed himself to a known danger and 26 thereby assumed the risk of any injury or damage resulting from said danger. 27 / / / 28 / / / LEWIS BRISBOIS BISGAARD & SMITH LLP 140559459.1 2 ATTORNEYS AT LAW DEFENDANT ONKAR TRUCKING, INC.’S ANSWER TO COMPLAINT 1 SIXTH AFFIRMATIVE DEFENSE 2 (Failure to Mitigate) 3 6. Plaintiff failed to mitigate his alleged damages, if any, and said failure to mitigate 4 has proximately caused or contributed to the matters complained of and the damages alleged in the 5 Complaint, if any. Therefore, the amount of damages to which Plaintiff may be entitled, if any, 6 should be reduced by the amount of damages which would have otherwise been mitigated. 7 SEVENTH AFFIRMATIVE DEFENSE 8 (Negligence of Others) 9 7. The injuries alleged by Plaintiff, if any, were proximately caused by the negligence 10 and liability of other persons or entities, and this answering Defendant requests that an allocation of 11 such negligence and liability be made among such persons or entities, and that if any liability is 12 found on the part of this answering Defendant, judgment against said Defendant be only in the 13 amount which is proportionate to the extent and percentage by which this answering Defendant’s 14 acts or omissions contributed to the injuries or damages alleged by Plaintiff. 15 EIGHTH AFFIRMATIVE DEFENSE 16 (Intervening/Superseding Cause) 17 8. Defendant alleges that if Plaintiff suffered or sustained any loss, injury, damage or 18 detriment, the same was directly and proximately caused and contributed to by the intervening 19 and/or superseding acts of other parties, either served or unserved, and not this answering Defendant, 20 thus barring any recovery against Defendant. 21 NINTH AFFIRMATIVE DEFENSE 22 (Force Majeure) 23 9. This answering Defendant, its agents or employees, are not liable for the damages, if 24 any, alleged in the Complaint of Plaintiff in that such damages, if any, were the result of no human 25 intervention, but were solely caused by the irresistible, superhuman cause, or Act of God, which 26 was unforeseeable and whose effects could not be prevented by the exercise of prudence, diligence 27 and care. 28 / / / LEWIS BRISBOIS BISGAARD & SMITH LLP 140559459.1 3 ATTORNEYS AT LAW DEFENDANT ONKAR TRUCKING, INC.’S ANSWER TO COMPLAINT 1 TENTH AFFIRMATIVE DEFENSE 2 (Estoppel) 3 10. The Plaintiff’s own conduct estops him from seeking the relief claimed in this 4 lawsuit. 5 ELEVENTH AFFIRMATIVE DEFENSE 6 (Additional Defenses) 7 11. Defendant presently has insufficient knowledge or information on which to form a 8 belief as to whether there may be additional, as yet, unstated affirmative defenses available. 9 Defendant reserves herein the right to assert additional defenses in the event that discovery indicates 10 they would be appropriate 11 PRAYER FOR RELIEF 12 WHEREFORE, Defendant prays that this Honorable Court: 13 1. Dismiss the Complaint against this answering Defendant in its entirety, with 14 prejudice, and order that Plaintiff take nothing by way of the Complaint. 15 2. Enter judgment in favor of Defendant. 16 3. Award Defendant costs of suit, including its attorney’s fees and Court costs. 17 4. In the event Plaintiff should prove the right to recover damages from Defendant, that 18 the Court reduce any award, verdict, or judgment in favor of Plaintiff in proportion to that degree of 19 fault found to be the proximate cause of Plaintiff’s injuries and/or damages which are attributable 20 to Plaintiff and/or others; and 21 5. Award Defendant with such other and further relief as this Honorable Court may 22 deem proper. 23 / / / 24 / / / 25 / / / 26 27 28 LEWIS BRISBOIS BISGAARD & SMITH LLP 140559459.1 4 ATTORNEYS AT LAW DEFENDANT ONKAR TRUCKING, INC.’S ANSWER TO COMPLAINT 1 JURY DEMAND 2 These answering Defendants demand a jury trial in this matter. 3 DATED: May 21, 2024 LEWIS BRISBOIS BISGAARD & SMITH LLP 4 5 By: 6 MANUEL SARMIENTO Attorneys for Defendant 7 ONKAR TRUCKING, INC. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LEWIS BRISBOIS BISGAARD & SMITH LLP 140559459.1 5 ATTORNEYS AT LAW DEFENDANT ONKAR TRUCKING, INC.’S ANSWER TO COMPLAINT 1 CALIFORNIA STATE COURT PROOF OF SERVICE 2 STATE OF CALIFORNIA, COUNTY OF SAN BERNARDINO 3 At the time of service, I was over 18 years of age and not a party to this action. My 4 business address is 650 East Hospitality Lane, Suite 600, San Bernardino, CA 92408. 5 On May 21, 2024, I served true copies of the following document(s): DEFENDANT ONKAR TRUCKING, INC.’S ANSWER TO COMPLAINT 6 I served the documents on the following persons at the following addresses (including fax 7 numbers and e-mail addresses, if applicable): 8 SEE ATTACHED SERVICE LIST 9 The documents were served by the following means: 10 (BY E-MAIL OR ELECTRONIC TRANSMISSION) Based on a court order or an agreement of the parties to accept service by e-mail or electronic transmission, I caused the 11 documents to be sent from e-mail address SHARON.MOORE- DUNCAN@LEWISBRISBOIS.COM to the persons at the e-mail addresses listed above. I 12 did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. 13 I declare under penalty of perjury under the laws of the State of California that the 14 foregoing is true and correct. 15 Executed on May 21, 2024, at San Bernardino, California. 16 17 18 SHARON DENISE MOORE-DUNCAN 19 20 21 22 23 24 25 26 27 28 LEWIS BRISBOIS BISGAARD & SMITH LLP 140559459.1 6 ATTORNEYS AT LAW DEFENDANT ONKAR TRUCKING, INC.’S ANSWER TO COMPLAINT 1 SERVICE LIST 2 3 John Ksajikian, Esquire MEGEREDCHIAN LAW, APC 4 350 North Glenoaks Boulevard, Fl.3 Burbank, California 91502 5 litigation@megeredchianlaw.com erika@megeredchianlaw.com 6 monika@megeredchianlaw.com alex@megeredchianlaw.com 7 john@megeredchianlaw.com karin@megeredchianlaw.com 8 Attorneys for Plaintiff MARIO JUNIOR AVILA 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LEWIS BRISBOIS BISGAARD & SMITH LLP 140559459.1 7 ATTORNEYS AT LAW DEFENDANT ONKAR TRUCKING, INC.’S ANSWER TO COMPLAINT