Preview
1 Alicia R. Kennon (State Bar No. 240569)
akennon@wshblaw.com
2 Illise M. Schulman (State Bar No. 177117)
ischulman@wshblaw.com
3 WOOD, SMITH, HENNING & BERMAN LLP
1401 Willow Pass Road, Suite 700
4 Concord, California 94520-7982
Phone: 925.222.3400 ♦ Fax: 925.356.8250
5
Attorneys for Defendants CORNERSTONE PEST CONTROL,
6 INC. and FIRST CLASS FUMIGATION COMPANY, INC.
7
SUPERIOR COURT OF THE STATE OF CALIFORNIA
8
COUNTY OF SANTA CRUZ
9
10
DAVID McMAHON, an individual, Case No. 24CV00038
11
WOOD, SMITH, HENNING & BERMAN LLP
Plaintiff, ANSWER TO COMPLAINT
TELEPHONE 925.222.3400 ♦ FAX 925.356.8250
1401 WILLOW PASS ROAD, SUITE 700
12
CONCORD, CALIFORNIA 94520-7982
v. Action Filed: 1/3/24
13
CORNERSTONE PEST CONTROL, INC., a Trial Date: None Set
14 California corporation, and FIRST CLASS
FUMIGATION COMPANY, INC., a
15 California corporation,
16 Defendants.
17
18 Defendants CORNERSTONE PEST CONTROL, INC. and FIRST CLASS
19 FUMIGATION COMPANY, INC. (collectively "Defendants") hereby answer the Complaint of
20 Plaintiff DAVID McMAHON ("Plaintiff"), and each and every cause of action alleged therein, as
21 follows:
22 GENERAL DENIAL
23 Pursuant to the provisions of Section 431.30(d) of the California Code of Civil Procedure,
24 Defendants deny each and every matter, fact and allegation contained in the Complaint, and each
25 and every part thereof, both generally and specifically. Defendants specifically deny that Plaintiff
26 was injured or damaged in any sum or any amount, or at all, by reason of any negligent or
27 intentional act or omission to act on the part of Defendants, or either of them, whether as alleged
28 in the Complaint or otherwise.
32861113.1:10628-0029
ANSWER TO COMPLAINT
1 FIRST AFFIRMATIVE DEFENSE
2 (No Standing)
3 1. Defendants assert that Plaintiff has no standing to assert or recover any damages or
4 other relief under any of the causes of actions alleged against Defendants in the Complaint.
5
SECOND AFFIRMATIVE DEFENSE
6
(No Proximate Cause/No Substantial Factor)
7
2. Plaintiff's alleged harm, losses and damages, if any, were not proximately caused or
8
contributed to by any act or omission of Defendants or either of them. The acts and omissions of
9
Defendants, if any, were not a substantial factor in bringing about the harm, losses and damages, if
10
any, for which Plaintiff seeks relief.
11
WOOD, SMITH, HENNING & BERMAN LLP
THIRD AFFIRMATIVE DEFENSE
TELEPHONE 925.222.3400 ♦ FAX 925.356.8250
1401 WILLOW PASS ROAD, SUITE 700
12
CONCORD, CALIFORNIA 94520-7982
(No Legal Duty)
13
3. Defendants assert that they owed no legal duty to Plaintiff with respect to the
14
matters alleged in the Complaint.
15
FOURTH AFFIRMATIVE DEFENSE
16
(No Breach of Legal Duty)
17
4. Defendants asserts that, if they owed a legal duty with respect to the matters alleged
18
in the Complaint, no such duty was breached by any acts or omissions on the part of Defendants,
19
or either of them. Defendants duly performed, satisfied, and discharged all duties and obligations
20
they may have owed to Plaintiff.
21
FIFTH AFFIRMATIVE DEFENSE
22
(Compliance with Standard of Care)
23
5. Defendants assert that at all times relevant, Defendants acted within the applicable
24
standard of care and in accordance with all statutory, regulatory, common law, and industry
25
standard requirements.
26
///
27
///
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32861113.1:10628-0029 -2-
ANSWER TO COMPLAINT
1 SIXTH AFFIRMATIVE DEFENSE
2 (Impracticability/Impossibility)
3 6. Defendants assert that at all times relevant, Defendants acted within the applicable
4 standard of care and in accordance with all statutory, regulatory, common law, and industry
5 standard requirements.
6 SEVENTH AFFIRMATIVE DEFENSE
7 (Justified Conduct)
8 7. Defendants assert that at all times relevant, Defendants' conduct was fully justified
9 and in good faith.
10 EIGHTH AFFIRMATIVE DEFENSE
11 (Unavoidable Conditions)
WOOD, SMITH, HENNING & BERMAN LLP
TELEPHONE 925.222.3400 ♦ FAX 925.356.8250
1401 WILLOW PASS ROAD, SUITE 700
12 8. The alleged harm, damages, and/or losses alleged in the Complaint were the direct
CONCORD, CALIFORNIA 94520-7982
13 and proximate result of unavoidable conditions not caused by any fault or liability on the part of
14 Defendants, or either of them.
15 NINTH AFFIRMATIVE DEFENSE
16 (Unforeseeability)
17 9. Defendants allege that the harm alleged in the Complaint was not reasonably
18 foreseeable by Defendants.
19 TENTH AFFIRMATIVE DEFENSE
20 (Non-Delegable Duty)
21 10. Defendants cannot be held liable to Plaintiff because other parties owed a non-
22 delegable duty of care to Plaintiff, which duty, if breached at all, was not breached through any
23 conduct legally attributable to Defendants, or either of them.
24 ELEVENTH AFFIRMATIVE DEFENSE
25 (Unclean Hands)
26 11. Plaintiff, through his conduct, acts, and omissions, is barred by the doctrine of
27 unclean hands from recovering from Defendants any damages or other relief sought in the
28 Complaint.
32861113.1:10628-0029 -3-
ANSWER TO COMPLAINT
1 TWELFTH AFFIRMATIVE DEFENSE
2 (Estoppel)
3 12. Defendants assert that Plaintiff, through his conduct, acts, and omissions, is
4 estopped from asserting or recovering under any causes of actions alleged against Defendants in
5 the Complaint. Defendants allege that Plaintiff knew or should have known of the dangers,
6 hazards and risks alleged in the Complaint but failed to take reasonable measures to avoid or
7 prevent harm, and failed to notify any other party of the dangers, hazards, risks and/or need for
8 corrective measures to prevent harm, thereby estopping Plaintiff from claiming damages or other
9 relief as a result of the matters alleged in the Complaint.
10 THIRTEENTH AFFIRMATIVE DEFENSE
11 (Waiver)
WOOD, SMITH, HENNING & BERMAN LLP
TELEPHONE 925.222.3400 ♦ FAX 925.356.8250
1401 WILLOW PASS ROAD, SUITE 700
12 13. Plaintiff, through his conduct, acts, and omissions, waived, either expressly or
CONCORD, CALIFORNIA 94520-7982
13 impliedly, the claims and causes of action alleged in the Complaint.
14 FOURTEENTH AFFIRMATIVE DEFENSE
15 (Laches)
16 14. Defendants allege that this action is barred by the doctrine of laches.
17 FIFTEENTH AFFIRMATIVE DEFENSE
18 (Vague, Ambiguous, and Uncertain)
19 15. Defendants asserts that the Complaint is vague, ambiguous, and uncertain, such
20 that Defendants are therefore deprived of fair notice of the allegations against them.
21 SIXTEENTH AFFIRMATIVE DEFENSE
22 (Comparative Fault)
23 16. Any and all events and happenings, injuries, losses and expenditures referred to in
24 the Complaint, if they occurred, were directly and proximately caused and contributed to, in whole
25 or in part, by the carelessness and negligence of Plaintiff, and others, and therefore the extent of
26 loss, damage or expenditures sustained by Plaintiff if any, should be reduced in proportion to the
27 amount of negligence or fault attributable to him and said others.
28 / / /
32861113.1:10628-0029 -4-
ANSWER TO COMPLAINT
1 SEVENTEENTH AFFIRMATIVE DEFENSE
2 (Third Party Liability)
3 17. The harm and damages alleged in the Complaint, if they occurred, and to the extent
4 not caused or contributed to by Plaintiff, were proximately caused or contributed to by the
5 negligence and fault of third persons; and by reason thereof, Defendants' share of liability, if any,
6 should be no greater than the amount which, expressed as a percentage of total harm and damages,
7 if any, is equal to Defendants' allocable share, if any, of the combined negligence and fault of such
8 third persons who proximately caused or contributed to the harm and damages, if any.
9 EIGHTEENTH AFFIRMATIVE DEFENSE
10 (Fair Responsibility Act)
11 18. Defendants' liability, if any, is limited pursuant to California Civil Code §§1431 et
WOOD, SMITH, HENNING & BERMAN LLP
TELEPHONE 925.222.3400 ♦ FAX 925.356.8250
1401 WILLOW PASS ROAD, SUITE 700
12 seq., and any damages awarded against Defendants should be accordingly reduced.
CONCORD, CALIFORNIA 94520-7982
13 NINETEENTH AFFIRMATIVE DEFENSE
14 (Several Liability for Non-Economic Damages)
15 19. Parties both served and unserved, named and unnamed, and Plaintiff are in some
16 manner or percentage responsible for Plaintiff's non-economic damages, if any, and Defendants
17 require an order setting forth separate judgments, against each and every party, named and
18 unnamed, served and unserved, and Plaintiff, for the amount of all non-economic damages that
19 may be recovered by Plaintiff in direct proportion to the percentage of fault of each party, named
20 and unnamed, served and unserved, and Plaintiff, pursuant to California Civil Code §1431.2.
21 TWENTIETH AFFIRMATIVE DEFENSE
22 (Intervening/Superseding Actions)
23 20. The injuries and damages allegedly sustained by Plaintiff, if any, were the direct
24 and proximate result of the intervening and superseding actions or failures to act of other parties,
25 named or unnamed, for whom Defendants are not responsible.
26 TWENTY-FIRST AFFIRMATIVE DEFENSE
27 (Assumption of Risk)
28 21. By his acts and omissions, Plaintiff assumed the risk of the harm and damages
32861113.1:10628-0029 -5-
ANSWER TO COMPLAINT
1 alleged in the Complaint.
2 TWENTY-SECOND AFFIRMATIVE DEFENSE
3 (Failure to Mitigate)
4 22. By the exercise of reasonable effort, Plaintiff could have mitigated the amount of
5 harm and damages he suffered, if any at all, but he failed and refused, and continues to fail and
6 refuse, to exercise a reasonable effort to mitigate said damages.
7 TWENTY-THIRD AFFIRMATIVE DEFENSE
8 (Offset)
9 23. Defendants are entitled to an offset as a result of any recovery made by Plaintiff
10 from any other party, in connection with the damages alleged in the Complaint.
11 TWENTY-FOURTH AFFIRMATIVE DEFENSE
WOOD, SMITH, HENNING & BERMAN LLP
TELEPHONE 925.222.3400 ♦ FAX 925.356.8250
1401 WILLOW PASS ROAD, SUITE 700
12 (Failure to State a Cause of Action)
CONCORD, CALIFORNIA 94520-7982
13 24. Neither the Complaint nor any of the causes of action stated therein alleges facts
14 sufficient to constitute a viable cause of action against Defendants, or either of them.
15 TWENTY-FIFTH AFFIRMATIVE DEFENSE
16 (Intentional Conduct)
17 25. The Complaint, and each and every cause of action contained within the
18 Complaint, is barred due to Plaintiff's intentional conduct. In addition, Defendant has been
19 prevented from performing its obligations, if any, by reason of Plaintiff's conduct.
20 TWENTY-SIXTH AFFIRMATIVE DEFENSE
21 (Res Judicata/Collateral Estoppel)
22 26. The Complaint, and each and every cause of action contained within the
23 Complaint, is barred the doctrines of Res Judicata and/or Collateral Estoppel.
24 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
25 (Statute of Limitations)
26 27. Plaintiff's purported causes of action are barred by California Code of Civil
27 Procedure Sections 335.1, 337, 337.1, 339, 343, and other relevant provisions in that they were
28 not brought in a timely fashion.
32861113.1:10628-0029 -6-
ANSWER TO COMPLAINT
1 TWENTY-EIGHTH AFFIRMATIVE DEFENSE
2 (Right to Amend)
3 28. Defendants reserve the right to amend their Answer to assert further affirmative
4 defenses that are not presently known but may become known through further investigation and
5 discovery.
6 WHEREFORE, Defendants pray for judgment as follows:
7 1. That Plaintiff takes nothing by virtue of his Complaint, and that said Complaint as
8 against Defendants be dismissed;
9 2. That Defendants be awarded their costs of suit herein incurred;
10 3. That the trier of fact reduce the amount of damages assessed against Defendants, if
11 any, in accordance with the doctrine of comparative fault and the other bases set forth herein; and
WOOD, SMITH, HENNING & BERMAN LLP
TELEPHONE 925.222.3400 ♦ FAX 925.356.8250
1401 WILLOW PASS ROAD, SUITE 700
12 4. For such other and further relief as the Court may deem just and proper.
CONCORD, CALIFORNIA 94520-7982
13
14 DATED: May 21, 2024 WOOD, SMITH, HENNING & BERMAN LLP
15
16
By:
17 ALICIA R. KENNON
ILLISE M. SCHULMAN
18 Attorneys for Defendants CORNERSTONE PEST
CONTROL, INC. and FIRST CLASS FUMIGATION
19
COMPANY, INC.
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23
24
25
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27
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32861113.1:10628-0029 -7-
ANSWER TO COMPLAINT
1 PROOF OF SERVICE
2 McMahon vs Cornerstone Pest Control, Inc.
Santa Cruz County Superior Court Case No. 24CV00038
3
I am employed in the County of Contra Costa, State of California. I am over the age of
4 eighteen years and not a party to the within action. My business address is 1401 Willow Pass
Road, Suite 700, Concord, CA 94520-7982.
5
On May 21, 2024, I served the following document(s) described as ANSWER TO
6 COMPLAINT on the interested parties in this action as follows:
7 Jessica Blome
Lily Rivo
8 GREENFIRE LAW, PC
2748 Adeline Street, Suite A
9 Berkeley, CA 94703
Ph: 510-900-9502
10 Email: jblome@greenfirelaw.com
lrivo@greenfirelaw.com
11 ATTORNEY FOR PLAINTIFF
WOOD, SMITH, HENNING & BERMAN LLP
TELEPHONE 925.222.3400 ♦ FAX 925.356.8250
1401 WILLOW PASS ROAD, SUITE 700
12 BY E-MAIL OR ELECTRONIC TRANSMISSION: Based on a court order or an
CONCORD, CALIFORNIA 94520-7982
agreement of the parties to accept service by e-mail or electronic transmission, I caused the
13 document(s) to be sent from e-mail address mwerner@wshblaw.com to the persons at the
electronic notification address listed in the service list. I did not receive, within a reasonable time
14 after the transmission, any electronic message or other indication that the transmission was not
successful.
15
I declare under penalty of perjury under the laws of the State of California that the
16 foregoing is true and correct.
17 Executed on May 21, 2024, at Concord, California.
18
19
Maura L Werner
20
21
22
23
24
25
26
27
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32861113.1:10628-0029 -8-
ANSWER TO COMPLAINT
Preview
1 Alicia R. Kennon (State Bar No. 240569) akennon@wshblaw.com 2 Illise M. Schulman (State Bar No. 177117) ischulman@wshblaw.com 3 WOOD, SMITH, HENNING & BERMAN LLP 1401 Willow Pass Road, Suite 700 4 Concord, California 94520-7982 Phone: 925.222.3400 ♦ Fax: 925.356.8250 5 Attorneys for Defendants CORNERSTONE PEST CONTROL, 6 INC. and FIRST CLASS FUMIGATION COMPANY, INC. 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 COUNTY OF SANTA CRUZ 9 10 DAVID McMAHON, an individual, Case No. 24CV00038 11 WOOD, SMITH, HENNING & BERMAN LLP Plaintiff, ANSWER TO COMPLAINT TELEPHONE 925.222.3400 ♦ FAX 925.356.8250 1401 WILLOW PASS ROAD, SUITE 700 12 CONCORD, CALIFORNIA 94520-7982 v. Action Filed: 1/3/24 13 CORNERSTONE PEST CONTROL, INC., a Trial Date: None Set 14 California corporation, and FIRST CLASS FUMIGATION COMPANY, INC., a 15 California corporation, 16 Defendants. 17 18 Defendants CORNERSTONE PEST CONTROL, INC. and FIRST CLASS 19 FUMIGATION COMPANY, INC. (collectively "Defendants") hereby answer the Complaint of 20 Plaintiff DAVID McMAHON ("Plaintiff"), and each and every cause of action alleged therein, as 21 follows: 22 GENERAL DENIAL 23 Pursuant to the provisions of Section 431.30(d) of the California Code of Civil Procedure, 24 Defendants deny each and every matter, fact and allegation contained in the Complaint, and each 25 and every part thereof, both generally and specifically. Defendants specifically deny that Plaintiff 26 was injured or damaged in any sum or any amount, or at all, by reason of any negligent or 27 intentional act or omission to act on the part of Defendants, or either of them, whether as alleged 28 in the Complaint or otherwise. 32861113.1:10628-0029 ANSWER TO COMPLAINT 1 FIRST AFFIRMATIVE DEFENSE 2 (No Standing) 3 1. Defendants assert that Plaintiff has no standing to assert or recover any damages or 4 other relief under any of the causes of actions alleged against Defendants in the Complaint. 5 SECOND AFFIRMATIVE DEFENSE 6 (No Proximate Cause/No Substantial Factor) 7 2. Plaintiff's alleged harm, losses and damages, if any, were not proximately caused or 8 contributed to by any act or omission of Defendants or either of them. The acts and omissions of 9 Defendants, if any, were not a substantial factor in bringing about the harm, losses and damages, if 10 any, for which Plaintiff seeks relief. 11 WOOD, SMITH, HENNING & BERMAN LLP THIRD AFFIRMATIVE DEFENSE TELEPHONE 925.222.3400 ♦ FAX 925.356.8250 1401 WILLOW PASS ROAD, SUITE 700 12 CONCORD, CALIFORNIA 94520-7982 (No Legal Duty) 13 3. Defendants assert that they owed no legal duty to Plaintiff with respect to the 14 matters alleged in the Complaint. 15 FOURTH AFFIRMATIVE DEFENSE 16 (No Breach of Legal Duty) 17 4. Defendants asserts that, if they owed a legal duty with respect to the matters alleged 18 in the Complaint, no such duty was breached by any acts or omissions on the part of Defendants, 19 or either of them. Defendants duly performed, satisfied, and discharged all duties and obligations 20 they may have owed to Plaintiff. 21 FIFTH AFFIRMATIVE DEFENSE 22 (Compliance with Standard of Care) 23 5. Defendants assert that at all times relevant, Defendants acted within the applicable 24 standard of care and in accordance with all statutory, regulatory, common law, and industry 25 standard requirements. 26 /// 27 /// 28 32861113.1:10628-0029 -2- ANSWER TO COMPLAINT 1 SIXTH AFFIRMATIVE DEFENSE 2 (Impracticability/Impossibility) 3 6. Defendants assert that at all times relevant, Defendants acted within the applicable 4 standard of care and in accordance with all statutory, regulatory, common law, and industry 5 standard requirements. 6 SEVENTH AFFIRMATIVE DEFENSE 7 (Justified Conduct) 8 7. Defendants assert that at all times relevant, Defendants' conduct was fully justified 9 and in good faith. 10 EIGHTH AFFIRMATIVE DEFENSE 11 (Unavoidable Conditions) WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE 925.222.3400 ♦ FAX 925.356.8250 1401 WILLOW PASS ROAD, SUITE 700 12 8. The alleged harm, damages, and/or losses alleged in the Complaint were the direct CONCORD, CALIFORNIA 94520-7982 13 and proximate result of unavoidable conditions not caused by any fault or liability on the part of 14 Defendants, or either of them. 15 NINTH AFFIRMATIVE DEFENSE 16 (Unforeseeability) 17 9. Defendants allege that the harm alleged in the Complaint was not reasonably 18 foreseeable by Defendants. 19 TENTH AFFIRMATIVE DEFENSE 20 (Non-Delegable Duty) 21 10. Defendants cannot be held liable to Plaintiff because other parties owed a non- 22 delegable duty of care to Plaintiff, which duty, if breached at all, was not breached through any 23 conduct legally attributable to Defendants, or either of them. 24 ELEVENTH AFFIRMATIVE DEFENSE 25 (Unclean Hands) 26 11. Plaintiff, through his conduct, acts, and omissions, is barred by the doctrine of 27 unclean hands from recovering from Defendants any damages or other relief sought in the 28 Complaint. 32861113.1:10628-0029 -3- ANSWER TO COMPLAINT 1 TWELFTH AFFIRMATIVE DEFENSE 2 (Estoppel) 3 12. Defendants assert that Plaintiff, through his conduct, acts, and omissions, is 4 estopped from asserting or recovering under any causes of actions alleged against Defendants in 5 the Complaint. Defendants allege that Plaintiff knew or should have known of the dangers, 6 hazards and risks alleged in the Complaint but failed to take reasonable measures to avoid or 7 prevent harm, and failed to notify any other party of the dangers, hazards, risks and/or need for 8 corrective measures to prevent harm, thereby estopping Plaintiff from claiming damages or other 9 relief as a result of the matters alleged in the Complaint. 10 THIRTEENTH AFFIRMATIVE DEFENSE 11 (Waiver) WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE 925.222.3400 ♦ FAX 925.356.8250 1401 WILLOW PASS ROAD, SUITE 700 12 13. Plaintiff, through his conduct, acts, and omissions, waived, either expressly or CONCORD, CALIFORNIA 94520-7982 13 impliedly, the claims and causes of action alleged in the Complaint. 14 FOURTEENTH AFFIRMATIVE DEFENSE 15 (Laches) 16 14. Defendants allege that this action is barred by the doctrine of laches. 17 FIFTEENTH AFFIRMATIVE DEFENSE 18 (Vague, Ambiguous, and Uncertain) 19 15. Defendants asserts that the Complaint is vague, ambiguous, and uncertain, such 20 that Defendants are therefore deprived of fair notice of the allegations against them. 21 SIXTEENTH AFFIRMATIVE DEFENSE 22 (Comparative Fault) 23 16. Any and all events and happenings, injuries, losses and expenditures referred to in 24 the Complaint, if they occurred, were directly and proximately caused and contributed to, in whole 25 or in part, by the carelessness and negligence of Plaintiff, and others, and therefore the extent of 26 loss, damage or expenditures sustained by Plaintiff if any, should be reduced in proportion to the 27 amount of negligence or fault attributable to him and said others. 28 / / / 32861113.1:10628-0029 -4- ANSWER TO COMPLAINT 1 SEVENTEENTH AFFIRMATIVE DEFENSE 2 (Third Party Liability) 3 17. The harm and damages alleged in the Complaint, if they occurred, and to the extent 4 not caused or contributed to by Plaintiff, were proximately caused or contributed to by the 5 negligence and fault of third persons; and by reason thereof, Defendants' share of liability, if any, 6 should be no greater than the amount which, expressed as a percentage of total harm and damages, 7 if any, is equal to Defendants' allocable share, if any, of the combined negligence and fault of such 8 third persons who proximately caused or contributed to the harm and damages, if any. 9 EIGHTEENTH AFFIRMATIVE DEFENSE 10 (Fair Responsibility Act) 11 18. Defendants' liability, if any, is limited pursuant to California Civil Code §§1431 et WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE 925.222.3400 ♦ FAX 925.356.8250 1401 WILLOW PASS ROAD, SUITE 700 12 seq., and any damages awarded against Defendants should be accordingly reduced. CONCORD, CALIFORNIA 94520-7982 13 NINETEENTH AFFIRMATIVE DEFENSE 14 (Several Liability for Non-Economic Damages) 15 19. Parties both served and unserved, named and unnamed, and Plaintiff are in some 16 manner or percentage responsible for Plaintiff's non-economic damages, if any, and Defendants 17 require an order setting forth separate judgments, against each and every party, named and 18 unnamed, served and unserved, and Plaintiff, for the amount of all non-economic damages that 19 may be recovered by Plaintiff in direct proportion to the percentage of fault of each party, named 20 and unnamed, served and unserved, and Plaintiff, pursuant to California Civil Code §1431.2. 21 TWENTIETH AFFIRMATIVE DEFENSE 22 (Intervening/Superseding Actions) 23 20. The injuries and damages allegedly sustained by Plaintiff, if any, were the direct 24 and proximate result of the intervening and superseding actions or failures to act of other parties, 25 named or unnamed, for whom Defendants are not responsible. 26 TWENTY-FIRST AFFIRMATIVE DEFENSE 27 (Assumption of Risk) 28 21. By his acts and omissions, Plaintiff assumed the risk of the harm and damages 32861113.1:10628-0029 -5- ANSWER TO COMPLAINT 1 alleged in the Complaint. 2 TWENTY-SECOND AFFIRMATIVE DEFENSE 3 (Failure to Mitigate) 4 22. By the exercise of reasonable effort, Plaintiff could have mitigated the amount of 5 harm and damages he suffered, if any at all, but he failed and refused, and continues to fail and 6 refuse, to exercise a reasonable effort to mitigate said damages. 7 TWENTY-THIRD AFFIRMATIVE DEFENSE 8 (Offset) 9 23. Defendants are entitled to an offset as a result of any recovery made by Plaintiff 10 from any other party, in connection with the damages alleged in the Complaint. 11 TWENTY-FOURTH AFFIRMATIVE DEFENSE WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE 925.222.3400 ♦ FAX 925.356.8250 1401 WILLOW PASS ROAD, SUITE 700 12 (Failure to State a Cause of Action) CONCORD, CALIFORNIA 94520-7982 13 24. Neither the Complaint nor any of the causes of action stated therein alleges facts 14 sufficient to constitute a viable cause of action against Defendants, or either of them. 15 TWENTY-FIFTH AFFIRMATIVE DEFENSE 16 (Intentional Conduct) 17 25. The Complaint, and each and every cause of action contained within the 18 Complaint, is barred due to Plaintiff's intentional conduct. In addition, Defendant has been 19 prevented from performing its obligations, if any, by reason of Plaintiff's conduct. 20 TWENTY-SIXTH AFFIRMATIVE DEFENSE 21 (Res Judicata/Collateral Estoppel) 22 26. The Complaint, and each and every cause of action contained within the 23 Complaint, is barred the doctrines of Res Judicata and/or Collateral Estoppel. 24 TWENTY-SEVENTH AFFIRMATIVE DEFENSE 25 (Statute of Limitations) 26 27. Plaintiff's purported causes of action are barred by California Code of Civil 27 Procedure Sections 335.1, 337, 337.1, 339, 343, and other relevant provisions in that they were 28 not brought in a timely fashion. 32861113.1:10628-0029 -6- ANSWER TO COMPLAINT 1 TWENTY-EIGHTH AFFIRMATIVE DEFENSE 2 (Right to Amend) 3 28. Defendants reserve the right to amend their Answer to assert further affirmative 4 defenses that are not presently known but may become known through further investigation and 5 discovery. 6 WHEREFORE, Defendants pray for judgment as follows: 7 1. That Plaintiff takes nothing by virtue of his Complaint, and that said Complaint as 8 against Defendants be dismissed; 9 2. That Defendants be awarded their costs of suit herein incurred; 10 3. That the trier of fact reduce the amount of damages assessed against Defendants, if 11 any, in accordance with the doctrine of comparative fault and the other bases set forth herein; and WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE 925.222.3400 ♦ FAX 925.356.8250 1401 WILLOW PASS ROAD, SUITE 700 12 4. For such other and further relief as the Court may deem just and proper. CONCORD, CALIFORNIA 94520-7982 13 14 DATED: May 21, 2024 WOOD, SMITH, HENNING & BERMAN LLP 15 16 By: 17 ALICIA R. KENNON ILLISE M. SCHULMAN 18 Attorneys for Defendants CORNERSTONE PEST CONTROL, INC. and FIRST CLASS FUMIGATION 19 COMPANY, INC. 20 21 22 23 24 25 26 27 28 32861113.1:10628-0029 -7- ANSWER TO COMPLAINT 1 PROOF OF SERVICE 2 McMahon vs Cornerstone Pest Control, Inc. Santa Cruz County Superior Court Case No. 24CV00038 3 I am employed in the County of Contra Costa, State of California. I am over the age of 4 eighteen years and not a party to the within action. My business address is 1401 Willow Pass Road, Suite 700, Concord, CA 94520-7982. 5 On May 21, 2024, I served the following document(s) described as ANSWER TO 6 COMPLAINT on the interested parties in this action as follows: 7 Jessica Blome Lily Rivo 8 GREENFIRE LAW, PC 2748 Adeline Street, Suite A 9 Berkeley, CA 94703 Ph: 510-900-9502 10 Email: jblome@greenfirelaw.com lrivo@greenfirelaw.com 11 ATTORNEY FOR PLAINTIFF WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE 925.222.3400 ♦ FAX 925.356.8250 1401 WILLOW PASS ROAD, SUITE 700 12 BY E-MAIL OR ELECTRONIC TRANSMISSION: Based on a court order or an CONCORD, CALIFORNIA 94520-7982 agreement of the parties to accept service by e-mail or electronic transmission, I caused the 13 document(s) to be sent from e-mail address mwerner@wshblaw.com to the persons at the electronic notification address listed in the service list. I did not receive, within a reasonable time 14 after the transmission, any electronic message or other indication that the transmission was not successful. 15 I declare under penalty of perjury under the laws of the State of California that the 16 foregoing is true and correct. 17 Executed on May 21, 2024, at Concord, California. 18 19 Maura L Werner 20 21 22 23 24 25 26 27 28 32861113.1:10628-0029 -8- ANSWER TO COMPLAINT