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M. Troy Hazelton, Esq. (SBN 203884)
PEEL | GARCIA LLP
3585 W. Beechwood, Suite 101
Fresno, California 93711
Telephone: (559 431-1300
Facsimile: (559 431-1442
Email: Thazelton@pgllp.com
Attorneys for: Defendant, NORTH OF THE RIVER SANITARY DISTRICT
SUPERIOR COURT OF CALIFORNIA
COUNTY OF KERN
10 SALVADOR MUNOZ AND NANCY ) Case No. BCV-24-100414
ARISMENDIZ,
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Plaintiffs, ANSWER TO COMPLAINT
12 Ww aiver of Fee per California Government
Vv. ‘ode §6103)
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NORTH OF THE RIVER SANITARY
14 DISTRICT, AN INDEPENDENT DISTRICT [Complaint Filed February 6, 2024]
OF THE STATE OF CALIFORNIA; AND
15 DOES 1 TO 20,
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Defendants. )
)
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COMES NOW Defendant NORTH OF THE RIVER SANITARY DISTRICT (hereinafter
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“NORSD”) and hereby answer the complaint of Plaintiffs SALVADOR MUNOZ and NANCY|
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ARISMENDIZ (hereinafter “Plaintiffs”) on file herein by denying and alleging as follows:
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GENERAL DENIAL
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Pursuant to Section 431.30(d) of the California Code of Civil Procedure, NORSD denies.
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generally and specifically, each and every allegation in the Complaint. NORSD further denies,
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generally and specifically, that Plaintiffshas been damaged in any sum or at all by reason of an!
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act of omission on the party of NORSD, and denies Plaintiffs are entitled to recover any of the
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relief she seeks in the Complaint. For its affirmative defenses, NORSD alleges as follows:
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ANSWER TO COMPLAINT
FIRST AFFIRMATIVE DEFENSE
(Intervening/Superseding Cause)
This answering Defendant is informed and believes, and on such information and belief
allege, that the injuries and damages of which Plaintiffs complain were proximately caused o
contributed to by the acts of other parties, persons, and/or entities, and that said acts were a
intervening and superseding cause of the alleged injuries and damages of which Plaintiffs
complain, thus barring Plaintiffs from any recovery against this answering Defendant.
SECOND AFFIRMATIVE DEFENSE
(Failure to State a Claim)
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As a separate and affirmative defense to Plaintiffs’ Complaint and to each purported cause
11 of action contained therein, Defendant alleges the Complaint fails to state facts sufficient t
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constitute a claim upon which relief can be granted.
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THIRD AFFIRMATIVE DEFENSE
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(Statute of Limitations)
15 As a separate and affirmative defense to Plaintiffs’ Complaint and to each purported cause|
16 of action contained therein, Defendant alleges that Plaintiffs’ Complaint is time-barred pursuant
17 to California Government Code section 945.6, and California Code of Civil Procedure sections
18 342 and 335.1.
19 FOURTH AFFIRMATIVE DEFENSE
20 (Failure to Name an Indispensable Party)
21 As a separate and affirmative defense to Plaintiffs’ Complaint and to each purported cause
22 of action contained therein, Defendant alleges the matter complained of in the Complaint and thd
23 causes of action therein, were caused by the actions or omissions of an indispensable third-party
24 or parties, who have not been named as defendants in the Complaint, and whose interests are s
25 involved such that the court cannot render judgment in their absence.
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ANSWER TO COMPLAINT
FIFTH AFFIRMATIVE DEFENSE
(Failure to Comply with Tort Claims Act)
This answering Defendant alleges Plaintiffs failed to comply with the Tort Claims Act and
Government code section 900 et. seq., including, but not limited to, Government Code sectiong
900 et. seq., 905, 910, 911.2, 915, 945.4, etc. This Answering Defendant also alleges Plaintiffs
failed to submit the required claims form to the proper legal entity, and/or failed to comply wit!
the Claims form requirements of proceeding against a public entity. This answering Defendant
alleges Plaintiffs may not proceed for failure to present timely written claim for damages to the|
proper public entity and if such claim was presented it was not in accordance with the section 900]
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et. seq., and/or was not presented with time required by the applicable code section. If, and to the
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extent that, the allegations of the Complaint attempt to enlarge upon the facts and/or contentiong
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set forth in a claim, if any, filed by Plaintiffs, then said Complaint fails to state a cause of actio
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900) and this answering Defendant hereby reserves its right to strike said allegations and to object
15 to any evidence directed to proof of said allegations.
16 SIXTH AFFIRMATIVE DEFENSE
17 (Exercise of Discretionary Authority - Cal. Gov. Code §820.2)
18 As a separate and affirmative defense to Plaintiffs’ Complaint and to each purported cause
19 of action contained therein, Defendant alleges any and all acts of Defendant and its agents and/o’
20 employees, which allegedly caused the injury, were the result of the exercise of discretionary|
21 authority vested in them. Therefore, this answering Defendant is not liable to Plaintiffs for thei:
22 alleged damages, if any, pursuant to the provisions of Government Code section 820.2.
23 SEVENTH AFFIRMATIVE DEFENSE
24 (Cal. Gov. Code § 835.4)
25 As a separate and affirmative defense to Plaintiffs’ Complaint and to each purported cause|
26 of action contained therein, Defendant alleges the acts of Defendants were reasonable within the
27 meaning of Government Code section 835.4 and Defendants are therefore immune from liability.
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ANSWER TO COMPLAINT
EIGHTH AFFIRMATIVE DEFENSE
(Comparative Fault- Cal. Civ. Code§ 1431.2)
As a separate and affirmative defense to Plaintiffs’ Complaint and to each purported cause
of action contained therein, Defendant alleges any non-economic damages sustained by Plaintiffy
in this action were due to the fault of someone other than Defendant and, under California Civi
Code section 1431.2, the Fair Responsibility Act of 1986, Defendant can only be held liable for
those non-economic damages proportionately caused by the fault, if any, of Defendant.
NINTH AFFIRMATIVE DEFENSE
(Collateral Source Payments)
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As a separate and affirmative defense to Plaintiffs’ Complaint and to each purported cause,
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of action contained therein, Defendant alleges they are entitled, pursuant to California Government!
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Code section 984 et seq., to a reduction of a judgment entered against it, if any, for collateral source
13 payments paid or obligated to be paid for services or benefits that were provided to Plaintiffs prioy
14 to the commencement of trial.
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TENTH AFFIRMATIVE DEFENSE
16 (Reasonable Defense Costs)
17 As a separate and affirmative defense to Plaintiffs’ Complaint and to each purported cause
18 of action contained therein, Defendant alleges it is entitled to all reasonable and necessary defense|
19 costs normally awarded to the prevailing party pursuant to California Code of Civil Procedure}
20 section 1038, in that Plaintiffs brought this proceeding without reasonable cause and without al
21 good faith belief that there was a justifiable controversy under the facts and law which warranted!
22 the filing of the Complaint under the California Tort Claims Act.
23 TWELFTH AFFIRMATIVE DEFENSE
24 (Limitation of Special Damages)
25 As a separate and affirmative defense to Plaintiffs’ Complaint and to each purported cause
26 of action contained therein, Defendant alleges Plaintiffs special medical damages are limited t
27 those sums paid by Medi-Cal or her private insurance carrier on her behalf. (Nishihama v. Norsd
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ANSWER TO COMPLAINT
and County of San Francisco (2001) 93 Cal.App.4th 298; Hanif v. Housing Authority (1998) 20!
Cal.App.3d 635.)
THIRTEENTH AFFIRMATIVE DEFENSE
(Statute of Limitations)
As a separate and affirmative defense to Plaintiffs’ Complaint and to each purported cause
of action contained therein, Defendant alleges that each purported cause of action is barred by the
statute of limitation as set forth in California Code of Civil Procedure, commencing with Section}
335 and continuing through Section 349.4, more particularly, but not limited to: Section 337
337.1, 338. 339,340,343, and 359.
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FOURTEENTH AFFIRMATIVE DEFENSE
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(No Proximate Cause)
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As a separate and affirmative defense to Plaintiffs’ Complaint and to each purported cause
13 of action contained therein, Defendant alleges that Plaintiffsis barred from recovery on the basis}
14 that the purported conduct by Defendant, was not a proximate cause of the incident upon whic!
15 the Plaintiffs were predicated.
16 FIFTEENTH AFFIRMATIVE DEFENSE
17 (Failure to Exercise Ordinary Care)
18 Defendant is informed and believes and based upon said information and belief alleges,
19 that an injury, damage, or loss sustained by Plaintiffs were proximately caused and contributed to}
20 by negligence on Plaintiffs party, in that Plaintiffs did not exercise ordinary care on Plaintiffs ow:
21 behalf at the times and places as set forth in the Plaintiffs’ Complaint.
22 SIXTEENTH AFFIRMATIVE DEFENSE
23 (Failure to Mitigate)
24 That Plaintiffs failed to take reasonable steps and make reasonable expenditures to reduce|
25 Plaintiffs’ claims, damages, losses, if any, and that said failure to mitigate Plaintiffs’ damages bars
26 or reduces any claims, losses, or damages.
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ANSWER TO COMPLAINT
SEVENTEENTH AFFIRMATIVE DEFENSE
(Insufficient facts)
Plaintiffs’ Complaint fails to state facts sufficient to constitute a cause of action against
this answering Defendant.
EIGHTEENTH AFFIRMATIVE DEFENSE
(Own Conduct)
That the Plaintiffs’ own conduct, lack of reasonable care, and contributory fault in and!
about the matters alleged in Plaintiffs’ Complaint was the sole and proximate cause of the
happening of the accident and the loss and damages complained of, if any there were, and said!
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conduct, lack of reasonable care, and comparative fault on the part of the Plaintiffs bars Plaintiffs’
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recovery; or, in the alternative, that Plaintiffs’ conduct, lack of reasonable care, and comparative
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fault in and about the matters alleged in the Complaint proximately contributed to the happening|
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of the accident and to the loss and damages complained of, if any there were, and said conduct
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lack of reasonable care, and comparative fault on the part of the Plaintiffs require that any damages|
1S awarded Plaintiffs shall be diminished, as required under the laws of the State of California, i
16 proportion to the amount of fault attributed to said Plaintiff.
17 TWENTIETH AFFIRMATIVE DEFENSE
18 (Knowledge)
19 This answering Defendant is informed and believes and thereupon alleges that at all times
20 relevant on or before the date of the incident alleged herein, the Plaintiffs knew the hazards
21 involved in her actions and knowing the probably consequences thereof, did place herself in aj
22 position of danger, and freely and voluntarily participated in all of the activities alleged herein and
23 thereby assumed the risks attendant thereto. The assumption of said risks was the sole and
24 proximate cause of the alleged injuries and damages, if any, and, accordingly, completely bars
25 Plaintiffs from recovery herein, or, in the alternative, it reduces the right of recovery by that amount
26 which said negligence contributed to this incident, as set forth under the doctrine of comparative|
27 negligence.
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ANSWER TO COMPLAINT
TWENTY-FIRST AFFIRMATIVE DEFENSE
(Consent)
This answering Defendant is informed and believes and thereupon alleges that at all times}
relevant herein, Plaintiffs consented, impliedly or expressly, to the act as allegedly conducted b
this answering Defendant.
TWENTY-SECOND AFFIRMATIVE DEFENSE
(Pro-rated)
This answering Defendant is informed and believes and thereupon alleges that if it should)
be found that this answering Defendant is in any manner legally responsible for injury or damages,
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if any, sustained by Plaintiffs which supposition is not admitted but merely stated for the purpose]
11 of this defense, that any such injuries or damages found to have been incurred or suffered b:
12 Plaintiffs in this action were proximately contributed to by other Defendants in this case, whethe
13 served or not served, and/or by other persons or companies not parties to this action; and it ig
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necessary that the proportionate degree of negligence or fault of each of said other persons or
15 companies, whether made party to this action or not, be determined and prorationed; and that an:
16 judgment that might be rendered against this answering Defendant be reduced not only by that
17 degree of comparative negligence and/or assumption of risk found to exist as to Plaintiffs but also
18 as the total of that degree of negligence and/or fault found to exist as to said other persons o
19 companies; and that if this answering Defendant is required to pay any amount in excess of this
20 answering Defendant’s proportionate degree of comparative fault, if any, then this answering}
21 Defendant is entitled to recover from the other defendants and each of them, the amount of said
22 excess paid.
23 TWENTY-THIRD AFFIRMATIVE DEFENSE
24 (Section 335.1)
25 This answering Defendant is informed and believes and thereupon alleges that Plaintiffs’
26 Complaint on file herein is barred by Section 335.1 of the Code of Civil Procedure.
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ANSWER TO COMPLAINT
TWENTY-FOURTH AFFIRMATIVE DEFENSE
(Contribution or contributory negligence)
This answering Defendant is informed and believes and thereupon alleges that at all times
mentioned in the Complaint, the Plaintiffs willfully, wantonly, recklessly, and with ai
unreasonable disregard for the safety of herself and of others, acted, conducted and maintained!
herself so as to cause and contribute in some degree to the alleged incident and to the damages and
injuries, if any, alleged, to have been sustained by Plaintiffs and said willful, wanton, and reckless
misconduct is imputed to the Plaintiffs herein.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
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(Good Faith)
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This answering Defendant is informed and believes and thereupon alleges that at all times
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relevant herein, this answering Defendant acted within the bounds of the law, in good faith, and
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14 TWENTY-SIXTH AFFIRMATIVE DEFENSE
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(Laches)
16 The Complaint herein is barred by the Doctrine of Laches.
17 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
18 (Scope of employment)
19 This answering Defendant is informed and believes and thereupon alleges that at all times}
20 relevant herein, Plaintiffs was acting within the course and scope of her employment; that the
21 incident alleged in the Complaint was proximately caused by the negligence and carelessness off
22 Plaintiffs’ employer, who, on this answering Defendant’s information and belief, was insured|
23 pursuant to the workers’ compensation laws of this state and whose carrier has paid or will pa’
24 money for medical care and disability compensation to, or on behalf of, Plaintiffs as a result of the
25 incident alleged herein; that any award of damages to the Plaintiffs should be reduced by any suc
26 sums paid or to be paid to, or on behalf of, the Plaintiffs or, in the alternative, the negligence off
27 said employer reduces the right of recovery by that amount which said negligence contributed to
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ANSWER TO COMPLAINT
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
(Negligence of others)
This answering Defendant is informed and believes and thereupon alleges that if Plaintiffs
sustained damage as alleged in the Complaint, that damage was proximately caused and!
contributed to by persons, entities or parties other than this answering Defendant in failing t
conduct themselves in a manner ordinarily expected of reasonably prudent persons in the conduct
of their affairs and business. This answering Defendant shall only be liable for the amount of the
non-economic damages allocated to them in direct proportion to their percentage of fault pursuant
to Civil Code Section 1431.2 and other applicable law.
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TWENTY-NINETH AFFIRMATIVE DEFENSE
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(Workers Compensation Benefits)
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Labor Code Section 3601(a) provides that, if the conditions of compensation set forth i
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Labor Code Section 3600 concur, the exclusive remedy of an injured employee (or of a deceased
14 employee’s dependents) against “any other employee of the employer acting within the scope of
1S his or her employment” is the right to recover workers’ compensation. The exclusive remedy rule
16 bars this action.
17 THIRTIETH AFFIRMATIVE DEFENSE
18 (Plaintiffs’ payments)
19 Should Plaintiffs receive payment of all or a portion of her medical expenses pursuant to a|
20 policy of insurance which pays said medical expenses, that Plaintiffs be barred from agai!
21 recovering those same expenses.
22 THIRTY FIRST AFFIRMATIVE DEFENSE
23 (Acts of Omissions of Third-Parties)
24 As a separate affirmative defense to Plaintiffs’ Complaint and to each purported cause off
25 action contained therein, NORSD alleges that the matter complained of in Plaintiffs’ Complaint
26 and the causes of action therein, were solely caused by the actions and/or omissions of a third4
27 party, or parties, for which the NORSD is not liable under Government Code §§820.8 and 815.
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ANSWER TO COMPLAINT
THIRTY SECOND AFFIRMATIVE DEFENSE
(Failure to Exhaust Administrative Remedies)
As a separate affirmative defense to Plaintiffs’ Complaint, NORSD alleges that the
Complaint and each purported cause of action are barred by Plaintiffs’ failure to exhaust he
administrative remedies.
THIRTY THIRD AFFIRMATIVE DEFENSE
(Cal. Gov. Code §§821.4 and 815.2(b))
As a separate affirmative defense to Plaintiffs’ Complaint, NORSD is not liable for the|
injury caused by its failure to make an inspection or by reason of making an inadequate or negligent
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inspection pursuant to Government Code §§821.4 and 815.2(b).
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THIRTY FOURTH AFFIRMATIVE DEFENSE
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(Cal. Gov. Code §815.6)
14 As a separate affirmative defense to Plaintiffs’ Complaint, NORSD alleges the NORSD|
15 exercised reasonable diligence to discharge its duties within the meaning of Government Code}
16 §815.6.
17 THIRTY FOURTH AFFIRMATIVE DEFENSE
18 (Limitation of Special Damages)
19 As a separate affirmative defense to Plaintiffs’ Complaint and claim for damages, NORSD}
20 alleges Plaintiffs’ special medical damages are limited to those sums paid by any entity, including.
21 but not limited to, Medicare or any private insurance carrier on her behalf. (Howell v. Hamilto:
22 Meats & Provisions, Inc. (2011) 52 Cal.4" 541).
23 THIRTY FOURTH AFFIRMATIVE DEFENSE
24 (Reasonable Defense Costs)
25 As a separate affirmative defense to Plaintiffs’ Complaint, NORSD alleges it is entitled t
26 all reasonable and necessary defense costs normally awarded to the prevailing party or parties, i
27 that Plaintiffs brought this proceeding without reasonable cause ad without good faith belief that}
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ANSWER TO COMPLAINT
there was a justifiable controversy under the facts and law which warranted the filing of this
Complaint under the California Tort Claims Act.
WHEREFORE, this answering Defendant prays that Plaintiffs take nothing, and thi
answering Defendant be dismissed hence with costs of suit incurred herein, and for such other
further relief as the Court deems fit and proper
Dated: May 22, 2024 PEEL
| GARCIA LLP MA
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M. Troy Attornéy for Defendant,
NORTH OF THE RIVER SANITARY DISTRICT
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ANSWER TO COMPLAINT
PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF FRESNO
Tam a resident of the county aforesaid; I am over the age of eighteen years and not a party|
to the within entitled action; my business address is 3585 West Beechwood, Suite 101, Fresno.
California 93711
On May Zz 2024, I served the within ANSWER TO COMPLAINT on the intereste
parties in said action, as listed below:
DonaldN. Colvin, Esq.
Law Offices of Donald Colvin, APC
1712 19" Street, Suite 215-B
Bakersfield, CA 93301
Phone: (661) 616-1177
Fax: (661) 524-8855
10 Email: donald@donaldcolvinlaw.com
Counsel for Plaintiffs
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12 { ] VIA FACSIMILE - I caused such document(s) to be served on the parties via facsimile to}
the facsimile number specified above.
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[Xx] VIA ELECTRONIC MAIL — A pdf version of said document was served on the
14 party(ies) via electronic mail transmission at the address(es) specified above.
15 [ ] VIA OVERNIGHT MAIL - I caused such envelope to be delivered by hand in a
receptacle regularly maintained by the United Parcel Service.
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[Xx] BY MAIL - Iam readily familiar with the firm's practice of collection and processing of
17 documents for mailing. Under that practice, it would be deposited with the United States
Postal Service on that same day with postage thereon fully prepaid at Fresno, California.
18 in the ordinary course of business. I am aware on motion of the party served, service is
presumed invalid if postal cancellation date of postage meter date is more than one day
19 after date of deposit for mailing in affidavit.
20 [ ] BY PERSONAL SERVICE - I caused such envelope to be delivered by hand to the
offices of the addressee.
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I declare under penalty of perjury under the laws of the State of California, that the
22 foregoing is true and correct and if sworn as a witness I can competently testify to the foregoing|
23 of my own knowledge.
24 Executed on May wn 2024, at Fresno, California.
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26 Kaede Wren.
Declarant — Lanette I. Marcyes
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ANSWER TO COMPLAINT
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M. Troy Hazelton, Esq. (SBN 203884) PEEL | GARCIA LLP 3585 W. Beechwood, Suite 101 Fresno, California 93711 Telephone: (559 431-1300 Facsimile: (559 431-1442 Email: Thazelton@pgllp.com Attorneys for: Defendant, NORTH OF THE RIVER SANITARY DISTRICT SUPERIOR COURT OF CALIFORNIA COUNTY OF KERN 10 SALVADOR MUNOZ AND NANCY ) Case No. BCV-24-100414 ARISMENDIZ, 11 Plaintiffs, ANSWER TO COMPLAINT 12 Ww aiver of Fee per California Government Vv. ‘ode §6103) 13 NORTH OF THE RIVER SANITARY 14 DISTRICT, AN INDEPENDENT DISTRICT [Complaint Filed February 6, 2024] OF THE STATE OF CALIFORNIA; AND 15 DOES 1 TO 20, 16 Defendants. ) ) 17 COMES NOW Defendant NORTH OF THE RIVER SANITARY DISTRICT (hereinafter 18 “NORSD”) and hereby answer the complaint of Plaintiffs SALVADOR MUNOZ and NANCY| 19 ARISMENDIZ (hereinafter “Plaintiffs”) on file herein by denying and alleging as follows: 20 GENERAL DENIAL 21 Pursuant to Section 431.30(d) of the California Code of Civil Procedure, NORSD denies. 22 generally and specifically, each and every allegation in the Complaint. NORSD further denies, 23 generally and specifically, that Plaintiffshas been damaged in any sum or at all by reason of an! 24 act of omission on the party of NORSD, and denies Plaintiffs are entitled to recover any of the 25 relief she seeks in the Complaint. For its affirmative defenses, NORSD alleges as follows: 26 Ml 27 Mf 28 1 ANSWER TO COMPLAINT FIRST AFFIRMATIVE DEFENSE (Intervening/Superseding Cause) This answering Defendant is informed and believes, and on such information and belief allege, that the injuries and damages of which Plaintiffs complain were proximately caused o contributed to by the acts of other parties, persons, and/or entities, and that said acts were a intervening and superseding cause of the alleged injuries and damages of which Plaintiffs complain, thus barring Plaintiffs from any recovery against this answering Defendant. SECOND AFFIRMATIVE DEFENSE (Failure to State a Claim) 10 As a separate and affirmative defense to Plaintiffs’ Complaint and to each purported cause 11 of action contained therein, Defendant alleges the Complaint fails to state facts sufficient t 12 constitute a claim upon which relief can be granted. 13 THIRD AFFIRMATIVE DEFENSE 14 (Statute of Limitations) 15 As a separate and affirmative defense to Plaintiffs’ Complaint and to each purported cause| 16 of action contained therein, Defendant alleges that Plaintiffs’ Complaint is time-barred pursuant 17 to California Government Code section 945.6, and California Code of Civil Procedure sections 18 342 and 335.1. 19 FOURTH AFFIRMATIVE DEFENSE 20 (Failure to Name an Indispensable Party) 21 As a separate and affirmative defense to Plaintiffs’ Complaint and to each purported cause 22 of action contained therein, Defendant alleges the matter complained of in the Complaint and thd 23 causes of action therein, were caused by the actions or omissions of an indispensable third-party 24 or parties, who have not been named as defendants in the Complaint, and whose interests are s 25 involved such that the court cannot render judgment in their absence. 26 Mf 27 Ml 28 Ml 2 ANSWER TO COMPLAINT FIFTH AFFIRMATIVE DEFENSE (Failure to Comply with Tort Claims Act) This answering Defendant alleges Plaintiffs failed to comply with the Tort Claims Act and Government code section 900 et. seq., including, but not limited to, Government Code sectiong 900 et. seq., 905, 910, 911.2, 915, 945.4, etc. This Answering Defendant also alleges Plaintiffs failed to submit the required claims form to the proper legal entity, and/or failed to comply wit! the Claims form requirements of proceeding against a public entity. This answering Defendant alleges Plaintiffs may not proceed for failure to present timely written claim for damages to the| proper public entity and if such claim was presented it was not in accordance with the section 900] 10 et. seq., and/or was not presented with time required by the applicable code section. If, and to the 11 extent that, the allegations of the Complaint attempt to enlarge upon the facts and/or contentiong 12 set forth in a claim, if any, filed by Plaintiffs, then said Complaint fails to state a cause of actio 13 and violates the provisions of California Government Code Chapter 2 ( commencing with section] 14 900) and this answering Defendant hereby reserves its right to strike said allegations and to object 15 to any evidence directed to proof of said allegations. 16 SIXTH AFFIRMATIVE DEFENSE 17 (Exercise of Discretionary Authority - Cal. Gov. Code §820.2) 18 As a separate and affirmative defense to Plaintiffs’ Complaint and to each purported cause 19 of action contained therein, Defendant alleges any and all acts of Defendant and its agents and/o’ 20 employees, which allegedly caused the injury, were the result of the exercise of discretionary| 21 authority vested in them. Therefore, this answering Defendant is not liable to Plaintiffs for thei: 22 alleged damages, if any, pursuant to the provisions of Government Code section 820.2. 23 SEVENTH AFFIRMATIVE DEFENSE 24 (Cal. Gov. Code § 835.4) 25 As a separate and affirmative defense to Plaintiffs’ Complaint and to each purported cause| 26 of action contained therein, Defendant alleges the acts of Defendants were reasonable within the 27 meaning of Government Code section 835.4 and Defendants are therefore immune from liability. 28 Ml 3 ANSWER TO COMPLAINT EIGHTH AFFIRMATIVE DEFENSE (Comparative Fault- Cal. Civ. Code§ 1431.2) As a separate and affirmative defense to Plaintiffs’ Complaint and to each purported cause of action contained therein, Defendant alleges any non-economic damages sustained by Plaintiffy in this action were due to the fault of someone other than Defendant and, under California Civi Code section 1431.2, the Fair Responsibility Act of 1986, Defendant can only be held liable for those non-economic damages proportionately caused by the fault, if any, of Defendant. NINTH AFFIRMATIVE DEFENSE (Collateral Source Payments) 10 As a separate and affirmative defense to Plaintiffs’ Complaint and to each purported cause, 1 of action contained therein, Defendant alleges they are entitled, pursuant to California Government! 12 Code section 984 et seq., to a reduction of a judgment entered against it, if any, for collateral source 13 payments paid or obligated to be paid for services or benefits that were provided to Plaintiffs prioy 14 to the commencement of trial. 15 TENTH AFFIRMATIVE DEFENSE 16 (Reasonable Defense Costs) 17 As a separate and affirmative defense to Plaintiffs’ Complaint and to each purported cause 18 of action contained therein, Defendant alleges it is entitled to all reasonable and necessary defense| 19 costs normally awarded to the prevailing party pursuant to California Code of Civil Procedure} 20 section 1038, in that Plaintiffs brought this proceeding without reasonable cause and without al 21 good faith belief that there was a justifiable controversy under the facts and law which warranted! 22 the filing of the Complaint under the California Tort Claims Act. 23 TWELFTH AFFIRMATIVE DEFENSE 24 (Limitation of Special Damages) 25 As a separate and affirmative defense to Plaintiffs’ Complaint and to each purported cause 26 of action contained therein, Defendant alleges Plaintiffs special medical damages are limited t 27 those sums paid by Medi-Cal or her private insurance carrier on her behalf. (Nishihama v. Norsd 28 4 ANSWER TO COMPLAINT and County of San Francisco (2001) 93 Cal.App.4th 298; Hanif v. Housing Authority (1998) 20! Cal.App.3d 635.) THIRTEENTH AFFIRMATIVE DEFENSE (Statute of Limitations) As a separate and affirmative defense to Plaintiffs’ Complaint and to each purported cause of action contained therein, Defendant alleges that each purported cause of action is barred by the statute of limitation as set forth in California Code of Civil Procedure, commencing with Section} 335 and continuing through Section 349.4, more particularly, but not limited to: Section 337 337.1, 338. 339,340,343, and 359. 10 FOURTEENTH AFFIRMATIVE DEFENSE 11 (No Proximate Cause) 12 As a separate and affirmative defense to Plaintiffs’ Complaint and to each purported cause 13 of action contained therein, Defendant alleges that Plaintiffsis barred from recovery on the basis} 14 that the purported conduct by Defendant, was not a proximate cause of the incident upon whic! 15 the Plaintiffs were predicated. 16 FIFTEENTH AFFIRMATIVE DEFENSE 17 (Failure to Exercise Ordinary Care) 18 Defendant is informed and believes and based upon said information and belief alleges, 19 that an injury, damage, or loss sustained by Plaintiffs were proximately caused and contributed to} 20 by negligence on Plaintiffs party, in that Plaintiffs did not exercise ordinary care on Plaintiffs ow: 21 behalf at the times and places as set forth in the Plaintiffs’ Complaint. 22 SIXTEENTH AFFIRMATIVE DEFENSE 23 (Failure to Mitigate) 24 That Plaintiffs failed to take reasonable steps and make reasonable expenditures to reduce| 25 Plaintiffs’ claims, damages, losses, if any, and that said failure to mitigate Plaintiffs’ damages bars 26 or reduces any claims, losses, or damages. 27 Mt 28 M/ 5 ANSWER TO COMPLAINT SEVENTEENTH AFFIRMATIVE DEFENSE (Insufficient facts) Plaintiffs’ Complaint fails to state facts sufficient to constitute a cause of action against this answering Defendant. EIGHTEENTH AFFIRMATIVE DEFENSE (Own Conduct) That the Plaintiffs’ own conduct, lack of reasonable care, and contributory fault in and! about the matters alleged in Plaintiffs’ Complaint was the sole and proximate cause of the happening of the accident and the loss and damages complained of, if any there were, and said! 10 conduct, lack of reasonable care, and comparative fault on the part of the Plaintiffs bars Plaintiffs’ 11 recovery; or, in the alternative, that Plaintiffs’ conduct, lack of reasonable care, and comparative 12 fault in and about the matters alleged in the Complaint proximately contributed to the happening| 13 of the accident and to the loss and damages complained of, if any there were, and said conduct 14 lack of reasonable care, and comparative fault on the part of the Plaintiffs require that any damages| 1S awarded Plaintiffs shall be diminished, as required under the laws of the State of California, i 16 proportion to the amount of fault attributed to said Plaintiff. 17 TWENTIETH AFFIRMATIVE DEFENSE 18 (Knowledge) 19 This answering Defendant is informed and believes and thereupon alleges that at all times 20 relevant on or before the date of the incident alleged herein, the Plaintiffs knew the hazards 21 involved in her actions and knowing the probably consequences thereof, did place herself in aj 22 position of danger, and freely and voluntarily participated in all of the activities alleged herein and 23 thereby assumed the risks attendant thereto. The assumption of said risks was the sole and 24 proximate cause of the alleged injuries and damages, if any, and, accordingly, completely bars 25 Plaintiffs from recovery herein, or, in the alternative, it reduces the right of recovery by that amount 26 which said negligence contributed to this incident, as set forth under the doctrine of comparative| 27 negligence. 28 M/ 6 ANSWER TO COMPLAINT TWENTY-FIRST AFFIRMATIVE DEFENSE (Consent) This answering Defendant is informed and believes and thereupon alleges that at all times} relevant herein, Plaintiffs consented, impliedly or expressly, to the act as allegedly conducted b this answering Defendant. TWENTY-SECOND AFFIRMATIVE DEFENSE (Pro-rated) This answering Defendant is informed and believes and thereupon alleges that if it should) be found that this answering Defendant is in any manner legally responsible for injury or damages, 10 if any, sustained by Plaintiffs which supposition is not admitted but merely stated for the purpose] 11 of this defense, that any such injuries or damages found to have been incurred or suffered b: 12 Plaintiffs in this action were proximately contributed to by other Defendants in this case, whethe 13 served or not served, and/or by other persons or companies not parties to this action; and it ig 14 necessary that the proportionate degree of negligence or fault of each of said other persons or 15 companies, whether made party to this action or not, be determined and prorationed; and that an: 16 judgment that might be rendered against this answering Defendant be reduced not only by that 17 degree of comparative negligence and/or assumption of risk found to exist as to Plaintiffs but also 18 as the total of that degree of negligence and/or fault found to exist as to said other persons o 19 companies; and that if this answering Defendant is required to pay any amount in excess of this 20 answering Defendant’s proportionate degree of comparative fault, if any, then this answering} 21 Defendant is entitled to recover from the other defendants and each of them, the amount of said 22 excess paid. 23 TWENTY-THIRD AFFIRMATIVE DEFENSE 24 (Section 335.1) 25 This answering Defendant is informed and believes and thereupon alleges that Plaintiffs’ 26 Complaint on file herein is barred by Section 335.1 of the Code of Civil Procedure. 27 MW 28 Mt 7 ANSWER TO COMPLAINT TWENTY-FOURTH AFFIRMATIVE DEFENSE (Contribution or contributory negligence) This answering Defendant is informed and believes and thereupon alleges that at all times mentioned in the Complaint, the Plaintiffs willfully, wantonly, recklessly, and with ai unreasonable disregard for the safety of herself and of others, acted, conducted and maintained! herself so as to cause and contribute in some degree to the alleged incident and to the damages and injuries, if any, alleged, to have been sustained by Plaintiffs and said willful, wanton, and reckless misconduct is imputed to the Plaintiffs herein. TWENTY-FIFTH AFFIRMATIVE DEFENSE 10 (Good Faith) 11 This answering Defendant is informed and believes and thereupon alleges that at all times 12 relevant herein, this answering Defendant acted within the bounds of the law, in good faith, and 13 with due care. 14 TWENTY-SIXTH AFFIRMATIVE DEFENSE 15 (Laches) 16 The Complaint herein is barred by the Doctrine of Laches. 17 TWENTY-SEVENTH AFFIRMATIVE DEFENSE 18 (Scope of employment) 19 This answering Defendant is informed and believes and thereupon alleges that at all times} 20 relevant herein, Plaintiffs was acting within the course and scope of her employment; that the 21 incident alleged in the Complaint was proximately caused by the negligence and carelessness off 22 Plaintiffs’ employer, who, on this answering Defendant’s information and belief, was insured| 23 pursuant to the workers’ compensation laws of this state and whose carrier has paid or will pa’ 24 money for medical care and disability compensation to, or on behalf of, Plaintiffs as a result of the 25 incident alleged herein; that any award of damages to the Plaintiffs should be reduced by any suc 26 sums paid or to be paid to, or on behalf of, the Plaintiffs or, in the alternative, the negligence off 27 said employer reduces the right of recovery by that amount which said negligence contributed to 28 the incident, as set forth under the doctrine of comparative negligence. 8 ANSWER TO COMPLAINT TWENTY-EIGHTH AFFIRMATIVE DEFENSE (Negligence of others) This answering Defendant is informed and believes and thereupon alleges that if Plaintiffs sustained damage as alleged in the Complaint, that damage was proximately caused and! contributed to by persons, entities or parties other than this answering Defendant in failing t conduct themselves in a manner ordinarily expected of reasonably prudent persons in the conduct of their affairs and business. This answering Defendant shall only be liable for the amount of the non-economic damages allocated to them in direct proportion to their percentage of fault pursuant to Civil Code Section 1431.2 and other applicable law. 10 TWENTY-NINETH AFFIRMATIVE DEFENSE 11 (Workers Compensation Benefits) 12 Labor Code Section 3601(a) provides that, if the conditions of compensation set forth i 13 Labor Code Section 3600 concur, the exclusive remedy of an injured employee (or of a deceased 14 employee’s dependents) against “any other employee of the employer acting within the scope of 1S his or her employment” is the right to recover workers’ compensation. The exclusive remedy rule 16 bars this action. 17 THIRTIETH AFFIRMATIVE DEFENSE 18 (Plaintiffs’ payments) 19 Should Plaintiffs receive payment of all or a portion of her medical expenses pursuant to a| 20 policy of insurance which pays said medical expenses, that Plaintiffs be barred from agai! 21 recovering those same expenses. 22 THIRTY FIRST AFFIRMATIVE DEFENSE 23 (Acts of Omissions of Third-Parties) 24 As a separate affirmative defense to Plaintiffs’ Complaint and to each purported cause off 25 action contained therein, NORSD alleges that the matter complained of in Plaintiffs’ Complaint 26 and the causes of action therein, were solely caused by the actions and/or omissions of a third4 27 party, or parties, for which the NORSD is not liable under Government Code §§820.8 and 815. 28 9 ANSWER TO COMPLAINT THIRTY SECOND AFFIRMATIVE DEFENSE (Failure to Exhaust Administrative Remedies) As a separate affirmative defense to Plaintiffs’ Complaint, NORSD alleges that the Complaint and each purported cause of action are barred by Plaintiffs’ failure to exhaust he administrative remedies. THIRTY THIRD AFFIRMATIVE DEFENSE (Cal. Gov. Code §§821.4 and 815.2(b)) As a separate affirmative defense to Plaintiffs’ Complaint, NORSD is not liable for the| injury caused by its failure to make an inspection or by reason of making an inadequate or negligent 10 inspection pursuant to Government Code §§821.4 and 815.2(b). 11 12 THIRTY FOURTH AFFIRMATIVE DEFENSE 13 (Cal. Gov. Code §815.6) 14 As a separate affirmative defense to Plaintiffs’ Complaint, NORSD alleges the NORSD| 15 exercised reasonable diligence to discharge its duties within the meaning of Government Code} 16 §815.6. 17 THIRTY FOURTH AFFIRMATIVE DEFENSE 18 (Limitation of Special Damages) 19 As a separate affirmative defense to Plaintiffs’ Complaint and claim for damages, NORSD} 20 alleges Plaintiffs’ special medical damages are limited to those sums paid by any entity, including. 21 but not limited to, Medicare or any private insurance carrier on her behalf. (Howell v. Hamilto: 22 Meats & Provisions, Inc. (2011) 52 Cal.4" 541). 23 THIRTY FOURTH AFFIRMATIVE DEFENSE 24 (Reasonable Defense Costs) 25 As a separate affirmative defense to Plaintiffs’ Complaint, NORSD alleges it is entitled t 26 all reasonable and necessary defense costs normally awarded to the prevailing party or parties, i 27 that Plaintiffs brought this proceeding without reasonable cause ad without good faith belief that} 28 10 ANSWER TO COMPLAINT there was a justifiable controversy under the facts and law which warranted the filing of this Complaint under the California Tort Claims Act. WHEREFORE, this answering Defendant prays that Plaintiffs take nothing, and thi answering Defendant be dismissed hence with costs of suit incurred herein, and for such other further relief as the Court deems fit and proper Dated: May 22, 2024 PEEL | GARCIA LLP MA 10 ee M. Troy Attornéy for Defendant, NORTH OF THE RIVER SANITARY DISTRICT 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 ANSWER TO COMPLAINT PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF FRESNO Tam a resident of the county aforesaid; I am over the age of eighteen years and not a party| to the within entitled action; my business address is 3585 West Beechwood, Suite 101, Fresno. California 93711 On May Zz 2024, I served the within ANSWER TO COMPLAINT on the intereste parties in said action, as listed below: DonaldN. Colvin, Esq. Law Offices of Donald Colvin, APC 1712 19" Street, Suite 215-B Bakersfield, CA 93301 Phone: (661) 616-1177 Fax: (661) 524-8855 10 Email: donald@donaldcolvinlaw.com Counsel for Plaintiffs 11 12 { ] VIA FACSIMILE - I caused such document(s) to be served on the parties via facsimile to} the facsimile number specified above. 13 [Xx] VIA ELECTRONIC MAIL — A pdf version of said document was served on the 14 party(ies) via electronic mail transmission at the address(es) specified above. 15 [ ] VIA OVERNIGHT MAIL - I caused such envelope to be delivered by hand in a receptacle regularly maintained by the United Parcel Service. 16 [Xx] BY MAIL - Iam readily familiar with the firm's practice of collection and processing of 17 documents for mailing. Under that practice, it would be deposited with the United States Postal Service on that same day with postage thereon fully prepaid at Fresno, California. 18 in the ordinary course of business. I am aware on motion of the party served, service is presumed invalid if postal cancellation date of postage meter date is more than one day 19 after date of deposit for mailing in affidavit. 20 [ ] BY PERSONAL SERVICE - I caused such envelope to be delivered by hand to the offices of the addressee. 21 I declare under penalty of perjury under the laws of the State of California, that the 22 foregoing is true and correct and if sworn as a witness I can competently testify to the foregoing| 23 of my own knowledge. 24 Executed on May wn 2024, at Fresno, California. 25 26 Kaede Wren. Declarant — Lanette I. Marcyes 27 28 12 ANSWER TO COMPLAINT