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1 John H. Everett, Esq. (Bar No. 95120) E-FILED
LAW OFFICES OF JOHN H. EVERETT 7/21/2020 10:42 AM
2 600 West Broadway, Suite 1200 Superior Court of California
San Diego, California 92101 County of Fresno
3 Telephone: (619) 294-2200
Facsimile: (619) 294-2300 By: M. Douangkham, Deputy
4
5 Attorneys for Defendant, AVIS BUDGET GROUP, INC.
6
7
8 SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF FRESNO
10
11 MARY HUERTA, ) Case No.: 20CECG01263
)
12 Plaintiff, ) Judge: Hon. Rosemary McGuire
) Dept: 402
13 vs. )
) DEFENDANT, AVIS BUDGET GROUP,
14 AVIS BUDGET GROUP, INC.; and DOES ) INC.’S ANSWER TO PLAINTIFF’S
1-10, Inclusive, ) COMPLAINT
15 )
Defendants. ) Complaint Filed: 05/04/20
16 )
)
17 )
18
19 COMES NOW Defendant, AVIS BUDGET GROUP, INC., and answering the
20 unverified Complaint herein, for itself alone and no other defendants, admits, denies
21 and alleges as follows:
22 Under the provisions of §431.30 of the California Code of Civil Procedure, this
23 answering defendant denies each and every allegation and all of the allegations of said
24 Complaint, and the whole thereof, and further expressly denies that as a direct or
25 proximate result of any act or omission on the part of this answering defendant, plaintiff
26 sustained injury or damage in the amount alleged, in any amount, or at all.
27 ///
28 ///
1
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DEFENDANT, AVIS BUDGET GROUP, INC.’S ANSWER TO PLAINTIFF’S COMPLAINT
1 FIRST AFFIRMATIVE DEFENSE
2 The Complaint and each Cause of Action thereon fails to state facts sufficient to
3 constitute causes of action as to this answering defendant.
4 SECOND AFFIRMATIVE DEFENSE
5 If plaintiff suffered or sustained any damage or injury, either as alleged in the
6 Complaint or at all, the same was directly and proximately contributed to by the
7 negligence, recklessness, carelessness, fault and unlawful conduct of the plaintiff, and
8 damages of plaintiff, if any, shall be reduced in proportion to the amount of negligence
9 and/or fault attributable to the plaintiff.
10 THIRD AFFIRMATIVE DEFENSE
11 If plaintiff suffered or sustained any damage or injury either as alleged in the
12 Complaint, or at all, the same was directly and proximately contributed to by the
13 negligence, recklessness, carelessness, fault, and unlawful conduct of other parties or
14 entities, whether or not parties to this action, and damages of plaintiff, if any, shall be
15 reduced in proportion to the amount of negligence and/or fault attributable to such other
16 persons or entities, whether or not parties to this action.
17 FOURTH AFFIRMATIVE DEFENSE
18 The action of plaintiff is barred by the applicable Statute of Limitations, including,
19 but not limited to, Code of Civil Procedure, §335.1 and §338.
20 FIFTH AFFIRMATIVE DEFENSE
21 This answering defendant is informed and believes and based thereon, alleges
22 that its liability, if any, for non-economic general damages is several only and not joint
23 pursuant to California Civil Code §1431.2.
24 SIXTH AFFIRMATIVE DEFENSE
25 Plaintiff’s recovery shall be barred, precluded and/or limited pursuant to the
26 holding in Witt v. Jackson (1961) 57 C.2d 57.
27 ///
28 ///
2
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DEFENDANT, AVIS BUDGET GROUP, INC.’S ANSWER TO PLAINTIFF’S COMPLAINT
1 SEVENTH AFFIRMATIVE DEFENSE
2 Plaintiff’s recovery shall be barred, precluded and/or limited pursuant to the
3 provisions of California Code of Civil Procedure §389(a), (b).
4 EIGHTH AFFIRMATIVE DEFENSE
5 For each cause of action, Plaintiff has failed to mitigate or make reasonable her
6 damages, if any, as required by law.
7 NINTH AFFIRMATIVE DEFENSE
8 That Plaintiff has failed to act reasonably to mitigate the injuries, if any, and
9 damages, if any, that are alleged in the Complaint by failing to utilize available health
10 care insurance/coverage. Such failure to mitigate on the part of the Plaintiff bars or
11 reduces her right to recover any damages against this answering Defendant.
12 TENTH AFFIRMATIVE DEFENSE
13 That if Plaintiff was not insured as required by the Patient Protection and
14 Affordable Care Act (PPACA) and the Health Care and Education Reconciliation Act of
15 2010, Plaintiff’s recovery herein, if any, shall not include any medical expenses incurred
16 on a lien basis. Alternatively, all medical expenses incurred on a lien basis and/or paid
17 by a private third party individual, business or company, shall be reduced, and are only
18 compensable, at reasonable reimbursable rates.
19 ELEVENTH AFFIRMATIVE DEFENSE
20 Plaintiff’s alleged claims for damages are speculative and lack necessary
21 evidentiary support, as any purported evidence of unpaid medical bills are inadmissible
22 and irrelevant to the reasonable value of services provided and may not, as a matter of
23 law, support an award of damages for past or future medical expenses. (See Ochoa v.
24 Dorado (2014) 228 Cal.App.4th 120, 138-139, see also Howell v. Hamilton (2011) 52
25 Cal.4th 541, 556; Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308, 1326.)
26 TWELFTH AFFIRMATIVE DEFENSE
27 Plaintiff’s claims that she remains obligated to pay certain medical bills for
28 treatment received in relation to her conditions or injuries allegedly as a result of the
3
____________________________________
DEFENDANT, AVIS BUDGET GROUP, INC.’S ANSWER TO PLAINTIFF’S COMPLAINT
1 subject accident are irrelevant to any material issue of dispute in the present lawsuit.
2 (See Ochoa v. Dorado (2014) 228 Cal.App.4th 120, 138-139, see also Howell v.
3 Hamilton (2011) 52 Cal.4th 541, 556; Corenbaum v. Lampkin (2013) 215 Cal.App.4th
4 1308, 1326.)
5 THIRTEENTH AFFIRMATIVE DEFENSE
6 Plaintiff’s claims are barred, precluded, reduced, and/or limited pursuant to the
7 Graves Amendment to the Safe, Accountable, Flexible, Efficient Transportation Equity
8 Act, 49 U.S.C. §30106.
9 FOURTEENTH AFFIRMATIVE DEFENSE
10 Plaintiff’s recovery shall be barred, precluded and/or limited pursuant to the
11 holding in Interinsurance Exchange v. Spectrum Investment Corp. (1980) 209
12 Cal.App.3d 1243; Mercury Casualty Company v. Hertz Corporation, (1997) 59
13 Cal.App.4th 414, and Enterprise Rent-A-Car Company of San Francisco v. Workmen's
14 Auto Insurance Company (1997) 58 Cal.App.4th 1543.
15 WHEREFORE, answering defendant prays that plaintiff takes nothing by reason
16 of the Complaint herein, that answering defendant be dismissed hence, together with all
17 costs of suit incurred, and for such other and further relief as may be just and proper.
18
19 Dated: July 21, 2020 LAW OFFICES OF JOHN H. EVERETT
20
21
22
23 BY: ___________________________
JOHN H. EVERETT, ESQ.
24 Attorneys for Defendant
AVIS BUDGET GROUP, INC.
25
26
27
28
4
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DEFENDANT, AVIS BUDGET GROUP, INC.’S ANSWER TO PLAINTIFF’S COMPLAINT
1 PROOF OF SERVICE
C.C.P. §1013(a), C.R.C. 2003(3), 2005(i)
2
3 STATE OF CALIFORNIA, IN AND FOR THE COUNTY OF SAN DIEGO
4 I am employed in the County of San Diego, State of California. I am over the age of
18 and not a party to the within action; my business address 600 West Broadway, Suite
5 1200, San Diego, California 92101.
6 On July 21, 2020, I served the foregoing document(s) described as
7 AVIS BUDGET GROUP, INC.’S ANSWER TO COMPLAINT
8 BY MAIL: I am "readily familiar" with the firm's practice of collection and
processing correspondence for mailing. Under that practice, it would be deposited with the
9 U. S. Postal Service on the same day with postage thereon fully prepaid at San Diego,
California, in the ordinary course of business. I am aware that on motion of the party
10 served, service is presumed invalid if postal cancellation date or postage meter date is more
than one day after date of deposit for mailing in affidavit.
11
X E-MAIL OR ELECTRONIC TRANSMISSION: I caused the documents to be
12 sent to the persons at the e-mail address(es) listed below. I did not receive, within a
reasonable time after the transmission, any electronic message or other indication that the
13 transmission was unsuccessful.
14 David Mamann, Esq. Attorney for Plaintiff
Law Offices of David Mamann
15 291 S. La Cienega Blvd., Suite #214
Beverly Hills, CA. 90211
16 (310) 659-7799 – Fax
mamannd@aol.com
17
18
PERSONAL SERVICE: I hand-delivered said document(s) to the addressee
19 pursuant to Code of Civil Procedure §1011.
20 √ STATE: I declare under penalty of perjury, under the laws of the State of
California, that the foregoing is true and correct.
21
FEDERAL: I declare that I am employed in the office of a member of the Bar
22 of this Court, at whose direction the service was made.
23 EXECUTED on July 21, 2020, at San Diego, California.
24
25
26
27
____________________________________
28 [X] LOREN KUHN
1
Preview
1 John H. Everett, Esq. (Bar No. 95120) E-FILED LAW OFFICES OF JOHN H. EVERETT 7/21/2020 10:42 AM 2 600 West Broadway, Suite 1200 Superior Court of California San Diego, California 92101 County of Fresno 3 Telephone: (619) 294-2200 Facsimile: (619) 294-2300 By: M. Douangkham, Deputy 4 5 Attorneys for Defendant, AVIS BUDGET GROUP, INC. 6 7 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF FRESNO 10 11 MARY HUERTA, ) Case No.: 20CECG01263 ) 12 Plaintiff, ) Judge: Hon. Rosemary McGuire ) Dept: 402 13 vs. ) ) DEFENDANT, AVIS BUDGET GROUP, 14 AVIS BUDGET GROUP, INC.; and DOES ) INC.’S ANSWER TO PLAINTIFF’S 1-10, Inclusive, ) COMPLAINT 15 ) Defendants. ) Complaint Filed: 05/04/20 16 ) ) 17 ) 18 19 COMES NOW Defendant, AVIS BUDGET GROUP, INC., and answering the 20 unverified Complaint herein, for itself alone and no other defendants, admits, denies 21 and alleges as follows: 22 Under the provisions of §431.30 of the California Code of Civil Procedure, this 23 answering defendant denies each and every allegation and all of the allegations of said 24 Complaint, and the whole thereof, and further expressly denies that as a direct or 25 proximate result of any act or omission on the part of this answering defendant, plaintiff 26 sustained injury or damage in the amount alleged, in any amount, or at all. 27 /// 28 /// 1 ____________________________________ DEFENDANT, AVIS BUDGET GROUP, INC.’S ANSWER TO PLAINTIFF’S COMPLAINT 1 FIRST AFFIRMATIVE DEFENSE 2 The Complaint and each Cause of Action thereon fails to state facts sufficient to 3 constitute causes of action as to this answering defendant. 4 SECOND AFFIRMATIVE DEFENSE 5 If plaintiff suffered or sustained any damage or injury, either as alleged in the 6 Complaint or at all, the same was directly and proximately contributed to by the 7 negligence, recklessness, carelessness, fault and unlawful conduct of the plaintiff, and 8 damages of plaintiff, if any, shall be reduced in proportion to the amount of negligence 9 and/or fault attributable to the plaintiff. 10 THIRD AFFIRMATIVE DEFENSE 11 If plaintiff suffered or sustained any damage or injury either as alleged in the 12 Complaint, or at all, the same was directly and proximately contributed to by the 13 negligence, recklessness, carelessness, fault, and unlawful conduct of other parties or 14 entities, whether or not parties to this action, and damages of plaintiff, if any, shall be 15 reduced in proportion to the amount of negligence and/or fault attributable to such other 16 persons or entities, whether or not parties to this action. 17 FOURTH AFFIRMATIVE DEFENSE 18 The action of plaintiff is barred by the applicable Statute of Limitations, including, 19 but not limited to, Code of Civil Procedure, §335.1 and §338. 20 FIFTH AFFIRMATIVE DEFENSE 21 This answering defendant is informed and believes and based thereon, alleges 22 that its liability, if any, for non-economic general damages is several only and not joint 23 pursuant to California Civil Code §1431.2. 24 SIXTH AFFIRMATIVE DEFENSE 25 Plaintiff’s recovery shall be barred, precluded and/or limited pursuant to the 26 holding in Witt v. Jackson (1961) 57 C.2d 57. 27 /// 28 /// 2 ____________________________________ DEFENDANT, AVIS BUDGET GROUP, INC.’S ANSWER TO PLAINTIFF’S COMPLAINT 1 SEVENTH AFFIRMATIVE DEFENSE 2 Plaintiff’s recovery shall be barred, precluded and/or limited pursuant to the 3 provisions of California Code of Civil Procedure §389(a), (b). 4 EIGHTH AFFIRMATIVE DEFENSE 5 For each cause of action, Plaintiff has failed to mitigate or make reasonable her 6 damages, if any, as required by law. 7 NINTH AFFIRMATIVE DEFENSE 8 That Plaintiff has failed to act reasonably to mitigate the injuries, if any, and 9 damages, if any, that are alleged in the Complaint by failing to utilize available health 10 care insurance/coverage. Such failure to mitigate on the part of the Plaintiff bars or 11 reduces her right to recover any damages against this answering Defendant. 12 TENTH AFFIRMATIVE DEFENSE 13 That if Plaintiff was not insured as required by the Patient Protection and 14 Affordable Care Act (PPACA) and the Health Care and Education Reconciliation Act of 15 2010, Plaintiff’s recovery herein, if any, shall not include any medical expenses incurred 16 on a lien basis. Alternatively, all medical expenses incurred on a lien basis and/or paid 17 by a private third party individual, business or company, shall be reduced, and are only 18 compensable, at reasonable reimbursable rates. 19 ELEVENTH AFFIRMATIVE DEFENSE 20 Plaintiff’s alleged claims for damages are speculative and lack necessary 21 evidentiary support, as any purported evidence of unpaid medical bills are inadmissible 22 and irrelevant to the reasonable value of services provided and may not, as a matter of 23 law, support an award of damages for past or future medical expenses. (See Ochoa v. 24 Dorado (2014) 228 Cal.App.4th 120, 138-139, see also Howell v. Hamilton (2011) 52 25 Cal.4th 541, 556; Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308, 1326.) 26 TWELFTH AFFIRMATIVE DEFENSE 27 Plaintiff’s claims that she remains obligated to pay certain medical bills for 28 treatment received in relation to her conditions or injuries allegedly as a result of the 3 ____________________________________ DEFENDANT, AVIS BUDGET GROUP, INC.’S ANSWER TO PLAINTIFF’S COMPLAINT 1 subject accident are irrelevant to any material issue of dispute in the present lawsuit. 2 (See Ochoa v. Dorado (2014) 228 Cal.App.4th 120, 138-139, see also Howell v. 3 Hamilton (2011) 52 Cal.4th 541, 556; Corenbaum v. Lampkin (2013) 215 Cal.App.4th 4 1308, 1326.) 5 THIRTEENTH AFFIRMATIVE DEFENSE 6 Plaintiff’s claims are barred, precluded, reduced, and/or limited pursuant to the 7 Graves Amendment to the Safe, Accountable, Flexible, Efficient Transportation Equity 8 Act, 49 U.S.C. §30106. 9 FOURTEENTH AFFIRMATIVE DEFENSE 10 Plaintiff’s recovery shall be barred, precluded and/or limited pursuant to the 11 holding in Interinsurance Exchange v. Spectrum Investment Corp. (1980) 209 12 Cal.App.3d 1243; Mercury Casualty Company v. Hertz Corporation, (1997) 59 13 Cal.App.4th 414, and Enterprise Rent-A-Car Company of San Francisco v. Workmen's 14 Auto Insurance Company (1997) 58 Cal.App.4th 1543. 15 WHEREFORE, answering defendant prays that plaintiff takes nothing by reason 16 of the Complaint herein, that answering defendant be dismissed hence, together with all 17 costs of suit incurred, and for such other and further relief as may be just and proper. 18 19 Dated: July 21, 2020 LAW OFFICES OF JOHN H. EVERETT 20 21 22 23 BY: ___________________________ JOHN H. EVERETT, ESQ. 24 Attorneys for Defendant AVIS BUDGET GROUP, INC. 25 26 27 28 4 ____________________________________ DEFENDANT, AVIS BUDGET GROUP, INC.’S ANSWER TO PLAINTIFF’S COMPLAINT 1 PROOF OF SERVICE C.C.P. §1013(a), C.R.C. 2003(3), 2005(i) 2 3 STATE OF CALIFORNIA, IN AND FOR THE COUNTY OF SAN DIEGO 4 I am employed in the County of San Diego, State of California. I am over the age of 18 and not a party to the within action; my business address 600 West Broadway, Suite 5 1200, San Diego, California 92101. 6 On July 21, 2020, I served the foregoing document(s) described as 7 AVIS BUDGET GROUP, INC.’S ANSWER TO COMPLAINT 8 BY MAIL: I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice, it would be deposited with the 9 U. S. Postal Service on the same day with postage thereon fully prepaid at San Diego, California, in the ordinary course of business. I am aware that on motion of the party 10 served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. 11 X E-MAIL OR ELECTRONIC TRANSMISSION: I caused the documents to be 12 sent to the persons at the e-mail address(es) listed below. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the 13 transmission was unsuccessful. 14 David Mamann, Esq. Attorney for Plaintiff Law Offices of David Mamann 15 291 S. La Cienega Blvd., Suite #214 Beverly Hills, CA. 90211 16 (310) 659-7799 – Fax mamannd@aol.com 17 18 PERSONAL SERVICE: I hand-delivered said document(s) to the addressee 19 pursuant to Code of Civil Procedure §1011. 20 √ STATE: I declare under penalty of perjury, under the laws of the State of California, that the foregoing is true and correct. 21 FEDERAL: I declare that I am employed in the office of a member of the Bar 22 of this Court, at whose direction the service was made. 23 EXECUTED on July 21, 2020, at San Diego, California. 24 25 26 27 ____________________________________ 28 [X] LOREN KUHN 1