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DENNIS J. HERRERA, State Bar #139669
City Attorney
MEREDITH OSBORN, State Bar #250467 ELECTRONICALLY
Chief Trial Deputy FILED
SABRINA M. BERDUX, State Bar #248927 ‘Superior Court of California,
Deputy City Attorney County of San Francisco
Fox Plaza 04/29/2020
1390 Market Street, 6th Floor Clerk of the Court
San Francisco, California 94102-5408 BY: MADONNA CARANTO
Telephone: (415) 554-3929 Deputy Clerk
Facsimile: (415) 554-3837
E-Mail: sabrina.m.berdux@sfcityatty.org
Attorneys for Defendant
CITY AND COUNTY OF SAN FRANCISCO
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
UNLIMITED JURISDICTION
JEFFREY BRUCE KLEIN, Case No. CGC-20-583008
Plaintiff, : DEFENDANT CITY AND COUNTY OF SAN
FRANCISCO’S ANSWER TO COMPLAINT
vs.
Date Action Filed: — Februry 18, 2020
CITY AND COUNTY OF SAN Trial Date: Not Set
FRANCISCO, M SQUARED
CONSTRUCTION, INC., BAY AREA
LIGHTWORKS INC., DOES 1 TO 10,
Defendants.
Defendant City and County of San Francisco (“defendant” or the “City”), a municipal
corporation, responds to plaintiff's complaint as follows:
GENERAL DENIAL
Pursuant to.section 431.30 of the California Code of Civil Procedure, defendant denies each
and every allegation in the complaint.
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SEPARATE AFFIRMATIVE DEFENSES
First Affirmative Defense
(Failure to State a Claim)
San Francisco alleges that the complaint fails to state facts sufficient to constitute a cause of
action against San Francisco.
Second Affirmative Defense
(Failure to Comply with Tort Claims Act)
San Francisco alleges that Plaintiff fails to set forth facts sufficient to state a cause of action
due to a failure to comply with the requirements of the Government Code.
Third Affirmative Defense
(Statute of Limitations)
San Francisco alleges that the complaint and each and every cause of action therein is barred
by the statute of limitations as set forth in Code of Civil Procedure Section 335 et seq. and related
statutes (including California Government Code sections regarding limitations periods).
Fourth Affirmative Defense
(Immunity)
San Francisco alleges the provisions of the Tort Claims Act of the Government Code
(Government Code Section 810 et seq.) as a measure of the duty of San Francisco and its employees.
Fifth Affirmative Defense
(Good Faith)
San Francisco alleges that its employees, officials and agents were at all times material to the
complaint acting with both subjective and objective good faith, such that any claim for relief that
Plaintiff may have is barred by law.
Sixth Affirmative Defense
(Assumption of the Risk)
San Francisco alleges that Plaintiff had full knowledge of the risks involved in the activity in
which Plaintiff was engaged at the time of the incident set forth in the complaint; that Plaintiff
voluntarily assumed all the risks incident to the activity engaged in at the time and place mentioned in
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the Complaint; and that the loss or damage, if any, sustained by Plaintiff was caused by the risks
described above that were accepted and voluntarily assumed by Plaintiff when engaging in the activity
described above.
Seventh Affirmative Defense
(Comparative Negligence)
San Francisco alleges by way of a plea of comparative negligence that Plaintiff was negligent
in and about the matters and activities alleged in the complaint; that Plaintiff's negligence contributed
to and was a proximate cause of Plaintiff's alleged injuries and damages, if any, or was the sole cause
thereof; and that if Plaintiff is entitled to recover damages against San Francisco, then San Francisco
prays that Plaintiff's recovery be diminished or extinguished by reason of the negligence of Plaintiff in
proportion to the degree of fault attributable to Plaintiff.
Eighth Affirmative Defense
(Contribution)
San Francisco alleges that the fault of persons other than San Francisco contributed to and
proximately caused the occurrence; and under the principles formulated in the case of American
Motorcycle Association v. Superior Court (1978) 20 Cal.3d 578, San Francisco prays that the
percentage of such contribution be established by special verdict or other procedure, and that San
Francisco's ultimate liability be reduced to the extent of such contribution of others.
Ninth Affirmative Defense
(Barred by Tort Claims Act)
San Francisco alleges that the complaint is barred by the following provisions of the Tort
Claims Act: Government Code Sections: 815; 815(b); 815.2; 815.2(b); 815.4; 818.2; 818.4; 818.6;
818.8; 820; 820(b); 820.2; 820.8; 821; 821.2; 821.4; 822.2; 830; 830.2; 830.4; 830.5; 830.6; 830.8;
830.9; 831; 831.2; 831.4; 835.2; 835; 835.4; 840; 840.2; 840.4; 840.6.
Tenth Affirmative Defense
(Variance between Tort Claim and Complaint)
Plaintiff's causes of action are limited to those factual allegations and theories of recovery set
forth in Plaintiff's written government tort claim, if any, and that to the extent that the complaint
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attempts to enlarge or expand upon those allegations and theories, the complaint fails to state a cause
of action and is barred pursuant to Government Code Sections 905, 910, 911.2, 945.5, 950.2 and
related provisions.
Eleventh Affirmative Defense
(Proposition 51)
San Francisco alleges that in the event that San Francisco is found to be liable -- which liability
is specifically denied and stated merely for the purposes of this affirmative defense -- such liability, if
any, for non-economic damages shall be several and not joint, pursuant to the Fair Responsibility Act
of 1986 (Proposition 51) as set forth in Civil Code Section 1431 et seq. San Francisco requests that the
trier of fact be instructed that the amount of non-economic damages be allocated in direct proportion
to the percentage of fault, if any, assessed against each person or entity to which the Fair
Responsibility Act applies and that a separate judgment be rendered in the amount of such non-
economic damages attributable to that person or entity.
Twelfth Affirmative Defense
(Failure to Mitigate Damages)
San Francisco alleges that the complaint and each and every cause of action therein are barred
because Plaintiff failed to exercise reasonable care and diligence to mitigate her alleged damages.
Thirteenth Affirmative Defense
(Estoppel, Laches and Waiver)
By reason of Plaintiff's own acts and omissions, Plaintiff is barred by the equitable doctrines of
estoppel and laches from seeking any recovery from Defendant by reason of the allegations set forth in
Plaintiff's complaint. By reason of Plaintiff's own acts and omissions, Plaintiff is barred by the legal
doctrine of waiver from seeking any recovery from Defendant by reason of the allegations set forth in
Plaintiff's complaint.
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Fourteenth Affirmative Defense
(Frivolous Action)
Plaintiffs maintenance of this action is frivolous, vexatious and unreasonable; therefore, San
Francisco is entitled to sanctions and other appropriate remedies, including without limitation
attorney’s fees, against Plaintiff.
Fifteenth Affirmative Defense
(Unclean Hands)
The complaint and each cause of action in it are barred by the doctrine of unclean hands.
Sixteenth Affirmative Defense
(Lack of Subject Matter Jurisdiction)
San Francisco alleges that this Court has no jurisdiction over the causes of action alleged in the
complaint.
Seventeenth Affirmative Defense
(No Dangerous Condition)
San Francisco alleges that the condition complained of in Plaintiffs complaint is not, and was
not, a dangerous condition of public property within the meaning of Government Code Sections 830
and 830.2 and did not create a substantial risk of injury when such property or adjacent property was
used with due care in a manner in which it was reasonably foreseeable that it would be used.
Eighteenth Affirmative Defense
(Minor, Trivial and Insignificant Condition)
San Francisco alleges that as a matter of law the risk created by the subject condition was of
such a minor, trivial and insignificant nature in view of the surrounding circumstances that no
reasonable person could conclude that the situation created a substantial risk of injury when the subject
property was used with due care and in a manner in which it was reasonably foreseeable that it would
be used.
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Nineteenth Affirmative Defense
(No Actual or Constructive Notice)
San Francisco alleges it was without actual or constructive notice of the defect of which
Plaintiff complains, the condition of property complained of did not create a substantial risk of injury
to foreseeable users who employed due care, and the cost of operating and maintaining an inspection
system that would have been adequate to discover the alleged defect of which Plaintiff complains
would have been unreasonably expensive and impractical in relation to the risk involved.
Twentieth Affirmative Defense
(Plaintiffs Knowledge of Alleged Dangerous Condition)
San Francisco alleges that Plaintiff had full and complete knowledge of any alleged defective
or dangerous condition which existed in or upon the property mentioned in Plaintiff's complaint, and
with full knowledge of said alleged dangerous or defective condition Plaintiff assumed any such risk
to Plaintiff's safety involving the use of such property.
Twenty-first Affirmative Defense
(Design Immunity)
San Francisco alleges that, as a matter of law, this San Francisco may not be held liable for any
injury caused by the plan, design or construction of the area described in Plaintiffs complaint, in that
such plan, design or construction of such property described in Plaintiff's complaint has been
approved by San Francisco, its officers and employees, in the exercise of reasonable discretion
(California Government Code § 830.6).
Twenty-second Affirmative Defense
(Discretionary Acts)
The City alleges that any liability on its part is barred by the provisions of California
Government Code sections 815, 815.2, 820.2, and other applicable provisions of law and each of them,
in that any injury to Plaintiff as alleged in said complaint would have resulted from acts or omissions
of public employees of defendant, if at all, in the exercise of discretion vested in them.
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Twenty-third Affirmative Defense
(No Causation)
To the extent the complaint may be construed to allege a dangerous condition of public
property pursuant to Government Code §830 et seq., defendant alleges that the condition in question
could not have caused Plaintiff's alleged injuries.
Twenty-fourth Affirmative Defense
(Discretionary Approval)
To the extent the complaint may be construed to allege a dangerous condition of public
property pursuant to Government Code §830 et seg., defendant alleges that, as a matter of law, it may
not be held liable for any injury caused by the plan, design or construction of the area described in the
complaint, in that the plan, design or construction of the property described in Plaintiff's complaint has
been approved by defendant, its officers and employees, in the exercise of reasonable discretion.
Twenty-Fifth Affirmative Defense
(Government Code Section 835)
To the extent the complaint may be construed to allege a dangerous condition of public
property pursuant to Government Code §830 et seq., defendant pleads the provisions of Government
Code section 835 and all related provisions in that this defendant was without actual or constructive
notice of the defect of which Plaintiff complains, the condition complained of did not create a
substantial risk of injury to foreseeable users who employed due care, and the cost of operating and
maintaining an inspection system that would have been adequate to discover the alleged defect of
which Plaintiff complains would have been unreasonably expensive and impractical in relation to the
risk involved.
Twenty-Sixth Affirmative Defense
(Indemnity, Contribution or Set-Off)
The City alleges that it is entitled to indemnity, contribution and/or set-off from parties to this
lawsuit and/or third parties.
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WHEREFORE, San Francisco prays for judgment in its favor and against Plaintiff as follows:
1. That the complaint be dismissed in its entirety and with prejudice;
2. That Plaintiff take nothing by the complaint;
3 That judgment be entered in favor of San Francisco;
4. That San Francisco recover its costs and disbursements in this action; and
5 For such further relief as this Court deems just and proper.
Dated: April 29, 2020
DENNIS J. HERRERA.
City Attorney
MEREDITH OSBORN
Chief Trial Deputy
SABRINA M. BERDUX
Deputy City Attorney
By: _/s/ Sabrina M. Berdux
SABRINA M. BERDUX
Attorneys for Defendant and Cross-Complainant
CITY AND COUNTY OF SAN FRANCISCO
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PROOF OF SERVICE
I, KATHLEEN K. HILL, declare as follows:
Iam a citizen of the United States, over the age of eighteen years and not a party to the above-
entitled action. I am employed at the City Attorney’s Office of San Francisco, Fox Plaza Building,
1390 Market Street, Sixth Floor, San Francisco, CA 94102.
On April 29, 2020, I served the following document(s):
DEFENDANT CITY AND COUNTY OF SAN FRANCISCO’S ANSWER TO COMPLAINT
on the following persons at the locations specified:
Neil Eisenberg
582 Market Street, Suite 912
San Francisco, CA 94104
Tel (415) 956-3567
Fax (415) 956-2937
Attorneys for Plaintiff Jeffrey Bruce Klein
in the manner indicated below:
Xl BY UNITED STATES MAIL: Following ordinary business practices, I sealed true and correct copies of
the above documents in addressed envelope(s) and placed them at my workplace for collection and mailing with
the United States Postal Service. I am readily familiar with the practices of the San Francisco City Attorney's
Office for collecting and processing mail. In the ordinary course’ of business, the sealed envelope(s) that I placed
for collection would be deposited, postage prepaid, with the United States Postal Service that same day.
Kl BY ELECTRONIC MAIL: Based on a court order or an agreement of the parties to accept electronic
service, I caused the documents to be served electronically through File & ServeXpress in portable document
format ("PDF") Adobe Acrobat.
I declare under penalty of perjury pursuant to the laws of the State of California that the
foregoing is true and correct.
Executed April 29, 2020, at Oakland, California.
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