Preview
1 Kevin J. Holl, SBN 124830
Sara Lee, SBN 265828
2 GORDON-CREED, KELLEY, ELECTRONICALLY
3 HOLL & SUGERMAN, LLP F I L E D
1901 Harrison Street, 13th Floor Superior Court of California,
County of San Francisco
4 Oakland, California 94612
Tel: (415) 421-3100 07/06/2020
5 Clerk of the Court
Fax: (415) 421-3150 BY: EDWARD SANTOS
6 holl@gkhs.com; lee@gkhs.com Deputy Clerk
7 Attorneys for Defendant
MIVIC HIROSE
8
9
SUPERIOR COURT OF CALIFORNIA
10
COUNTY OF SAN FRANCISCO
11
12 TOMMY O. JOHNSON, by and through his Case No. CPF-20-517064
13 Attorney-in-Fact REV. DORIS WHITE and
JOHN DOE on behalf of themselves and all
14 others similarly situated, DEFENDANT MIVIC HIROSE’S
ANSWER TO PLAINTIFFS’
15
Plaintiffs, COMPLAINT
16
vs.
17
CITY AND COUNTY OF SAN Date Action Filed: March 24, 2020
18
FRANCISCO, CITY AND COUNTY OF Trial Date: None set
19 SAN FRANCISCO DEPARTMENT OF
PUBLIC HEALTH, LAGUNA HONDA
20 HOSPITAL AND REHABILITATION
21 CENTER, MIVIC HIROSE, and DOES ONE
through TWENTY,
22
Defendants.
23
24
25 Defendant Mivic Hirose responds to Plaintiffs’ unverified complaint as follows:
26 DENIAL
27 Pursuant to California Code of Civil Procedure § 431.30, Defendant generally and specifically
28 denies each and every allegation, express or implied, and each and every cause of action against
_____________________________________________________
Page 1
ANSWER TO PLAINTIFF’S COMPLAINT
1 Defendant contained in Plaintiffs’ complaint.
2 AFFIRMATIVE DEFENSES
3 FIRST AFFIRMATIVE DEFENSE
4 (Failure to State a Claim)
5 Defendant alleges that the complaint fails to state facts sufficient to constitute a cause of action
6 against Defendant. CCP § 430.10(e).
7 SECOND AFFIRMATIVE DEFENSE
8 (Failure to Comply with Government Code)
9 Defendant alleges that Plaintiffs failed to comply with the California Tort Claims Act of the
10 California Government Code and, therefore, all claims of the Plaintiffs are barred. Government Code §§
11 911.4(b), 945.4 and 946.6. Plaintiffs John Doe and “all others similarly situated” failed to file
12 government claims. Government Code §§ 911.4(b), 945.4 and 946.6.
13 THIRD AFFIRMATIVE DEFENSE
14 (No Jurisdiction)
15 This court does not have jurisdiction to grant a request for late claim relief. CCP § 430.10(a).
16 FOURTH AFFIRMATIVE DEFENSE
17 (Plaintiffs Limited to Claims Stated in Government Tort Claim)
18 Plaintiffs’ purported causes of action are limited to those factual allegations and theories of
19 recovery set forth in Plaintiffs’ written government tort claim, if any, and that to the extent that the
20 complaint attempts to enlarge or expand upon those allegations and theories, the complaint fails to state
21 a cause of action and is barred pursuant to Government Code §§ 905, 910, 911.2, 945.5, 950.2 and
22 related provisions.
23 FIFTH AFFIRMATIVE DEFENSE
24 (Government Code Sets Measure of Duty)
25 Defendant alleges the provisions of the California Tort Claims Act of the California Government
26 Code (Government Code § 810 et seq.) as a measure of Defendant’s duties.
27 \\\
28 \\\
_____________________________________________________
Page 2
ANSWER TO PLAINTIFF’S COMPLAINT
1 SIXTH AFFIRMATIVE DEFENSE
2 (Contributory Negligence)
3 Defendant alleges that Plaintiffs were negligent in and about the activities alleged in the
4 complaint; that said negligence contributed and was a proximate cause of Plaintiffs’ alleged injuries and
5 damages, if any, or was the sole cause thereof; and that if Plaintiffs are entitled to recover damages
6 against Defendant, then Defendant prays that the recovery be diminished in proportion to the degree of
7 fault attributable to Plaintiffs.
8 SEVENTH AFFIRMATIVE DEFENSE
9 (Estoppel)
10 By reason of Plaintiffs’ own acts and omissions, Plaintiffs are estopped from seeking any
11 recovery from Defendant by reason of the allegations set forth in the complaint.
12 EIGHTH AFFIRMATIVE DEFENSE
13 (Unclean Hands)
14 The complaint and each cause of action are barred by the doctrine of unclean hands.
15 NINTH AFFIRMATIVE DEFENSE
16 (Failure to Mitigate Damages)
17 Defendant alleges that the complaint and each and every cause of action therein are barred
18 because Plaintiffs failed to mitigate damages.
19 TENTH AFFIRMATIVE DEFENSE
20 (No Damages From Defendant’s Act)
21 Defendant denies that Plaintiffs have been damaged in any sum or sums, or otherwise, or at all, by
22 reason of any act or omission by Defendant.
23 ELEVENTH AFFIRMATIVE DEFENSE
24 (Statute of Limitations)
25 Defendant alleges that the complaint and each and every cause of action therein is barred by the
26 statute of limitations as set forth in CCP § 335, et seq., and related statutes, including but not limited to
27 CCP § 340.5.
28 \\\
_____________________________________________________
Page 3
ANSWER TO PLAINTIFF’S COMPLAINT
1 TWELFTH AFFIRMATIVE DEFENSE
2 (Third Party Fault)
3 Defendant alleges that the fault of persons or entities other than Defendant contributed to and
4 proximately caused the occurrence, and that under the principles formulated in the case of American
5 Motorcycle Association v. Superior Court (1978) 20 Cal.3d 578, Defendant is entitled to a reduction or
6 elimination of her ultimate liability in this action by the percentage of fault assigned to such third person
7 or entity, to be established by special verdict or other procedure.
8 THIRTEENTH AFFIRMATIVE DEFENSE
9 (No Breach of Standard of Care)
10 Defendant alleges that the medical care provided to Plaintiffs at the City’s facilities was at all
11 times and in all respects within the standard of care applicable to Plaintiffs’ medical complaints.
12 FOURTEENTH AFFIRMATIVE DEFENSE
13 (Statutory Immunity)
14 Defendant alleges that the complaint is barred by the following provisions of the California Tort
15 Claims Act: Government Code §§ 815; 815.2; 815.4; 815.6; 818; 818.2; 818.4; 818.6; 818.7; 818.8;
16 820; 820.2; 820.21; 820.4; 820.6; 820.8; 820.9; 821; 821.2; 821.4; 822.2; 825; 825.4; 825.6; 827; 830;
17 830.1; 830.2; 830.5; 830.6; 835; 835.2; 835.4; 840; 840.2; 840.4; 840.6; 844.6; 845.2; 845.6; 854; 854.1;
18 854.2; 854.3; 854.4; 854.5; 854.8; 855; 855.2; 855.4; 855.6; 855.8; 856; 856.2; 856.4; 856.6; 895; 895.2;
19 895.4; 895.6; 895.8.
20 FIFTEENTH AFFIRMATIVE DEFENSE
21 (Proposition 51)
22 Defendant alleges that each and every cause of action allegedly set forth therein is entitled to the
23 full benefits and protections provided under Civil Code § 1431.1, et seq., otherwise entitled The Fair
24 Responsibility Act of 1986.
25 SIXTEENTH AFFIRMATIVE DEFENSE
26 (Comparative Fault of Others)
27 Defendant alleges that the injuries and damages complained of by Plaintiffs, if any there were,
28 were wholly or in part directly caused by the negligence and/or willful and intentional acts of persons or
_____________________________________________________
Page 4
ANSWER TO PLAINTIFF’S COMPLAINT
1 entities other than the Defendant, and said negligence is either imputed to Plaintiffs by reason of the
2 relationship between Plaintiffs and said person or entities, and/or comparatively reduces the proportion
3 of alleged negligence and corresponding alleged liability of the Defendant.
4 SEVENTEENTH AFFIRMATIVE DEFENSE
5 Defendant alleges that in the event she is found to be negligent (which supposition is denied and
6 merely stated for the purpose of this affirmative defense), Defendant may elect to introduce evidence of
7 any amount paid or payable, if any, as a benefit to Plaintiffs pursuant to Civil Code § 3333.1.
8 EIGHTEENTH AFFIRMATIVE DEFENSE
9 Defendant alleges that in the event she is found to be negligent (which supposition is denied and
10 merely stated for the purpose of this affirmative defense), the damages for non-economic losses, if any,
11 shall not exceed the amount specified in Civil Code §3333.2.
12 NINETEENTH AFFIRMATIVE DEFENSE
13 Defendant alleges that in the event she is found to be negligent (which supposition is denied and
14 merely stated for the purpose of this affirmative defense), Defendant may elect to have future damages,
15 if any, in excess of the amount specified in Code of Civil Procedure § 667.7, paid in whole or in part, as
16 specified in Code of Civil Procedure § 667.7.
17 TWENTIETH AFFIRMATIVE DEFENSE
18 Defendant alleges that she is entitled to the benefits, defenses, rights, immunities and provisions
19 set forth and contained in Business & Professions Code § 6146 and Code of Civil Procedure §§ 364 and
20 365.
21 TWENTY-FIRST AFFIRMATIVE DEFENSE
22 Defendant alleges upon information and belief that a certain sum has been or will be paid to
23 Plaintiffs as compensation for the same damages they seek against this Defendant and, therefore, said
24 Defendant is entitled to a set-off in said amount against any judgment or recovery Plaintiffs may recover
25 against Defendant.
26 TWENTY-SECOND AFFIRMATIVE DEFENSE
27 Defendant alleges that she is immune from liability pursuant to Government Code § 815.2 in that
28 City employees are immune from liability and/or the alleged acts and omissions complained of by
_____________________________________________________
Page 5
ANSWER TO PLAINTIFF’S COMPLAINT
1 Plaintiffs in the complaint would not give rise to a cause of action against said employees.
2 TWENTY-THIRD AFFIRMATIVE DEFENSE
3 (Assumption of Risk)
4 Defendant alleges that Plaintiffs assumed the risk of injury.
5 TWENTY-FOURTH AFFIRMATIVE DEFENSE
6 (Consent)
7 Defendant alleges that Plaintiffs consented to all procedures performed by Defendant.
8 TWENTY-FIFTH AFFIRMATIVE DEFENSE
9 (Immunity for Medical, Hospital and Public Health Activities)
10 The provisions of the Tort Claims Act of the California Government Code (Government Code §
11 810 et seq.) is the measure of the duty of Defendant. Plaintiff is barred by the following provisions and
12 immunities of the Tort Claims Act: California Government Code §§ 845, 845.2, 845.4, 845.6, 845.8,
13 846, 854, 855, 855.2, 855.4, 855.6, 855.8, 856, 856.2, and 856.4.
14 TWENTY-SIXTH AFFIRMATIVE DEFENSE
15 (No Punitive Damages)
16 Defendant alleges that neither the complaint nor any purported cause of action alleged therein
17 states facts sufficient to entitle Plaintiffs to an award of punitive damages against Defendant.
18 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
19 (Injunctive Relief)
20 Defendant asserts that Plaintiffs’ are not entitled to injunctive relief under the California Code of
21 Civil Procedure § 526.
22 TWENTY-EIGHTH AFFIRMATIVE DEFENSE
23 (Not a Class Action)
24 Defendant alleges that Plaintiffs’ claims are barred in whole or in part because this action is not
25 properly maintainable as a class action.
26 TWENTY-NINTH AFFIRMATIVE DEFENSE
27 (Improper Class Representatives)
28 Defendant alleges that Plaintiffs’ claims are barred in whole or in part because the named
_____________________________________________________
Page 6
ANSWER TO PLAINTIFF’S COMPLAINT
1 Plaintiffs are not proper class representatives.
2 THIRTIETH AFFIRMATIVE DEFENSE
3 (Claims Not Numerous)
4 Defendant alleges that the putative class asserted in Plaintiffs’ complaint is inappropriate for class
5 certification because the class is not so numerous that joinder of all members is impracticable.
6 THIRTY-FIRST AFFIRMATIVE DEFENSE
7 (No Common Questions of Law and Fact)
8 Defendant alleges that the putative class asserted in Plaintiffs’ complaint is inappropriate for class
9 certification because there is no well-defined community of interest in or commonality between the
10 questions of law and fact involved in this putative class action.
11 THIRTY-SECOND AFFIRMATIVE DEFENSE
12 (No Predominance)
13 Defendant alleges that the putative class asserted in plaintiff’s complaint is inappropriate for class
14 certification because common issues of law and fact do not predominate over individual issues.
15 THIRTY-THIRD AFFIRMATIVE DEFENSE
16 (Claims Not Typical of Class)
17 Defendant alleges that the putative class asserted in Plaintiffs’ complaint is inappropriate for class
18 certification because Plaintiffs’ claims are not typical of the claims of other members of the asserted
19 putative class.
20 THIRTY-FOURTH AFFIRMATIVE DEFENSE
21 (Inadequate Representation)
22 Defendant alleges that the putative class asserted in Plaintiffs’ complaint is inappropriate for class
23 certification because neither Plaintiffs nor their counsel are able to fairly and adequately protect the
24 interest of all members of the alleged putative class.
25 THIRTY-FIFTH AFFIRMATIVE DEFENSE
26 (No Superiority)
27 Defendant alleges that the putative class asserted in Plaintiffs’ complaint is inappropriate for class
28 certification because a class action is not superior to other methods for fairly and efficiently adjudicating
_____________________________________________________
Page 7
ANSWER TO PLAINTIFF’S COMPLAINT
1 this controversy.
2 ADDITIONAL AFFIRMATIVE DEFENSES
3 Defendant presently has insufficient knowledge or information on which to form a belief as to
4 whether she may have additional, as yet unstated, defenses available. Defendant reserves the right to
5 assert additional defenses in the event that discovery indicates that they would be appropriate.
6 WHEREFORE, Defendant prays for judgment as follows:
7 1. That Plaintiffs take nothing from Defendant;
8 2. That the complaint be dismissed with prejudice;
9 3. That Defendant recover costs of suit herein, including attorney’s fees; and
10 4. For such other and further relief as the Court deems just and proper.
11 Dated: July 6, 2020 GORDON-CREED, KELLEY,
HOLL & SUGERMAN, LLP
12
13
By: /s/ Kevin J. Holl ______
14 Kevin J. Holl
Sara Lee
15 Attorneys for Defendant
16 MIVIC HIROSE
17
18
19
20
21
22
23
24
25
26
27
28
_____________________________________________________
Page 8
ANSWER TO PLAINTIFF’S COMPLAINT
1 PROOF OF SERVICE
2 I declare that I am employed in Oakland, California. I am over the age of 18 years and not a
3 party to the within action; my business address is 1901 Harrison Street, 13th Floor, Oakland, California,
94612.
4
On July 6, 2020, I served the within: DEFENDANT MIVIC HIROSE’S ANSWER TO
5 PLAINTIFFS’ COMPLAINT on the parties in the within action at the address below listed by the
6 following means:
7 X (BY E-MAIL or ELECTRONIC MAIL) I caused the documents to be sent to the persons
at the email address(es) listed below via File & ServeXpress. I did not receive, within a
8
reasonable period of time, after the transmission, any electronic message or other indication that
9 the transmission was unsuccessful.
10 Sara Peters, Esq.
WALKUP MELODIA KELLY & SCHOENBERGER
11
650 California Street, 26th Floor
12 San Francisco, CA 94108
415-981-7210; Fax 415-362-9801
13 speters@walkuplawoffice.com
14
MARK D. LIPTON, State Bar #152864
15 Deputy City Attorney
Fox Plaza
16 1390 Market Street, Sixth Floor
San Francisco, California 94102-5408
17 Telephone: (415) 554-4218
Facsimile: (415) 554-3837
18 E-Mail: mark.lipton@sfcityatty.org
19
20
I declare under penalty of perjury under the laws of the State of California that the foregoing is
21 true and correct and that this Declaration was executed on July 6, 2020, at Concord, California.
22
23 __________________________
Linda J. Halperin
24
25
26
27
28
Preview
1 Kevin J. Holl, SBN 124830 Sara Lee, SBN 265828 2 GORDON-CREED, KELLEY, ELECTRONICALLY 3 HOLL & SUGERMAN, LLP F I L E D 1901 Harrison Street, 13th Floor Superior Court of California, County of San Francisco 4 Oakland, California 94612 Tel: (415) 421-3100 07/06/2020 5 Clerk of the Court Fax: (415) 421-3150 BY: EDWARD SANTOS 6 holl@gkhs.com; lee@gkhs.com Deputy Clerk 7 Attorneys for Defendant MIVIC HIROSE 8 9 SUPERIOR COURT OF CALIFORNIA 10 COUNTY OF SAN FRANCISCO 11 12 TOMMY O. JOHNSON, by and through his Case No. CPF-20-517064 13 Attorney-in-Fact REV. DORIS WHITE and JOHN DOE on behalf of themselves and all 14 others similarly situated, DEFENDANT MIVIC HIROSE’S ANSWER TO PLAINTIFFS’ 15 Plaintiffs, COMPLAINT 16 vs. 17 CITY AND COUNTY OF SAN Date Action Filed: March 24, 2020 18 FRANCISCO, CITY AND COUNTY OF Trial Date: None set 19 SAN FRANCISCO DEPARTMENT OF PUBLIC HEALTH, LAGUNA HONDA 20 HOSPITAL AND REHABILITATION 21 CENTER, MIVIC HIROSE, and DOES ONE through TWENTY, 22 Defendants. 23 24 25 Defendant Mivic Hirose responds to Plaintiffs’ unverified complaint as follows: 26 DENIAL 27 Pursuant to California Code of Civil Procedure § 431.30, Defendant generally and specifically 28 denies each and every allegation, express or implied, and each and every cause of action against _____________________________________________________ Page 1 ANSWER TO PLAINTIFF’S COMPLAINT 1 Defendant contained in Plaintiffs’ complaint. 2 AFFIRMATIVE DEFENSES 3 FIRST AFFIRMATIVE DEFENSE 4 (Failure to State a Claim) 5 Defendant alleges that the complaint fails to state facts sufficient to constitute a cause of action 6 against Defendant. CCP § 430.10(e). 7 SECOND AFFIRMATIVE DEFENSE 8 (Failure to Comply with Government Code) 9 Defendant alleges that Plaintiffs failed to comply with the California Tort Claims Act of the 10 California Government Code and, therefore, all claims of the Plaintiffs are barred. Government Code §§ 11 911.4(b), 945.4 and 946.6. Plaintiffs John Doe and “all others similarly situated” failed to file 12 government claims. Government Code §§ 911.4(b), 945.4 and 946.6. 13 THIRD AFFIRMATIVE DEFENSE 14 (No Jurisdiction) 15 This court does not have jurisdiction to grant a request for late claim relief. CCP § 430.10(a). 16 FOURTH AFFIRMATIVE DEFENSE 17 (Plaintiffs Limited to Claims Stated in Government Tort Claim) 18 Plaintiffs’ purported causes of action are limited to those factual allegations and theories of 19 recovery set forth in Plaintiffs’ written government tort claim, if any, and that to the extent that the 20 complaint attempts to enlarge or expand upon those allegations and theories, the complaint fails to state 21 a cause of action and is barred pursuant to Government Code §§ 905, 910, 911.2, 945.5, 950.2 and 22 related provisions. 23 FIFTH AFFIRMATIVE DEFENSE 24 (Government Code Sets Measure of Duty) 25 Defendant alleges the provisions of the California Tort Claims Act of the California Government 26 Code (Government Code § 810 et seq.) as a measure of Defendant’s duties. 27 \\\ 28 \\\ _____________________________________________________ Page 2 ANSWER TO PLAINTIFF’S COMPLAINT 1 SIXTH AFFIRMATIVE DEFENSE 2 (Contributory Negligence) 3 Defendant alleges that Plaintiffs were negligent in and about the activities alleged in the 4 complaint; that said negligence contributed and was a proximate cause of Plaintiffs’ alleged injuries and 5 damages, if any, or was the sole cause thereof; and that if Plaintiffs are entitled to recover damages 6 against Defendant, then Defendant prays that the recovery be diminished in proportion to the degree of 7 fault attributable to Plaintiffs. 8 SEVENTH AFFIRMATIVE DEFENSE 9 (Estoppel) 10 By reason of Plaintiffs’ own acts and omissions, Plaintiffs are estopped from seeking any 11 recovery from Defendant by reason of the allegations set forth in the complaint. 12 EIGHTH AFFIRMATIVE DEFENSE 13 (Unclean Hands) 14 The complaint and each cause of action are barred by the doctrine of unclean hands. 15 NINTH AFFIRMATIVE DEFENSE 16 (Failure to Mitigate Damages) 17 Defendant alleges that the complaint and each and every cause of action therein are barred 18 because Plaintiffs failed to mitigate damages. 19 TENTH AFFIRMATIVE DEFENSE 20 (No Damages From Defendant’s Act) 21 Defendant denies that Plaintiffs have been damaged in any sum or sums, or otherwise, or at all, by 22 reason of any act or omission by Defendant. 23 ELEVENTH AFFIRMATIVE DEFENSE 24 (Statute of Limitations) 25 Defendant alleges that the complaint and each and every cause of action therein is barred by the 26 statute of limitations as set forth in CCP § 335, et seq., and related statutes, including but not limited to 27 CCP § 340.5. 28 \\\ _____________________________________________________ Page 3 ANSWER TO PLAINTIFF’S COMPLAINT 1 TWELFTH AFFIRMATIVE DEFENSE 2 (Third Party Fault) 3 Defendant alleges that the fault of persons or entities other than Defendant contributed to and 4 proximately caused the occurrence, and that under the principles formulated in the case of American 5 Motorcycle Association v. Superior Court (1978) 20 Cal.3d 578, Defendant is entitled to a reduction or 6 elimination of her ultimate liability in this action by the percentage of fault assigned to such third person 7 or entity, to be established by special verdict or other procedure. 8 THIRTEENTH AFFIRMATIVE DEFENSE 9 (No Breach of Standard of Care) 10 Defendant alleges that the medical care provided to Plaintiffs at the City’s facilities was at all 11 times and in all respects within the standard of care applicable to Plaintiffs’ medical complaints. 12 FOURTEENTH AFFIRMATIVE DEFENSE 13 (Statutory Immunity) 14 Defendant alleges that the complaint is barred by the following provisions of the California Tort 15 Claims Act: Government Code §§ 815; 815.2; 815.4; 815.6; 818; 818.2; 818.4; 818.6; 818.7; 818.8; 16 820; 820.2; 820.21; 820.4; 820.6; 820.8; 820.9; 821; 821.2; 821.4; 822.2; 825; 825.4; 825.6; 827; 830; 17 830.1; 830.2; 830.5; 830.6; 835; 835.2; 835.4; 840; 840.2; 840.4; 840.6; 844.6; 845.2; 845.6; 854; 854.1; 18 854.2; 854.3; 854.4; 854.5; 854.8; 855; 855.2; 855.4; 855.6; 855.8; 856; 856.2; 856.4; 856.6; 895; 895.2; 19 895.4; 895.6; 895.8. 20 FIFTEENTH AFFIRMATIVE DEFENSE 21 (Proposition 51) 22 Defendant alleges that each and every cause of action allegedly set forth therein is entitled to the 23 full benefits and protections provided under Civil Code § 1431.1, et seq., otherwise entitled The Fair 24 Responsibility Act of 1986. 25 SIXTEENTH AFFIRMATIVE DEFENSE 26 (Comparative Fault of Others) 27 Defendant alleges that the injuries and damages complained of by Plaintiffs, if any there were, 28 were wholly or in part directly caused by the negligence and/or willful and intentional acts of persons or _____________________________________________________ Page 4 ANSWER TO PLAINTIFF’S COMPLAINT 1 entities other than the Defendant, and said negligence is either imputed to Plaintiffs by reason of the 2 relationship between Plaintiffs and said person or entities, and/or comparatively reduces the proportion 3 of alleged negligence and corresponding alleged liability of the Defendant. 4 SEVENTEENTH AFFIRMATIVE DEFENSE 5 Defendant alleges that in the event she is found to be negligent (which supposition is denied and 6 merely stated for the purpose of this affirmative defense), Defendant may elect to introduce evidence of 7 any amount paid or payable, if any, as a benefit to Plaintiffs pursuant to Civil Code § 3333.1. 8 EIGHTEENTH AFFIRMATIVE DEFENSE 9 Defendant alleges that in the event she is found to be negligent (which supposition is denied and 10 merely stated for the purpose of this affirmative defense), the damages for non-economic losses, if any, 11 shall not exceed the amount specified in Civil Code §3333.2. 12 NINETEENTH AFFIRMATIVE DEFENSE 13 Defendant alleges that in the event she is found to be negligent (which supposition is denied and 14 merely stated for the purpose of this affirmative defense), Defendant may elect to have future damages, 15 if any, in excess of the amount specified in Code of Civil Procedure § 667.7, paid in whole or in part, as 16 specified in Code of Civil Procedure § 667.7. 17 TWENTIETH AFFIRMATIVE DEFENSE 18 Defendant alleges that she is entitled to the benefits, defenses, rights, immunities and provisions 19 set forth and contained in Business & Professions Code § 6146 and Code of Civil Procedure §§ 364 and 20 365. 21 TWENTY-FIRST AFFIRMATIVE DEFENSE 22 Defendant alleges upon information and belief that a certain sum has been or will be paid to 23 Plaintiffs as compensation for the same damages they seek against this Defendant and, therefore, said 24 Defendant is entitled to a set-off in said amount against any judgment or recovery Plaintiffs may recover 25 against Defendant. 26 TWENTY-SECOND AFFIRMATIVE DEFENSE 27 Defendant alleges that she is immune from liability pursuant to Government Code § 815.2 in that 28 City employees are immune from liability and/or the alleged acts and omissions complained of by _____________________________________________________ Page 5 ANSWER TO PLAINTIFF’S COMPLAINT 1 Plaintiffs in the complaint would not give rise to a cause of action against said employees. 2 TWENTY-THIRD AFFIRMATIVE DEFENSE 3 (Assumption of Risk) 4 Defendant alleges that Plaintiffs assumed the risk of injury. 5 TWENTY-FOURTH AFFIRMATIVE DEFENSE 6 (Consent) 7 Defendant alleges that Plaintiffs consented to all procedures performed by Defendant. 8 TWENTY-FIFTH AFFIRMATIVE DEFENSE 9 (Immunity for Medical, Hospital and Public Health Activities) 10 The provisions of the Tort Claims Act of the California Government Code (Government Code § 11 810 et seq.) is the measure of the duty of Defendant. Plaintiff is barred by the following provisions and 12 immunities of the Tort Claims Act: California Government Code §§ 845, 845.2, 845.4, 845.6, 845.8, 13 846, 854, 855, 855.2, 855.4, 855.6, 855.8, 856, 856.2, and 856.4. 14 TWENTY-SIXTH AFFIRMATIVE DEFENSE 15 (No Punitive Damages) 16 Defendant alleges that neither the complaint nor any purported cause of action alleged therein 17 states facts sufficient to entitle Plaintiffs to an award of punitive damages against Defendant. 18 TWENTY-SEVENTH AFFIRMATIVE DEFENSE 19 (Injunctive Relief) 20 Defendant asserts that Plaintiffs’ are not entitled to injunctive relief under the California Code of 21 Civil Procedure § 526. 22 TWENTY-EIGHTH AFFIRMATIVE DEFENSE 23 (Not a Class Action) 24 Defendant alleges that Plaintiffs’ claims are barred in whole or in part because this action is not 25 properly maintainable as a class action. 26 TWENTY-NINTH AFFIRMATIVE DEFENSE 27 (Improper Class Representatives) 28 Defendant alleges that Plaintiffs’ claims are barred in whole or in part because the named _____________________________________________________ Page 6 ANSWER TO PLAINTIFF’S COMPLAINT 1 Plaintiffs are not proper class representatives. 2 THIRTIETH AFFIRMATIVE DEFENSE 3 (Claims Not Numerous) 4 Defendant alleges that the putative class asserted in Plaintiffs’ complaint is inappropriate for class 5 certification because the class is not so numerous that joinder of all members is impracticable. 6 THIRTY-FIRST AFFIRMATIVE DEFENSE 7 (No Common Questions of Law and Fact) 8 Defendant alleges that the putative class asserted in Plaintiffs’ complaint is inappropriate for class 9 certification because there is no well-defined community of interest in or commonality between the 10 questions of law and fact involved in this putative class action. 11 THIRTY-SECOND AFFIRMATIVE DEFENSE 12 (No Predominance) 13 Defendant alleges that the putative class asserted in plaintiff’s complaint is inappropriate for class 14 certification because common issues of law and fact do not predominate over individual issues. 15 THIRTY-THIRD AFFIRMATIVE DEFENSE 16 (Claims Not Typical of Class) 17 Defendant alleges that the putative class asserted in Plaintiffs’ complaint is inappropriate for class 18 certification because Plaintiffs’ claims are not typical of the claims of other members of the asserted 19 putative class. 20 THIRTY-FOURTH AFFIRMATIVE DEFENSE 21 (Inadequate Representation) 22 Defendant alleges that the putative class asserted in Plaintiffs’ complaint is inappropriate for class 23 certification because neither Plaintiffs nor their counsel are able to fairly and adequately protect the 24 interest of all members of the alleged putative class. 25 THIRTY-FIFTH AFFIRMATIVE DEFENSE 26 (No Superiority) 27 Defendant alleges that the putative class asserted in Plaintiffs’ complaint is inappropriate for class 28 certification because a class action is not superior to other methods for fairly and efficiently adjudicating _____________________________________________________ Page 7 ANSWER TO PLAINTIFF’S COMPLAINT 1 this controversy. 2 ADDITIONAL AFFIRMATIVE DEFENSES 3 Defendant presently has insufficient knowledge or information on which to form a belief as to 4 whether she may have additional, as yet unstated, defenses available. Defendant reserves the right to 5 assert additional defenses in the event that discovery indicates that they would be appropriate. 6 WHEREFORE, Defendant prays for judgment as follows: 7 1. That Plaintiffs take nothing from Defendant; 8 2. That the complaint be dismissed with prejudice; 9 3. That Defendant recover costs of suit herein, including attorney’s fees; and 10 4. For such other and further relief as the Court deems just and proper. 11 Dated: July 6, 2020 GORDON-CREED, KELLEY, HOLL & SUGERMAN, LLP 12 13 By: /s/ Kevin J. Holl ______ 14 Kevin J. Holl Sara Lee 15 Attorneys for Defendant 16 MIVIC HIROSE 17 18 19 20 21 22 23 24 25 26 27 28 _____________________________________________________ Page 8 ANSWER TO PLAINTIFF’S COMPLAINT 1 PROOF OF SERVICE 2 I declare that I am employed in Oakland, California. I am over the age of 18 years and not a 3 party to the within action; my business address is 1901 Harrison Street, 13th Floor, Oakland, California, 94612. 4 On July 6, 2020, I served the within: DEFENDANT MIVIC HIROSE’S ANSWER TO 5 PLAINTIFFS’ COMPLAINT on the parties in the within action at the address below listed by the 6 following means: 7 X (BY E-MAIL or ELECTRONIC MAIL) I caused the documents to be sent to the persons at the email address(es) listed below via File & ServeXpress. I did not receive, within a 8 reasonable period of time, after the transmission, any electronic message or other indication that 9 the transmission was unsuccessful. 10 Sara Peters, Esq. WALKUP MELODIA KELLY & SCHOENBERGER 11 650 California Street, 26th Floor 12 San Francisco, CA 94108 415-981-7210; Fax 415-362-9801 13 speters@walkuplawoffice.com 14 MARK D. LIPTON, State Bar #152864 15 Deputy City Attorney Fox Plaza 16 1390 Market Street, Sixth Floor San Francisco, California 94102-5408 17 Telephone: (415) 554-4218 Facsimile: (415) 554-3837 18 E-Mail: mark.lipton@sfcityatty.org 19 20 I declare under penalty of perjury under the laws of the State of California that the foregoing is 21 true and correct and that this Declaration was executed on July 6, 2020, at Concord, California. 22 23 __________________________ Linda J. Halperin 24 25 26 27 28