Preview
1 Thomas D. Fama (State Bar No. 261477)
tfama@wshblaw.com
2 Mitchell R. VanLandingham (State Bar No. 324778) ELECTRONICALLY
mvanlandingham@wshblaw.com
3 WOOD, SMITH, HENNING & BERMAN LLP FILED
Superior Court of California,
1401 Willow Pass Road, Suite 700 County of San Francisco
4 Concord, California 94520-7982
Phone: 925 222 3400 ♦ Fax: 925 356 8250 06/19/2020
Clerk of the Court
5 BY: SANDRA SCHIRO
Deputy Clerk
6 Attorneys for Defendants, UBER TECHNOLOGIES, INC., UATC, LLC, RASIER, LLC and
RASIER-CA, LLC
7
8
9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
IN AND FOR COUNTY OF SAN FRANCISCO
11
WOOD, SMITH, HENNING & BERMAN LLP
TELEPHONE 925 222 3400 ♦ FAX 925 356 8250
1401 WILLOW PASS ROAD, SUITE 700
12
CONCORD, CALIFORNIA 94520-7982
RACHEL JACOBS, Case No. CGC-20-582195
13
Attorneys at Law
Plaintiff, DEFENDANT RASIER-CA, LLC'S
14 ANSWER TO COMPLAINT
v.
15 The Hon. Garrett Wong, Dept. 610
UBER TECHNOLOGIES, INC.;
16 MAHMOUD A. MAHMOUD; RASIER, Action Filed: January 14, 2020
LLC; RASIER-CA, LLC; UATC, LLC;
17 RALYNN J. GONZALEZ ALONZO and Trial Date: None Set
DOES 1 to 100,
18
Defendants.
19
20
21 COMES NOW, Defendant RASIER-CA, LLC (hereinafter “Defendant”), severing itself
22 from all other co-defendants, and answering the Complaint (hereinafter “Complaint”) on file
23 herein as follows:
24 1. Inasmuch as the Complaint is not verified under the provisions of Section
25 431.30 of the California Code of Civil Procedure, this answering Defendant denies generally each,
26 every and all of the allegations in said Complaint, and the whole thereof, including denial of all
27 sums and
28 amounts alleged, to be alleged or otherwise.
LEGAL:11009-0400/14856866.1 -1-
ANSWER TO COMPLAINT
1 SEPARATE AFFIRMATIVE DEFENSES
2 2. This answering Defendant does not, by stating the matters set forth in these
3 defenses, allege or admit that it has the burden of proof and/or persuasion with respect to any of
4 these matters, and does not assume the burden of proof or persuasion as to any matters to which
5 Plaintiff has the burden of proof or persuasion.
6 FIRST AFFIRMATIVE DEFENSE
7 [Apportionment of Fault]
8 3. As and for a separate and affirmative defense to the Complaint and to each
9 purported cause of action contained therein, this answering Defendant is informed and believes
10 and based thereon alleges: Defendant denies it was negligent in any fashion with respect to the
11 damages, losses, injuries and debts claimed by the Plaintiff in the Complaint on file herein;
WOOD, SMITH, HENNING & BERMAN LLP
TELEPHONE 925 222 3400 ♦ FAX 925 356 8250
1401 WILLOW PASS ROAD, SUITE 700
12 however, if this answering Defendant is found to be negligent (which supposition is denied and
CONCORD, CALIFORNIA 94520-7982
13 merely stated for the purpose of this affirmative defense), then this answering Defendant
Attorneys at Law
14 provisionally alleges that Defendant’s negligence is not the sole and proximate cause of the
15 resultant damages, losses and injuries alleged by Plaintiff and that the damages awarded to
16 Plaintiff, if any, be apportioned according to the respective fault of the parties, persons, and
17 entities, or their agents, servants, and employees who contributed to and/or caused said resultant
18 damages as alleged, according to the proof presented at the time of trial. That to assess any greater
19 percentage of fault and damages against this answering Defendant in excess of this answering
20 Defendant’s percentage of fault would be a denial of California equal protection and due process
21 and Federal equal protection and due process, all guaranteed by the respective Constitutions.
22 SECOND AFFIRMATIVE DEFENSE
23 [Comparative Fault]
24 4. As and for a separate and affirmative defense to the Complaint and to each
25 purported cause of action contained therein, this answering Defendant is informed and believes
26 and based thereon alleges: The injuries to the Plaintiff, if any, were sustained in that Plaintiff
27 failed to exercise ordinary and reasonable care or caution concerning the matters alleged in
28 the Complaint; and such negligence on Plaintiff’s part constitutes a bar to any recovery by said
LEGAL:11009-0400/14856866.1 -2-
ANSWER TO COMPLAINT
1 Plaintiff, or in the alternative, the recovery, if any, by said Plaintiff should be reduced in
2 proportion to the extent such negligence was a cause of Plaintiff’s injuries and damages, if any.
3 THIRD AFFIRMATIVE DEFENSE
4 [Assumption of Risk]
5 5. As and for a separate and affirmative defense to the Complaint, and to each
6 purported cause of action contained therein, this answering Defendant is informed and believes
7 and based thereon alleges: Plaintiff knowingly, willingly and voluntarily assumed the risk of all
8 damages, if any.
9 FOURTH AFFIRMATIVE DEFENSE
10 [Equitable Indemnity]
11 6. As and for separate and affirmative defense to the Complaint, and to each
WOOD, SMITH, HENNING & BERMAN LLP
TELEPHONE 925 222 3400 ♦ FAX 925 356 8250
1401 WILLOW PASS ROAD, SUITE 700
12 purported cause of action contained therein, this answering Defendant is informed and believes
CONCORD, CALIFORNIA 94520-7982
13 and based thereon alleges: Any and all events, happenings, injuries and damages set forth in the
Attorneys at Law
14 Complaint, if any, were proximately caused and contributed to by the acts and/or omissions of
15 Plaintiff, and such acts and/or omissions totally bar or reduce any recovery on the part of Plaintiff.
16 FIFTH AFFIRMATIVE DEFENSE
17 [No Duty]
18 7. As and for a separate and affirmative defense to the Complaint, and to each
19 purported cause of action contained therein, this answering Defendant is informed and believes
20 and based thereon alleges: Any recovery on the Complaint, or any claim for relief averred therein,
21 is barred to the extent this answering Defendant owed no duty to Plaintiff.
22 SIXTH AFFIRMATIVE DEFENSE
23 [No Causation]
24 8. As and for a separate and affirmative defense to the Complaint, and to each
25 purported cause of action contained therein, this answering Defendant is informed and believes
26 and based thereon alleges: To the extent Plaintiff suffered damages, which Defendant denies, such
27 injury or damage was not proximately caused by any conduct or inaction of this answering
28 Defendant, or was not foreseeable, or both.
LEGAL:11009-0400/14856866.1 -3-
ANSWER TO COMPLAINT
1 SEVENTH AFFIRMATIVE DEFENSE
2 [Alleged Injury or Damage Caused by Others]
3 9. As and for a separate and affirmative defense to the Complaint, and to each
4 purported cause of action contained therein, this answering Defendant is informed and believes
5 and based thereon alleges: To the extent Plaintiff suffered injury or damage, which Defendant
6 denies, such injury or damage was caused by the action or conduct of others, not this answering
7 Defendant.
8 EIGHTH AFFIRMATIVE DEFENSE
9 [Existing Prior Injury]
10 10. As and for a separate and affirmative defense to the Complaint, and to each
11 purported cause of action contained therein, this answering Defendant is informed and believes
WOOD, SMITH, HENNING & BERMAN LLP
TELEPHONE 925 222 3400 ♦ FAX 925 356 8250
1401 WILLOW PASS ROAD, SUITE 700
12 and based thereon alleges: To the extent Plaintiff suffered injury or damage, which Defendant
CONCORD, CALIFORNIA 94520-7982
13 denies, such injury or damage was sustained prior to the incident alleged by the Plaintiff in the
Attorneys at Law
14 Complaint on file herein.
15 NINTH AFFIRMATIVE DEFENSE
16 [Uncertainty]
17 11. As and for a separate and affirmative defense to the Complaint, and to each
18 purported cause of action contained therein, this answering Defendant is informed and believes
19 and based thereon alleges: Plaintiff’s Complaint and the allegations thereof are uncertain, vague
20 and ambiguous.
21 TENTH AFFIRMATIVE DEFENSE
22 [Limitation on Damages]
23 12. As and for a separate and affirmative defense to the Complaint, and to each
24 purported cause of action contained therein, this answering Defendant is informed and believes
25 and based thereon alleges: Plaintiff’s Complaint seeks an award of improper damages, including
26 but not limited to medical damages beyond those permitted by law.
27 / / /
28 / / /
LEGAL:11009-0400/14856866.1 -4-
ANSWER TO COMPLAINT
1 ELEVENTH AFFIRMATIVE DEFENSE
2 [Offset]
3 13. As and for a separate and affirmative defense to the Complaint, and to each
4 purported cause of action contained therein, this answering Defendant is informed and believes
5 and based thereon alleges: The costs incurred, or paid by the Plaintiff, if any, for repair of
6 property damage, medical care, dental care, custodial care or rehabilitation services, loss of
7 earning or other economic loss, in the past or future, were or will, with reasonable certainty be
8 replaced or indemnified, in whole or in part, from one or more collateral source, including by or
9 through insurance available to the Plaintiff under the terms of the Patient Protection and
10 Affordable Care Act, and as such the Defendant is entitled to have any award reduced in the
11 amount of such payments.
WOOD, SMITH, HENNING & BERMAN LLP
TELEPHONE 925 222 3400 ♦ FAX 925 356 8250
1401 WILLOW PASS ROAD, SUITE 700
12 TWELFTH AFFIRMATIVE DEFENSE
CONCORD, CALIFORNIA 94520-7982
13 [Howell v. Hamilton Meats]
Attorneys at Law
14 14. As and for a separate and affirmative defense to the Complaint and to each
15 purported cause of action contained therein, this answering Defendant is informed and believes
16 and based thereon alleges: Plaintiff’s recovery for past medical expenses or other economic loss
17 or benefit, if any, is limited to the lesser of the amount paid or the reasonable value of those
18 services or benefits.
19 THIRTEENTH AFFIRMATIVE DEFENSE
20 [Patient Protection and Affordable Care Act]
21 15. As and for a separate and affirmative defense to the Complaint and to each
22 purported cause of action contained therein, this answering Defendant is informed and believes
23 and based thereon alleges: Plaintiff is excluded from recovering any amounts which have been, or
24 will, indemnify Plaintiff, for any past or future claimed medical expenses, health care, life care, or
25 other economic loss or benefit that is offered, or provided under or in connection with the Patient
26 Protection and Affordable Care Act.
27 / / /
28 / / /
LEGAL:11009-0400/14856866.1 -5-
ANSWER TO COMPLAINT
1 FOURTEENTH AFFIRMATIVE DEFENSE
2 [Failure to Obtain Health Insurance]
3 16. As and for a separate and affirmative defense to the Complaint and to each
4 purported cause of action contained therein, this answering Defendant is informed and believes
5 and based thereon alleges: In the event Plaintiff has failed to obtain health insurance coverage
6 available to Plaintiff, which he is eligible to obtain under the Patient Protection and Affordable
7 Care Act, Plaintiff has failed to mitigate Plaintiff’s damages and cannot recover for such failure.
8 FIFTEENTH AFFIRMATIVE DEFENSE
9 [Failure to Utilize Health Insurance Benefits]
10 17. As and for a separate and affirmative defense to the Complaint and to each
11 purported cause of action contained therein, this answering Defendant is informed and believes
WOOD, SMITH, HENNING & BERMAN LLP
TELEPHONE 925 222 3400 ♦ FAX 925 356 8250
1401 WILLOW PASS ROAD, SUITE 700
12 and based thereon alleges: To the extent Plaintiff failed to take reasonable steps to utilize the
CONCORD, CALIFORNIA 94520-7982
13 resources, service benefits, and coverage available to Plaintiff under the Patient Protection and
Attorneys at Law
14 Affordable Care Act, Plaintiff has failed to mitigate Plaintiff’s damages and cannot recover for
15 such failure.
16 SIXTEENTH AFFIRMATIVE DEFENSE
17 [Affordable Care Act and Future Damages]
18 18. As and for a separate and affirmative defense to the Complaint and to each
19 purported cause of action contained therein, this answering Defendant is informed and believes
20 and based thereon alleges: Plaintiff will be limited to the reasonable value, if any, of future
21 medical services available to Plaintiff under the Affordable Care Act.
22 SEVENTEENTH AFFIRMATIVE DEFENSE
23 [No Injury or Damage]
24 19. As and for a separate and affirmative defense to the Complaint, and to each
25 purported cause of action contained therein, this answering Defendant is informed and believes
26 and based thereon alleges: This answering Defendant denies Plaintiff suffered any injury or
27 damage whatsoever, and further denies it is liable to Plaintiff for any injury or damage claimed or
28 for any injury or damage whatsoever.
LEGAL:11009-0400/14856866.1 -6-
ANSWER TO COMPLAINT
1 EIGHTEENTH AFFIRMATIVE DEFENSE
2 [Vicarious Liability]
3 20. As and for a separate and affirmative defense to the Complaint and to each
4 purported cause of action contained therein, this answering Defendant is informed and believes
5 and based thereon alleges: This answering Defendant denies Plaintiff suffered any injury or
6 damage whatsoever, and further denies it is vicariously liable for the acts of other parties.
7 NINETEENTH AFFIRMATIVE DEFENSE
8 [Fails to State Facts – General]
9 21. As and for a separate and affirmative defense to the Complaint and to each
10 purported cause of action contained therein, this answering Defendant is informed and believes
11 and based thereon alleges: The Complaint, and each purported cause of action contained therein,
WOOD, SMITH, HENNING & BERMAN LLP
TELEPHONE 925 222 3400 ♦ FAX 925 356 8250
1401 WILLOW PASS ROAD, SUITE 700
12 fails to state facts sufficient to constitute a cause of action against this answering Defendant.
CONCORD, CALIFORNIA 94520-7982
13 TWENTIETH AFFIRMATIVE DEFENSE
Attorneys at Law
14 [Statute of Limitations]
15 22. As and for a separate and affirmative defense to the Complaint and to each
16 purported cause of action contained therein, this answering Defendant is informed and believes
17 and based thereon alleges: Each said cause of action is barred by the applicable statute of
18 limitations, including but not limited to, California Code of Civil Procedure Sections 335.1, 337,
19 337.1, 337.15, 338, 339, 340 and/or 343.
20 TWENTY-FIRST AFFIRMATIVE DEFENSE
21 [Failure to Mitigate Loss]
22 23. As and for a separate and affirmative defense to the Complaint, and to each
23 purported cause of action contained therein, this answering Defendant is informed and believes
24 and based thereon alleges: If Plaintiff suffered any damage as a result of the allegations set forth
25 in the Complaint, Plaintiff is not entitled to recover from this answering Defendant any sum of
26 damages due to Plaintiff’s failure to take reasonable efforts to mitigate the damages said Plaintiff
27 allegedly incurred.
28 / / /
LEGAL:11009-0400/14856866.1 -7-
ANSWER TO COMPLAINT
1 TWENTY-SECOND AFFIRMATIVE DEFENSE
2 [Estoppel]
3 24. As and for a separate and affirmative defense to the Complaint, and to each
4 purported cause of action contained therein, this answering Defendant is informed and believes
5 and based thereon alleges: Each and every cause of action or purported cause of action contained
6 in the Complaint is barred by the Doctrine of Estoppel.
7 TWENTY-THIRD AFFIRMATIVE DEFENSE
8 [Waiver]
9 25. As and for a separate and affirmative defense to the Complaint, and to each
10 purported cause of action contained therein, this answering Defendant is informed and believes
11 and based thereon alleges: Each and every cause of action or purported cause of action contained
WOOD, SMITH, HENNING & BERMAN LLP
TELEPHONE 925 222 3400 ♦ FAX 925 356 8250
1401 WILLOW PASS ROAD, SUITE 700
12 in the Complaint is barred by the Doctrine of Waiver.
CONCORD, CALIFORNIA 94520-7982
13 TWENTY-FOURTH AFFIRMATIVE DEFENSE
Attorneys at Law
14 [Laches]
15 26. As and for a separate and affirmative defense to the Complaint, and to each
16 purported cause of action contained therein, this answering Defendant is informed and believes
17 and based thereon alleges: Each and every cause of action or purported cause of action contained
18 in the Complaint is barred by the Doctrine of Laches.
19 TWENTY-FIFTH AFFIRMATIVE DEFENSE
20 [Unclean Hands]
21 27. As and for a separate and affirmative defense to the Complaint, and to each
22 purported cause of action contained therein, this answering Defendant is informed and believes
23 and based thereon alleges: Each and every cause of action or purported cause of action contained
24 in the Complaint is barred by the Doctrine of Unclean Hands.
25 TWENTY-SIXTH AFFIRMATIVE DEFENSE
26 [Collateral Estoppel]
27 28. As and for a separate and affirmative defense to the Complaint, and to each
28 purported cause of action contained therein, this answering Defendant is informed and believes
LEGAL:11009-0400/14856866.1 -8-
ANSWER TO COMPLAINT
1 and based thereon alleges: Each and every cause of action or purported cause of action contained
2 in the Complaint is barred by the Doctrine of Collateral Estoppel.
3 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
4 [Voluntary Conduct]
5 29. As and for a separate and affirmative defense to the Complaint, and to each
6 purported cause of action contained therein, this answering Defendant is informed and believes
7 and based thereon alleges: Plaintiff has engaged in conduct with respect to the activities and/or
8 property which are the subject of the Complaint, and by reason of said activities and conduct, is
9 estopped from asserting any claims or damages or seeking any other relief against this answering
10 Defendant.
11 TWENTY-EIGHTH AFFIRMATIVE DEFENSE
WOOD, SMITH, HENNING & BERMAN LLP
TELEPHONE 925 222 3400 ♦ FAX 925 356 8250
1401 WILLOW PASS ROAD, SUITE 700
12 [Damages Uncertain]
CONCORD, CALIFORNIA 94520-7982
13 30. As and for a separate and affirmative defense to the Complaint, and to each
Attorneys at Law
14 purported cause of action contained therein, this answering Defendant is informed and believes
15 and based thereon alleges: Plaintiff’s damages, if any, are speculative, uncertain and not capable
16 of being determined by a trier of fact.
17 TWENTY-NINTH AFFIRMATIVE DEFENSE
18 [Intervening Superseding Causes]
19 31. As and for a separate and affirmative defense to the Complaint, and to each
20 purported cause of action contained therein, this answering Defendant is informed and believes
21 and based thereon alleges: The damages of which Plaintiff complains were proximately caused or
22 contributed to by the acts of other defendants, persons and/or other entities. Such acts were an
23 intervening, supervening and superseding cause of the injuries and damages, if any, of which the
24 Plaintiff complains, thus barring Plaintiff from any recovery against this answering Defendant.
25 THIRTIETH AFFIRMATIVE DEFENSE
26 [No Vicarious or Agency Liability]
27 32. As and for a separate and affirmative defense to the Complaint, Defendant
28 alleges that at no time or place set forth in the Complaint did any other defendant or third person
LEGAL:11009-0400/14856866.1 -9-
ANSWER TO COMPLAINT
1 alleged to be at fault operate as the agent or employee of Defendant, such that Defendant can be
2 held vicariously liable for their acts. Should any other defendant or third party be deemed to have
3 any affiliation with this Defendant, then such other defendant or third party was independently
4 responsible for their own means and methods. Accordingly, the doctrines of respondeat superior
5 and agency are inapplicable and this answering Defendant has no vicarious liability for acts or
6 omissions by said other defendants or third parties.
7 THIRTY-FIRST AFFIRMATIVE DEFENSE
Preview
1 Thomas D. Fama (State Bar No. 261477) tfama@wshblaw.com 2 Mitchell R. VanLandingham (State Bar No. 324778) ELECTRONICALLY mvanlandingham@wshblaw.com 3 WOOD, SMITH, HENNING & BERMAN LLP FILED Superior Court of California, 1401 Willow Pass Road, Suite 700 County of San Francisco 4 Concord, California 94520-7982 Phone: 925 222 3400 ♦ Fax: 925 356 8250 06/19/2020 Clerk of the Court 5 BY: SANDRA SCHIRO Deputy Clerk 6 Attorneys for Defendants, UBER TECHNOLOGIES, INC., UATC, LLC, RASIER, LLC and RASIER-CA, LLC 7 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 IN AND FOR COUNTY OF SAN FRANCISCO 11 WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE 925 222 3400 ♦ FAX 925 356 8250 1401 WILLOW PASS ROAD, SUITE 700 12 CONCORD, CALIFORNIA 94520-7982 RACHEL JACOBS, Case No. CGC-20-582195 13 Attorneys at Law Plaintiff, DEFENDANT RASIER-CA, LLC'S 14 ANSWER TO COMPLAINT v. 15 The Hon. Garrett Wong, Dept. 610 UBER TECHNOLOGIES, INC.; 16 MAHMOUD A. MAHMOUD; RASIER, Action Filed: January 14, 2020 LLC; RASIER-CA, LLC; UATC, LLC; 17 RALYNN J. GONZALEZ ALONZO and Trial Date: None Set DOES 1 to 100, 18 Defendants. 19 20 21 COMES NOW, Defendant RASIER-CA, LLC (hereinafter “Defendant”), severing itself 22 from all other co-defendants, and answering the Complaint (hereinafter “Complaint”) on file 23 herein as follows: 24 1. Inasmuch as the Complaint is not verified under the provisions of Section 25 431.30 of the California Code of Civil Procedure, this answering Defendant denies generally each, 26 every and all of the allegations in said Complaint, and the whole thereof, including denial of all 27 sums and 28 amounts alleged, to be alleged or otherwise. LEGAL:11009-0400/14856866.1 -1- ANSWER TO COMPLAINT 1 SEPARATE AFFIRMATIVE DEFENSES 2 2. This answering Defendant does not, by stating the matters set forth in these 3 defenses, allege or admit that it has the burden of proof and/or persuasion with respect to any of 4 these matters, and does not assume the burden of proof or persuasion as to any matters to which 5 Plaintiff has the burden of proof or persuasion. 6 FIRST AFFIRMATIVE DEFENSE 7 [Apportionment of Fault] 8 3. As and for a separate and affirmative defense to the Complaint and to each 9 purported cause of action contained therein, this answering Defendant is informed and believes 10 and based thereon alleges: Defendant denies it was negligent in any fashion with respect to the 11 damages, losses, injuries and debts claimed by the Plaintiff in the Complaint on file herein; WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE 925 222 3400 ♦ FAX 925 356 8250 1401 WILLOW PASS ROAD, SUITE 700 12 however, if this answering Defendant is found to be negligent (which supposition is denied and CONCORD, CALIFORNIA 94520-7982 13 merely stated for the purpose of this affirmative defense), then this answering Defendant Attorneys at Law 14 provisionally alleges that Defendant’s negligence is not the sole and proximate cause of the 15 resultant damages, losses and injuries alleged by Plaintiff and that the damages awarded to 16 Plaintiff, if any, be apportioned according to the respective fault of the parties, persons, and 17 entities, or their agents, servants, and employees who contributed to and/or caused said resultant 18 damages as alleged, according to the proof presented at the time of trial. That to assess any greater 19 percentage of fault and damages against this answering Defendant in excess of this answering 20 Defendant’s percentage of fault would be a denial of California equal protection and due process 21 and Federal equal protection and due process, all guaranteed by the respective Constitutions. 22 SECOND AFFIRMATIVE DEFENSE 23 [Comparative Fault] 24 4. As and for a separate and affirmative defense to the Complaint and to each 25 purported cause of action contained therein, this answering Defendant is informed and believes 26 and based thereon alleges: The injuries to the Plaintiff, if any, were sustained in that Plaintiff 27 failed to exercise ordinary and reasonable care or caution concerning the matters alleged in 28 the Complaint; and such negligence on Plaintiff’s part constitutes a bar to any recovery by said LEGAL:11009-0400/14856866.1 -2- ANSWER TO COMPLAINT 1 Plaintiff, or in the alternative, the recovery, if any, by said Plaintiff should be reduced in 2 proportion to the extent such negligence was a cause of Plaintiff’s injuries and damages, if any. 3 THIRD AFFIRMATIVE DEFENSE 4 [Assumption of Risk] 5 5. As and for a separate and affirmative defense to the Complaint, and to each 6 purported cause of action contained therein, this answering Defendant is informed and believes 7 and based thereon alleges: Plaintiff knowingly, willingly and voluntarily assumed the risk of all 8 damages, if any. 9 FOURTH AFFIRMATIVE DEFENSE 10 [Equitable Indemnity] 11 6. As and for separate and affirmative defense to the Complaint, and to each WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE 925 222 3400 ♦ FAX 925 356 8250 1401 WILLOW PASS ROAD, SUITE 700 12 purported cause of action contained therein, this answering Defendant is informed and believes CONCORD, CALIFORNIA 94520-7982 13 and based thereon alleges: Any and all events, happenings, injuries and damages set forth in the Attorneys at Law 14 Complaint, if any, were proximately caused and contributed to by the acts and/or omissions of 15 Plaintiff, and such acts and/or omissions totally bar or reduce any recovery on the part of Plaintiff. 16 FIFTH AFFIRMATIVE DEFENSE 17 [No Duty] 18 7. As and for a separate and affirmative defense to the Complaint, and to each 19 purported cause of action contained therein, this answering Defendant is informed and believes 20 and based thereon alleges: Any recovery on the Complaint, or any claim for relief averred therein, 21 is barred to the extent this answering Defendant owed no duty to Plaintiff. 22 SIXTH AFFIRMATIVE DEFENSE 23 [No Causation] 24 8. As and for a separate and affirmative defense to the Complaint, and to each 25 purported cause of action contained therein, this answering Defendant is informed and believes 26 and based thereon alleges: To the extent Plaintiff suffered damages, which Defendant denies, such 27 injury or damage was not proximately caused by any conduct or inaction of this answering 28 Defendant, or was not foreseeable, or both. LEGAL:11009-0400/14856866.1 -3- ANSWER TO COMPLAINT 1 SEVENTH AFFIRMATIVE DEFENSE 2 [Alleged Injury or Damage Caused by Others] 3 9. As and for a separate and affirmative defense to the Complaint, and to each 4 purported cause of action contained therein, this answering Defendant is informed and believes 5 and based thereon alleges: To the extent Plaintiff suffered injury or damage, which Defendant 6 denies, such injury or damage was caused by the action or conduct of others, not this answering 7 Defendant. 8 EIGHTH AFFIRMATIVE DEFENSE 9 [Existing Prior Injury] 10 10. As and for a separate and affirmative defense to the Complaint, and to each 11 purported cause of action contained therein, this answering Defendant is informed and believes WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE 925 222 3400 ♦ FAX 925 356 8250 1401 WILLOW PASS ROAD, SUITE 700 12 and based thereon alleges: To the extent Plaintiff suffered injury or damage, which Defendant CONCORD, CALIFORNIA 94520-7982 13 denies, such injury or damage was sustained prior to the incident alleged by the Plaintiff in the Attorneys at Law 14 Complaint on file herein. 15 NINTH AFFIRMATIVE DEFENSE 16 [Uncertainty] 17 11. As and for a separate and affirmative defense to the Complaint, and to each 18 purported cause of action contained therein, this answering Defendant is informed and believes 19 and based thereon alleges: Plaintiff’s Complaint and the allegations thereof are uncertain, vague 20 and ambiguous. 21 TENTH AFFIRMATIVE DEFENSE 22 [Limitation on Damages] 23 12. As and for a separate and affirmative defense to the Complaint, and to each 24 purported cause of action contained therein, this answering Defendant is informed and believes 25 and based thereon alleges: Plaintiff’s Complaint seeks an award of improper damages, including 26 but not limited to medical damages beyond those permitted by law. 27 / / / 28 / / / LEGAL:11009-0400/14856866.1 -4- ANSWER TO COMPLAINT 1 ELEVENTH AFFIRMATIVE DEFENSE 2 [Offset] 3 13. As and for a separate and affirmative defense to the Complaint, and to each 4 purported cause of action contained therein, this answering Defendant is informed and believes 5 and based thereon alleges: The costs incurred, or paid by the Plaintiff, if any, for repair of 6 property damage, medical care, dental care, custodial care or rehabilitation services, loss of 7 earning or other economic loss, in the past or future, were or will, with reasonable certainty be 8 replaced or indemnified, in whole or in part, from one or more collateral source, including by or 9 through insurance available to the Plaintiff under the terms of the Patient Protection and 10 Affordable Care Act, and as such the Defendant is entitled to have any award reduced in the 11 amount of such payments. WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE 925 222 3400 ♦ FAX 925 356 8250 1401 WILLOW PASS ROAD, SUITE 700 12 TWELFTH AFFIRMATIVE DEFENSE CONCORD, CALIFORNIA 94520-7982 13 [Howell v. Hamilton Meats] Attorneys at Law 14 14. As and for a separate and affirmative defense to the Complaint and to each 15 purported cause of action contained therein, this answering Defendant is informed and believes 16 and based thereon alleges: Plaintiff’s recovery for past medical expenses or other economic loss 17 or benefit, if any, is limited to the lesser of the amount paid or the reasonable value of those 18 services or benefits. 19 THIRTEENTH AFFIRMATIVE DEFENSE 20 [Patient Protection and Affordable Care Act] 21 15. As and for a separate and affirmative defense to the Complaint and to each 22 purported cause of action contained therein, this answering Defendant is informed and believes 23 and based thereon alleges: Plaintiff is excluded from recovering any amounts which have been, or 24 will, indemnify Plaintiff, for any past or future claimed medical expenses, health care, life care, or 25 other economic loss or benefit that is offered, or provided under or in connection with the Patient 26 Protection and Affordable Care Act. 27 / / / 28 / / / LEGAL:11009-0400/14856866.1 -5- ANSWER TO COMPLAINT 1 FOURTEENTH AFFIRMATIVE DEFENSE 2 [Failure to Obtain Health Insurance] 3 16. As and for a separate and affirmative defense to the Complaint and to each 4 purported cause of action contained therein, this answering Defendant is informed and believes 5 and based thereon alleges: In the event Plaintiff has failed to obtain health insurance coverage 6 available to Plaintiff, which he is eligible to obtain under the Patient Protection and Affordable 7 Care Act, Plaintiff has failed to mitigate Plaintiff’s damages and cannot recover for such failure. 8 FIFTEENTH AFFIRMATIVE DEFENSE 9 [Failure to Utilize Health Insurance Benefits] 10 17. As and for a separate and affirmative defense to the Complaint and to each 11 purported cause of action contained therein, this answering Defendant is informed and believes WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE 925 222 3400 ♦ FAX 925 356 8250 1401 WILLOW PASS ROAD, SUITE 700 12 and based thereon alleges: To the extent Plaintiff failed to take reasonable steps to utilize the CONCORD, CALIFORNIA 94520-7982 13 resources, service benefits, and coverage available to Plaintiff under the Patient Protection and Attorneys at Law 14 Affordable Care Act, Plaintiff has failed to mitigate Plaintiff’s damages and cannot recover for 15 such failure. 16 SIXTEENTH AFFIRMATIVE DEFENSE 17 [Affordable Care Act and Future Damages] 18 18. As and for a separate and affirmative defense to the Complaint and to each 19 purported cause of action contained therein, this answering Defendant is informed and believes 20 and based thereon alleges: Plaintiff will be limited to the reasonable value, if any, of future 21 medical services available to Plaintiff under the Affordable Care Act. 22 SEVENTEENTH AFFIRMATIVE DEFENSE 23 [No Injury or Damage] 24 19. As and for a separate and affirmative defense to the Complaint, and to each 25 purported cause of action contained therein, this answering Defendant is informed and believes 26 and based thereon alleges: This answering Defendant denies Plaintiff suffered any injury or 27 damage whatsoever, and further denies it is liable to Plaintiff for any injury or damage claimed or 28 for any injury or damage whatsoever. LEGAL:11009-0400/14856866.1 -6- ANSWER TO COMPLAINT 1 EIGHTEENTH AFFIRMATIVE DEFENSE 2 [Vicarious Liability] 3 20. As and for a separate and affirmative defense to the Complaint and to each 4 purported cause of action contained therein, this answering Defendant is informed and believes 5 and based thereon alleges: This answering Defendant denies Plaintiff suffered any injury or 6 damage whatsoever, and further denies it is vicariously liable for the acts of other parties. 7 NINETEENTH AFFIRMATIVE DEFENSE 8 [Fails to State Facts – General] 9 21. As and for a separate and affirmative defense to the Complaint and to each 10 purported cause of action contained therein, this answering Defendant is informed and believes 11 and based thereon alleges: The Complaint, and each purported cause of action contained therein, WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE 925 222 3400 ♦ FAX 925 356 8250 1401 WILLOW PASS ROAD, SUITE 700 12 fails to state facts sufficient to constitute a cause of action against this answering Defendant. CONCORD, CALIFORNIA 94520-7982 13 TWENTIETH AFFIRMATIVE DEFENSE Attorneys at Law 14 [Statute of Limitations] 15 22. As and for a separate and affirmative defense to the Complaint and to each 16 purported cause of action contained therein, this answering Defendant is informed and believes 17 and based thereon alleges: Each said cause of action is barred by the applicable statute of 18 limitations, including but not limited to, California Code of Civil Procedure Sections 335.1, 337, 19 337.1, 337.15, 338, 339, 340 and/or 343. 20 TWENTY-FIRST AFFIRMATIVE DEFENSE 21 [Failure to Mitigate Loss] 22 23. As and for a separate and affirmative defense to the Complaint, and to each 23 purported cause of action contained therein, this answering Defendant is informed and believes 24 and based thereon alleges: If Plaintiff suffered any damage as a result of the allegations set forth 25 in the Complaint, Plaintiff is not entitled to recover from this answering Defendant any sum of 26 damages due to Plaintiff’s failure to take reasonable efforts to mitigate the damages said Plaintiff 27 allegedly incurred. 28 / / / LEGAL:11009-0400/14856866.1 -7- ANSWER TO COMPLAINT 1 TWENTY-SECOND AFFIRMATIVE DEFENSE 2 [Estoppel] 3 24. As and for a separate and affirmative defense to the Complaint, and to each 4 purported cause of action contained therein, this answering Defendant is informed and believes 5 and based thereon alleges: Each and every cause of action or purported cause of action contained 6 in the Complaint is barred by the Doctrine of Estoppel. 7 TWENTY-THIRD AFFIRMATIVE DEFENSE 8 [Waiver] 9 25. As and for a separate and affirmative defense to the Complaint, and to each 10 purported cause of action contained therein, this answering Defendant is informed and believes 11 and based thereon alleges: Each and every cause of action or purported cause of action contained WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE 925 222 3400 ♦ FAX 925 356 8250 1401 WILLOW PASS ROAD, SUITE 700 12 in the Complaint is barred by the Doctrine of Waiver. CONCORD, CALIFORNIA 94520-7982 13 TWENTY-FOURTH AFFIRMATIVE DEFENSE Attorneys at Law 14 [Laches] 15 26. As and for a separate and affirmative defense to the Complaint, and to each 16 purported cause of action contained therein, this answering Defendant is informed and believes 17 and based thereon alleges: Each and every cause of action or purported cause of action contained 18 in the Complaint is barred by the Doctrine of Laches. 19 TWENTY-FIFTH AFFIRMATIVE DEFENSE 20 [Unclean Hands] 21 27. As and for a separate and affirmative defense to the Complaint, and to each 22 purported cause of action contained therein, this answering Defendant is informed and believes 23 and based thereon alleges: Each and every cause of action or purported cause of action contained 24 in the Complaint is barred by the Doctrine of Unclean Hands. 25 TWENTY-SIXTH AFFIRMATIVE DEFENSE 26 [Collateral Estoppel] 27 28. As and for a separate and affirmative defense to the Complaint, and to each 28 purported cause of action contained therein, this answering Defendant is informed and believes LEGAL:11009-0400/14856866.1 -8- ANSWER TO COMPLAINT 1 and based thereon alleges: Each and every cause of action or purported cause of action contained 2 in the Complaint is barred by the Doctrine of Collateral Estoppel. 3 TWENTY-SEVENTH AFFIRMATIVE DEFENSE 4 [Voluntary Conduct] 5 29. As and for a separate and affirmative defense to the Complaint, and to each 6 purported cause of action contained therein, this answering Defendant is informed and believes 7 and based thereon alleges: Plaintiff has engaged in conduct with respect to the activities and/or 8 property which are the subject of the Complaint, and by reason of said activities and conduct, is 9 estopped from asserting any claims or damages or seeking any other relief against this answering 10 Defendant. 11 TWENTY-EIGHTH AFFIRMATIVE DEFENSE WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE 925 222 3400 ♦ FAX 925 356 8250 1401 WILLOW PASS ROAD, SUITE 700 12 [Damages Uncertain] CONCORD, CALIFORNIA 94520-7982 13 30. As and for a separate and affirmative defense to the Complaint, and to each Attorneys at Law 14 purported cause of action contained therein, this answering Defendant is informed and believes 15 and based thereon alleges: Plaintiff’s damages, if any, are speculative, uncertain and not capable 16 of being determined by a trier of fact. 17 TWENTY-NINTH AFFIRMATIVE DEFENSE 18 [Intervening Superseding Causes] 19 31. As and for a separate and affirmative defense to the Complaint, and to each 20 purported cause of action contained therein, this answering Defendant is informed and believes 21 and based thereon alleges: The damages of which Plaintiff complains were proximately caused or 22 contributed to by the acts of other defendants, persons and/or other entities. Such acts were an 23 intervening, supervening and superseding cause of the injuries and damages, if any, of which the 24 Plaintiff complains, thus barring Plaintiff from any recovery against this answering Defendant. 25 THIRTIETH AFFIRMATIVE DEFENSE 26 [No Vicarious or Agency Liability] 27 32. As and for a separate and affirmative defense to the Complaint, Defendant 28 alleges that at no time or place set forth in the Complaint did any other defendant or third person LEGAL:11009-0400/14856866.1 -9- ANSWER TO COMPLAINT 1 alleged to be at fault operate as the agent or employee of Defendant, such that Defendant can be 2 held vicariously liable for their acts. Should any other defendant or third party be deemed to have 3 any affiliation with this Defendant, then such other defendant or third party was independently 4 responsible for their own means and methods. Accordingly, the doctrines of respondeat superior 5 and agency are inapplicable and this answering Defendant has no vicarious liability for acts or 6 omissions by said other defendants or third parties. 7 THIRTY-FIRST AFFIRMATIVE DEFENSE