Preview
1 Mark D. Newcomb, Esq. (SBN 136717)
Katrina N. Neumann, Esq. (SBN 327075)
2 Koeller, Nebeker, Carlson & Haluck, LLP
3 Park Plaza, Suite 1500 ELECTRONICALLY
3 Irvine, CA 92614-8558 FILED
949-864-3400; fax: 949-864-9000 Superior Court of California,
County of San Francisco
4
Attorneys for Defendants, 05/11/2020
5 SWINERTON BUILDERS and BROOKFIELD Clerk of the Court
PROPERTIES MANAGEMENT (CA) INC. BY: MADONNA CARANTO
Deputy Clerk
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7
SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF SAN FRANCISCO - UNLIMITED
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11 ALEJANDRA MARTINEZ, an individual, ) Case No.: CGC-20-584003
)
12 Plaintiff, ) Assigned For All Purposes To:
) Judge: Honorable Garrett L. Wong
13 v. ) Dept.: 610
)
14 CITY OF SAN FRANCISCO; COUNTY ) SWINERTON BUILDERS AND
OF SAN FRANCISCO; SWINERTON ) BROOKFIELD PROPERTIES
15 BUILDERS, a California corporation; ) MANAGEMENT (CA) INC.’S
BROOKFIELD PROPERTIES ) ANSWER TO PLAINTIFF’S
16 MANAGEMENT (CA) INC., a Delaware ) COMPLAINT
corporation; and DOES 1 through 100, )
17 inclusive, )
) Action Date: April 1, 2020
18 Defendants. ) Trial Date: Not Set
)
19
20 Defendants SWINERTON BUILDERS and BROOKFIELD PROPERTIES
21 MANAGEMENT (CA) INC. (“Defendants”) hereby answer the unverified Complaint of
22 ALEJANDRA MARTINEZ (hereinafter “Plaintiff”) as follows:
23 1. Under the provision of California Code of Civil Procedure §431.30, these
24 answering Defendants deny each and every allegation of Plaintiff’s Complaint and specifically
25 deny that Defendants are in any way responsible in any respect for the damages that Plaintiff has
26 sustained or will sustain as alleged in her Complaint, and further deny that Plaintiff is now or will
27 be entitled to damages as a result of the matters alleged in the Complaint filed in this action.
28 ///
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023.161:388404v1
DEFENDANTS’ ANSWER TO PLAINTIFF’S COMPLAINT
1 FIRST AFFIRMATIVE DEFENSE
2 (Failure to State Cause of Action)
3 2. Defendants are informed and believe, and thereon allege, that Plaintiff fails to state
4 facts certain and/or sufficient to constitute a cause of action against these answering Defendants.
5 SECOND AFFIRMATIVE DEFENSE
6 (Failure to Exercise Ordinary Care by Plaintiff)
7 3. Plaintiff’s allegations are barred or their recovery should be diminished because
8 the alleged damage was caused by the Plaintiff’s failure to exercise ordinary care on her own
9 behalf for her own safety.
10 THIRD AFFIRMATIVE DEFENSE
11 (Comparative Fault of Others)
12 4. That, the resulting injuries and damages, if any, sustained by Plaintiff were not
13 proximately caused by any acts or omissions of these answering Defendants. Defendants are
14 informed and believe, and thereon allege, that the damages and injuries, if any, which were or
15 will be sustained by Plaintiff were proximately caused by the actions and/or inaction of third
16 parties and that, by virtue of said actions and/or inaction, these answering Defendants have no
17 legal liability to Plaintiff.
18 FOURTH AFFIRMATIVE DEFENSE
19 (Intervening and Superseding Causes)
20 5. Defendants are informed and believe, and thereon allege, that if Plaintiff was
21 injured or suffered any loss, which Defendants deny, that any such injury and/or loss was the
22 proximate cause of the intervening and superseding actions on the part of Plaintiff or other parties
23 other than these answering Defendants and that, by virtue of the intervening and superseding
24 fault, any recovery against these answering Defendants must be reduced in percentage to the
25 amount of said fault.
26 FIFTH AFFIRMATIVE DEFENSE
27 (Estoppel)
28 6. Defendants are informed and believe, and thereon allege, that Plaintiff, by her own
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DEFENDANTS’ ANSWER TO PLAINTIFF’S COMPLAINT
1 conduct, is equitably estopped from asserting any right to recovery as against these answering
2 Defendants.
3 SIXTH AFFIRMATIVE DEFENSE
4 (Lack of Capacity and/or Standing)
5 7. Defendants are informed and believe, and thereon allege, that Plaintiff lacks the
6 capacity and/or standing to sue which bars the Complaint.
7 SEVENTH AFFIRMATIVE DEFENSE
8 (Assumption of Risk)
9 8. Defendants are informed and believe, and thereon allege, that Plaintiff expressly,
10 voluntarily and knowingly assumed all risks about which she complains in the Complaint, and
11 therefore, the Complaint is barred either totally or to the extent of said assumption from recovery
12 of any damages.
13 EIGHTH AFFIRMATIVE DEFENSE
14 (Lack of Notice)
15 9. Defendants allege that the condition of which the Plaintiff complains was a
16 condition of which these answering Defendants did not have notice, either actual and/or
17 constructive and had insufficient time prior to the alleged incident to have taken any remedial
18 action.
19 NINTH AFFIRMATIVE DEFENSE
20 (Contributory Negligence of Plaintiff)
21 10. Defendants are informed and believe, and thereon allege, that Plaintiff’s alleged
22 damages, if any, were wholly or partly contributed to or proximately caused by Plaintiff’s
23 conduct and activities, including Plaintiff’s negligence and carelessness.
24 TENTH AFFIRMATIVE DEFENSE
25 (Contributory Negligence of Others)
26 11. Defendants are informed and believe, and thereon allege, that Plaintiff’s alleged
27 damages, if any, were wholly or partly contributed to or proximately caused by other defendants
28 or cross-defendants’ conduct and activities, including their negligence and carelessness.
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DEFENDANTS’ ANSWER TO PLAINTIFF’S COMPLAINT
1 Defendants are entitled to an equitable apportionment of the damages in relation to the negligence
2 or wrongdoing of the other defendants or cross-defendants.
3 ELEVENTH AFFIRMATIVE DEFENSE
4 (Work Inspected and/or Accepted)
5 12. Any and all construction and/or improvements worked on by these answering
6 Defendants at issue in this litigation was inspected, approved, paid for, and accepted by property
7 owner and/or their agents, and/or other persons and/or entitles, and agents thereof, and by and all
8 appropriate governmental authorities, and therefore Plaintiff is barred from recovering any
9 damages or relief from these answering Defendants.
10 TWELFTH AFFIRMATIVE DEFENSE
11 (Completed and Accepted Doctrine)
12 13. Defendants have fully, completely, adequately, satisfactorily, and safely completed
13 all work required pursuant to any obligation or duty owed by these answering Defendants and
14 such work was accepted by the property owner. The condition of which Plaintiff complains, to the
15 extent it is found to have been a dangerous condition or a defect in the property, was patent in
16 nature, and which alleged condition would have been revealed by a reasonable inspection or
17 discovery by a common experience.
18 THIRTEENTH AFFIRMATIVE DEFENSE
19 (Statute of Limitations)
20 14. Defendants are informed and believe, and thereon allege, that the Complaint, and
21 each and every purported cause of action contained therein, is barred, either wholly or in part, by
22 the statute of limitations set forth in the California Code of Civil Procedure, including, but not
23 limited to the provisions of Code of Civil Procedure sections 335.1, 337, 337.1, 338, 339, and/or
24 343.
25 FOURTEENTH AFFIRMATIVE DEFENSE
26 (Joint and Several Liability)
27 15. Defendants are informed and believe, and thereon allege, that Plaintiff is barred by
28 the provisions of California Civil Code §§1430–1442.
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DEFENDANTS’ ANSWER TO PLAINTIFF’S COMPLAINT
1 FIFTEENTH AFFIRMATIVE DEFENSE
2 (Unclean Hands)
3 16. Defendants are informed and believe, and thereon allege, that the doctrine of
4 unclean hands bars the Complaint.
5 SIXTEENTH AFFIRMATIVE DEFENSE
6 (Released from Liability)
7 17. These answering Defendants are informed and believe that other defendants, cross-
8 complainants, or cross-defendants have released these answering Defendants from liability
9 associated with damages arising from various claims asserted in Plaintiff’s Complaint.
10 SEVENTEENTH AFFIRMATIVE DEFENSE
11 (Defendants Complied with Standard of Care)
12 18. These answering Defendants allege that Plaintiff is barred and precluded from any
13 recovery in this action because these answering Defendants at all times complied with the
14 applicable standard of care required of these answering Defendants.
15 EIGHTEENTH AFFIRMATIVE DEFENSE
16 (No Reasonable Cause and/or Good Faith to File Complaint)
17 19. These answering Defendants are informed and believe, and thereon allege, that the
18 Complaint was brought without reasonable cause and without a good faith belief that there was a
19 justifiable controversy under the facts or the law which warranted the filing of the Complaint
20 against these answering Defendants. Plaintiff should therefore be responsible for all of
21 Defendants’ necessary and reasonable defense costs, as more particularly set forth in the
22 California Code of Civil Procedure §128.5.
23 NINETEENTH AFFIRMATIVE DEFENSE
24 (No Defect)
25 20. These answering Defendants hereby allege on information and belief that Plaintiff
26 is barred from recovery on the basis that the subject property is not defective, nor is there any
27 defective condition.
28 ///
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DEFENDANTS’ ANSWER TO PLAINTIFF’S COMPLAINT
1 TWENTIETH AFFIRMATIVE DEFENSE
2 (Failure to Mitigate)
3 21. Plaintiff’s injuries, loss, and/or damages, if any there be, were aggravated by
4 Plaintiff’s failure to use reasonable diligence to mitigate the same.
5 TWENTY-FIRST AFFIRMATIVE DEFENSE
6 (No Negligence and/or Accident)
7 22. The events, injuries, losses, and damages, if any, complained of were the result of
8 an unavoidable accident insofar as these answering Defendants are concerned and occurred
9 without any negligence, want of care, default or other breach of duty to Plaintiff on the part of
10 these answering Defendants.
11 TWENTY-SECOND AFFIRMATIVE DEFENSE
12 (No Dangerous Condition)
13 23. Pursuant to Government Code §830.2 the risk, if any, created by the alleged
14 dangerous condition was of such a minor, trivial or insignificant nature in view of the surrounding
15 circumstances that no reasonable person would conclude that the condition created a substantial
16 risk of injury when such property or adjacent property and/or product was used with due care in a
17 manner in which it was reasonably foreseeable that it would be used.
18 TWENTY-THIRD AFFIRMATIVE DEFENSE
19 (Open and Obvious)
20 24. At all times in this action, the alleged dangerous or defective condition as
21 described in Plaintiff’s Complaint was open and obvious to Plaintiff, and as such bars any
22 recovery in this action or diminishes Plaintiff’s recovery to the extent that Plaintiff’s loss,
23 damage, or injury is attributable to the existence of the alleged dangerous or defective condition.
24 TWENTY-FOURTH AFFIRMATIVE DEFENSE
25 (Statutory Immunity under Tort Claims Act)
26 25. Under the provisions of the Tort Claims Act establishing immunity (Gov. Code §§
27 810-997.6) Defendants are immune from liability for the injuries and damages alleged in
28 Plaintiff’s Complaint.
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DEFENDANTS’ ANSWER TO PLAINTIFF’S COMPLAINT
1 TWENTY-FIFTH AFFIRMATIVE DEFENSE
2 (No Ownership and/or Control of Property)
3 26. These answering Defendants maintain that they did not have ownership,
4 possession or control of the property where Plaintiff’s incident occurred at the time of Plaintiff’s
5 alleged incident.
6 TWENTY-SIXTH AFFIRMATIVE DEFENSE
7 (Waived Right)
8 27. That by virtue of Plaintiff’s own acts, representations, and conduct, Plaintiff has
9 waived any right to assert any claims against these answering Defendants.
10 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
11 (Unforeseeable Condition)
12 28. The alleged injuries to Plaintiff did not occur in a way which was reasonably
13 foreseeable as a consequence of any alleged dangerous condition of the property.
14 TWENTY-EIGHTH AFFIRMATIVE DEFENSE
15 (Condition was a Minor and/or Trivial and/or Insignificant Risk)
16 29. The condition of the property which allegedly resulted in the injury claimed by
17 Plaintiff creates a minor, trivial, or insignificant risk of injury.
18 TWENTY-NINTH AFFIRMATIVE DEFENSE
19 (Statute of Limitations under Government Code)
20 30. Defendants are informed and believe, and thereon allege, that the Complaint, and
21 each and every purported cause of action contained therein, is barred, either wholly or in part, by
22 the statute of limitations set forth in the Government Code, including, but not limited to the
23 provisions of Government Code sections 911.2, 912.4, 912.6, and/or 945.6
24 THIRTIETH AFFIRMATIVE DEFENSE
25 (Plaintiff Warned)
26 31. Defendants are informed and believe, and thereon allege, that Plaintiff was warned
27 of all particular risks that were known or knowledgeable in light of the generally recognized and
28 prevailing knowledge at the time of Plaintiff’s entry and stay upon the subject property such that
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DEFENDANTS’ ANSWER TO PLAINTIFF’S COMPLAINT
1 Plaintiff is barred from recovery of any damages from Defendants.
2 THIRTY-FIRST AFFIRMATIVE DEFENSE
3 (Employer’s Negligence)
4 32. Plaintiff was injured in the course and scope of employment and Plaintiff’s
5 employer’s negligence caused and/or contributed to Plaintiff’s injuries and damages. Any
6 recovery by Plaintiff’s employer for workers compensation benefits paid out shall therefore be
7 reduced accordingly.
8 THIRTY-SECOND AFFIRMATIVE DEFENSE
9 (Workers Compensation Exclusive Remedy)
10 33. If Plaintiff is entitled to any recovery at all, Plaintiffs’ sole and exclusive forum for
11 recovery is workers’ compensation. California Labor Code § 3602.
12 THIRTY-THIRD AFFIRMATIVE DEFENSE
13 (Privette)
14 34. Plaintiff’s claims are barred as to these answering Defendants pursuant to Privette
15 v. Superior Court (1993) 5 Cal.4th 689, and its progeny.
16 THIRTY-FOURTH AFFIRMATIVE DEFENSE
17 (No Duty to Control Acts of Third Parties)
18 35. Defendants had no reason to anticipate the action of third persons who may have
19 caused Plaintiff’s alleged injuries. These answering Defendants contend that pursuant to Frances
20 T. v. Village Green Owners Assoc. (1986) 42 Cal.3d 490, and its progeny, it had no duty to take
21 affirmative action to control the wrongful acts of third parties, since such conduct could not be
22 reasonably anticipated by these answering Defendants.
23 THIRTY-FIFTH AFFIRMATIVE DEFENSE
24 (Incorporation of Other Parties’ Affirmative Defenses)
25 36. Defendants incorporate each and every one of the affirmative defenses asserted in
26 other defendants’ answer(s) to Plaintiff’s complaint herein (whether or not filed before or after
27 this answer).
28 ///
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DEFENDANTS’ ANSWER TO PLAINTIFF’S COMPLAINT
1 THIRTY-SIXTH AFFIRMATIVE DEFENSE
2 (Reservation of Other Defenses)
3 37. Defendants presently have insufficient knowledge or information on which to form
4 a belief as to whether they may have additional, as yet unstated, affirmative defenses available.
5 Defendants reserve herein the right to assert additional defenses in the event discovery indicates
6 such would be appropriate.
7 THIRTY-SEVENTH AFFIRMATIVE DEFENSE
8 (Primary Assumption of Risk)
9 38. Defendants owe no duty to Plaintiff due to the inherent risk of the activity in which
10 Plaintiff chose to participate in and the relationship of Plaintiff and Defendants pursuant to
11 Angelotti v. Walt Disney Co.(2011) 192 Cal. App. 4th 1394.
12 THIRTY-EIGHTH AFFIRMATIVE DEFENSE
13 (Recreational Use Immunity)
14 39. Defendants have no duty to Plaintiff to keep its land safe for persons who use it for
15 recreational purposes pursuant to Civil Code § 846; Ornelas v. Randolph (1993) 4 Cal. 4th 1095.
16 THIRTY-NINTH AFFIRMATIVE DEFENSE
17 (Res Judicata)
18 40. That Plaintiff’s Complaint is barred by the doctrine of res judicata.
19 FORTIETH AFFIRMATIVE DEFENSE
20 (Collateral Estoppel)
21 41. That Plaintiff’s Complaint is barred by the doctrine of collateral estoppel.
22 FORTY-FIRST AFFIRMATIVE DEFENSE
23 (Laches)
24 42. Plaintiff's Complaint is barred by the doctrine of laches, in that Plaintiff has
25 unreasonably delayed in asserting its alleged claims against these answering Defendants.
26 FORTY-SECOND AFFIRMATIVE DEFENSE
27 (Release)
28 43. That the Complaint and any claims of recovery are barred in their entirety as a
9
DEFENDANTS’ ANSWER TO PLAINTIFF’S COMPLAINT
1 result of a release of liability signed by Plaintiff.
2 FORTY-THIRD AFFIRMATIVE DEFENSE
3 (Inspection System)
4 44. That the cost of operating and maintaining an inspection system which would have
5 been adequate to discover the alleged condition, if such condition existed, would have been
6 unreasonably expensive and impracticable in relation to the risk involved.
7 FORTY-FOURTH AFFIRMATIVE DEFENSE
8 (Act of God)
9 45. That all or part of the damages claimed by Plaintiff were caused by an act of God
10 or nature for which these answering Defendants are not responsible and could not have prevented
11 in the exercise of ordinary case.
12 FORTY-FIFTH AFFIRMATIVE DEFENSE
13 (Modified Altered or Abused Material or Equipment)
14 46. That Plaintiff and/or other parties unrelated to these answering Defendants,
15 modified, altered, abused, and/or misused the material and/or equipment provided by these
16 Defendants, and such conduct caused and/or contributed to the damages which are alleged in this
17 lawsuit.
18 FORTY-SIXTH AFFIRMATIVE DEFENSE
19 (Improper Service of Pleading)
20 47. Defendants are informed and believe, and on such information and belief allege,
21 that the Complaint is barred for improper service pursuant to CCP § 472, which bars service of an
22 amended complaint at the time of a pending demurrer when the time to file an opposition to the
23 demurrer has past.
24 FORTY-SEVENTH AFFIRMATIVE DEFENSE
25 (Excluded from Recovery)
26 48. Defendants are informed and believe, and on such information and belief allege,
27 that Plaintiff is excluded from recovering any amounts which have been, or will, indemnify
28 Plaintiff, for any past or future claimed medical expenses, health care, life care, or other economic
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DEFENDANTS’ ANSWER TO PLAINTIFF’S COMPLAINT
1 Alejandra Martinez vs. City of San Francisco, et al.
San Francisco Superior Court Case No.: CGC-20-584003
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SERVICE LIST
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Robert L. Booker II, Esq. Attorneys for Plaintiff, ALEJANDRA MARTINEZ
4 Diamo Dokhanian, Esq.
CENTURY PARK LAW GROUP, APLC
5 864 S. Robertson Boulevard, 3rd Floor
Los Angeles, CA 90035
6 Tel: (888) 203-1422 / Fax: (888) 203-1424
E-Mail: robert@cplglaw.com;
7 diamo@cplglaw.com
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Preview
1 Mark D. Newcomb, Esq. (SBN 136717) Katrina N. Neumann, Esq. (SBN 327075) 2 Koeller, Nebeker, Carlson & Haluck, LLP 3 Park Plaza, Suite 1500 ELECTRONICALLY 3 Irvine, CA 92614-8558 FILED 949-864-3400; fax: 949-864-9000 Superior Court of California, County of San Francisco 4 Attorneys for Defendants, 05/11/2020 5 SWINERTON BUILDERS and BROOKFIELD Clerk of the Court PROPERTIES MANAGEMENT (CA) INC. BY: MADONNA CARANTO Deputy Clerk 6 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 COUNTY OF SAN FRANCISCO - UNLIMITED 9 10 11 ALEJANDRA MARTINEZ, an individual, ) Case No.: CGC-20-584003 ) 12 Plaintiff, ) Assigned For All Purposes To: ) Judge: Honorable Garrett L. Wong 13 v. ) Dept.: 610 ) 14 CITY OF SAN FRANCISCO; COUNTY ) SWINERTON BUILDERS AND OF SAN FRANCISCO; SWINERTON ) BROOKFIELD PROPERTIES 15 BUILDERS, a California corporation; ) MANAGEMENT (CA) INC.’S BROOKFIELD PROPERTIES ) ANSWER TO PLAINTIFF’S 16 MANAGEMENT (CA) INC., a Delaware ) COMPLAINT corporation; and DOES 1 through 100, ) 17 inclusive, ) ) Action Date: April 1, 2020 18 Defendants. ) Trial Date: Not Set ) 19 20 Defendants SWINERTON BUILDERS and BROOKFIELD PROPERTIES 21 MANAGEMENT (CA) INC. (“Defendants”) hereby answer the unverified Complaint of 22 ALEJANDRA MARTINEZ (hereinafter “Plaintiff”) as follows: 23 1. Under the provision of California Code of Civil Procedure §431.30, these 24 answering Defendants deny each and every allegation of Plaintiff’s Complaint and specifically 25 deny that Defendants are in any way responsible in any respect for the damages that Plaintiff has 26 sustained or will sustain as alleged in her Complaint, and further deny that Plaintiff is now or will 27 be entitled to damages as a result of the matters alleged in the Complaint filed in this action. 28 /// 1 023.161:388404v1 DEFENDANTS’ ANSWER TO PLAINTIFF’S COMPLAINT 1 FIRST AFFIRMATIVE DEFENSE 2 (Failure to State Cause of Action) 3 2. Defendants are informed and believe, and thereon allege, that Plaintiff fails to state 4 facts certain and/or sufficient to constitute a cause of action against these answering Defendants. 5 SECOND AFFIRMATIVE DEFENSE 6 (Failure to Exercise Ordinary Care by Plaintiff) 7 3. Plaintiff’s allegations are barred or their recovery should be diminished because 8 the alleged damage was caused by the Plaintiff’s failure to exercise ordinary care on her own 9 behalf for her own safety. 10 THIRD AFFIRMATIVE DEFENSE 11 (Comparative Fault of Others) 12 4. That, the resulting injuries and damages, if any, sustained by Plaintiff were not 13 proximately caused by any acts or omissions of these answering Defendants. Defendants are 14 informed and believe, and thereon allege, that the damages and injuries, if any, which were or 15 will be sustained by Plaintiff were proximately caused by the actions and/or inaction of third 16 parties and that, by virtue of said actions and/or inaction, these answering Defendants have no 17 legal liability to Plaintiff. 18 FOURTH AFFIRMATIVE DEFENSE 19 (Intervening and Superseding Causes) 20 5. Defendants are informed and believe, and thereon allege, that if Plaintiff was 21 injured or suffered any loss, which Defendants deny, that any such injury and/or loss was the 22 proximate cause of the intervening and superseding actions on the part of Plaintiff or other parties 23 other than these answering Defendants and that, by virtue of the intervening and superseding 24 fault, any recovery against these answering Defendants must be reduced in percentage to the 25 amount of said fault. 26 FIFTH AFFIRMATIVE DEFENSE 27 (Estoppel) 28 6. Defendants are informed and believe, and thereon allege, that Plaintiff, by her own 2 DEFENDANTS’ ANSWER TO PLAINTIFF’S COMPLAINT 1 conduct, is equitably estopped from asserting any right to recovery as against these answering 2 Defendants. 3 SIXTH AFFIRMATIVE DEFENSE 4 (Lack of Capacity and/or Standing) 5 7. Defendants are informed and believe, and thereon allege, that Plaintiff lacks the 6 capacity and/or standing to sue which bars the Complaint. 7 SEVENTH AFFIRMATIVE DEFENSE 8 (Assumption of Risk) 9 8. Defendants are informed and believe, and thereon allege, that Plaintiff expressly, 10 voluntarily and knowingly assumed all risks about which she complains in the Complaint, and 11 therefore, the Complaint is barred either totally or to the extent of said assumption from recovery 12 of any damages. 13 EIGHTH AFFIRMATIVE DEFENSE 14 (Lack of Notice) 15 9. Defendants allege that the condition of which the Plaintiff complains was a 16 condition of which these answering Defendants did not have notice, either actual and/or 17 constructive and had insufficient time prior to the alleged incident to have taken any remedial 18 action. 19 NINTH AFFIRMATIVE DEFENSE 20 (Contributory Negligence of Plaintiff) 21 10. Defendants are informed and believe, and thereon allege, that Plaintiff’s alleged 22 damages, if any, were wholly or partly contributed to or proximately caused by Plaintiff’s 23 conduct and activities, including Plaintiff’s negligence and carelessness. 24 TENTH AFFIRMATIVE DEFENSE 25 (Contributory Negligence of Others) 26 11. Defendants are informed and believe, and thereon allege, that Plaintiff’s alleged 27 damages, if any, were wholly or partly contributed to or proximately caused by other defendants 28 or cross-defendants’ conduct and activities, including their negligence and carelessness. 3 DEFENDANTS’ ANSWER TO PLAINTIFF’S COMPLAINT 1 Defendants are entitled to an equitable apportionment of the damages in relation to the negligence 2 or wrongdoing of the other defendants or cross-defendants. 3 ELEVENTH AFFIRMATIVE DEFENSE 4 (Work Inspected and/or Accepted) 5 12. Any and all construction and/or improvements worked on by these answering 6 Defendants at issue in this litigation was inspected, approved, paid for, and accepted by property 7 owner and/or their agents, and/or other persons and/or entitles, and agents thereof, and by and all 8 appropriate governmental authorities, and therefore Plaintiff is barred from recovering any 9 damages or relief from these answering Defendants. 10 TWELFTH AFFIRMATIVE DEFENSE 11 (Completed and Accepted Doctrine) 12 13. Defendants have fully, completely, adequately, satisfactorily, and safely completed 13 all work required pursuant to any obligation or duty owed by these answering Defendants and 14 such work was accepted by the property owner. The condition of which Plaintiff complains, to the 15 extent it is found to have been a dangerous condition or a defect in the property, was patent in 16 nature, and which alleged condition would have been revealed by a reasonable inspection or 17 discovery by a common experience. 18 THIRTEENTH AFFIRMATIVE DEFENSE 19 (Statute of Limitations) 20 14. Defendants are informed and believe, and thereon allege, that the Complaint, and 21 each and every purported cause of action contained therein, is barred, either wholly or in part, by 22 the statute of limitations set forth in the California Code of Civil Procedure, including, but not 23 limited to the provisions of Code of Civil Procedure sections 335.1, 337, 337.1, 338, 339, and/or 24 343. 25 FOURTEENTH AFFIRMATIVE DEFENSE 26 (Joint and Several Liability) 27 15. Defendants are informed and believe, and thereon allege, that Plaintiff is barred by 28 the provisions of California Civil Code §§1430–1442. 4 DEFENDANTS’ ANSWER TO PLAINTIFF’S COMPLAINT 1 FIFTEENTH AFFIRMATIVE DEFENSE 2 (Unclean Hands) 3 16. Defendants are informed and believe, and thereon allege, that the doctrine of 4 unclean hands bars the Complaint. 5 SIXTEENTH AFFIRMATIVE DEFENSE 6 (Released from Liability) 7 17. These answering Defendants are informed and believe that other defendants, cross- 8 complainants, or cross-defendants have released these answering Defendants from liability 9 associated with damages arising from various claims asserted in Plaintiff’s Complaint. 10 SEVENTEENTH AFFIRMATIVE DEFENSE 11 (Defendants Complied with Standard of Care) 12 18. These answering Defendants allege that Plaintiff is barred and precluded from any 13 recovery in this action because these answering Defendants at all times complied with the 14 applicable standard of care required of these answering Defendants. 15 EIGHTEENTH AFFIRMATIVE DEFENSE 16 (No Reasonable Cause and/or Good Faith to File Complaint) 17 19. These answering Defendants are informed and believe, and thereon allege, that the 18 Complaint was brought without reasonable cause and without a good faith belief that there was a 19 justifiable controversy under the facts or the law which warranted the filing of the Complaint 20 against these answering Defendants. Plaintiff should therefore be responsible for all of 21 Defendants’ necessary and reasonable defense costs, as more particularly set forth in the 22 California Code of Civil Procedure §128.5. 23 NINETEENTH AFFIRMATIVE DEFENSE 24 (No Defect) 25 20. These answering Defendants hereby allege on information and belief that Plaintiff 26 is barred from recovery on the basis that the subject property is not defective, nor is there any 27 defective condition. 28 /// 5 DEFENDANTS’ ANSWER TO PLAINTIFF’S COMPLAINT 1 TWENTIETH AFFIRMATIVE DEFENSE 2 (Failure to Mitigate) 3 21. Plaintiff’s injuries, loss, and/or damages, if any there be, were aggravated by 4 Plaintiff’s failure to use reasonable diligence to mitigate the same. 5 TWENTY-FIRST AFFIRMATIVE DEFENSE 6 (No Negligence and/or Accident) 7 22. The events, injuries, losses, and damages, if any, complained of were the result of 8 an unavoidable accident insofar as these answering Defendants are concerned and occurred 9 without any negligence, want of care, default or other breach of duty to Plaintiff on the part of 10 these answering Defendants. 11 TWENTY-SECOND AFFIRMATIVE DEFENSE 12 (No Dangerous Condition) 13 23. Pursuant to Government Code §830.2 the risk, if any, created by the alleged 14 dangerous condition was of such a minor, trivial or insignificant nature in view of the surrounding 15 circumstances that no reasonable person would conclude that the condition created a substantial 16 risk of injury when such property or adjacent property and/or product was used with due care in a 17 manner in which it was reasonably foreseeable that it would be used. 18 TWENTY-THIRD AFFIRMATIVE DEFENSE 19 (Open and Obvious) 20 24. At all times in this action, the alleged dangerous or defective condition as 21 described in Plaintiff’s Complaint was open and obvious to Plaintiff, and as such bars any 22 recovery in this action or diminishes Plaintiff’s recovery to the extent that Plaintiff’s loss, 23 damage, or injury is attributable to the existence of the alleged dangerous or defective condition. 24 TWENTY-FOURTH AFFIRMATIVE DEFENSE 25 (Statutory Immunity under Tort Claims Act) 26 25. Under the provisions of the Tort Claims Act establishing immunity (Gov. Code §§ 27 810-997.6) Defendants are immune from liability for the injuries and damages alleged in 28 Plaintiff’s Complaint. 6 DEFENDANTS’ ANSWER TO PLAINTIFF’S COMPLAINT 1 TWENTY-FIFTH AFFIRMATIVE DEFENSE 2 (No Ownership and/or Control of Property) 3 26. These answering Defendants maintain that they did not have ownership, 4 possession or control of the property where Plaintiff’s incident occurred at the time of Plaintiff’s 5 alleged incident. 6 TWENTY-SIXTH AFFIRMATIVE DEFENSE 7 (Waived Right) 8 27. That by virtue of Plaintiff’s own acts, representations, and conduct, Plaintiff has 9 waived any right to assert any claims against these answering Defendants. 10 TWENTY-SEVENTH AFFIRMATIVE DEFENSE 11 (Unforeseeable Condition) 12 28. The alleged injuries to Plaintiff did not occur in a way which was reasonably 13 foreseeable as a consequence of any alleged dangerous condition of the property. 14 TWENTY-EIGHTH AFFIRMATIVE DEFENSE 15 (Condition was a Minor and/or Trivial and/or Insignificant Risk) 16 29. The condition of the property which allegedly resulted in the injury claimed by 17 Plaintiff creates a minor, trivial, or insignificant risk of injury. 18 TWENTY-NINTH AFFIRMATIVE DEFENSE 19 (Statute of Limitations under Government Code) 20 30. Defendants are informed and believe, and thereon allege, that the Complaint, and 21 each and every purported cause of action contained therein, is barred, either wholly or in part, by 22 the statute of limitations set forth in the Government Code, including, but not limited to the 23 provisions of Government Code sections 911.2, 912.4, 912.6, and/or 945.6 24 THIRTIETH AFFIRMATIVE DEFENSE 25 (Plaintiff Warned) 26 31. Defendants are informed and believe, and thereon allege, that Plaintiff was warned 27 of all particular risks that were known or knowledgeable in light of the generally recognized and 28 prevailing knowledge at the time of Plaintiff’s entry and stay upon the subject property such that 7 DEFENDANTS’ ANSWER TO PLAINTIFF’S COMPLAINT 1 Plaintiff is barred from recovery of any damages from Defendants. 2 THIRTY-FIRST AFFIRMATIVE DEFENSE 3 (Employer’s Negligence) 4 32. Plaintiff was injured in the course and scope of employment and Plaintiff’s 5 employer’s negligence caused and/or contributed to Plaintiff’s injuries and damages. Any 6 recovery by Plaintiff’s employer for workers compensation benefits paid out shall therefore be 7 reduced accordingly. 8 THIRTY-SECOND AFFIRMATIVE DEFENSE 9 (Workers Compensation Exclusive Remedy) 10 33. If Plaintiff is entitled to any recovery at all, Plaintiffs’ sole and exclusive forum for 11 recovery is workers’ compensation. California Labor Code § 3602. 12 THIRTY-THIRD AFFIRMATIVE DEFENSE 13 (Privette) 14 34. Plaintiff’s claims are barred as to these answering Defendants pursuant to Privette 15 v. Superior Court (1993) 5 Cal.4th 689, and its progeny. 16 THIRTY-FOURTH AFFIRMATIVE DEFENSE 17 (No Duty to Control Acts of Third Parties) 18 35. Defendants had no reason to anticipate the action of third persons who may have 19 caused Plaintiff’s alleged injuries. These answering Defendants contend that pursuant to Frances 20 T. v. Village Green Owners Assoc. (1986) 42 Cal.3d 490, and its progeny, it had no duty to take 21 affirmative action to control the wrongful acts of third parties, since such conduct could not be 22 reasonably anticipated by these answering Defendants. 23 THIRTY-FIFTH AFFIRMATIVE DEFENSE 24 (Incorporation of Other Parties’ Affirmative Defenses) 25 36. Defendants incorporate each and every one of the affirmative defenses asserted in 26 other defendants’ answer(s) to Plaintiff’s complaint herein (whether or not filed before or after 27 this answer). 28 /// 8 DEFENDANTS’ ANSWER TO PLAINTIFF’S COMPLAINT 1 THIRTY-SIXTH AFFIRMATIVE DEFENSE 2 (Reservation of Other Defenses) 3 37. Defendants presently have insufficient knowledge or information on which to form 4 a belief as to whether they may have additional, as yet unstated, affirmative defenses available. 5 Defendants reserve herein the right to assert additional defenses in the event discovery indicates 6 such would be appropriate. 7 THIRTY-SEVENTH AFFIRMATIVE DEFENSE 8 (Primary Assumption of Risk) 9 38. Defendants owe no duty to Plaintiff due to the inherent risk of the activity in which 10 Plaintiff chose to participate in and the relationship of Plaintiff and Defendants pursuant to 11 Angelotti v. Walt Disney Co.(2011) 192 Cal. App. 4th 1394. 12 THIRTY-EIGHTH AFFIRMATIVE DEFENSE 13 (Recreational Use Immunity) 14 39. Defendants have no duty to Plaintiff to keep its land safe for persons who use it for 15 recreational purposes pursuant to Civil Code § 846; Ornelas v. Randolph (1993) 4 Cal. 4th 1095. 16 THIRTY-NINTH AFFIRMATIVE DEFENSE 17 (Res Judicata) 18 40. That Plaintiff’s Complaint is barred by the doctrine of res judicata. 19 FORTIETH AFFIRMATIVE DEFENSE 20 (Collateral Estoppel) 21 41. That Plaintiff’s Complaint is barred by the doctrine of collateral estoppel. 22 FORTY-FIRST AFFIRMATIVE DEFENSE 23 (Laches) 24 42. Plaintiff's Complaint is barred by the doctrine of laches, in that Plaintiff has 25 unreasonably delayed in asserting its alleged claims against these answering Defendants. 26 FORTY-SECOND AFFIRMATIVE DEFENSE 27 (Release) 28 43. That the Complaint and any claims of recovery are barred in their entirety as a 9 DEFENDANTS’ ANSWER TO PLAINTIFF’S COMPLAINT 1 result of a release of liability signed by Plaintiff. 2 FORTY-THIRD AFFIRMATIVE DEFENSE 3 (Inspection System) 4 44. That the cost of operating and maintaining an inspection system which would have 5 been adequate to discover the alleged condition, if such condition existed, would have been 6 unreasonably expensive and impracticable in relation to the risk involved. 7 FORTY-FOURTH AFFIRMATIVE DEFENSE 8 (Act of God) 9 45. That all or part of the damages claimed by Plaintiff were caused by an act of God 10 or nature for which these answering Defendants are not responsible and could not have prevented 11 in the exercise of ordinary case. 12 FORTY-FIFTH AFFIRMATIVE DEFENSE 13 (Modified Altered or Abused Material or Equipment) 14 46. That Plaintiff and/or other parties unrelated to these answering Defendants, 15 modified, altered, abused, and/or misused the material and/or equipment provided by these 16 Defendants, and such conduct caused and/or contributed to the damages which are alleged in this 17 lawsuit. 18 FORTY-SIXTH AFFIRMATIVE DEFENSE 19 (Improper Service of Pleading) 20 47. Defendants are informed and believe, and on such information and belief allege, 21 that the Complaint is barred for improper service pursuant to CCP § 472, which bars service of an 22 amended complaint at the time of a pending demurrer when the time to file an opposition to the 23 demurrer has past. 24 FORTY-SEVENTH AFFIRMATIVE DEFENSE 25 (Excluded from Recovery) 26 48. Defendants are informed and believe, and on such information and belief allege, 27 that Plaintiff is excluded from recovering any amounts which have been, or will, indemnify 28 Plaintiff, for any past or future claimed medical expenses, health care, life care, or other economic 10 DEFENDANTS’ ANSWER TO PLAINTIFF’S COMPLAINT 1 Alejandra Martinez vs. City of San Francisco, et al. San Francisco Superior Court Case No.: CGC-20-584003 2 SERVICE LIST 3 Robert L. Booker II, Esq. Attorneys for Plaintiff, ALEJANDRA MARTINEZ 4 Diamo Dokhanian, Esq. CENTURY PARK LAW GROUP, APLC 5 864 S. Robertson Boulevard, 3rd Floor Los Angeles, CA 90035 6 Tel: (888) 203-1422 / Fax: (888) 203-1424 E-Mail: robert@cplglaw.com; 7 diamo@cplglaw.com 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28