Preview
ELECTRONICALLY
1 Carla N. Braunstein (State Bar No. 251198)
cbraunstein@wshblaw.com FILED
Superior Court of California,
2 Rachel L. Szela (State Bar No. 283502) County of San Francisco
rszela@wshblaw.com
3 WOOD, SMITH, HENNING & BERMAN LLP 07/10/2020
Clerk of the Court
1401 Willow Pass Road, Suite 700 BY: EDWARD SANTOS
4 Concord, California 94520-7982 Deputy Clerk
Phone: 925 222 3400 ♦ Fax: 925 356 8250
5
Attorneys for Defendants RASIER, LLC, RASIER-CA, LLC, and UBER TECHNOLOGIES,
6 INC.
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 WILLIAM BROWN, an individual; Case No. CGC-20-583744
CONCORD, CALIFORNIA 94520-7982
THOMAS MASS, an individual;,
13 CROSS-DEFENDANT RASIER, LLC.'S
Attorneys at Law
Plaintiff, ANSWER TO CROSS-COMPLAINT
14
v. [Assigned for All Purposes to Judge Garrett L. Wong,
15 Dept. 610]
FITSUM MITHRETAB, an individual; ECKO
16 TRANSPORTATION INC, a business entity; Action Filed: 3/16/20
WELLS FARGO EQUIPMENT FINANCE
17 INC., a business entity; FAHIM HEDAIY, an Trial Date: None Set
individual; RASIER, LLC, a business entity;
18 RASIER-CA, LLC, a business entity;
RASIER-DC, LLC, a business entity; UBER
19 TECHNOLOGIES, INC., a business entity;
and DOES 1 through 20, Inclusive;,
20
Defendants.
21
22 FITSUM MITHRETAB, and individual;
ECKO TRANSPORTATION, INC., a
23 business entity;
24 Cross-Complainants,
25 v.
26 FAHIM HEDIAY, an individual; RASIER,
LLC, a business entity; RASIER-CA, LLC, a
27 business entity; RASIER-DC, LLC, a business
entity; UBER TECHNOLOGIES, INC., a
28 business entity; and MOES 1 to 20, inclusive,
LEGAL:11009-0438/15025390.1
CROSS-DEFENDANT RASIER, LLC.'S ANSWER TO CROSS-COMPLAINT
1
Cross-Defendants.
2
3
4 COMES NOW, Cross-Defendant RASIER, LLC'S. (hereinafter “Cross-Defendant”),
5 severing itself from all other cross-defendants, and answering the Cross-Complaint (hereinafter
6 “Cross-Complaint”) on file herein as follows:
7 1. Inasmuch as the Cross-Complaint is not verified under the provisions of Section
8 431.30 of the California Code of Civil Procedure, this answering Cross-Defendant denies
9 generally each, every and all of the allegations in said Cross-Complaint, and the whole thereof,
10 including denial of all sums and amounts alleged, to be alleged or otherwise.
11 SEPARATE AFFIRMATIVE DEFENSES
WOOD, SMITH, HENNING & BERMAN LLP
TELEPHONE 925 222 3400 ♦ FAX 925 356 8250
1401 WILLOW PASS ROAD, SUITE 700
12 2. This answering Cross-Defendant does not, by stating the matters set forth in these
CONCORD, CALIFORNIA 94520-7982
13 defenses, allege or admit that it has the burden of proof and/or persuasion with respect to any of
Attorneys at Law
14 these matters, and does not assume the burden of proof or persuasion as to any matters to which
15 Plaintiff has the burden of proof or persuasion.
16 FIRST AFFIRMATIVE DEFENSE
17 [Indemnity]
18 3. As a separate affirmative defense, this answering Cross-Defendant is informed and
19 believes, and therefore alleges, that it is entitled to a right of indemnification by apportionment
20 against all other parties and persons whose negligence contributed proximately to the happening of
21 the claimed incident or the alleged injuries.
22 SECOND AFFIRMATIVE DEFENSE
23 [Contribution]
24 4. As a separate affirmative defense, this answering Cross-Defendant is informed and
25 believes, and therefore alleges, that it is entitled to a right of contribution from Cross-Complainant
26 or any person whose negligence proximately contributed to the happening of the claimed incident
27 or alleged injuries if Cross-Complainant should receive a verdict against this answering Cross-
28 Defendant.
LEGAL:11009-0438/15025390.1 -2-
CROSS-DEFENDANT RASIER, LLC.'S ANSWER TO CROSS-COMPLAINT
1 THIRD AFFIRMATIVE DEFENSE
2 [Apportionment of Fault]
3 5. As and for a separate and affirmative defense to the Cross-Complaint and to each
4 purported cause of action contained therein, this answering Cross-Defendant is informed and
5 believes and based thereon alleges: Cross-Defendant denies it was negligent in any fashion with
6 respect to the damages, losses, injuries and debts claimed by the Plaintiff in the Complaint on file
7 herein; however, if this answering Cross-Defendant is found to be negligent (which supposition is
8 denied and merely stated for the purpose of this affirmative defense), then this answering Cross-
9 Defendant provisionally alleges that Cross-Defendant’s negligence is not the sole and proximate
10 cause of the resultant damages, losses and injuries alleged by Plaintiff and that the damages
11 awarded to Plaintiff, if any, be apportioned according to the respective fault of the parties, persons,
WOOD, SMITH, HENNING & BERMAN LLP
TELEPHONE 925 222 3400 ♦ FAX 925 356 8250
1401 WILLOW PASS ROAD, SUITE 700
12 and entities, or their agents, servants, and employees who contributed to and/or caused said
CONCORD, CALIFORNIA 94520-7982
13 resultant damages as alleged, according to the proof presented at the time of trial. That to assess
Attorneys at Law
14 any greater percentage of fault and damages against this answering Cross-Defendant in excess of
15 this answering Cross-Defendant’s percentage of fault would be a denial of California equal
16 protection and due process and Federal equal protection and due process, all guaranteed by the
17 respective Constitutions.
18 FOURTH AFFIRMATIVE DEFENSE
19 [Comparative Fault]
20 6. As and for a separate and affirmative defense to the Cross-Complaint and to each
21 purported cause of action contained therein, this answering Cross-Defendant is informed and
22 believes and based thereon alleges: The injuries to the Plaintiff, if any, were sustained in that
23 Plaintiff failed to exercise ordinary and reasonable care or caution concerning the matters
24 alleged in the Cross-Complaint; and such negligence on Plaintiff’s part constitutes a bar to any
25 recovery by said Plaintiff, or in the alternative, the recovery, if any, by said Plaintiff should be
26 reduced in proportion to the extent such negligence was a cause of Plaintiff’s injuries and
27 damages, if any.
28 / / /
LEGAL:11009-0438/15025390.1 -3-
CROSS-DEFENDANT RASIER, LLC.'S ANSWER TO CROSS-COMPLAINT
1 FIFTH AFFIRMATIVE DEFENSE
2 [Assumption of Risk]
3 7. As and for a separate and affirmative defense to the Cross-Complaint, and to each
4 purported cause of action contained therein, this answering Cross-Defendant is informed and
5 believes and based thereon alleges: Plaintiff knowingly, willingly and voluntarily assumed the
6 risk of all damages, if any.
7 SIXTH AFFIRMATIVE DEFENSE
8 [Equitable Indemnity]
9 8. As and for separate and affirmative defense to the Cross-Complaint, and to each
10 purported cause of action contained therein, this answering Cross-Defendant is informed and
11 believes and based thereon alleges: Any and all events, happenings, injuries and damages set forth
WOOD, SMITH, HENNING & BERMAN LLP
TELEPHONE 925 222 3400 ♦ FAX 925 356 8250
1401 WILLOW PASS ROAD, SUITE 700
12 in the Cross-Complaint, if any, were proximately caused and contributed to by the acts and/or
CONCORD, CALIFORNIA 94520-7982
13 omissions of Plaintiff, and such acts and/or omissions totally bar or reduce any recovery on the
Attorneys at Law
14 part of Plaintiff.
15 SEVENTH AFFIRMATIVE DEFENSE
16 [No Duty]
17 9. As and for a separate and affirmative defense to the Cross-Complaint, and to each
18 purported cause of action contained therein, this answering Cross-Defendant is informed and
19 believes and based thereon alleges: Any recovery on the Cross-Complaint, or any claim for relief
20 averred therein, is barred to the extent this answering Cross-Defendant owed no duty to Plaintiff.
21 EIGHTH AFFIRMATIVE DEFENSE
22 [No Causation]
23 10. As and for a separate and affirmative defense to the Cross-Complaint, and to each
24 purported cause of action contained therein, this answering Cross-Defendant is informed and
25 believes and based thereon alleges: To the extent Plaintiff suffered damages, which Cross-
26 Defendant denies, such injury or damage was not proximately caused by any conduct or inaction
27 of this answering Cross-Defendant, or was not foreseeable, or both.
28 / / /
LEGAL:11009-0438/15025390.1 -4-
CROSS-DEFENDANT RASIER, LLC.'S ANSWER TO CROSS-COMPLAINT
1 NINTH AFFIRMATIVE DEFENSE
2 [Alleged Injury or Damage Caused by Others]
3 11. As and for a separate and affirmative defense to the Cross-Complaint, and to each
4 purported cause of action contained therein, this answering Cross-Defendant is informed and
5 believes and based thereon alleges: To the extent Plaintiff suffered injury or damage, which
6 Cross-Defendant denies, such injury or damage was caused by the action or conduct of others, not
7 this answering Cross-Defendant.
8 TENTH AFFIRMATIVE DEFENSE
9 [Existing Prior Injury]
10 12. As and for a separate and affirmative defense to the Cross-Complaint, and to each
11 purported cause of action contained therein, this answering Cross-Defendant is informed and
WOOD, SMITH, HENNING & BERMAN LLP
TELEPHONE 925 222 3400 ♦ FAX 925 356 8250
1401 WILLOW PASS ROAD, SUITE 700
12 believes and based thereon alleges: To the extent Plaintiff suffered injury or damage, which
CONCORD, CALIFORNIA 94520-7982
13 Cross-Defendant denies, such injury or damage was sustained prior to the incident alleged by the
Attorneys at Law
14 Plaintiff in the Cross-Complaint on file herein.
15 ELEVENTH AFFIRMATIVE DEFENSE
16 [Uncertainty]
17 13. As and for a separate and affirmative defense to the Cross-Complaint, and to each
18 purported cause of action contained therein, this answering Cross-Defendant is informed and
19 believes and based thereon alleges: Cross-Complainant’s Cross-Complaint and the allegations
20 thereof are uncertain, vague and ambiguous.
21 TWELFTH AFFIRMATIVE DEFENSE
22 [Limitation on Damages]
23 14. As and for a separate and affirmative defense to the Cross-Complaint, and to each
24 purported cause of action contained therein, this answering Cross-Defendant is informed and
25 believes and based thereon alleges: Cross-Complainant’s Cross-Complaint seeks an award of
26 improper damages, including but not limited to medical damages beyond those permitted by law.
27 / / /
28 / / /
LEGAL:11009-0438/15025390.1 -5-
CROSS-DEFENDANT RASIER, LLC.'S ANSWER TO CROSS-COMPLAINT
1 THIRTEENTH AFFIRMATIVE DEFENSE
2 [Offset]
3 15. As and for a separate and affirmative defense to the Cross-Complaint, and to each
4 purported cause of action contained therein, this answering Cross-Defendant is informed and
5 believes and based thereon alleges: The costs incurred, or paid by the Plaintiff, if any, for repair
6 of 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 Cross-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 FOURTEENTH AFFIRMATIVE DEFENSE
CONCORD, CALIFORNIA 94520-7982
13 [Howell v. Hamilton Meats]
Attorneys at Law
14 16. As and for a separate and affirmative defense to the Cross-Complaint and to each
15 purported cause of action contained therein, this answering Cross-Defendant is informed and
16 believes and based thereon alleges: Plaintiff’s recovery for past medical expenses or other
17 economic loss or benefit, if any, is limited to the lesser of the amount paid or the reasonable value
18 of those services or benefits.
19 FIFTEENTH AFFIRMATIVE DEFENSE
20 [Patient Protection and Affordable Care Act]
21 17. As and for a separate and affirmative defense to the Cross-Complaint and to each
22 purported cause of action contained therein, this answering Cross-Defendant is informed and
23 believes and based thereon alleges: Plaintiff is excluded from recovering any amounts which have
24 been, or will, indemnify Plaintiff, for any past or future claimed medical expenses, health care, life
25 care, or other economic loss or benefit that is offered, or provided under or in connection with the
26 Patient Protection and Affordable Care Act.
27 / / /
28 / / /
LEGAL:11009-0438/15025390.1 -6-
CROSS-DEFENDANT RASIER, LLC.'S ANSWER TO CROSS-COMPLAINT
1 SIXTEENTH AFFIRMATIVE DEFENSE
2 [Failure to Obtain Health Insurance]
3 18. As and for a separate and affirmative defense to the Cross-Complaint and to each
4 purported cause of action contained therein, this answering Cross-Defendant is informed and
5 believes and based thereon alleges: In the event Plaintiff has failed to obtain health insurance
6 coverage available to Plaintiff, which he is eligible to obtain under the Patient Protection and
7 Affordable Care Act, Plaintiff has failed to mitigate Plaintiff’s damages and cannot recover for
8 such failure.
9 SEVENTEENTH AFFIRMATIVE DEFENSE
10 [Failure to Utilize Health Insurance Benefits]
11 19. As and for a separate and affirmative defense to the Cross-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 Cross-Defendant is informed and
CONCORD, CALIFORNIA 94520-7982
13 believes and based thereon alleges: To the extent Plaintiff failed to take reasonable steps to utilize
Attorneys at Law
14 the resources, service benefits, and coverage available to Plaintiff under the Patient Protection and
15 Affordable Care Act, Plaintiff has failed to mitigate Plaintiff’s damages and cannot recover for
16 such failure.
17 EIGHTEENTH AFFIRMATIVE DEFENSE
18 [Affordable Care Act and Future Damages]
19 20. As and for a separate and affirmative defense to the Cross-Complaint and to each
20 purported cause of action contained therein, this answering Cross-Defendant is informed and
21 believes and based thereon alleges: Plaintiff will be limited to the reasonable value, if any, of
22 future medical services available to Plaintiff under the Affordable Care Act.
23 NINETEENTH AFFIRMATIVE DEFENSE
24 [No Injury or Damage]
25 21. As and for a separate and affirmative defense to the Cross-Complaint, and to each
26 purported cause of action contained therein, this answering Cross-Defendant is informed and
27 believes and based thereon alleges: This answering Cross-Defendant denies Plaintiff suffered any
28 injury or damage whatsoever, and further denies it is liable to Plaintiff for any injury or damage
LEGAL:11009-0438/15025390.1 -7-
CROSS-DEFENDANT RASIER, LLC.'S ANSWER TO CROSS-COMPLAINT
1 claimed or for any injury or damage whatsoever.
2 TWENTIETH AFFIRMATIVE DEFENSE
3 [Vicarious Liability]
4 22. As and for a separate and affirmative defense to the Cross-Complaint and to each
5 purported cause of action contained therein, this answering Cross-Defendant is informed and
6 believes and based thereon alleges: This answering Cross-Defendant denies Plaintiff suffered any
7 injury or damage whatsoever, and further denies it is vicariously liable for the acts of other parties.
8 TWENTY-FIRST AFFIRMATIVE DEFENSE
9 [Fails to State Facts – General]
10 23. As and for a separate and affirmative defense to the Cross-Complaint and to each
11 purported cause of action contained therein, this answering Cross-Defendant is informed and
WOOD, SMITH, HENNING & BERMAN LLP
TELEPHONE 925 222 3400 ♦ FAX 925 356 8250
1401 WILLOW PASS ROAD, SUITE 700
12 believes and based thereon alleges: The Cross-Complaint, and each purported cause of action
CONCORD, CALIFORNIA 94520-7982
13 contained therein, fails to state facts sufficient to constitute a cause of action against this
Attorneys at Law
14 answering Cross-Defendant.
15 TWENTY-SECOND AFFIRMATIVE DEFENSE
16 [Statute of Limitations]
17 24. As and for a separate and affirmative defense to the Cross-Complaint and to each
18 purported cause of action contained therein, this answering Cross-Defendant is informed and
19 believes and based thereon alleges: Each said cause of action is barred by the applicable statute of
20 limitations, including but not limited to, California Code of Civil Procedure Sections 335.1, 337,
21 337.1, 337.15, 338, 339, 340 and/or 343.
22 TWENTY-THIRD AFFIRMATIVE DEFENSE
23 [Failure to Mitigate Loss]
24 25. As and for a separate and affirmative defense to the Cross-Complaint, and to each
25 purported cause of action contained therein, this answering Cross-Defendant is informed and
26 believes and based thereon alleges: If Plaintiff suffered any damage as a result of the allegations
27 set forth in the Cross-Complaint, Plaintiff is not entitled to recover from this answering Cross-
28 Defendant any sum of damages due to Plaintiff’s failure to take reasonable efforts to mitigate the
LEGAL:11009-0438/15025390.1 -8-
CROSS-DEFENDANT RASIER, LLC.'S ANSWER TO CROSS-COMPLAINT
1 damages said Plaintiff allegedly incurred.
2 TWENTY-FOURTH AFFIRMATIVE DEFENSE
3 [Estoppel]
4 26. As and for a separate and affirmative defense to the Cross-Complaint, and to each
5 purported cause of action contained therein, this answering Cross-Defendant is informed and
6 believes and based thereon alleges: Each and every cause of action or purported cause of action
7 contained in the Cross-Complaint is barred by the Doctrine of Estoppel.
8 TWENTY-FIFTH AFFIRMATIVE DEFENSE
9 [Waiver]
10 27. As and for a separate and affirmative defense to the Cross-Complaint, and to each
11 purported cause of action contained therein, this answering Cross-Defendant is informed and
WOOD, SMITH, HENNING & BERMAN LLP
TELEPHONE 925 222 3400 ♦ FAX 925 356 8250
1401 WILLOW PASS ROAD, SUITE 700
12 believes and based thereon alleges: Each and every cause of action or purported cause of action
CONCORD, CALIFORNIA 94520-7982
13 contained in the Cross-Complaint is barred by the Doctrine of Waiver.
Attorneys at Law
14 TWENTY-SIXTH AFFIRMATIVE DEFENSE
15 [Laches]
16 28. As and for a separate and affirmative defense to the Cross-Complaint, and to each
17 purported cause of action contained therein, this answering Cross-Defendant is informed and
18 believes and based thereon alleges: Each and every cause of action or purported cause of action
19 contained in the Cross-Complaint is barred by the Doctrine of Laches.
20 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
21 [Unclean Hands]
22 29. As and for a separate and affirmative defense to the Cross-Complaint, and to each
23 purported cause of action contained therein, this answering Cross-Defendant is informed and
24 believes and based thereon alleges: Each and every cause of action or purported cause of action
25 contained in the Cross-Complaint is barred by the Doctrine of Unclean Hands.
26 TWENTY-EIGTH AFFIRMATIVE DEFENSE
27 [Collateral Estoppel]
28 30. As and for a separate and affirmative defense to the Cross-Complaint, and to each
LEGAL:11009-0438/15025390.1 -9-
CROSS-DEFENDANT RASIER, LLC.'S ANSWER TO CROSS-COMPLAINT
1 purported cause of action contained therein, this answering Cross-Defendant is informed and
2 believes and based thereon alleges: Each and every cause of action or purported cause of action
3 contained in the Cross-Complaint is barred by the Doctrine of Collateral Estoppel.
4 TWENTY-NINTH AFFIRMATIVE DEFENSE
5 [Voluntary Conduct]
6 31. As and for a separate and affirmative defense to the Cross-Complaint, and to each
7 purported cause of action contained therein, this answering Cross-Defendant is informed and
8 believes and based thereon alleges: Plaintiff has engaged in conduct with respect to the activities
9 and/or property which are the subject of the Cross-Complaint, and by reason of said activities and
10 conduct, is estopped from asserting any claims or damages or seeking any other relief against this
11 answering Cross-Defendant.
WOOD, SMITH, HENNING & BERMAN LLP
Preview
ELECTRONICALLY 1 Carla N. Braunstein (State Bar No. 251198) cbraunstein@wshblaw.com FILED Superior Court of California, 2 Rachel L. Szela (State Bar No. 283502) County of San Francisco rszela@wshblaw.com 3 WOOD, SMITH, HENNING & BERMAN LLP 07/10/2020 Clerk of the Court 1401 Willow Pass Road, Suite 700 BY: EDWARD SANTOS 4 Concord, California 94520-7982 Deputy Clerk Phone: 925 222 3400 ♦ Fax: 925 356 8250 5 Attorneys for Defendants RASIER, LLC, RASIER-CA, LLC, and UBER TECHNOLOGIES, 6 INC. 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 WILLIAM BROWN, an individual; Case No. CGC-20-583744 CONCORD, CALIFORNIA 94520-7982 THOMAS MASS, an individual;, 13 CROSS-DEFENDANT RASIER, LLC.'S Attorneys at Law Plaintiff, ANSWER TO CROSS-COMPLAINT 14 v. [Assigned for All Purposes to Judge Garrett L. Wong, 15 Dept. 610] FITSUM MITHRETAB, an individual; ECKO 16 TRANSPORTATION INC, a business entity; Action Filed: 3/16/20 WELLS FARGO EQUIPMENT FINANCE 17 INC., a business entity; FAHIM HEDAIY, an Trial Date: None Set individual; RASIER, LLC, a business entity; 18 RASIER-CA, LLC, a business entity; RASIER-DC, LLC, a business entity; UBER 19 TECHNOLOGIES, INC., a business entity; and DOES 1 through 20, Inclusive;, 20 Defendants. 21 22 FITSUM MITHRETAB, and individual; ECKO TRANSPORTATION, INC., a 23 business entity; 24 Cross-Complainants, 25 v. 26 FAHIM HEDIAY, an individual; RASIER, LLC, a business entity; RASIER-CA, LLC, a 27 business entity; RASIER-DC, LLC, a business entity; UBER TECHNOLOGIES, INC., a 28 business entity; and MOES 1 to 20, inclusive, LEGAL:11009-0438/15025390.1 CROSS-DEFENDANT RASIER, LLC.'S ANSWER TO CROSS-COMPLAINT 1 Cross-Defendants. 2 3 4 COMES NOW, Cross-Defendant RASIER, LLC'S. (hereinafter “Cross-Defendant”), 5 severing itself from all other cross-defendants, and answering the Cross-Complaint (hereinafter 6 “Cross-Complaint”) on file herein as follows: 7 1. Inasmuch as the Cross-Complaint is not verified under the provisions of Section 8 431.30 of the California Code of Civil Procedure, this answering Cross-Defendant denies 9 generally each, every and all of the allegations in said Cross-Complaint, and the whole thereof, 10 including denial of all sums and amounts alleged, to be alleged or otherwise. 11 SEPARATE AFFIRMATIVE DEFENSES WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE 925 222 3400 ♦ FAX 925 356 8250 1401 WILLOW PASS ROAD, SUITE 700 12 2. This answering Cross-Defendant does not, by stating the matters set forth in these CONCORD, CALIFORNIA 94520-7982 13 defenses, allege or admit that it has the burden of proof and/or persuasion with respect to any of Attorneys at Law 14 these matters, and does not assume the burden of proof or persuasion as to any matters to which 15 Plaintiff has the burden of proof or persuasion. 16 FIRST AFFIRMATIVE DEFENSE 17 [Indemnity] 18 3. As a separate affirmative defense, this answering Cross-Defendant is informed and 19 believes, and therefore alleges, that it is entitled to a right of indemnification by apportionment 20 against all other parties and persons whose negligence contributed proximately to the happening of 21 the claimed incident or the alleged injuries. 22 SECOND AFFIRMATIVE DEFENSE 23 [Contribution] 24 4. As a separate affirmative defense, this answering Cross-Defendant is informed and 25 believes, and therefore alleges, that it is entitled to a right of contribution from Cross-Complainant 26 or any person whose negligence proximately contributed to the happening of the claimed incident 27 or alleged injuries if Cross-Complainant should receive a verdict against this answering Cross- 28 Defendant. LEGAL:11009-0438/15025390.1 -2- CROSS-DEFENDANT RASIER, LLC.'S ANSWER TO CROSS-COMPLAINT 1 THIRD AFFIRMATIVE DEFENSE 2 [Apportionment of Fault] 3 5. As and for a separate and affirmative defense to the Cross-Complaint and to each 4 purported cause of action contained therein, this answering Cross-Defendant is informed and 5 believes and based thereon alleges: Cross-Defendant denies it was negligent in any fashion with 6 respect to the damages, losses, injuries and debts claimed by the Plaintiff in the Complaint on file 7 herein; however, if this answering Cross-Defendant is found to be negligent (which supposition is 8 denied and merely stated for the purpose of this affirmative defense), then this answering Cross- 9 Defendant provisionally alleges that Cross-Defendant’s negligence is not the sole and proximate 10 cause of the resultant damages, losses and injuries alleged by Plaintiff and that the damages 11 awarded to Plaintiff, if any, be apportioned according to the respective fault of the parties, persons, WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE 925 222 3400 ♦ FAX 925 356 8250 1401 WILLOW PASS ROAD, SUITE 700 12 and entities, or their agents, servants, and employees who contributed to and/or caused said CONCORD, CALIFORNIA 94520-7982 13 resultant damages as alleged, according to the proof presented at the time of trial. That to assess Attorneys at Law 14 any greater percentage of fault and damages against this answering Cross-Defendant in excess of 15 this answering Cross-Defendant’s percentage of fault would be a denial of California equal 16 protection and due process and Federal equal protection and due process, all guaranteed by the 17 respective Constitutions. 18 FOURTH AFFIRMATIVE DEFENSE 19 [Comparative Fault] 20 6. As and for a separate and affirmative defense to the Cross-Complaint and to each 21 purported cause of action contained therein, this answering Cross-Defendant is informed and 22 believes and based thereon alleges: The injuries to the Plaintiff, if any, were sustained in that 23 Plaintiff failed to exercise ordinary and reasonable care or caution concerning the matters 24 alleged in the Cross-Complaint; and such negligence on Plaintiff’s part constitutes a bar to any 25 recovery by said Plaintiff, or in the alternative, the recovery, if any, by said Plaintiff should be 26 reduced in proportion to the extent such negligence was a cause of Plaintiff’s injuries and 27 damages, if any. 28 / / / LEGAL:11009-0438/15025390.1 -3- CROSS-DEFENDANT RASIER, LLC.'S ANSWER TO CROSS-COMPLAINT 1 FIFTH AFFIRMATIVE DEFENSE 2 [Assumption of Risk] 3 7. As and for a separate and affirmative defense to the Cross-Complaint, and to each 4 purported cause of action contained therein, this answering Cross-Defendant is informed and 5 believes and based thereon alleges: Plaintiff knowingly, willingly and voluntarily assumed the 6 risk of all damages, if any. 7 SIXTH AFFIRMATIVE DEFENSE 8 [Equitable Indemnity] 9 8. As and for separate and affirmative defense to the Cross-Complaint, and to each 10 purported cause of action contained therein, this answering Cross-Defendant is informed and 11 believes and based thereon alleges: Any and all events, happenings, injuries and damages set forth WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE 925 222 3400 ♦ FAX 925 356 8250 1401 WILLOW PASS ROAD, SUITE 700 12 in the Cross-Complaint, if any, were proximately caused and contributed to by the acts and/or CONCORD, CALIFORNIA 94520-7982 13 omissions of Plaintiff, and such acts and/or omissions totally bar or reduce any recovery on the Attorneys at Law 14 part of Plaintiff. 15 SEVENTH AFFIRMATIVE DEFENSE 16 [No Duty] 17 9. As and for a separate and affirmative defense to the Cross-Complaint, and to each 18 purported cause of action contained therein, this answering Cross-Defendant is informed and 19 believes and based thereon alleges: Any recovery on the Cross-Complaint, or any claim for relief 20 averred therein, is barred to the extent this answering Cross-Defendant owed no duty to Plaintiff. 21 EIGHTH AFFIRMATIVE DEFENSE 22 [No Causation] 23 10. As and for a separate and affirmative defense to the Cross-Complaint, and to each 24 purported cause of action contained therein, this answering Cross-Defendant is informed and 25 believes and based thereon alleges: To the extent Plaintiff suffered damages, which Cross- 26 Defendant denies, such injury or damage was not proximately caused by any conduct or inaction 27 of this answering Cross-Defendant, or was not foreseeable, or both. 28 / / / LEGAL:11009-0438/15025390.1 -4- CROSS-DEFENDANT RASIER, LLC.'S ANSWER TO CROSS-COMPLAINT 1 NINTH AFFIRMATIVE DEFENSE 2 [Alleged Injury or Damage Caused by Others] 3 11. As and for a separate and affirmative defense to the Cross-Complaint, and to each 4 purported cause of action contained therein, this answering Cross-Defendant is informed and 5 believes and based thereon alleges: To the extent Plaintiff suffered injury or damage, which 6 Cross-Defendant denies, such injury or damage was caused by the action or conduct of others, not 7 this answering Cross-Defendant. 8 TENTH AFFIRMATIVE DEFENSE 9 [Existing Prior Injury] 10 12. As and for a separate and affirmative defense to the Cross-Complaint, and to each 11 purported cause of action contained therein, this answering Cross-Defendant is informed and WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE 925 222 3400 ♦ FAX 925 356 8250 1401 WILLOW PASS ROAD, SUITE 700 12 believes and based thereon alleges: To the extent Plaintiff suffered injury or damage, which CONCORD, CALIFORNIA 94520-7982 13 Cross-Defendant denies, such injury or damage was sustained prior to the incident alleged by the Attorneys at Law 14 Plaintiff in the Cross-Complaint on file herein. 15 ELEVENTH AFFIRMATIVE DEFENSE 16 [Uncertainty] 17 13. As and for a separate and affirmative defense to the Cross-Complaint, and to each 18 purported cause of action contained therein, this answering Cross-Defendant is informed and 19 believes and based thereon alleges: Cross-Complainant’s Cross-Complaint and the allegations 20 thereof are uncertain, vague and ambiguous. 21 TWELFTH AFFIRMATIVE DEFENSE 22 [Limitation on Damages] 23 14. As and for a separate and affirmative defense to the Cross-Complaint, and to each 24 purported cause of action contained therein, this answering Cross-Defendant is informed and 25 believes and based thereon alleges: Cross-Complainant’s Cross-Complaint seeks an award of 26 improper damages, including but not limited to medical damages beyond those permitted by law. 27 / / / 28 / / / LEGAL:11009-0438/15025390.1 -5- CROSS-DEFENDANT RASIER, LLC.'S ANSWER TO CROSS-COMPLAINT 1 THIRTEENTH AFFIRMATIVE DEFENSE 2 [Offset] 3 15. As and for a separate and affirmative defense to the Cross-Complaint, and to each 4 purported cause of action contained therein, this answering Cross-Defendant is informed and 5 believes and based thereon alleges: The costs incurred, or paid by the Plaintiff, if any, for repair 6 of 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 Cross-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 FOURTEENTH AFFIRMATIVE DEFENSE CONCORD, CALIFORNIA 94520-7982 13 [Howell v. Hamilton Meats] Attorneys at Law 14 16. As and for a separate and affirmative defense to the Cross-Complaint and to each 15 purported cause of action contained therein, this answering Cross-Defendant is informed and 16 believes and based thereon alleges: Plaintiff’s recovery for past medical expenses or other 17 economic loss or benefit, if any, is limited to the lesser of the amount paid or the reasonable value 18 of those services or benefits. 19 FIFTEENTH AFFIRMATIVE DEFENSE 20 [Patient Protection and Affordable Care Act] 21 17. As and for a separate and affirmative defense to the Cross-Complaint and to each 22 purported cause of action contained therein, this answering Cross-Defendant is informed and 23 believes and based thereon alleges: Plaintiff is excluded from recovering any amounts which have 24 been, or will, indemnify Plaintiff, for any past or future claimed medical expenses, health care, life 25 care, or other economic loss or benefit that is offered, or provided under or in connection with the 26 Patient Protection and Affordable Care Act. 27 / / / 28 / / / LEGAL:11009-0438/15025390.1 -6- CROSS-DEFENDANT RASIER, LLC.'S ANSWER TO CROSS-COMPLAINT 1 SIXTEENTH AFFIRMATIVE DEFENSE 2 [Failure to Obtain Health Insurance] 3 18. As and for a separate and affirmative defense to the Cross-Complaint and to each 4 purported cause of action contained therein, this answering Cross-Defendant is informed and 5 believes and based thereon alleges: In the event Plaintiff has failed to obtain health insurance 6 coverage available to Plaintiff, which he is eligible to obtain under the Patient Protection and 7 Affordable Care Act, Plaintiff has failed to mitigate Plaintiff’s damages and cannot recover for 8 such failure. 9 SEVENTEENTH AFFIRMATIVE DEFENSE 10 [Failure to Utilize Health Insurance Benefits] 11 19. As and for a separate and affirmative defense to the Cross-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 Cross-Defendant is informed and CONCORD, CALIFORNIA 94520-7982 13 believes and based thereon alleges: To the extent Plaintiff failed to take reasonable steps to utilize Attorneys at Law 14 the resources, service benefits, and coverage available to Plaintiff under the Patient Protection and 15 Affordable Care Act, Plaintiff has failed to mitigate Plaintiff’s damages and cannot recover for 16 such failure. 17 EIGHTEENTH AFFIRMATIVE DEFENSE 18 [Affordable Care Act and Future Damages] 19 20. As and for a separate and affirmative defense to the Cross-Complaint and to each 20 purported cause of action contained therein, this answering Cross-Defendant is informed and 21 believes and based thereon alleges: Plaintiff will be limited to the reasonable value, if any, of 22 future medical services available to Plaintiff under the Affordable Care Act. 23 NINETEENTH AFFIRMATIVE DEFENSE 24 [No Injury or Damage] 25 21. As and for a separate and affirmative defense to the Cross-Complaint, and to each 26 purported cause of action contained therein, this answering Cross-Defendant is informed and 27 believes and based thereon alleges: This answering Cross-Defendant denies Plaintiff suffered any 28 injury or damage whatsoever, and further denies it is liable to Plaintiff for any injury or damage LEGAL:11009-0438/15025390.1 -7- CROSS-DEFENDANT RASIER, LLC.'S ANSWER TO CROSS-COMPLAINT 1 claimed or for any injury or damage whatsoever. 2 TWENTIETH AFFIRMATIVE DEFENSE 3 [Vicarious Liability] 4 22. As and for a separate and affirmative defense to the Cross-Complaint and to each 5 purported cause of action contained therein, this answering Cross-Defendant is informed and 6 believes and based thereon alleges: This answering Cross-Defendant denies Plaintiff suffered any 7 injury or damage whatsoever, and further denies it is vicariously liable for the acts of other parties. 8 TWENTY-FIRST AFFIRMATIVE DEFENSE 9 [Fails to State Facts – General] 10 23. As and for a separate and affirmative defense to the Cross-Complaint and to each 11 purported cause of action contained therein, this answering Cross-Defendant is informed and WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE 925 222 3400 ♦ FAX 925 356 8250 1401 WILLOW PASS ROAD, SUITE 700 12 believes and based thereon alleges: The Cross-Complaint, and each purported cause of action CONCORD, CALIFORNIA 94520-7982 13 contained therein, fails to state facts sufficient to constitute a cause of action against this Attorneys at Law 14 answering Cross-Defendant. 15 TWENTY-SECOND AFFIRMATIVE DEFENSE 16 [Statute of Limitations] 17 24. As and for a separate and affirmative defense to the Cross-Complaint and to each 18 purported cause of action contained therein, this answering Cross-Defendant is informed and 19 believes and based thereon alleges: Each said cause of action is barred by the applicable statute of 20 limitations, including but not limited to, California Code of Civil Procedure Sections 335.1, 337, 21 337.1, 337.15, 338, 339, 340 and/or 343. 22 TWENTY-THIRD AFFIRMATIVE DEFENSE 23 [Failure to Mitigate Loss] 24 25. As and for a separate and affirmative defense to the Cross-Complaint, and to each 25 purported cause of action contained therein, this answering Cross-Defendant is informed and 26 believes and based thereon alleges: If Plaintiff suffered any damage as a result of the allegations 27 set forth in the Cross-Complaint, Plaintiff is not entitled to recover from this answering Cross- 28 Defendant any sum of damages due to Plaintiff’s failure to take reasonable efforts to mitigate the LEGAL:11009-0438/15025390.1 -8- CROSS-DEFENDANT RASIER, LLC.'S ANSWER TO CROSS-COMPLAINT 1 damages said Plaintiff allegedly incurred. 2 TWENTY-FOURTH AFFIRMATIVE DEFENSE 3 [Estoppel] 4 26. As and for a separate and affirmative defense to the Cross-Complaint, and to each 5 purported cause of action contained therein, this answering Cross-Defendant is informed and 6 believes and based thereon alleges: Each and every cause of action or purported cause of action 7 contained in the Cross-Complaint is barred by the Doctrine of Estoppel. 8 TWENTY-FIFTH AFFIRMATIVE DEFENSE 9 [Waiver] 10 27. As and for a separate and affirmative defense to the Cross-Complaint, and to each 11 purported cause of action contained therein, this answering Cross-Defendant is informed and WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE 925 222 3400 ♦ FAX 925 356 8250 1401 WILLOW PASS ROAD, SUITE 700 12 believes and based thereon alleges: Each and every cause of action or purported cause of action CONCORD, CALIFORNIA 94520-7982 13 contained in the Cross-Complaint is barred by the Doctrine of Waiver. Attorneys at Law 14 TWENTY-SIXTH AFFIRMATIVE DEFENSE 15 [Laches] 16 28. As and for a separate and affirmative defense to the Cross-Complaint, and to each 17 purported cause of action contained therein, this answering Cross-Defendant is informed and 18 believes and based thereon alleges: Each and every cause of action or purported cause of action 19 contained in the Cross-Complaint is barred by the Doctrine of Laches. 20 TWENTY-SEVENTH AFFIRMATIVE DEFENSE 21 [Unclean Hands] 22 29. As and for a separate and affirmative defense to the Cross-Complaint, and to each 23 purported cause of action contained therein, this answering Cross-Defendant is informed and 24 believes and based thereon alleges: Each and every cause of action or purported cause of action 25 contained in the Cross-Complaint is barred by the Doctrine of Unclean Hands. 26 TWENTY-EIGTH AFFIRMATIVE DEFENSE 27 [Collateral Estoppel] 28 30. As and for a separate and affirmative defense to the Cross-Complaint, and to each LEGAL:11009-0438/15025390.1 -9- CROSS-DEFENDANT RASIER, LLC.'S ANSWER TO CROSS-COMPLAINT 1 purported cause of action contained therein, this answering Cross-Defendant is informed and 2 believes and based thereon alleges: Each and every cause of action or purported cause of action 3 contained in the Cross-Complaint is barred by the Doctrine of Collateral Estoppel. 4 TWENTY-NINTH AFFIRMATIVE DEFENSE 5 [Voluntary Conduct] 6 31. As and for a separate and affirmative defense to the Cross-Complaint, and to each 7 purported cause of action contained therein, this answering Cross-Defendant is informed and 8 believes and based thereon alleges: Plaintiff has engaged in conduct with respect to the activities 9 and/or property which are the subject of the Cross-Complaint, and by reason of said activities and 10 conduct, is estopped from asserting any claims or damages or seeking any other relief against this 11 answering Cross-Defendant. WOOD, SMITH, HENNING & BERMAN LLP