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1 LAW OFFICE OF CATHERINE WALSH
ILLISE SCHULMAN, (SBN 177117)
2 1800 Sutter Street, Suite 260 ELECTRONICALLY
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Concord, CA 94520 FILED
Tel: 925-825-9500; Fax 925-825-9716 Superior Court of California,
County of San Francisco
4 ischulman@geico.com
05/15/2020
5 Clerk of the Court
Attorneys for Defendant BY: MADONNA CARANTO
JENNY DIEP Deputy Clerk
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7 SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO
8 UNLIMITED JURISDICTION
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10 KELLY ARMSTRONG AND LIONEL CASE NO. CGC20583743
ARMSTRONG,
11 ANSWER TO COMPLAINT
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Plaintiffs,
13 v.
14 JENNY DIEP AND DOES 1 TO 10,
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INCLUSIVE,
(Date Complaint Filed: March 16, 2020)
16 Defendants.
_____________________________________/
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18 Defendant JENNY DIEP, answering the Complaint on file herein, alleges as follows:
19 Pursuant to the provisions of the California Code of Civil Procedure, this answering
20 defendant generally denies every allegation of each cause of action alleged therein, and further
21 denies that plaintiffs suffered injuries or damages in the amount alleged, or in any other amount.
22 FOR A FIRST SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO EACH CAUSE
23 OF ACTION, IT IS ALLEGED:
24 The Complaint and each cause of action fail to state facts sufficient to constitute a cause
25 of action against this answering defendant.
26 FOR A SECOND SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO EACH
27 CAUSE OF ACTION, IT IS ALLEGED:
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ANSWER TO COMPLAINT
Sensitivity: Confidential
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The Complaint and each cause of action therein is barred by the applicable statutes of
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limitation, including but not limited to, California Code of Civil Procedure, §§335.1, 337(1-3),
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337.1(a-f), 337.15(a-g), 338(1-7), 339(1-10, 340(1-5), 340.5 and 364(a-f).
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FOR A THIRD SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO EACH CAUSE
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OF ACTION, IT IS ALLEGED:
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Civil Code §§1431.1, et. seq., limit general damages and abate joint and several liability.
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This defendant requests that the Court apportion the damages, if any, and require this answering
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defendant to pay only her fair and legal percentage of liability as determined by the trier of fact
9 and/or law.
10 FOR A FOURTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO EACH
11 CAUSE OF ACTION, IT IS ALLEGED:
12 Any and all events, injuries, loss, damages and expenditures referred to in the Complaint
13 were directly and proximately caused and contributed to by the carelessness and negligence of
14 plaintiffs, and the extent of damages sustained by the plaintiffs, if any, should be reduced in
15 proportion to the amount of negligence of the plaintiffs.
16 FOR A FIFTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO EACH CAUSE
17 OF ACTION, IT IS ALLEGED:
18 The accident, injury, and damages alleged in the Complaint were either wholly or in part
19 proximately caused by the negligence and fault of persons, corporations or entities other than this
20 answering defendant, and the negligence of such other persons, corporations, and/or entities
21 comparatively reduces the percentage of negligence, if any, attributed to this answering
22 defendant.
23 FOR A SIXTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO EACH CAUSE
24 OF ACTION, IT IS ALLEGED:
25 That by the exercise of reasonable effort, plaintiffs could have mitigated the amount of
26 damages they suffered; but plaintiffs failed and refused, and continue to fail and refuse, to
27 exercise reasonable efforts to mitigate the damages.
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ANSWER TO COMPLAINT
Sensitivity: Confidential
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FOR A SEVENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO EACH
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CAUSE OF ACTION, IT IS ALLEGED:
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That the alleged accident, injuries and damages, if any, were proximately caused by
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plaintiffs’ implied agreement to voluntarily assume the risk of a known danger. The risks
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encountered by plaintiffs were inherent in the activities in question, and were therefore
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reasonable risks. Thus, plaintiffs’ reasonable implied assumptions of the risks act as a complete
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bar to their recovery.
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FOR A EIGHTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO EACH
9 CAUSE OF ACTION, IT IS ALLEGED:
10 That the plaintiffs are barred from recovering any and all non-economic damages,
11 pursuant to the provisions of California Civil Code Section 3333.4 [second enacted].
12 WHEREFORE, this answering defendant prays:
13 1. That plaintiffs take nothing by reason of the Complaint;
14 2. That defendant has judgment for attorneys’ fees and costs of
15 suit herein incurred; and
16 3. For such other and further relief as to the Court seems just and proper.
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DATED: May 15, 2020 LAW OFFICE OF CATHERINE WALSH
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_________________________________
22 ILLISE SCHULMAN
Attorney for Defendant
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JENNY DIEP
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ANSWER TO COMPLAINT
Sensitivity: Confidential
1 PROOF OF SERVICE
2 [Armstrong v. Diep]
San Francisco Superior Court Unlimited
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CASE NO.: CGC20583743]
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The undersigned declares:
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I am a citizen of the United States and am employed in the County of Contra
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Costa, State of California. I am over the age of 18 years and not a party to the within action. I
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am employed by the Law Office of Catherine Walsh, and my business address is 1800 Sutter
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Street, Suite 260, Concord, CA 94520.
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On May 15, 2020, I served the attached ANSWER TO COMPLAINT on the
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interested parties in this action at the following addresses as indicated below:
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[ X ] BY ELECTRONIC MAIL: By e-mailing the documents to the persons at the e-mail
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address(es) listed based on notice previously provided that, during the Coronavirus
14 (COVID-19) pandemic, this office will be primarily working remotely, unable to send
physical mail as usual, and is therefore using only electronic mail. No electronic message
15 or other indication that the transmission was unsuccessful was received within a reasonable
time after the transmission
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17 For Plaintiffs KELLY ARMSTRONG AND LIONEL ARMSTRONG
Albert Thuesen
18 Coit Law Group
75 Broadway, Ste. 202
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San Francisco, CA 94111
20 415-787-2648
415-329-2648
21 Email: alt@coitlawgroup.com
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Executed on May 15, 2020. I declare under penalty of perjury under the laws of
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the State of California that the foregoing is true and correct.
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____________________________
27 JAMIE FERNANE
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Sensitivity: Confidential