Preview
1 Paul Caleo, State Bar No. 153925
Theresa M. Brick, State Bar No. 318716
2 BURNHAM BROWN
A Professional Law Corporation ELECTRONICALLY
3 P.O. Box 119 FILED
Oakland, California 94604-0119 Superior Court of California,
County of San Francisco
4 ---
1901 Harrison Street, Suite 1400 06/16/2020
5 Oakland, California 94612-3523 Clerk of the Court
Telephone: (510) 444-6800 BY: MADONNA CARANTO
Deputy Clerk
6 Facsimile: (510) 835-6666
Email: pcaleo@burnhambrown.com
7 tbrick@burnhambrown.com
8 Attorneys for Defendant RASIER, LLC
9
10 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN FRANCISCO
11 UNLIMITED JURISDICTION
12 ALEN MAJETIC, No. CGC-20-582844
13 Plaintiff, DEFENDANT RASIER, LLC’S
ANSWER TO COMPLAINT
14 v.
Complaint Filed: February 11, 2020
15 UBER TECHNOLOGIES, INC., RASIER
LLC; RASIER-CA, LLC, GONG HAO and
16 DOES 1 to 50,
17 Defendants.
18
19 COMES NOW, Defendant Rasier, LLC’s (hereinafter “Defendant”), severing itself from
20 all other co-defendants, and answering the Complaint (hereinafter “Complaint”) on file herein as
21 follows:
22 1. Inasmuch as the Complaint is not verified under the provisions of Section 431.30
23 of the California Code of Civil Procedure, this answering Defendant denies generally each, every
24 and all of the allegations in said Complaint, and the whole thereof, including denial of all sums
25 and amounts alleged, to be alleged or otherwise.
26 SEPARATE AFFIRMATIVE DEFENSES
27 2. This answering Defendant does not, by stating the matters set forth in these
28 defenses, allege or admit that it has the burden of proof and/or persuasion with respect to any of
1
DEFENDANT RASIER, LLC’S ANSWER TO COMPLAINT Case No. CGC-20-
582844
1 these matters, and does not assume the burden of proof or persuasion as to any matters to which
2 Plaintiff has the burden of proof or persuasion.
3 FIRST AFFIRMATIVE DEFENSE
4 [Apportionment of Fault]
5 3. 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: Defendant denies it was negligent in any fashion with respect to the
8 damages, losses, injuries and debts claimed by the Plaintiff in the Complaint on file herein;
9 however, if this answering Defendant is found to be negligent (which supposition is denied and
10 merely stated for the purpose of this affirmative defense), then this answering Defendant
11 provisionally alleges that Defendant’s negligence is not the sole and proximate cause of the
12 resultant damages, losses and injuries alleged by Plaintiff and that the damages awarded to
13 Plaintiff, if any, be apportioned according to the respective fault of the parties, persons, and
14 entities, or their agents, servants, and employees who contributed to and/or caused said resultant
15 damages as alleged, according to the proof presented at the time of trial. That to assess any greater
16 percentage of fault and damages against this answering Defendant in excess of this answering
17 Defendant’s percentage of fault would be a denial of California equal protection and due process
18 and Federal equal protection and due process, all guaranteed by the respective Constitutions.
19 SECOND AFFIRMATIVE DEFENSE
20 [Comparative Fault]
21 4. 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: The injuries to the Plaintiff, if any, were sustained in that Plaintiff
24 failed to exercise ordinary and reasonable care or caution concerning the matters alleged in
25 the Complaint; and such negligence on Plaintiff’s part constitutes a bar to any recovery by said
26 Plaintiff, or in the alternative, the recovery, if any, by said Plaintiff should be reduced in proportion
27 to the extent such negligence was a cause of Plaintiff’s injuries and damages, if any.
28
2
DEFENDANT RASIER, LLC’S ANSWER TO COMPLAINT Case No. CGC-20-
582844
1 THIRD AFFIRMATIVE DEFENSE
2 [Assumption of Risk]
3 5. 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: Plaintiff knowingly, willingly and voluntarily assumed the risk of all
6 damages, if any.
7 FOURTH AFFIRMATIVE DEFENSE
8 [Equitable Indemnity]
9 6. As and for separate and affirmative defense to the Complaint, and to each purported
10 cause of action contained therein, this answering Defendant is informed and believes and based
11 thereon alleges: Any and all events, happenings, injuries and damages set forth in the Complaint,
12 if any, were proximately caused and contributed to by the acts and/or omissions of Plaintiff, and
13 such acts and/or omissions totally bar or reduce any recovery on the part of Plaintiff.
14 FIFTH AFFIRMATIVE DEFENSE
15 [No Duty]
16 7. As and for a separate and affirmative defense to the Complaint, and to each
17 purported cause of action contained therein, this answering Defendant is informed and believes
18 and based thereon alleges: Any recovery on the Complaint, or any claim for relief averred therein,
19 is barred to the extent this answering Defendant owed no duty to Plaintiff.
20 SIXTH AFFIRMATIVE DEFENSE
21 [No Causation]
22 8. 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: To the extent Plaintiff suffered damages, which Defendant denies, such
25 injury or damage was not proximately caused by any conduct or inaction of this answering
26 Defendant, or was not foreseeable, or both.
27
28
3
DEFENDANT RASIER, LLC’S ANSWER TO COMPLAINT Case No. CGC-20-
582844
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
12 and based thereon alleges: To the extent Plaintiff suffered injury or damage, which Defendant
13 denies, such injury or damage was sustained prior to the incident alleged by the Plaintiff in the
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
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DEFENDANT RASIER, LLC’S ANSWER TO COMPLAINT Case No. CGC-20-
582844
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 property
6 damage, medical care, dental care, custodial care or rehabilitation services, loss of earning or other
7 economic loss, in the past or future, were or will, with reasonable certainty be replaced or
8 indemnified, in whole or in part, from one or more collateral source, including by or through
9 insurance available to the Plaintiff under the terms of the Patient Protection and Affordable Care
10 Act, and as such the Defendant is entitled to have any award reduced in the amount of such
11 payments.
TWELFTH AFFIRMATIVE DEFENSE
12
13 [Howell v. Hamilton Meats]
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,
24
or will, indemnify Plaintiff, for any past or future claimed medical expenses, health care, life care,
25
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
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DEFENDANT RASIER, LLC’S ANSWER TO COMPLAINT Case No. CGC-20-
582844
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
12 and based thereon alleges: To the extent Plaintiff failed to take reasonable steps to utilize the
13 resources, service benefits, and coverage available to Plaintiff under the Patient Protection and
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.
6
DEFENDANT RASIER, LLC’S ANSWER TO COMPLAINT Case No. CGC-20-
582844
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,
12 fails to state facts sufficient to constitute a cause of action against this answering Defendant.
13 TWENTIETH AFFIRMATIVE DEFENSE
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
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DEFENDANT RASIER, LLC’S ANSWER TO COMPLAINT Case No. CGC-20-
582844
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
12 in the Complaint is barred by the Doctrine of Waiver.
13 TWENTY-FOURTH AFFIRMATIVE DEFENSE
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
8
DEFENDANT RASIER, LLC’S ANSWER TO COMPLAINT Case No. CGC-20-
582844
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
12 [Damages Uncertain]
13 30. As and for a separate and affirmative defense to the Complaint, and to each
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
22 or 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 alleges
28 that at no time or place set forth in the Complaint did any other defendant or third person alleged
9
DEFENDANT RASIER, LLC’S ANSWER TO COMPLAINT Case No. CGC-20-
582844
1 to be at fault operate as the agent or employee of Defendant, such that Defendant can be held
2 vicariously liable for their acts. Should any other defendant or third party be deemed to have any
3 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
8 [Independent Contractor]
9 33. As and for a separate and affirmative defense to the Complaint, and as to each and
10 every cause of action contained therein, this answering Defendant alleges that the Complaint and
11 each cause of action set forth therein are barred, in whole or in part, under the independent
12 contractor defense, as the independent third-party transportation provider was an independent
13 contractor responsible the independent third-party transportation provider’s own means and
14 methods, making the doctrine of respondeat superior inapplicable.
15 THIRTY-SECOND AFFIRMATIVE DEFENSE
16 [Failure to State Cause of Action]
17 34. As and for a separate and affirmative defense to the Complaint, a separate and
18 distinct affirmative defense, this answering Defendant is informed and believes and thereon
19 alleges: The Complaint, and each and every cause of action therein alleged against Defendant
20 fails to set forth facts sufficient to constitute a cause of action against this answering Defendant.
21 THIRTY-THIRD AFFIRMATIVE DEFENSE
22 [Joint and Several Liability]
23 35. As and for separate and affirmative defense, this answering Defendant alleges that
24 the liability of this answering Defendant for the non-economic damages claimed or proven by
25 Plaintiff shall be and is limited by California Civil Code § 1431.2.
26 THIRTY-FOURTH AFFIRMATIVE DEFENSE
27 [Lack of Capacity to Sue]
28 36. As and for a separate and affirmative defense to the Complaint, and to each and
10
DEFENDANT RASIER, LLC’S ANSWER TO COMPLAINT Case No. CGC-20-
582844
1 every purported cause of action therein, this answering Defendant is informed and believes, and
2 based thereon alleges: Plaintiff lacks legal capacity to sue, and is not the real party in interest, and
3 is thus barred from any recovery against the answering Defendant.
4 THIRTY-FIFTH AFFIRMATIVE DEFENSE
5 [Sudden Emergency Doctrine]
6 37. As and for a separate affirmative defense to the Complaint, and to each purported
7 cause of action contained therein, this answering Defendant is informed and believes, and based
8 thereon alleges: Any and all claims that Plaintiff may have or have had against Defendant have
9 been or will be barred by the sudden emergency doctrine.
10 THIRTY-SIXTH AFFIRMATIVE DEFENSE
11 [Not a Common Carrier]
12 38. As and for a separate affirmative defense to the Complaint, and to each purported
13 cause of action contained therein, this answering Defendant alleges that Defendant is a technology
14 company and is not a transportation company or a common carrier. Therefore, any and all claims
15 asserted by Plaintiff under a common carrier theory are barred.
16 THIRTY SEVENTH AFFIRMATIVE DEFENSE
17 [Consent]
18 39. 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: Each and every cause of action or purported cause of action contained
21 in the Complaint is barred due to the consent by Plaintiff to all actions alleged therein.
22 THIRTY-EIGHTH AFFIRMATIVE DEFENSE
23 [Contractual Indemnity]
24 40. As and for a separate and affirmative defense to the Complaint, Defendant is
25 informed and believes, and thereon alleges: The independent third party transportation provider
26 is contractually obligated to defend, indemnify and hold Defendant harmless for all claims asserted
27 by Plaintiff.
28
11
DEFENDANT RASIER, LLC’S ANSWER TO COMPLAINT Case No. CGC-20-
582844
1 THIRTY-NINTH AFFIRMATIVE DEFENSE
2 [Arbitration Agreement]
3 41. As and for a separate and affirmative defense, this answering Defendant is
4 informed and believes and thereon alleges: This dispute is subject to an arbitration agreement
5 between Plaintiff and this answering Defendant, such that this matter is properly brought before a
6 qualified arbitrator rather than in the instant court.
7 FORTIETH AFFIRMATIVE DEFENSE
8 [No Helmet Usage]
9 42. As and for a separate affirmative defense to the Complaint, and to each purported
10 cause of action therein, this answering Defendant is informed and believes and based thereon
11 alleges: Plaintiff’s recovery is barred or proportionately reduced due to his failure to wear an
12 adequate helmet or to wear it properly.
13 FORTY-FIRST AFFIRMATIVE DEFENSE
14 [Reserved Defenses]
15 43. As and for a separate and affirmative defense to the Complaint, and to each
16 purported cause of action contained therein, this answering Defendant alleges that it presently has
17 insufficient knowledge or insufficient information upon which to form a belief as to whether it
18 may have additional, yet unasserted, affirmative defenses. Defendant therefore reserves the right
19 to assert additional affirmative defenses in the event discovery indicates it would be appropriate.
20 WHEREFORE, this answering Defendant prays for judgment as follows:
21 1. That Plaintiff takes nothing by virtue of Plaintiff’s Complaint;
22 2. For costs of suit incurred herein; and
23 3. For such other and further relief as the court may deem just and proper.
24 DATED: June 15, 2020 BURNHAM BROWN
25 ____________________________
PAUL CALEO
26 THERESA M. BRICK
Attorneys for Defendant
27 RASIER, LLC
28 4829-9954-8608, v. 1
12
DEFENDANT RASIER, LLC’S ANSWER TO COMPLAINT Case No. CGC-20-
582844
Re: Alen Majetic v. Uber Technologies, Inc., et al.
Court: San Francisco County Superior Court
Action No: CGC-20-582844
PROOF OF SERVICE
I declare that I am over the age of 18, not a party to the above-entitled action, and am an
employee of Burnham Brown whose business address is 1901 Harrison Street, Suite 1400,
Oakland, Alameda County, California 94612-3523 (mailing address: Post Office Box 119,
Oakland, California 94604-0119).
On June 16, 2020, I served the following document(s) in the following manner(s):
DEFENDANT RASIER LLC’S ANSWER TO COMPLAINT
FILE & SERVE XPRESS: By electronically transmitting the document(s) listed
above to File & Serve Xpress, an electronic filing service provider, at
https://secure.fileandservexpress.com, pursuant to the Court’s Order mandating
Electronic Service. See California Rules of Court 1830 and 2053(a). The
transmission was reported as complete and without error.
Attorneys for Plaintiff
Tanya Gomerman, Esq.
Sandra Isabelle Tan, Esq.
Law Offices of Tanya Gomerman
825 Van Ness Avenue, Suite 502
San Francisco, CA 94109
Tel: 415-545-8608
Fax:
Email: isabelle@attorneytanya.com
I declare under penalty of perjury under the laws of the State of California and the United
States of America that the foregoing is true and correct.
DATE: June 16, 2020
EDITH BLOODGOOD
PROOF OF SERVICE CASE NO. CGC-20-582844
Preview
1 Paul Caleo, State Bar No. 153925 Theresa M. Brick, State Bar No. 318716 2 BURNHAM BROWN A Professional Law Corporation ELECTRONICALLY 3 P.O. Box 119 FILED Oakland, California 94604-0119 Superior Court of California, County of San Francisco 4 --- 1901 Harrison Street, Suite 1400 06/16/2020 5 Oakland, California 94612-3523 Clerk of the Court Telephone: (510) 444-6800 BY: MADONNA CARANTO Deputy Clerk 6 Facsimile: (510) 835-6666 Email: pcaleo@burnhambrown.com 7 tbrick@burnhambrown.com 8 Attorneys for Defendant RASIER, LLC 9 10 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN FRANCISCO 11 UNLIMITED JURISDICTION 12 ALEN MAJETIC, No. CGC-20-582844 13 Plaintiff, DEFENDANT RASIER, LLC’S ANSWER TO COMPLAINT 14 v. Complaint Filed: February 11, 2020 15 UBER TECHNOLOGIES, INC., RASIER LLC; RASIER-CA, LLC, GONG HAO and 16 DOES 1 to 50, 17 Defendants. 18 19 COMES NOW, Defendant Rasier, LLC’s (hereinafter “Defendant”), severing itself from 20 all other co-defendants, and answering the Complaint (hereinafter “Complaint”) on file herein as 21 follows: 22 1. Inasmuch as the Complaint is not verified under the provisions of Section 431.30 23 of the California Code of Civil Procedure, this answering Defendant denies generally each, every 24 and all of the allegations in said Complaint, and the whole thereof, including denial of all sums 25 and amounts alleged, to be alleged or otherwise. 26 SEPARATE AFFIRMATIVE DEFENSES 27 2. This answering Defendant does not, by stating the matters set forth in these 28 defenses, allege or admit that it has the burden of proof and/or persuasion with respect to any of 1 DEFENDANT RASIER, LLC’S ANSWER TO COMPLAINT Case No. CGC-20- 582844 1 these matters, and does not assume the burden of proof or persuasion as to any matters to which 2 Plaintiff has the burden of proof or persuasion. 3 FIRST AFFIRMATIVE DEFENSE 4 [Apportionment of Fault] 5 3. 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: Defendant denies it was negligent in any fashion with respect to the 8 damages, losses, injuries and debts claimed by the Plaintiff in the Complaint on file herein; 9 however, if this answering Defendant is found to be negligent (which supposition is denied and 10 merely stated for the purpose of this affirmative defense), then this answering Defendant 11 provisionally alleges that Defendant’s negligence is not the sole and proximate cause of the 12 resultant damages, losses and injuries alleged by Plaintiff and that the damages awarded to 13 Plaintiff, if any, be apportioned according to the respective fault of the parties, persons, and 14 entities, or their agents, servants, and employees who contributed to and/or caused said resultant 15 damages as alleged, according to the proof presented at the time of trial. That to assess any greater 16 percentage of fault and damages against this answering Defendant in excess of this answering 17 Defendant’s percentage of fault would be a denial of California equal protection and due process 18 and Federal equal protection and due process, all guaranteed by the respective Constitutions. 19 SECOND AFFIRMATIVE DEFENSE 20 [Comparative Fault] 21 4. 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: The injuries to the Plaintiff, if any, were sustained in that Plaintiff 24 failed to exercise ordinary and reasonable care or caution concerning the matters alleged in 25 the Complaint; and such negligence on Plaintiff’s part constitutes a bar to any recovery by said 26 Plaintiff, or in the alternative, the recovery, if any, by said Plaintiff should be reduced in proportion 27 to the extent such negligence was a cause of Plaintiff’s injuries and damages, if any. 28 2 DEFENDANT RASIER, LLC’S ANSWER TO COMPLAINT Case No. CGC-20- 582844 1 THIRD AFFIRMATIVE DEFENSE 2 [Assumption of Risk] 3 5. 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: Plaintiff knowingly, willingly and voluntarily assumed the risk of all 6 damages, if any. 7 FOURTH AFFIRMATIVE DEFENSE 8 [Equitable Indemnity] 9 6. As and for separate and affirmative defense to the Complaint, and to each purported 10 cause of action contained therein, this answering Defendant is informed and believes and based 11 thereon alleges: Any and all events, happenings, injuries and damages set forth in the Complaint, 12 if any, were proximately caused and contributed to by the acts and/or omissions of Plaintiff, and 13 such acts and/or omissions totally bar or reduce any recovery on the part of Plaintiff. 14 FIFTH AFFIRMATIVE DEFENSE 15 [No Duty] 16 7. As and for a separate and affirmative defense to the Complaint, and to each 17 purported cause of action contained therein, this answering Defendant is informed and believes 18 and based thereon alleges: Any recovery on the Complaint, or any claim for relief averred therein, 19 is barred to the extent this answering Defendant owed no duty to Plaintiff. 20 SIXTH AFFIRMATIVE DEFENSE 21 [No Causation] 22 8. 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: To the extent Plaintiff suffered damages, which Defendant denies, such 25 injury or damage was not proximately caused by any conduct or inaction of this answering 26 Defendant, or was not foreseeable, or both. 27 28 3 DEFENDANT RASIER, LLC’S ANSWER TO COMPLAINT Case No. CGC-20- 582844 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 12 and based thereon alleges: To the extent Plaintiff suffered injury or damage, which Defendant 13 denies, such injury or damage was sustained prior to the incident alleged by the Plaintiff in the 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 4 DEFENDANT RASIER, LLC’S ANSWER TO COMPLAINT Case No. CGC-20- 582844 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 property 6 damage, medical care, dental care, custodial care or rehabilitation services, loss of earning or other 7 economic loss, in the past or future, were or will, with reasonable certainty be replaced or 8 indemnified, in whole or in part, from one or more collateral source, including by or through 9 insurance available to the Plaintiff under the terms of the Patient Protection and Affordable Care 10 Act, and as such the Defendant is entitled to have any award reduced in the amount of such 11 payments. TWELFTH AFFIRMATIVE DEFENSE 12 13 [Howell v. Hamilton Meats] 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, 24 or will, indemnify Plaintiff, for any past or future claimed medical expenses, health care, life care, 25 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 5 DEFENDANT RASIER, LLC’S ANSWER TO COMPLAINT Case No. CGC-20- 582844 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 12 and based thereon alleges: To the extent Plaintiff failed to take reasonable steps to utilize the 13 resources, service benefits, and coverage available to Plaintiff under the Patient Protection and 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. 6 DEFENDANT RASIER, LLC’S ANSWER TO COMPLAINT Case No. CGC-20- 582844 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, 12 fails to state facts sufficient to constitute a cause of action against this answering Defendant. 13 TWENTIETH AFFIRMATIVE DEFENSE 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 7 DEFENDANT RASIER, LLC’S ANSWER TO COMPLAINT Case No. CGC-20- 582844 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 12 in the Complaint is barred by the Doctrine of Waiver. 13 TWENTY-FOURTH AFFIRMATIVE DEFENSE 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 8 DEFENDANT RASIER, LLC’S ANSWER TO COMPLAINT Case No. CGC-20- 582844 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 12 [Damages Uncertain] 13 30. As and for a separate and affirmative defense to the Complaint, and to each 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 22 or 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 alleges 28 that at no time or place set forth in the Complaint did any other defendant or third person alleged 9 DEFENDANT RASIER, LLC’S ANSWER TO COMPLAINT Case No. CGC-20- 582844 1 to be at fault operate as the agent or employee of Defendant, such that Defendant can be held 2 vicariously liable for their acts. Should any other defendant or third party be deemed to have any 3 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 8 [Independent Contractor] 9 33. As and for a separate and affirmative defense to the Complaint, and as to each and 10 every cause of action contained therein, this answering Defendant alleges that the Complaint and 11 each cause of action set forth therein are barred, in whole or in part, under the independent 12 contractor defense, as the independent third-party transportation provider was an independent 13 contractor responsible the independent third-party transportation provider’s own means and 14 methods, making the doctrine of respondeat superior inapplicable. 15 THIRTY-SECOND AFFIRMATIVE DEFENSE 16 [Failure to State Cause of Action] 17 34. As and for a separate and affirmative defense to the Complaint, a separate and 18 distinct affirmative defense, this answering Defendant is informed and believes and thereon 19 alleges: The Complaint, and each and every cause of action therein alleged against Defendant 20 fails to set forth facts sufficient to constitute a cause of action against this answering Defendant. 21 THIRTY-THIRD AFFIRMATIVE DEFENSE 22 [Joint and Several Liability] 23 35. As and for separate and affirmative defense, this answering Defendant alleges that 24 the liability of this answering Defendant for the non-economic damages claimed or proven by 25 Plaintiff shall be and is limited by California Civil Code § 1431.2. 26 THIRTY-FOURTH AFFIRMATIVE DEFENSE 27 [Lack of Capacity to Sue] 28 36. As and for a separate and affirmative defense to the Complaint, and to each and 10 DEFENDANT RASIER, LLC’S ANSWER TO COMPLAINT Case No. CGC-20- 582844 1 every purported cause of action therein, this answering Defendant is informed and believes, and 2 based thereon alleges: Plaintiff lacks legal capacity to sue, and is not the real party in interest, and 3 is thus barred from any recovery against the answering Defendant. 4 THIRTY-FIFTH AFFIRMATIVE DEFENSE 5 [Sudden Emergency Doctrine] 6 37. As and for a separate affirmative defense to the Complaint, and to each purported 7 cause of action contained therein, this answering Defendant is informed and believes, and based 8 thereon alleges: Any and all claims that Plaintiff may have or have had against Defendant have 9 been or will be barred by the sudden emergency doctrine. 10 THIRTY-SIXTH AFFIRMATIVE DEFENSE 11 [Not a Common Carrier] 12 38. As and for a separate affirmative defense to the Complaint, and to each purported 13 cause of action contained therein, this answering Defendant alleges that Defendant is a technology 14 company and is not a transportation company or a common carrier. Therefore, any and all claims 15 asserted by Plaintiff under a common carrier theory are barred. 16 THIRTY SEVENTH AFFIRMATIVE DEFENSE 17 [Consent] 18 39. 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: Each and every cause of action or purported cause of action contained 21 in the Complaint is barred due to the consent by Plaintiff to all actions alleged therein. 22 THIRTY-EIGHTH AFFIRMATIVE DEFENSE 23 [Contractual Indemnity] 24 40. As and for a separate and affirmative defense to the Complaint, Defendant is 25 informed and believes, and thereon alleges: The independent third party transportation provider 26 is contractually obligated to defend, indemnify and hold Defendant harmless for all claims asserted 27 by Plaintiff. 28 11 DEFENDANT RASIER, LLC’S ANSWER TO COMPLAINT Case No. CGC-20- 582844 1 THIRTY-NINTH AFFIRMATIVE DEFENSE 2 [Arbitration Agreement] 3 41. As and for a separate and affirmative defense, this answering Defendant is 4 informed and believes and thereon alleges: This dispute is subject to an arbitration agreement 5 between Plaintiff and this answering Defendant, such that this matter is properly brought before a 6 qualified arbitrator rather than in the instant court. 7 FORTIETH AFFIRMATIVE DEFENSE 8 [No Helmet Usage] 9 42. As and for a separate affirmative defense to the Complaint, and to each purported 10 cause of action therein, this answering Defendant is informed and believes and based thereon 11 alleges: Plaintiff’s recovery is barred or proportionately reduced due to his failure to wear an 12 adequate helmet or to wear it properly. 13 FORTY-FIRST AFFIRMATIVE DEFENSE 14 [Reserved Defenses] 15 43. As and for a separate and affirmative defense to the Complaint, and to each 16 purported cause of action contained therein, this answering Defendant alleges that it presently has 17 insufficient knowledge or insufficient information upon which to form a belief as to whether it 18 may have additional, yet unasserted, affirmative defenses. Defendant therefore reserves the right 19 to assert additional affirmative defenses in the event discovery indicates it would be appropriate. 20 WHEREFORE, this answering Defendant prays for judgment as follows: 21 1. That Plaintiff takes nothing by virtue of Plaintiff’s Complaint; 22 2. For costs of suit incurred herein; and 23 3. For such other and further relief as the court may deem just and proper. 24 DATED: June 15, 2020 BURNHAM BROWN 25 ____________________________ PAUL CALEO 26 THERESA M. BRICK Attorneys for Defendant 27 RASIER, LLC 28 4829-9954-8608, v. 1 12 DEFENDANT RASIER, LLC’S ANSWER TO COMPLAINT Case No. CGC-20- 582844 Re: Alen Majetic v. Uber Technologies, Inc., et al. Court: San Francisco County Superior Court Action No: CGC-20-582844 PROOF OF SERVICE I declare that I am over the age of 18, not a party to the above-entitled action, and am an employee of Burnham Brown whose business address is 1901 Harrison Street, Suite 1400, Oakland, Alameda County, California 94612-3523 (mailing address: Post Office Box 119, Oakland, California 94604-0119). On June 16, 2020, I served the following document(s) in the following manner(s): DEFENDANT RASIER LLC’S ANSWER TO COMPLAINT FILE & SERVE XPRESS: By electronically transmitting the document(s) listed above to File & Serve Xpress, an electronic filing service provider, at https://secure.fileandservexpress.com, pursuant to the Court’s Order mandating Electronic Service. See California Rules of Court 1830 and 2053(a). The transmission was reported as complete and without error. Attorneys for Plaintiff Tanya Gomerman, Esq. Sandra Isabelle Tan, Esq. Law Offices of Tanya Gomerman 825 Van Ness Avenue, Suite 502 San Francisco, CA 94109 Tel: 415-545-8608 Fax: Email: isabelle@attorneytanya.com I declare under penalty of perjury under the laws of the State of California and the United States of America that the foregoing is true and correct. DATE: June 16, 2020 EDITH BLOODGOOD PROOF OF SERVICE CASE NO. CGC-20-582844