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SAN MATEO, CA 94403
‘TELEPHONE (650) 365-7715
HOWARD ROME MakrTIN & RIDLEY LLP
1900 O’FARRELL STREET, SUITE 280
TODD H. MASTER [SBN 185881]
tmaster@hrmrlaw.com
LISA K. RAUCH [SBN 148575}
Irauch@hrmrlaw.com
HOWARD ROME MARTIN & RIDLEY LLP
1900 O’Farrell Street, Suite 280
San Mateo, CA 94403
Telephone: (650) 365-7715
Facsimile: (650) 364-5297
Attorneys for Defendant
CITY OF MILPITAS
Exempt from Filing Fees
Pursuant to Government
Code section 6103
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SANTA CLARA
xxxx xxxx, NEHA xxxx, GORI xxxx,
SHALU xxxx, RAKHI xxxx, ANJU xxxx,
Plaintiffs,
vs.
CITY OF MILPITAS, LORELAY ROBLES-
PARTIDA, PACIFIC GAS AND ELECTRIC
COMPANY, DOES 1 TO 40, inclusive,
Defendants.
Case No. 18CV325365
CITY OF MILPITAS’ ANSWER TO
COMPLAINT
COMES NOW defendant CITY OF MILPITAS (“the City”) and hereby answers the
Unverified Complaint of Plaintiffs, and admits, denies and alleges as follows:
GENERAL DENIAL
1. Pursuant to California Code of Civil Procedure Section 431.30(d), the City
denies, generally and specifically, each and every material allegation, statement, matter and
purported cause of action contained in Plaintiffs’ Unverified Complaint. The City further
denies, generally and specifically, that Plaintiffs have been damaged in the manner or sums
alleged, or in any way at all, by reason of any acts or omissions of the City.
CITY OF MILPITAS’ ANSWER TO COMPLAINT; Case No. 18CV325365HOWARD ROME MARTIN & RIDLEY LLP
1900 O’FARRELL STREET, SUITE 280
SAN MATEO, CA 94403
‘TELEPHONE (650) 365-7715
FIRST AFFIRMATIVE DEFENSE
2. As a first and separate affirmative defense, the City alleges that the Unverified
Complaint fails to state a, or any, cause of action against it.
SECOND AFFIRMATIVE DEFENSE
3. As a second and separate affirmative defense, the City denies any wrongdoing,
negligence or liability on its part but, should it be determined that the City is liable to Plaintiffs,
then the City alleges that Plaintiffs were also legally at fault, and possibly others as well, and
thus any recovery that might otherwise be rendered against the City must be reduced by that
percentage which reflects the comparative fault or negligence of others.
THIRD AFFIRMATIVE DEFENSE
4. As a third and separate affirmative defense, the City alleges that Plaintiffs acted
with full knowledge of all the facts and circumstances surrounding their injuries and that said
matters of which Plaintiffs assumed the risk proximately contributed to and proximately caused
their injuries.
FOURTH AFFIRMATIVE DEFENSE
5. As a fourth and separate affirmative defense, the City alleges that Plaintiffs have
failed to mitigate the alleged damages, if any, which they claim to have sustained, and their
recovery, if any, should be barred or diminished accordingly.
FIFTH AFFIRMATIVE DEFENSE
6. As a fifth and separate affirmative defense, the City alleges that Plaintiffs’
claims are barred by the statutes of limitations set forth in the Code of Civil Procedure Sections
313 through 349.4 including, but not limited to Sections 335.1, 337, 337.1, 337.15, 338, 339,
340, 342 and 343.
SIXTH AFFIRMATIVE DEFENSE
7. As a sixth and separate affirmative defense, the City alleges that Plaintiffs’
causes of action are barred by virtue of the provisions of the California Government Claims
CITY OF MILPITAS’ ANSWER TO COMPLAINT; Case No. 18CV325365
2SAN MATEO, CA 94403
TELEPHONE (650) 365-7715
HOWARD ROME MaRrTIN & RIDLEY LLP
1900 O°FARRELL STREET, SUITE 280
Act, including, but not limited to Government Code §§ 815, 815.2, 815.4, 818, 818.2, 818.4,
818.6, 818.8, 820.2, 820.4, 820.6, 820.8, 821, 821.2, 821.4, 822.2, 830, 830.2, 830.4, 830.5,
830.6, $30.8, 831, 831.2, 831.3, 831.4, 835, 835.2, 835.4, 840 and 840.6.
SEVENTH AFFIRMATIVE DEFENSE
8. As a seventh and separate affirmative defense, the City alleges that Plaintiffs’
causes of action are barred by Government Code § 945.4 by virtue of Plaintiffs’ failure to
comply with Government Code §§ 900 et seq. including but not limited to §§ 901, 905, 910,
911.2, 911.4, 945.6 and/or 946.6.
EIGHTH AFFIRMATIVE DEFENSE
9. As an eight and separate affirmative defense, the City alleges by virtue of
Plaintiffs’ affirmative conduct they are estopped from making any claim against the City by
reason of the doctrine of estoppel.
NINTH AFFIRMATIVE DEFENSE
10. As aninth and separate affirmative defense, the City alleges that Plaintiffs’
causes of action are barred by virtue of the provisions of Civil Code § 846.
TENTH AFFIRMATIVE DEFENSE
11. Asa tenth and separate affirmative defense, the City alleges that Plaintiffs
cannot establish liability pursuant to Government Code § 835 et seq.
ELEVENTH AFFIRMATIVE DEFENSE
12. As an eleventh and separate affirmative defense, the City alleges it had no actual
or constructive notice of the allegedly dangerous condition which is the basis of Plaintiffs’
claims against the City.
TWELFTH AFFIRMATIVE DEFENSE
13. As a twelfth and separate affirmative defense, the City alleges that Plaintiffs’
causes of action are barred by the doctrine of laches.
///
CITY OF MILPITAS’ ANSWER TO COMPLAINT; Case No. 18CV325365
3HOWARD ROME MARTIN & RIDLEY LLP
1900 O’FARRELL STREET, SUITE 280
SAN MATEO, CA 94403
‘TELEPHONE (650) 365-7715
THIRTEENTH AFFIRMATIVE DEFENSE
14. Asa thirteenth and separate affirmative defense, the City alleges that Plaintiffs’
causes of action are barred by the doctrine of unclean hands.
FOURTEENTH AFFIRMATIVE DEFENSE
15. Asa fourteenth and separate affirmative defense, the City alleges that the
damages alleged in the Unverified Complaint and each cause of action therein, which damages
the City expressly denies, were sustained as a result of an intervening or superseding cause,
barring any recovery against the City.
FIFTEENTH AFFIRMATIVE DEFENSE
16. Asa fifteenth and separate affirmative defense, the City is informed and
believes, and based thereon alleges, that Plaintiffs’ claims are barred, in whole or in part, or
must be reduced due to Plaintiffs’ failure to join necessary and indispensable parties.
SIXTEENTH AFFIRMATIVE DEFENSE
17. Asasixteenth and separate affirmative defense, the City alleges it has no actual
or constructive notice of the allegedly dangerous condition which is the basis of Plaintiffs’
claims against the City.
SEVENTEENTH AFFIRMATIVE DEFENSE
18. | Asa seventeenth and separate affirmative defense, the City alleges that the res
ipsa loquitor presumption is inapplicable to establish a prima facie case of liability against a
public entity under Government Code § 835(a) and Brown v. Poway Unified Sch. Dist. (1993)
4 Cal.4'" 820, 838.
EIGHTEENTH AFFIRMATIVE DEFENSE
19. As an eighteenth and separate affirmative defense, the City alleges that, at all
times relevant, it exercised reasonable diligence in the exercise of its duties.
NINETEENTH AFFIRMATIVE DEFENSE
20. | Asanineteenth and separate affirmative defense, the City alleges that the
CITY OF MILPITAS’ ANSWER TO COMPLAINT; Case No. 18CV325365
4HOWARD ROME MARTIN & RIDLEY LLP
1900 O’FARRELL STREET, SUITE 280
SAN MATEO, CA 94403
TELEPHONE (650) 365-7715
oN DH
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damages alleged in the Unverified Complaint and each cause of action therein, which damages
the City expressly denies, are speculative and conjectural and were not caused by any acts or
omissions on the part of the City.
TWENTIETH AFFIRMATIVE DEFENSE
21. Asatwentieth and separate affirmative defense, the City alleges that Plaintiffs’
causes of action are frivolous, unreasonable and without foundation and therefore the City is
entitled to attorneys’ fees and costs pursuant to Code of Civil Procedure § 1038.
TWENTY-FIRST AFFIRMATIVE DEFENSE
22. As a twenty-first and separate affirmative defense, the City alleges that because
the Unverified Complaint is couched in conclusory terms, the City cannot fully anticipate all
affirmative defenses that may be applicable to the within action. Accordingly, the City
reserves the right to add additional affirmative defenses as discovery progresses.
WHEREFORE, the CITY OF MILPITAS prays that Plaintiffs take nothing by their
Unverified Complaint, for costs of suit herein, and for such other and further relief as to the
Court may seem reasonable and proper.
DATED: May 10, 2018
Todd H. Master
Lisa K. Rauch
Attorneys for Defendant
CITY OF MILPITAS
CITY OF MILPITAS’ ANSWER TO COMPLAINT; Case No. 18CV325365
5HOWARD ROME MakrTIN & RIDLEY LLP
1900 O’FARRELL STREET, SUITE 280
SAN MATEO, CA 94403
‘TELEPHONE (650) 365-7715
oo em ND
t al./Santa Clara Superior Court Case No, 18CV325365
STATE OF CALIFORNIA, COUNTY OF SAN MATEO:
I am a citizen of the United States and employed in the county aforesaid; I am over the age
of eighteen years, and not a party to the within action; my business address is 1900 O’ Farrell
Street, Suite 280, San Mateo, CA 94403. On the date set forth below I served the ANSWER TO
COMPLAINT on the following person(s) in this action:
Timothy D, McMahon, Esq.
Corsiglia, McMahon & Allard
96 North Third Street, Suite 620
San Jose, CA 95112
Telephone: 408-289-1417
Facsimile: 408-289-8127
Email: tim@cmalaw.net
ATTORNEYS FOR PLAINTIFFS
Q
(VIA MAIL -- CCP §§ 1013(a), 2015.5) By placing a true copy thereof enclosed in a sealed envelope(s), addressed as
above, and placing each for collection and mailing on that date following ordinary business practices. I am readily
familiar with my firm's business practice of collection and processing of correspondence for mailing with the U.S. Postal
Service and correspondence placed for collection and mailing would be deposited in the U.S. Postal Service at Redwood
City, California, with postage thereon fully prepaid, that same day in the ordinary course of business.
(VIA PERSONAL DELIVERY — CCP §§ 1011, 2015.5) By placing a true copy thereof enclosed in a sealed
envelope(s), addressed as above, and causing each envelope(s) to be hand delivered on that day by » in the ordinary
course of my firm's business practice.
(VIA FACSIMILE -- CCP §§ 1013(e), 2015.5, CRC 2008) By arranging for facsimile transmission from facsimile
number 650/364-5297 to the above-listed facsimile number(s) prior to 5:00 p.m. 1 am readily familiar with my firm's
business practice of collection and processing of correspondence via facsimile transmission(s) and any such
correspondence would be transmitted in the ordinary course of business, The facsimile transmission(s) was reported as
complete and without error, and a copy of the transmission report is attached.
(VIA OVERNIGHT MAIL/COURIER -- CCP §§ 1013(c), 2015.5) By placing a true copy thereof enclosed in a sealed
envelope(s), addressed as above, and placing each for collection by overnight mail service or overnight courier service. I
am familiar with my firm's business practice of collection and processing of correspondence for overnight mail or
overnight courier service, and my correspondence placed for collection for overnight delivery would, in the ordinary
course of business, be delivered to an authorized courier or driver authorized by the overnight mail carrier to receive
documents, with delivery fees paid or provided for, that same day, for delivery on the following business day.
I declare that I am employed in the office of a member of the bar of this court at whose
direction the service was made. Executed on May 10, 2018, at San Mateo, California.
CITY OF MILPITAS’ ANSWER TO COMPLAINT; Case No. 18CV325365
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SAN MATEO, CA 94403 ‘TELEPHONE (650) 365-7715 HOWARD ROME MakrTIN & RIDLEY LLP 1900 O’FARRELL STREET, SUITE 280 TODD H. MASTER [SBN 185881] tmaster@hrmrlaw.com LISA K. RAUCH [SBN 148575} Irauch@hrmrlaw.com HOWARD ROME MARTIN & RIDLEY LLP 1900 O’Farrell Street, Suite 280 San Mateo, CA 94403 Telephone: (650) 365-7715 Facsimile: (650) 364-5297 Attorneys for Defendant CITY OF MILPITAS Exempt from Filing Fees Pursuant to Government Code section 6103 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA xxxx xxxx, NEHA xxxx, GORI xxxx, SHALU xxxx, RAKHI xxxx, ANJU xxxx, Plaintiffs, vs. CITY OF MILPITAS, LORELAY ROBLES- PARTIDA, PACIFIC GAS AND ELECTRIC COMPANY, DOES 1 TO 40, inclusive, Defendants. Case No. 18CV325365 CITY OF MILPITAS’ ANSWER TO COMPLAINT COMES NOW defendant CITY OF MILPITAS (“the City”) and hereby answers the Unverified Complaint of Plaintiffs, and admits, denies and alleges as follows: GENERAL DENIAL 1. Pursuant to California Code of Civil Procedure Section 431.30(d), the City denies, generally and specifically, each and every material allegation, statement, matter and purported cause of action contained in Plaintiffs’ Unverified Complaint. The City further denies, generally and specifically, that Plaintiffs have been damaged in the manner or sums alleged, or in any way at all, by reason of any acts or omissions of the City. CITY OF MILPITAS’ ANSWER TO COMPLAINT; Case No. 18CV325365HOWARD ROME MARTIN & RIDLEY LLP 1900 O’FARRELL STREET, SUITE 280 SAN MATEO, CA 94403 ‘TELEPHONE (650) 365-7715 FIRST AFFIRMATIVE DEFENSE 2. As a first and separate affirmative defense, the City alleges that the Unverified Complaint fails to state a, or any, cause of action against it. SECOND AFFIRMATIVE DEFENSE 3. As a second and separate affirmative defense, the City denies any wrongdoing, negligence or liability on its part but, should it be determined that the City is liable to Plaintiffs, then the City alleges that Plaintiffs were also legally at fault, and possibly others as well, and thus any recovery that might otherwise be rendered against the City must be reduced by that percentage which reflects the comparative fault or negligence of others. THIRD AFFIRMATIVE DEFENSE 4. As a third and separate affirmative defense, the City alleges that Plaintiffs acted with full knowledge of all the facts and circumstances surrounding their injuries and that said matters of which Plaintiffs assumed the risk proximately contributed to and proximately caused their injuries. FOURTH AFFIRMATIVE DEFENSE 5. As a fourth and separate affirmative defense, the City alleges that Plaintiffs have failed to mitigate the alleged damages, if any, which they claim to have sustained, and their recovery, if any, should be barred or diminished accordingly. FIFTH AFFIRMATIVE DEFENSE 6. As a fifth and separate affirmative defense, the City alleges that Plaintiffs’ claims are barred by the statutes of limitations set forth in the Code of Civil Procedure Sections 313 through 349.4 including, but not limited to Sections 335.1, 337, 337.1, 337.15, 338, 339, 340, 342 and 343. SIXTH AFFIRMATIVE DEFENSE 7. As a sixth and separate affirmative defense, the City alleges that Plaintiffs’ causes of action are barred by virtue of the provisions of the California Government Claims CITY OF MILPITAS’ ANSWER TO COMPLAINT; Case No. 18CV325365 2SAN MATEO, CA 94403 TELEPHONE (650) 365-7715 HOWARD ROME MaRrTIN & RIDLEY LLP 1900 O°FARRELL STREET, SUITE 280 Act, including, but not limited to Government Code §§ 815, 815.2, 815.4, 818, 818.2, 818.4, 818.6, 818.8, 820.2, 820.4, 820.6, 820.8, 821, 821.2, 821.4, 822.2, 830, 830.2, 830.4, 830.5, 830.6, $30.8, 831, 831.2, 831.3, 831.4, 835, 835.2, 835.4, 840 and 840.6. SEVENTH AFFIRMATIVE DEFENSE 8. As a seventh and separate affirmative defense, the City alleges that Plaintiffs’ causes of action are barred by Government Code § 945.4 by virtue of Plaintiffs’ failure to comply with Government Code §§ 900 et seq. including but not limited to §§ 901, 905, 910, 911.2, 911.4, 945.6 and/or 946.6. EIGHTH AFFIRMATIVE DEFENSE 9. As an eight and separate affirmative defense, the City alleges by virtue of Plaintiffs’ affirmative conduct they are estopped from making any claim against the City by reason of the doctrine of estoppel. NINTH AFFIRMATIVE DEFENSE 10. As aninth and separate affirmative defense, the City alleges that Plaintiffs’ causes of action are barred by virtue of the provisions of Civil Code § 846. TENTH AFFIRMATIVE DEFENSE 11. Asa tenth and separate affirmative defense, the City alleges that Plaintiffs cannot establish liability pursuant to Government Code § 835 et seq. ELEVENTH AFFIRMATIVE DEFENSE 12. As an eleventh and separate affirmative defense, the City alleges it had no actual or constructive notice of the allegedly dangerous condition which is the basis of Plaintiffs’ claims against the City. TWELFTH AFFIRMATIVE DEFENSE 13. As a twelfth and separate affirmative defense, the City alleges that Plaintiffs’ causes of action are barred by the doctrine of laches. /// CITY OF MILPITAS’ ANSWER TO COMPLAINT; Case No. 18CV325365 3HOWARD ROME MARTIN & RIDLEY LLP 1900 O’FARRELL STREET, SUITE 280 SAN MATEO, CA 94403 ‘TELEPHONE (650) 365-7715 THIRTEENTH AFFIRMATIVE DEFENSE 14. Asa thirteenth and separate affirmative defense, the City alleges that Plaintiffs’ causes of action are barred by the doctrine of unclean hands. FOURTEENTH AFFIRMATIVE DEFENSE 15. Asa fourteenth and separate affirmative defense, the City alleges that the damages alleged in the Unverified Complaint and each cause of action therein, which damages the City expressly denies, were sustained as a result of an intervening or superseding cause, barring any recovery against the City. FIFTEENTH AFFIRMATIVE DEFENSE 16. Asa fifteenth and separate affirmative defense, the City is informed and believes, and based thereon alleges, that Plaintiffs’ claims are barred, in whole or in part, or must be reduced due to Plaintiffs’ failure to join necessary and indispensable parties. SIXTEENTH AFFIRMATIVE DEFENSE 17. Asasixteenth and separate affirmative defense, the City alleges it has no actual or constructive notice of the allegedly dangerous condition which is the basis of Plaintiffs’ claims against the City. SEVENTEENTH AFFIRMATIVE DEFENSE 18. | Asa seventeenth and separate affirmative defense, the City alleges that the res ipsa loquitor presumption is inapplicable to establish a prima facie case of liability against a public entity under Government Code § 835(a) and Brown v. Poway Unified Sch. Dist. (1993) 4 Cal.4'" 820, 838. EIGHTEENTH AFFIRMATIVE DEFENSE 19. As an eighteenth and separate affirmative defense, the City alleges that, at all times relevant, it exercised reasonable diligence in the exercise of its duties. NINETEENTH AFFIRMATIVE DEFENSE 20. | Asanineteenth and separate affirmative defense, the City alleges that the CITY OF MILPITAS’ ANSWER TO COMPLAINT; Case No. 18CV325365 4HOWARD ROME MARTIN & RIDLEY LLP 1900 O’FARRELL STREET, SUITE 280 SAN MATEO, CA 94403 TELEPHONE (650) 365-7715 oN DH ~° 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 damages alleged in the Unverified Complaint and each cause of action therein, which damages the City expressly denies, are speculative and conjectural and were not caused by any acts or omissions on the part of the City. TWENTIETH AFFIRMATIVE DEFENSE 21. Asatwentieth and separate affirmative defense, the City alleges that Plaintiffs’ causes of action are frivolous, unreasonable and without foundation and therefore the City is entitled to attorneys’ fees and costs pursuant to Code of Civil Procedure § 1038. TWENTY-FIRST AFFIRMATIVE DEFENSE 22. As a twenty-first and separate affirmative defense, the City alleges that because the Unverified Complaint is couched in conclusory terms, the City cannot fully anticipate all affirmative defenses that may be applicable to the within action. Accordingly, the City reserves the right to add additional affirmative defenses as discovery progresses. WHEREFORE, the CITY OF MILPITAS prays that Plaintiffs take nothing by their Unverified Complaint, for costs of suit herein, and for such other and further relief as to the Court may seem reasonable and proper. DATED: May 10, 2018 Todd H. Master Lisa K. Rauch Attorneys for Defendant CITY OF MILPITAS CITY OF MILPITAS’ ANSWER TO COMPLAINT; Case No. 18CV325365 5HOWARD ROME MakrTIN & RIDLEY LLP 1900 O’FARRELL STREET, SUITE 280 SAN MATEO, CA 94403 ‘TELEPHONE (650) 365-7715 oo em ND t al./Santa Clara Superior Court Case No, 18CV325365 STATE OF CALIFORNIA, COUNTY OF SAN MATEO: I am a citizen of the United States and employed in the county aforesaid; I am over the age of eighteen years, and not a party to the within action; my business address is 1900 O’ Farrell Street, Suite 280, San Mateo, CA 94403. On the date set forth below I served the ANSWER TO COMPLAINT on the following person(s) in this action: Timothy D, McMahon, Esq. Corsiglia, McMahon & Allard 96 North Third Street, Suite 620 San Jose, CA 95112 Telephone: 408-289-1417 Facsimile: 408-289-8127 Email: tim@cmalaw.net ATTORNEYS FOR PLAINTIFFS Q (VIA MAIL -- CCP §§ 1013(a), 2015.5) By placing a true copy thereof enclosed in a sealed envelope(s), addressed as above, and placing each for collection and mailing on that date following ordinary business practices. I am readily familiar with my firm's business practice of collection and processing of correspondence for mailing with the U.S. Postal Service and correspondence placed for collection and mailing would be deposited in the U.S. Postal Service at Redwood City, California, with postage thereon fully prepaid, that same day in the ordinary course of business. (VIA PERSONAL DELIVERY — CCP §§ 1011, 2015.5) By placing a true copy thereof enclosed in a sealed envelope(s), addressed as above, and causing each envelope(s) to be hand delivered on that day by » in the ordinary course of my firm's business practice. (VIA FACSIMILE -- CCP §§ 1013(e), 2015.5, CRC 2008) By arranging for facsimile transmission from facsimile number 650/364-5297 to the above-listed facsimile number(s) prior to 5:00 p.m. 1 am readily familiar with my firm's business practice of collection and processing of correspondence via facsimile transmission(s) and any such correspondence would be transmitted in the ordinary course of business, The facsimile transmission(s) was reported as complete and without error, and a copy of the transmission report is attached. (VIA OVERNIGHT MAIL/COURIER -- CCP §§ 1013(c), 2015.5) By placing a true copy thereof enclosed in a sealed envelope(s), addressed as above, and placing each for collection by overnight mail service or overnight courier service. I am familiar with my firm's business practice of collection and processing of correspondence for overnight mail or overnight courier service, and my correspondence placed for collection for overnight delivery would, in the ordinary course of business, be delivered to an authorized courier or driver authorized by the overnight mail carrier to receive documents, with delivery fees paid or provided for, that same day, for delivery on the following business day. I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. Executed on May 10, 2018, at San Mateo, California. CITY OF MILPITAS’ ANSWER TO COMPLAINT; Case No. 18CV325365 6