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THOMAS J. MURRAY,
DANIEL G. BALICH, ESQ. 278105
GEOFFREY L. MEISNER, ESQ. 304986
ESQ. 154245
F11 ED
KERNSEGAL&MURRAY 2017 DEC 2! A0
1388 Sutter Street, Suite 600
3S
San Franmsco, CA 94109
CLERK OF THE
Tel:(415)474-19oo p p
S UUPNEB'JR
Fax: (415)474-0302
n
Wiflu" SANTA gcRAA
Attorney for Defendants,
SUSAN M. CLARKE and ALBERT K. CLARKE
SUPERIOR COURT OF THE STATE OF CALIFORNIA
SANTA CLARA COUNTY
10 UNLIMITED JURISDICTION
11 LALANI NAILAU, CASE NO.: 16CV299824
12 Plaintiff, ANSWER TO COMPLAINT
13 VS.
l4 SUSAN M. CLARKE; ALBERT K.
CLARKE; AND DOES 1 THROUGH 20,
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Defendants.
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COMES NOW Defendant, SUSAN M. CLARKE and ALBERT K. CLARKE
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(collectively “Defendant”), for themselves alone and no other Defendant in answer to the
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Plaintiffs Unverified Complaint, admit, deny and allege as follows:
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1. Under the pmvisions of Section 431.30 0f the Code of Civil Procedure of the
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State of California, this answering Defendant denies each and every, all and singular,
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generally and specifically, all the allegations of the Plaintiff‘s Complaint, and the whole
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thereof, and further deny that the Plaintiff was damaged in any sum or sums, or at all, as
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alleged herein.
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ANSWER TO COMPLAINT
Filed by Fax
FIRST AFFIRMATIVE DEFENSE
2. This answering Defendant states and alleges that the Plaintiff was negligent
and careless in and about the matters complained of in the Complaint, and that Plaintiffs
negligence and carelessness legally contfibuted to the damages complained of, if any there
were.
SECOND AFFIRMATIVE DEFENSE
3. This answering Defendant alleges that the action complained of was caused by
the negligence 0f the Plaintiff, and the verdict of the jury in favor of the Plaintiff, if any,
which may be rendered in the case, should be reduced by a percentage of the Plaintiff‘s
10 negligence which contributed t0 the accident and damage complained of by Plaintiff.
11 THIRD AFFIRMATIVE DEFENSE
12 4. This answering Defendant alleges that the Plaintiff failed to state facts
13 sufficient to constitute a cause of action against the answering Defendant and is barred by
l4 Code of Civil Procedure Section 335.1.
15 FOURTH AFFIRMATIVE DEFENSE
16 5. This answering Defendant alleges that Plaintiff assumed the risk of harm 0r
17 injury, if any there was, incurred by Plaintifi as alleged in the Complaint. Plaintiff had actual
18 knowledge of the particular danger, Plaintiff knew and understood the degree 0f the risk
19 involved, and Plaintiff voluntarily assumed such risk.
20 FIFTH AFFIRMATIVE DEFENSE
21 6. This answering Defendant alleges that the Plaintifi’s claims are baned by the
22 statute 0f limitations pursuant to Code 0f Civil Procedure Section 335.1.
23 SIXTH AFFIRMATIVE DEFENSE
24 7. This answering Defendant alleges that the damages complained of herein by
25 Plaintiff, if any, were caused by acts and omissions of others than the answering Defendant.
26 SEVENTH AFFIRMATIVE DEFENSE
27 8. This answering Defendant alleges that the Plaintiff failed to comply with the
28 Government Claims Statute set f01th in Califomia Government Code section 945.4 and
ANSWER T0 COMPLAINT
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therefore this claim is barred.
EIGHTH AFFIRMATIVE DEFENSE
9. This answering Defendant states that Plaintiff was under a duty to minimize
the damages and injuries complained of, if any there were; Plaintiff has failed, neglected,
and refused to so minimize such damages and injuries, and by reason of such failure,
neglect and refusal, has increased his damages and injuries, and is not entitled to recover
therefore.
DATED: (Z /’LO A7
KERN SEGAL & MURRAY
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11 By:
/¢\ fl—g
THOMAS J. MURRAY
l2 DANIEL G. BALICH
GEOFFREY L. MEISNER
13 Attorney for Defendants,
SUSAN M. CLARKE and ALBERT K.
14 CLARKE
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ANSWER TO COMPLAINT
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PROOF OF SERVICE BY MAIL
Nailau v. Clarke
Santa Clara County Superior Court Case No. 16CV299824
I declare that:
I am employed in San Francisco County, California. I am over the age of 18 years
and not a party to the within cause; my business address is 1388 Sutter Street, Suite 600,
San Francisco, California 94 1 09.
On the date set forth below, I served a copy of the foregoing document by mail by
placing the same in an envelope, sealing, fully preparing postage thereon, and depositing
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said envelope in the U.S. Mail at San Francisco, California. Said envelope was addressed
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as follows:
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Mailed t0:
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Richard E. Eichenbaum, Esq.
Dan C. Schaar, Esq.
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Caputo & Van Der Walde LLP 1231:1qu
16 51 E. Campbell Avenue, Suite 120
Campbell, CA 95008 ([3115
17 Attorneyfor PlaintiffLALANI NAILA U
Tel: (408) 733—0100
18 Fax: (408) 733-0123 swv
Email: ree@vanderwalde.com
19 dcs@vanderwalde. com
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Documents mailed:
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ANSWER TO COMPLAINT
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I declare under penalty of peljury that the foregoing is true and correct, and that this
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declaration was executed on December 20, 2017 at San Francisco, California.
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.
26 Signed: 5
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CINDY VOONq/V L/
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ANSWER TO COMPLAINT
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THOMAS J. MURRAY, DANIEL G. BALICH, ESQ. 278105 GEOFFREY L. MEISNER, ESQ. 304986 ESQ. 154245 F11 ED KERNSEGAL&MURRAY 2017 DEC 2! A0 1388 Sutter Street, Suite 600 3S San Franmsco, CA 94109 CLERK OF THE Tel:(415)474-19oo p p S UUPNEB'JR Fax: (415)474-0302 n Wiflu" SANTA gcRAA Attorney for Defendants, SUSAN M. CLARKE and ALBERT K. CLARKE SUPERIOR COURT OF THE STATE OF CALIFORNIA SANTA CLARA COUNTY 10 UNLIMITED JURISDICTION 11 LALANI NAILAU, CASE NO.: 16CV299824 12 Plaintiff, ANSWER TO COMPLAINT 13 VS. l4 SUSAN M. CLARKE; ALBERT K. CLARKE; AND DOES 1 THROUGH 20, 15 Defendants. 16 17 COMES NOW Defendant, SUSAN M. CLARKE and ALBERT K. CLARKE 18 (collectively “Defendant”), for themselves alone and no other Defendant in answer to the 19 Plaintiffs Unverified Complaint, admit, deny and allege as follows: 20 1. Under the pmvisions of Section 431.30 0f the Code of Civil Procedure of the 21 State of California, this answering Defendant denies each and every, all and singular, 22 generally and specifically, all the allegations of the Plaintiff‘s Complaint, and the whole 23 thereof, and further deny that the Plaintiff was damaged in any sum or sums, or at all, as 24 alleged herein. 25 /// 26 /// 27 /// 28 ANSWER TO COMPLAINT Filed by Fax FIRST AFFIRMATIVE DEFENSE 2. This answering Defendant states and alleges that the Plaintiff was negligent and careless in and about the matters complained of in the Complaint, and that Plaintiffs negligence and carelessness legally contfibuted to the damages complained of, if any there were. SECOND AFFIRMATIVE DEFENSE 3. This answering Defendant alleges that the action complained of was caused by the negligence 0f the Plaintiff, and the verdict of the jury in favor of the Plaintiff, if any, which may be rendered in the case, should be reduced by a percentage of the Plaintiff‘s 10 negligence which contributed t0 the accident and damage complained of by Plaintiff. 11 THIRD AFFIRMATIVE DEFENSE 12 4. This answering Defendant alleges that the Plaintiff failed to state facts 13 sufficient to constitute a cause of action against the answering Defendant and is barred by l4 Code of Civil Procedure Section 335.1. 15 FOURTH AFFIRMATIVE DEFENSE 16 5. This answering Defendant alleges that Plaintiff assumed the risk of harm 0r 17 injury, if any there was, incurred by Plaintifi as alleged in the Complaint. Plaintiff had actual 18 knowledge of the particular danger, Plaintiff knew and understood the degree 0f the risk 19 involved, and Plaintiff voluntarily assumed such risk. 20 FIFTH AFFIRMATIVE DEFENSE 21 6. This answering Defendant alleges that the Plaintifi’s claims are baned by the 22 statute 0f limitations pursuant to Code 0f Civil Procedure Section 335.1. 23 SIXTH AFFIRMATIVE DEFENSE 24 7. This answering Defendant alleges that the damages complained of herein by 25 Plaintiff, if any, were caused by acts and omissions of others than the answering Defendant. 26 SEVENTH AFFIRMATIVE DEFENSE 27 8. This answering Defendant alleges that the Plaintiff failed to comply with the 28 Government Claims Statute set f01th in Califomia Government Code section 945.4 and ANSWER T0 COMPLAINT _ 2 - therefore this claim is barred. EIGHTH AFFIRMATIVE DEFENSE 9. This answering Defendant states that Plaintiff was under a duty to minimize the damages and injuries complained of, if any there were; Plaintiff has failed, neglected, and refused to so minimize such damages and injuries, and by reason of such failure, neglect and refusal, has increased his damages and injuries, and is not entitled to recover therefore. DATED: (Z /’LO A7 KERN SEGAL & MURRAY 10 11 By: /¢\ fl—g THOMAS J. MURRAY l2 DANIEL G. BALICH GEOFFREY L. MEISNER 13 Attorney for Defendants, SUSAN M. CLARKE and ALBERT K. 14 CLARKE 15 16 l7 18 19 20 21 22 23 24 25 26 27 28 ANSWER TO COMPLAINT _ 3 _ PROOF OF SERVICE BY MAIL Nailau v. Clarke Santa Clara County Superior Court Case No. 16CV299824 I declare that: I am employed in San Francisco County, California. I am over the age of 18 years and not a party to the within cause; my business address is 1388 Sutter Street, Suite 600, San Francisco, California 94 1 09. On the date set forth below, I served a copy of the foregoing document by mail by placing the same in an envelope, sealing, fully preparing postage thereon, and depositing 10 said envelope in the U.S. Mail at San Francisco, California. Said envelope was addressed 11 as follows: 12 13 Mailed t0: 14 Richard E. Eichenbaum, Esq. Dan C. Schaar, Esq. 15 Caputo & Van Der Walde LLP 1231:1qu 16 51 E. Campbell Avenue, Suite 120 Campbell, CA 95008 ([3115 17 Attorneyfor PlaintiffLALANI NAILA U Tel: (408) 733—0100 18 Fax: (408) 733-0123 swv Email: ree@vanderwalde.com 19 dcs@vanderwalde. com 20 Documents mailed: 21 ANSWER TO COMPLAINT 22 23 I declare under penalty of peljury that the foregoing is true and correct, and that this 24 declaration was executed on December 20, 2017 at San Francisco, California. 25 . 26 Signed: 5 27 CINDY VOONq/V L/ 28 ANSWER TO COMPLAINT - 4 -