Preview
Sugrior Court of California F
County of Butte I
_x
DOUGLAS G. MACKAY, SBN130532 L
__DEC 3 2015
VITALE & LOWE 1
E
N
11290 Pyrites Way Suite 210
03
Rancho Cordova, CA 95670-6338
Telephone: 916-851-3750
A Facsimile: 916-851-3770
EzMailz Douqlas.MacKav@Zurichna.com
01
0}
Counsel for Defendants
Manuel Cifuentes; MALGO Enterprises
\I of Nevada, Inc. dba Budget Rent A Car
Sales, (sued erroneously hereinas Malco
CD Enterprises of Nevada, Inc.) and Avis
Budget Group, Inc.
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O SUPERIOR COURT OF THE STATE OF CALIFORNIA
—-‘A
FOR THE COUNTY-OF BUTTE
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Fax
Case
03'
EUGENE CHIMINELLO, No. 16CV01932
J}-
Plaintiff
ANSWER TO COMPLAINT
01
vs.
0')
MANUEL CIFUENTES; MALCO COMPLAINT FILED: SEPTEMBER 26, 2016
ENTERPRISES OF NEVADA, INC. ,AVIS TRIAL DATE:
\I
BUDGET GROUP, INC.; and DOES 1 TO 30,
(b Defendants.
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|.
O
,GENERAL DENIAL
—*
Come now Defendants MANUEL CIFUE'NTES, MALCO. ENTERPRISES OF
N
NEVADA, INC. dba BUDGET RENT A CAR SALES (sued erroneously herein as MALCO
00
Enterprises .of Nevada, Inc.) and AVIS BUDGET GROUP, INC., and respond to and
45
answers Plaintiff’s unverified Complaint '(coIlectively "complaint") on file herein, and allege
U1
as follows: Pursuant to California Code of Civil Procedure § 431.30(d), theses answering
G)
Defendants deny each and every allegation in the complaint, all and singularly, generally
\l
and ‘specifically,'and each and every part and each alleged cause of action thereof; and, in
00
ANSWER To COMPLAINT -’I-
PAGE
—X
that c0nnection, deny that plaintiff has been injured or damaged in the sums alleged, or in
N-
any sum, or at all,by reason of any act or omission of this answering defendants, either
(A)
singularly or collectively.
JE-
‘
ll.
01 FAILURE TO STATE CAUSE OF ACTION
O) These answering defendants allege that said complaint does not state facts
\l sufficient to constitute a cause of action against these defendants eitherjointly, severally or
00 individually.
(0 III.
NO JURISDICTION
These ansWering defendants allege that the above—named cOurt lacks jurisdiction.
lV.
STANDING
These answering defendants allege that plaintiff lacks Standing to sue these
answering defendants either jointly or individually.
V.
STATUTE
‘
OF LIMITATIONS
NNNNNNNNM'-—A—t—k—X—k—x—_X—x_x_z
These answering defendants allege that this complaint, and each cause of-acti'on
thereof, is barred
mxioum-w—xocooowmothwm—no
by the statute of limitations set forth in the California Code of Civil
Procedure, commencing with section 335 and continuing through section 349.4, more
particularly, but not limited to, the follo'wing sections: 312, 315, 335, 337, section 337.1,
section 337.15, section 338, section 339, section 340, section 342, andsection 343; and by
sections 1201(2-.5)(c), 2601, 2602(1), 2513(1). 2513(3), 2510(1), '2605(1)(a), 260,5(1)(b),
2606(1)(a), 2606(1)‘(b), 2607, 2607(3)(a), 2715(2)'(a), 2719(3), 2725(1) and (2) of the
Uniform Commercial Code of the State of California.
//
ANSWER TO COMPLAINT
PAGE _2_
Vl. .
N'—\
'
JUDICIAL ESTOPPEL
I
00 These answering defendants allege that plaintiff’s claims are barred by the doctrine
4:-
of judicial estoppel.
'
01 .
Vll.
O3
WAIVER AND ‘RELEA§E'
\I These answering defendants allege that the Complaint and each of its causes of
00
action are barred because the plaintiff, through statements, actions and conduct, has
(0
voluntarily and knoWingly waived and released all rights, claims and causes of action, if
.
any,- against these answering defendants in this action.
Vlll.
FAILURE TO MITIGATE DA‘MAGEs
These answering defendants allege that plaintiff, with the exercise of reasonable
diligence and effOrt, would have and could have mitigated the damages alleged in the
Complaint, if indeed any there are; that the resultant damages, if any, complained of in said
Complaint were directly and proximately caused. by the failure, negligence and refusal of
the plaintiff to exerciSe reasonable diligence in an effort to mitigate the damages alleged.
IX.
NOT LEGAL/PROXIMATE CAUSE OF INJURY
These answering defendants allege that, as a matter of law, defendants' conduct,
and each of them, Were not the legal, proXimate or other cause of plaintiff's alleged injury or
damages.
//
ANSWER TO COMPLAINT
. PAGE ~3—
X.
.—1
N
COMPARATIVE NEGLIGENCE
(.0 These answering defendants allege that at the time and place referred to in said
A-
complaint and immediately prior thereto, plaintiff was careless and negligent in that plaintiff
01
failed to exercise ordinary care for plaintiff’s own safety, and such carelessness and
O3
negligence on the part of plaintiff proximately caused and contributed to the injuries and
\I
damages complained Of, if any there were; and that by reason of the doctrine of
00
comparative negligence, plaintiff is barred from recovery, in whole and/or in part, of such
(D
_\
portion of said damages, if any, as proximately resulted from the aforementioned conduct.
_~.
These answering defendants allege that other defendants in this lawsuit, as Well as
_.x
other persons and entities not parties to this lawsuit, were themselves responsible for the
._x
plaintiffs damages, if any there were. This answering defendant requests that their liability,
—\
jointly and severally, if any, be assessed in proportion to the liability of other co—defendants,
._x
persons and entities who are not parties to this action, and that these answering
—‘-
defendants be required to pay only for their proportionate share Of fault, if any there be.
-—‘~
-—‘~
XI.
—i
APPORTIONMENT 'OF FAULT
N to each and every cause of action set forth 'inthe complaint, these answering
As
N
defendants allege that to the extent, and only in the event, that they are found liable to
N
plaintiff, either jointly or severally, in any sum whatsoever, which liability defendants
N
expressly deny and dispute, such liability in whole or in part will be the direct or imputed
N
fault and responsibility of other parties to this litigation, be they the plaintiff, cross—
N
complainants or cross-defendants, and/or other third parties. As a result, these defendants
N
N request that in such an event, an apportionment of fault and responsibility be made among
N all parties in accordance with those equitable apportionment principles set forth in Li v.
ANSWER TO'COMPLAINT
p AGE -4-
Yellow Cab Company, 13 Cal.3d 84, and American Motorcvcle Association v. Superior
.x
[\J QM, 20 Cal.3d' 578. These defendants further request that a judgment and declaration of
0.) total or partial indemnification and'distribution issue against all other parties in accordance
h with .such apportionment of fault and responsibility.
01
XII.
O)
PROPOSITION 213
\l
These answering defendants allege that plaintiff was not insured as required by the
(I)
financial responsibility laws of this state and that therefore any judgment which, may be
(0
entered against this defendant shall not include compenSati'on for non-economic losses
including pain, suffering, inconvenience, physical impairment, distigurement and other non—
pecuniary damages.
XIII.
PROPERTY DAMAGE ”SETTLEMENT
These answering defendants allege that the plaintiff has already settled her property
damage and loss of use claims.
NNNNNNNNNA—XAA-A-A-A—LAA
PRAYER
WHEREFORE,
ooxiovawM—xocoooxiou'aoaN—xo
Defendants MANUEL CIFUENTES, MALCO ENTERPRISES OF
NEVADA, INC. dba BUDGET RENT A CAR SALES and AVIS BUDGET GROUP, INC.
and pray that:
1. This lawsuit be tried before a jury; ,
2. Plaintiff’s request for relief, in all respects, bederiied,‘and that plaintiff take
nothing by this action;
3. Judgment be entered dismissing the Complaint and each cause of action alleged
against theSe answering defendants;
ANSWER TO COMPLAINT .5-
_
. pAGE
4. Defendants be awarded costs of suit incurred in this action, including reasonable
attorneys fees; and
5. The Court grant such other and further relief as may be deemed just and proper.
DATED:
cooowouo-rho‘omé
December 13, 2016 VITALE & LOWE
b 6 Ms (3. MACKAY
o nsel fOr Defendants
anuel Cifuentes; MALCO Enterprises .
of Nevada, Inc. dba Budget RentA
Car Sales and Avis Budget Group, Inc.
NN'NNN'NNNNA—X—X—X—X—A—X—A—XA
OON.O)U1-l=-ODN—‘-OQ>M—XO
ANSWER TO COMPLAINT .
p AGE -6-
._L
PROOF OF SERVICE
N
[C.C.P. §§ 1013a AND 2015.5]
00 CASE NAME: .CHIMINELLO v, CIFUENTES, ET AL:
COURT 7 NO: BUTTE COUNTY SUPERIOR COURT#160V01932
A
l, the undersigned, declare as follows:
01
I am employed in the County of Sacramento, State of California. I am oVer the age Of 18
'0)
and not a party to the within action; my business address is 11290 Pyrites Way, Suite 210,
\l Rancho Cordova. CA 956706338.
(I) On this date Iserved the attached, ANSWER TO COMPLAINT
addressed as follows:
.(O
Counsel for Plaintiff
O
_~.
James J. Thompson, Esq.
AA
Law Offices of James J. Thompson
1775 Concord Ave.
N
_\
Chico, CA 95928
530-342—0886
(D
._x
Fax: 530-342-0888
A
—\
01
-‘-
X (BY US. POSTAL SERVICE) I am "readily familiar" with this firm's practice of
A G) processing correspondence for mailing. Under that practice itis deposited with the US.
Postal Service on the same day with postage fully prepaid at Rancho CordoVa CA, in the
\l
A
ordinary course of business. [CCP sections 1012», 1013, 1013(a)]
03
—¥
(BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED) I am "readily familiar"
(0
—\
w—ith this firm's practice of processing correspondence for mailing by Certified Mail with
Return Receipt Requested. Under that practice it isdeposited with the US. Postal Service
NO on the same day with pOStage fully prepaid for the additional services at Rancho CordoVa
CA, in the ordinary course of business. [CCP sections 1012, 1013, 1013(a)]
N -—‘«
NN
_
listed
(BY FACSIMILE)
parties. Said
I caused
transmission was
a true facsimile
reported
to
as complete
be electronically
and
transmitted
without error.
to
A copy of the
the
N (23 transmiSSion report shall be kept within the e-fax database of this company. The original of
this document will be served on the Document Depository herein via US. Pestal Service
NJ}
'
purSuant to the above paragraph if called for pursuant to Pre—Trial Order or Civil Code.
N 01 (BY PERSONAL SERVICE) I caused such envelope to be delivered by hand to the
Office of the. addressee(s) above. [CCP section 1011]
N 0)
TIME SERVED: PERSON SERVED:
N \I
N (X)
ANSWER'TO COMPLAINT -
-7-
PAGE
(BY OVERNIGHT COURIER) By causing a true copy and/or original thereof to be
A
personally delivered via the followingovernight courier service: Federal. Express. [CCP
section 1013]
I declare under penalty of perjury under the laws of the State of California that the foregoing
is true and correct. Executed on DECEMBER 13, 2016. at Rancho Cordova, California.
OOWVOOAWN
Willi
MARC!WBAKE‘R
s.
/l QM
NNNNNNNNNAA-A-A-A-A-A-A—AA
mNOECD-hmM—AOCOOONOUI-t—x
ANSWER TO COMPLAINT .
PAGE ~8-‘
Preview
Sugrior Court of California F County of Butte I _x DOUGLAS G. MACKAY, SBN130532 L __DEC 3 2015 VITALE & LOWE 1 E N 11290 Pyrites Way Suite 210 03 Rancho Cordova, CA 95670-6338 Telephone: 916-851-3750 A Facsimile: 916-851-3770 EzMailz Douqlas.MacKav@Zurichna.com 01 0} Counsel for Defendants Manuel Cifuentes; MALGO Enterprises \I of Nevada, Inc. dba Budget Rent A Car Sales, (sued erroneously hereinas Malco CD Enterprises of Nevada, Inc.) and Avis Budget Group, Inc. (0 O SUPERIOR COURT OF THE STATE OF CALIFORNIA —-‘A FOR THE COUNTY-OF BUTTE N I: ~ Fax Case 03' EUGENE CHIMINELLO, No. 16CV01932 J}- Plaintiff ANSWER TO COMPLAINT 01 vs. 0') MANUEL CIFUENTES; MALCO COMPLAINT FILED: SEPTEMBER 26, 2016 ENTERPRISES OF NEVADA, INC. ,AVIS TRIAL DATE: \I BUDGET GROUP, INC.; and DOES 1 TO 30, (b Defendants. (O |. O ,GENERAL DENIAL —* Come now Defendants MANUEL CIFUE'NTES, MALCO. ENTERPRISES OF N NEVADA, INC. dba BUDGET RENT A CAR SALES (sued erroneously herein as MALCO 00 Enterprises .of Nevada, Inc.) and AVIS BUDGET GROUP, INC., and respond to and 45 answers Plaintiff’s unverified Complaint '(coIlectively "complaint") on file herein, and allege U1 as follows: Pursuant to California Code of Civil Procedure § 431.30(d), theses answering G) Defendants deny each and every allegation in the complaint, all and singularly, generally \l and ‘specifically,'and each and every part and each alleged cause of action thereof; and, in 00 ANSWER To COMPLAINT -’I- PAGE —X that c0nnection, deny that plaintiff has been injured or damaged in the sums alleged, or in N- any sum, or at all,by reason of any act or omission of this answering defendants, either (A) singularly or collectively. JE- ‘ ll. 01 FAILURE TO STATE CAUSE OF ACTION O) These answering defendants allege that said complaint does not state facts \l sufficient to constitute a cause of action against these defendants eitherjointly, severally or 00 individually. (0 III. NO JURISDICTION These ansWering defendants allege that the above—named cOurt lacks jurisdiction. lV. STANDING These answering defendants allege that plaintiff lacks Standing to sue these answering defendants either jointly or individually. V. STATUTE ‘ OF LIMITATIONS NNNNNNNNM'-—A—t—k—X—k—x—_X—x_x_z These answering defendants allege that this complaint, and each cause of-acti'on thereof, is barred mxioum-w—xocooowmothwm—no by the statute of limitations set forth in the California Code of Civil Procedure, commencing with section 335 and continuing through section 349.4, more particularly, but not limited to, the follo'wing sections: 312, 315, 335, 337, section 337.1, section 337.15, section 338, section 339, section 340, section 342, andsection 343; and by sections 1201(2-.5)(c), 2601, 2602(1), 2513(1). 2513(3), 2510(1), '2605(1)(a), 260,5(1)(b), 2606(1)(a), 2606(1)‘(b), 2607, 2607(3)(a), 2715(2)'(a), 2719(3), 2725(1) and (2) of the Uniform Commercial Code of the State of California. // ANSWER TO COMPLAINT PAGE _2_ Vl. . N'—\ ' JUDICIAL ESTOPPEL I 00 These answering defendants allege that plaintiff’s claims are barred by the doctrine 4:- of judicial estoppel. ' 01 . Vll. O3 WAIVER AND ‘RELEA§E' \I These answering defendants allege that the Complaint and each of its causes of 00 action are barred because the plaintiff, through statements, actions and conduct, has (0 voluntarily and knoWingly waived and released all rights, claims and causes of action, if . any,- against these answering defendants in this action. Vlll. FAILURE TO MITIGATE DA‘MAGEs These answering defendants allege that plaintiff, with the exercise of reasonable diligence and effOrt, would have and could have mitigated the damages alleged in the Complaint, if indeed any there are; that the resultant damages, if any, complained of in said Complaint were directly and proximately caused. by the failure, negligence and refusal of the plaintiff to exerciSe reasonable diligence in an effort to mitigate the damages alleged. IX. NOT LEGAL/PROXIMATE CAUSE OF INJURY These answering defendants allege that, as a matter of law, defendants' conduct, and each of them, Were not the legal, proXimate or other cause of plaintiff's alleged injury or damages. // ANSWER TO COMPLAINT . PAGE ~3— X. .—1 N COMPARATIVE NEGLIGENCE (.0 These answering defendants allege that at the time and place referred to in said A- complaint and immediately prior thereto, plaintiff was careless and negligent in that plaintiff 01 failed to exercise ordinary care for plaintiff’s own safety, and such carelessness and O3 negligence on the part of plaintiff proximately caused and contributed to the injuries and \I damages complained Of, if any there were; and that by reason of the doctrine of 00 comparative negligence, plaintiff is barred from recovery, in whole and/or in part, of such (D _\ portion of said damages, if any, as proximately resulted from the aforementioned conduct. _~. These answering defendants allege that other defendants in this lawsuit, as Well as _.x other persons and entities not parties to this lawsuit, were themselves responsible for the ._x plaintiffs damages, if any there were. This answering defendant requests that their liability, —\ jointly and severally, if any, be assessed in proportion to the liability of other co—defendants, ._x persons and entities who are not parties to this action, and that these answering —‘- defendants be required to pay only for their proportionate share Of fault, if any there be. -—‘~ -—‘~ XI. —i APPORTIONMENT 'OF FAULT N to each and every cause of action set forth 'inthe complaint, these answering As N defendants allege that to the extent, and only in the event, that they are found liable to N plaintiff, either jointly or severally, in any sum whatsoever, which liability defendants N expressly deny and dispute, such liability in whole or in part will be the direct or imputed N fault and responsibility of other parties to this litigation, be they the plaintiff, cross— N complainants or cross-defendants, and/or other third parties. As a result, these defendants N N request that in such an event, an apportionment of fault and responsibility be made among N all parties in accordance with those equitable apportionment principles set forth in Li v. ANSWER TO'COMPLAINT p AGE -4- Yellow Cab Company, 13 Cal.3d 84, and American Motorcvcle Association v. Superior .x [\J QM, 20 Cal.3d' 578. These defendants further request that a judgment and declaration of 0.) total or partial indemnification and'distribution issue against all other parties in accordance h with .such apportionment of fault and responsibility. 01 XII. O) PROPOSITION 213 \l These answering defendants allege that plaintiff was not insured as required by the (I) financial responsibility laws of this state and that therefore any judgment which, may be (0 entered against this defendant shall not include compenSati'on for non-economic losses including pain, suffering, inconvenience, physical impairment, distigurement and other non— pecuniary damages. XIII. PROPERTY DAMAGE ”SETTLEMENT These answering defendants allege that the plaintiff has already settled her property damage and loss of use claims. NNNNNNNNNA—XAA-A-A-A—LAA PRAYER WHEREFORE, ooxiovawM—xocoooxiou'aoaN—xo Defendants MANUEL CIFUENTES, MALCO ENTERPRISES OF NEVADA, INC. dba BUDGET RENT A CAR SALES and AVIS BUDGET GROUP, INC. and pray that: 1. This lawsuit be tried before a jury; , 2. Plaintiff’s request for relief, in all respects, bederiied,‘and that plaintiff take nothing by this action; 3. Judgment be entered dismissing the Complaint and each cause of action alleged against theSe answering defendants; ANSWER TO COMPLAINT .5- _ . pAGE 4. Defendants be awarded costs of suit incurred in this action, including reasonable attorneys fees; and 5. The Court grant such other and further relief as may be deemed just and proper. DATED: cooowouo-rho‘omé December 13, 2016 VITALE & LOWE b 6 Ms (3. MACKAY o nsel fOr Defendants anuel Cifuentes; MALCO Enterprises . of Nevada, Inc. dba Budget RentA Car Sales and Avis Budget Group, Inc. NN'NNN'NNNNA—X—X—X—X—A—X—A—XA OON.O)U1-l=-ODN—‘-OQ>M—XO ANSWER TO COMPLAINT . p AGE -6- ._L PROOF OF SERVICE N [C.C.P. §§ 1013a AND 2015.5] 00 CASE NAME: .CHIMINELLO v, CIFUENTES, ET AL: COURT 7 NO: BUTTE COUNTY SUPERIOR COURT#160V01932 A l, the undersigned, declare as follows: 01 I am employed in the County of Sacramento, State of California. I am oVer the age Of 18 '0) and not a party to the within action; my business address is 11290 Pyrites Way, Suite 210, \l Rancho Cordova. CA 956706338. (I) On this date Iserved the attached, ANSWER TO COMPLAINT addressed as follows: .(O Counsel for Plaintiff O _~. James J. Thompson, Esq. AA Law Offices of James J. Thompson 1775 Concord Ave. N _\ Chico, CA 95928 530-342—0886 (D ._x Fax: 530-342-0888 A —\ 01 -‘- X (BY US. POSTAL SERVICE) I am "readily familiar" with this firm's practice of A G) processing correspondence for mailing. Under that practice itis deposited with the US. Postal Service on the same day with postage fully prepaid at Rancho CordoVa CA, in the \l A ordinary course of business. [CCP sections 1012», 1013, 1013(a)] 03 —¥ (BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED) I am "readily familiar" (0 —\ w—ith this firm's practice of processing correspondence for mailing by Certified Mail with Return Receipt Requested. Under that practice it isdeposited with the US. Postal Service NO on the same day with pOStage fully prepaid for the additional services at Rancho CordoVa CA, in the ordinary course of business. [CCP sections 1012, 1013, 1013(a)] N -—‘« NN _ listed (BY FACSIMILE) parties. Said I caused transmission was a true facsimile reported to as complete be electronically and transmitted without error. to A copy of the the N (23 transmiSSion report shall be kept within the e-fax database of this company. The original of this document will be served on the Document Depository herein via US. Pestal Service NJ} ' purSuant to the above paragraph if called for pursuant to Pre—Trial Order or Civil Code. N 01 (BY PERSONAL SERVICE) I caused such envelope to be delivered by hand to the Office of the. addressee(s) above. [CCP section 1011] N 0) TIME SERVED: PERSON SERVED: N \I N (X) ANSWER'TO COMPLAINT - -7- PAGE (BY OVERNIGHT COURIER) By causing a true copy and/or original thereof to be A personally delivered via the followingovernight courier service: Federal. Express. [CCP section 1013] I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on DECEMBER 13, 2016. at Rancho Cordova, California. OOWVOOAWN Willi MARC!WBAKE‘R s. /l QM NNNNNNNNNAA-A-A-A-A-A-A—AA mNOECD-hmM—AOCOOONOUI-t—x ANSWER TO COMPLAINT . PAGE ~8-‘