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1 Lynn E. Evans-Bonzell (SBN: 158354)
LAW OFFICES OF JOHN A. BIARD
2 P.O. Box 64093
St. Paul, Minnesota 55164-0093 2/20/2020
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Telephone: 916-638-6610
4 Direct: 916-638-6457
Facsimile: 855-631-5920
5 E-Mail: levansbo@travelers.com
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Attorneys for Defendants
7 DEAN A. DOERKSEN; ELIZABETH DOERKSEN;
CINNAMON DAWN McDONALD
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9
SUPERIOR COURT OF CALIFORNIA
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COUNTY OF BUTTE
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MADISON HESS, Case No.: 19CV03563
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13 Plaintiff, ANSWER TO COMPLAINT
vs.
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CINNAMON DAWN McDONALD, DEAN A.
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DOERKSEN, ELIZABETH DOERKSEN, and Complaint filed: 11/2512019
16 DOES 1 to 25, inclusive,
17 Defendants.
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19 COMES NOW defendants DEAN A. DOERKSEN, ELIZABETH DOERKSEN, and
20 CINNAMON DAWN McDONALD (hereinafter "these answering defendants"), and answer the
21 complaint on file herein, as follows:
22 1. It appearing herein that the Complaint on file is unverified, therefore, these answering
23 defendants hereby file a general denial pursuant to California Code of Civil Procedure §431.30(d).
24 2. These answering defendants herein deny, generally and specifically, each and every
25 allegation of said Complaint, both conjunctively and disjunctively and the whole thereof, and deny
26 further that plaintiff has been damaged in the sum alleged or in any other sum whatsoever or at all.
27 Ill
28 II I
I
DEFTS. DEAN A. DOERKSEN, ELIZABETH DOERKSEN, AND CINNAMON DAWN McDONALD'S
ANSWERTOCOMPLAINT
1 3. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, these answenng
2 defendants allege that plaintiff's Complaint, and each alleged cause of action therein, fails to state facts
3 sufficient to constitute a cause of action as to these answering defendants.
4 4. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, these answenng
5 defendants allege that at the times and places mentioned in the Complaint, plaintiff was careless,
6 reckless, and negligent in and about the matters and things alleged in the Complaint, which said
7 carelessness, recklessness, and negligence concurred in point of time with the alleged negligence of
8 defendants, if any there may have been, and legally caused and/or contributed to whatever injury
9 and/or damage plaintiff may have sustained, if any, and recovery by plaintiff if any, should be
IO proportionately reduced according to the percentage of fault of plaintiff.
11 5. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, these answermg
12 defendants allege that, in addition to the aforementioned negligence of plaintiff, any injury and/or
13 damage incurred by plaintiff was directly and legally caused and contributed to by the negligence
14 and/or fault of third persons or parties.
15 6. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, these answenng
16 defendants are informed and believe and thereupon allege that plaintiff did, with full knowledge of the
17 facts, dangers, and consequences of her own actions or inaction, and of the actions or inaction of
18 defendants, expressly, impliedly, and voluntarily accept the risk incident thereto.
19 7. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE to each and every
20 alleged cause of action, these answering defendants allege that the events, injuries, losses and damages
21 complained of, if any there were, were the result of an unavoidable accident insofar as these answering
22 defendants are concerned, and occurred without any negligence, want of care, default or other breach
23 of duty on the part of said defendants.
24 8. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, these answenng
25 defendants are informed and believe and thereupon allege that plaintiff, by the exercise of reasonable
26 effort and/or care, could have mitigated the damages alleged to have been suffered, but plaintiff failed,
27 neglected, refused, and continues to fail and refuse, to exercise reasonable effort to mitigate the
28 damages, if any.
2
DEFTS. DEAN A. DOERKSEN, ELIZABETH DOERKSEN, AND CINNAMON DAWN McDONALD'S
ANSWER TO COMPLAINT
1 9. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, these answering
2 defendants allege that the causes of action stated in the Complaint herein are barred by the applicable
3 statute(s) of limitations, including, but not limited to, Code of Civil Procedure §§ 335.1, 337; 337.1;
4 337.15; 337.2; 338; 339; 339.5; 340; 340.5; 340.6; 342; 343; 366.1; and 366.2.
5 10. FOR A FURTHER, SEPARATE, AND DISTINCT DEFENSE, these answenng
6 defendants are informed and believe and thereon allege, that if plaintiff sustained any injuries or
7 damages attributable to the use of or being present on these answering defendants' property, which
8 allegations are expressly denied, said injuries and damages were caused by and attributable to the
9 misuse by plaintiff of these answering defendants' property and by the unreasonable and improper use
10 which was made of these answering defendants' property.
II 11. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, these answermg
12 defendants allege that all the risks and damages, if any there were, connected with the situation at the
13 time and place alleged in plaintiff's Complaint, were open, obvious, and apparent.
14 12. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, these answermg
15 defendants allege that, without admitting any allegation of the Complaint, some of the acts, actions,
16 and activities, as alleged, were committed, if at all, by independent, non-affiliated persons who were
17 not acting on behalf of, or within the course and scope of any relationship with these answering
18 defendants during the time referred to in the Complaint.
19 13. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, these answering
20 defendants allege that, pursuant to California Civil Code § 1431.2, any liability of defendants for non-
21 economic damages is several only and not joint; that defendants are liable, if at all, only for the amount
22 of non-economic damages allocated to such defendants in direct proportion to defendants' percentage
23 offault.
24 14. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, these answering
25 defendants presently have insufficient knowledge or information upon which to form a belief as to
26 whether they may have additional, as yet unstated, affirmative defenses. These answering defendants
27 reserve the right to raise additional affirmative defenses in the event discovery indicates it would be
28 appropriate.
3
DEFTS. DEAN A. DOERKSEN, ELIZABETH DOERKSEN, AND CINNAMON DAWN McDONALD'S
ANSWER TO COMPLAINT
1 15. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, these answenng
2 defendants allege that the alleged condition causing plaintiffs injuries was minor, insignificant, and
3 trivial in nature, and therefore defendants are not liable for plaintiff's damages.
4 WHEREFORE, these answering defendants pray that plaintiff take nothing by reason of her
5 Complaint, and that these answering defendants be given a judgment for their costs of suit incurred
6 herein, to be incurred, and for such other and further relief as the Court may deem just and proper.
7
8 Dated: February ()_Q , 2020 LAW OFFICES OF JOHN A. BIARD
9
10 ~ a. &JOfll,().
Lynn E. Evans-Bonzell
&wrµL
11 Attorneys for Defendants
12 DEAN A. DOERKSEN; ELIZABETH DOERKSEN;
CINNAMON DAWN McDONALD
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DEFTS. DEAN A. DOERKSEN, ELIZABEIB DOERKSEN, AND CINNAMON DAWN McDONALD'S
ANSWER TO COMPLAINT
MADISON HESS. MADISON v. MCDONALD. et al.
1
Butte County Superior Court# 19CV03563
2
PROOF OF SERVICE
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I am employed in the County of Sacramento, State of California I am over the age of 18 years
4
and not a party to the above-captioned matter. My business address is 11070 White Rock Road, Suite 200
5 in Rancho Cordova, California 95670.
6 On this date, I served the foregoing: ANSWER TO COMPLAINT on the parties below by
placing a true copy thereof in a sealed envelope and served same on the parties/counsel, addressed as
7
follows:
8
ATTORNEY FOR PLAINTIFF:
9 J.D. Zink (Joseph Dell)
ZINK&LENZI
10 250 Vallombrosa Avd., Ste. 17 5
Chico, CA 95926
11 Tel: (530) 895-1234
Fax: (530) 895-1254
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EM: jd@zinkandlenzi.com
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The following is the procedure in which service of this document was effected:
15
16 X (BY REGULAR MAIL) by placing such envelope(s) with postage thereon fully prepaid in the
designated area for outgoing mail in accordance with this office's practice, whereby the mail is deposited
17 in a U.S. mailbox after the close of the day's business.
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BY OVERNIGHT COURIER SERVICE: I caused such envelope(s) to be delivered via
19 overnight courier service to the addressee(s) designated.
20 BY E-MAIL: I caused said document(s) to be transmitted to the email address(es) of the
addressee(s) designated, and confirmation is filed with the document in our office.
21
__ (BY FACSIMILE TRANSMITTAL) by placing a true copy thereof into a facsimile machine
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addressed to the person, address and telephone number shown above.
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I, hereby declare, under penalty of perjury, under the laws of the State of California, that the
24 fore oing is true and correct and this document was executed at Rancho Cordova, California on February
16-L~-' 2020.
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PROOF OF SERVICE
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1 Lynn E. Evans-Bonzell (SBN: 158354) LAW OFFICES OF JOHN A. BIARD 2 P.O. Box 64093 St. Paul, Minnesota 55164-0093 2/20/2020 3 Telephone: 916-638-6610 4 Direct: 916-638-6457 Facsimile: 855-631-5920 5 E-Mail: levansbo@travelers.com 6 Attorneys for Defendants 7 DEAN A. DOERKSEN; ELIZABETH DOERKSEN; CINNAMON DAWN McDONALD 8 9 SUPERIOR COURT OF CALIFORNIA 10 COUNTY OF BUTTE 11 MADISON HESS, Case No.: 19CV03563 12 13 Plaintiff, ANSWER TO COMPLAINT vs. 14 CINNAMON DAWN McDONALD, DEAN A. 15 DOERKSEN, ELIZABETH DOERKSEN, and Complaint filed: 11/2512019 16 DOES 1 to 25, inclusive, 17 Defendants. 18 19 COMES NOW defendants DEAN A. DOERKSEN, ELIZABETH DOERKSEN, and 20 CINNAMON DAWN McDONALD (hereinafter "these answering defendants"), and answer the 21 complaint on file herein, as follows: 22 1. It appearing herein that the Complaint on file is unverified, therefore, these answering 23 defendants hereby file a general denial pursuant to California Code of Civil Procedure §431.30(d). 24 2. These answering defendants herein deny, generally and specifically, each and every 25 allegation of said Complaint, both conjunctively and disjunctively and the whole thereof, and deny 26 further that plaintiff has been damaged in the sum alleged or in any other sum whatsoever or at all. 27 Ill 28 II I I DEFTS. DEAN A. DOERKSEN, ELIZABETH DOERKSEN, AND CINNAMON DAWN McDONALD'S ANSWERTOCOMPLAINT 1 3. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, these answenng 2 defendants allege that plaintiff's Complaint, and each alleged cause of action therein, fails to state facts 3 sufficient to constitute a cause of action as to these answering defendants. 4 4. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, these answenng 5 defendants allege that at the times and places mentioned in the Complaint, plaintiff was careless, 6 reckless, and negligent in and about the matters and things alleged in the Complaint, which said 7 carelessness, recklessness, and negligence concurred in point of time with the alleged negligence of 8 defendants, if any there may have been, and legally caused and/or contributed to whatever injury 9 and/or damage plaintiff may have sustained, if any, and recovery by plaintiff if any, should be IO proportionately reduced according to the percentage of fault of plaintiff. 11 5. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, these answermg 12 defendants allege that, in addition to the aforementioned negligence of plaintiff, any injury and/or 13 damage incurred by plaintiff was directly and legally caused and contributed to by the negligence 14 and/or fault of third persons or parties. 15 6. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, these answenng 16 defendants are informed and believe and thereupon allege that plaintiff did, with full knowledge of the 17 facts, dangers, and consequences of her own actions or inaction, and of the actions or inaction of 18 defendants, expressly, impliedly, and voluntarily accept the risk incident thereto. 19 7. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE to each and every 20 alleged cause of action, these answering defendants allege that the events, injuries, losses and damages 21 complained of, if any there were, were the result of an unavoidable accident insofar as these answering 22 defendants are concerned, and occurred without any negligence, want of care, default or other breach 23 of duty on the part of said defendants. 24 8. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, these answenng 25 defendants are informed and believe and thereupon allege that plaintiff, by the exercise of reasonable 26 effort and/or care, could have mitigated the damages alleged to have been suffered, but plaintiff failed, 27 neglected, refused, and continues to fail and refuse, to exercise reasonable effort to mitigate the 28 damages, if any. 2 DEFTS. DEAN A. DOERKSEN, ELIZABETH DOERKSEN, AND CINNAMON DAWN McDONALD'S ANSWER TO COMPLAINT 1 9. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, these answering 2 defendants allege that the causes of action stated in the Complaint herein are barred by the applicable 3 statute(s) of limitations, including, but not limited to, Code of Civil Procedure §§ 335.1, 337; 337.1; 4 337.15; 337.2; 338; 339; 339.5; 340; 340.5; 340.6; 342; 343; 366.1; and 366.2. 5 10. FOR A FURTHER, SEPARATE, AND DISTINCT DEFENSE, these answenng 6 defendants are informed and believe and thereon allege, that if plaintiff sustained any injuries or 7 damages attributable to the use of or being present on these answering defendants' property, which 8 allegations are expressly denied, said injuries and damages were caused by and attributable to the 9 misuse by plaintiff of these answering defendants' property and by the unreasonable and improper use 10 which was made of these answering defendants' property. II 11. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, these answermg 12 defendants allege that all the risks and damages, if any there were, connected with the situation at the 13 time and place alleged in plaintiff's Complaint, were open, obvious, and apparent. 14 12. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, these answermg 15 defendants allege that, without admitting any allegation of the Complaint, some of the acts, actions, 16 and activities, as alleged, were committed, if at all, by independent, non-affiliated persons who were 17 not acting on behalf of, or within the course and scope of any relationship with these answering 18 defendants during the time referred to in the Complaint. 19 13. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, these answering 20 defendants allege that, pursuant to California Civil Code § 1431.2, any liability of defendants for non- 21 economic damages is several only and not joint; that defendants are liable, if at all, only for the amount 22 of non-economic damages allocated to such defendants in direct proportion to defendants' percentage 23 offault. 24 14. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, these answering 25 defendants presently have insufficient knowledge or information upon which to form a belief as to 26 whether they may have additional, as yet unstated, affirmative defenses. These answering defendants 27 reserve the right to raise additional affirmative defenses in the event discovery indicates it would be 28 appropriate. 3 DEFTS. DEAN A. DOERKSEN, ELIZABETH DOERKSEN, AND CINNAMON DAWN McDONALD'S ANSWER TO COMPLAINT 1 15. FOR A FURTHER, SEPARATE AND DISTINCT DEFENSE, these answenng 2 defendants allege that the alleged condition causing plaintiffs injuries was minor, insignificant, and 3 trivial in nature, and therefore defendants are not liable for plaintiff's damages. 4 WHEREFORE, these answering defendants pray that plaintiff take nothing by reason of her 5 Complaint, and that these answering defendants be given a judgment for their costs of suit incurred 6 herein, to be incurred, and for such other and further relief as the Court may deem just and proper. 7 8 Dated: February ()_Q , 2020 LAW OFFICES OF JOHN A. BIARD 9 10 ~ a. &JOfll,(). Lynn E. Evans-Bonzell &wrµL 11 Attorneys for Defendants 12 DEAN A. DOERKSEN; ELIZABETH DOERKSEN; CINNAMON DAWN McDONALD 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 DEFTS. DEAN A. DOERKSEN, ELIZABEIB DOERKSEN, AND CINNAMON DAWN McDONALD'S ANSWER TO COMPLAINT MADISON HESS. MADISON v. MCDONALD. et al. 1 Butte County Superior Court# 19CV03563 2 PROOF OF SERVICE 3 I am employed in the County of Sacramento, State of California I am over the age of 18 years 4 and not a party to the above-captioned matter. My business address is 11070 White Rock Road, Suite 200 5 in Rancho Cordova, California 95670. 6 On this date, I served the foregoing: ANSWER TO COMPLAINT on the parties below by placing a true copy thereof in a sealed envelope and served same on the parties/counsel, addressed as 7 follows: 8 ATTORNEY FOR PLAINTIFF: 9 J.D. Zink (Joseph Dell) ZINK&LENZI 10 250 Vallombrosa Avd., Ste. 17 5 Chico, CA 95926 11 Tel: (530) 895-1234 Fax: (530) 895-1254 12 EM: jd@zinkandlenzi.com 13 14 The following is the procedure in which service of this document was effected: 15 16 X (BY REGULAR MAIL) by placing such envelope(s) with postage thereon fully prepaid in the designated area for outgoing mail in accordance with this office's practice, whereby the mail is deposited 17 in a U.S. mailbox after the close of the day's business. 18 BY OVERNIGHT COURIER SERVICE: I caused such envelope(s) to be delivered via 19 overnight courier service to the addressee(s) designated. 20 BY E-MAIL: I caused said document(s) to be transmitted to the email address(es) of the addressee(s) designated, and confirmation is filed with the document in our office. 21 __ (BY FACSIMILE TRANSMITTAL) by placing a true copy thereof into a facsimile machine 22 addressed to the person, address and telephone number shown above. 23 I, hereby declare, under penalty of perjury, under the laws of the State of California, that the 24 fore oing is true and correct and this document was executed at Rancho Cordova, California on February 16-L~-' 2020. 25 26 27 28 PROOF OF SERVICE