Preview
Keith Gillette (SBN 191 082)
BULLIVANTHOUSER BAILEY PC
101 Montgomely Sheet, Suite 2600 E E EL E g
San Francisco, CA 94104—4146 SAN M&TEQ COUNTY
Telephone: 415.352.2700
Facsimile: 415.352.2701
E—mail: keith.gillette@bullivant.com
Attorneys for Defendant
OOQOUIADJN
AMERIGAS PROPANE, LP
SUPERIOR-COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN MATEO
00
BRICEIDA LOPEZ, an individual, JOSE Case No.: 18CIV01696
SOLIS, an individual,
ANSWER TO FIRST AMENDED
Plaintiffs, COMPLAINT FOR DAMAGES
v.
PAUL BONIFACIO, an individual;
MARGARET HYUN, an individual;
AMERIGAS PROPANE, INC., a corporation;
AMERIGAS, INC., a corporation; and DOES
ONE through ONE—HUNDRED, inclusive,
Defendants.
Defendant AMERIGAS PROPANE, LP answers the unverified first amended complaint
of plaintiffs BRICEIDA LOPEZ and‘jOSE SOLIS as follows:
Defendant generally denies each and every allegation of plaintiff’s complaint pursqant to
Code 0f Civil Procedure §43 1 .30 and specifically denies that plaintiffs were damaged inany sum
01‘sums alleged, t0 be alleged, 01'at all.
As separate and affirmative defenses t0 the complaint and each cause of action thereof,
defendant alleges as follows:
D1596
A8_DGN_
111
iix1M\iii\?\\\\\\\\\\\\\\\\\\\\
ANSWER TO FIRST AMENDED COMPLAINT FOR DAMAGES
FIRST AFFIRMATIVE DEFENSE
(Failure t0 State a Cause 0f Action)
The first amended complaint and the causes of action alleged therein fail to state facts
.h sufficient to constitute a cause of action against this answering defendant.
SECOND AFFIRMATIVE DEFENSE
4
(Failure to Mitigate Damages)
\DOOQQU‘I
Plaintiffs failed and neglected to mitigate their losses and damages, if any there were,
and recovery isbarred and proportionately reduced accordingly.
THIRD AFFIRMATIVE DEFENSE
10 (Conduct 0f Third Parties)
11 The injuries and damages of which plaintiffs complain, if any there were, were
12 proximately caused by the conduct of persons and/or entities other than this answering
13 defendant, and recovery isbarred or proportionately reduced accordingly.
i
14 FOURTH AFFIRMATIVE DEFENSE
15 (Intervening and Superseding Cause)
16 Defendant is informed and believes, and thereon allege, that plaintiffs’ alleged damages,
17 if any, were a direct and proximate result of the intervening and superseding negligence, fault
18 and/or acts of other parties, and that the intervening and superseding negligence, fault and/or
19 acts of said third parties bar recovery by plaintiffs against this answering defendant.
20 FIFTH AFFIRMATIVE DEFENSE
21 (Plaintiffs’ Comparative Negligence)
22 Plaintiffs were themselves negligent in and about the matters and events set forth in the
23 first amended complaint and said negligence proximately contributed to their alleged damages,
24 if any there were. Any verdict in favor of plaintiffs that may be rendered in this action must
25 therefore be reduced by the percentage 0f that negligence of plaintiffs, which contributed to the
26 damages complained of, ifany there were.
27 ///
28 ///
4852-4692-1089J 36942/00009 —2-
ANSWER TO FIRST AMENDED COMPLAINT FOR DAMAGES
SIXTH AFFIRMA’I‘IVE DEFENSE
(No Causation)
Defendant isinformed and believes, and thereon allege, that any negligence, strict
.p other fault, act or omission on the part 0f each defendant,
liability, 01‘ if any, was neither the
cause-in-fact nor the proximate cause of plaintiffs’ damages, if any. Rather, any such alleged
flail:
acts 01'omissions, ifany, were only secondary, inconsequential, and indirect, and in no way
contributed to or caused plaintiffs’ alleged damages, if any.
SEVENTH AFFIRMATIVE DEFENSE
(Statute of Limitation)
10 The first amended complaint and causes of action therein are barred by the applicable
11 statute of limitations, including, but not limited t0, California Code of Civil Procedfire §335.1, e1
12 seq.
13 EIGHTH AFFIRMATIVE DEFENSE
14 (Contribution and Indemnity)
15 Defendant is informed and believes, and thereon alleges, that itmay have separate
16 causes of action against third parties of which presently unaware.
it is Defendant, therefore,
17 reserves the right to file a cross~comp1aint against third parties for causes of action, including,
18 but not limited to, contribution ahd/or indemnity.
A
19 NINTH AFFIRMA’I‘IVE DEFENSE
20 (Uncertainty of Pleading)
21 The alleged cause of action is so vague, ambiguous and uncertain as to fail toallege facts
22 sufficient to state causes 0f action against each 0r any of the defendants.
23 TENTH AFFIRMATIVE DEFENSE
(Failure to Join Necessary and/or Indispensable Parties)
25 Plaintiffs’ first amended complaint is barred in whole 01‘in part to the extent plaintiffs
26 have failed to join all necessary and indispensable parties needed for a just adjudication 0f this
27 action.
28 ///
4852469240391 36942/00009 —3 —
ANSWER TO FIRST AMENDED COMPLAINT FOR DAMAGES
ELEVENTH AFFERMATEVE DEFENSE
(Proposition 5 1,Fair Responsibility Act of 1986)
provisions of Proposition 51, the Fair Responsibility Act 0f 1986 (Civil
"I‘h’e‘
Code
§§1~430, 143 1, 11431.15 1431.2, 1431.3, 1431.4, 1431.5, and 1432) are applicable t0 thisactiou t0
the extent plaintiffs’ injuries and damages, ifany, were. leg‘al‘ly caused 0r contributed t0 by the
O\
negligence 01'faultof persons 0r entities other than this ansWering defendant.
fl'
WHEREFORB, defendant prays as follows:
09 l. That plaintiffs take nothing by'thcir first amended complaint;
Q 2. For a judgment and, dismissal 0f all claims;
3. For defendant’s costs and disbursements incurred herein;
m.“
4. For attorneys’fécs and costs Cf'suit herein; and
"ms“
. 5. Court deems just, and pmpsr.
For- ‘such other and, further- relief ’as the
M—pw
w
DATED: November 2'8, 20] 8
’
megnm.\,«\...‘......:-.-.xmy
BULLIVAT HOUSER BAILEY PC
m7.“
Ké‘fffiv (3i ”latte
(Defendant
r——,~r—V-m.m-.-.m‘V-V=n.\m—»zw
Attorneys f0
AMERIGAS PROPANE, LP
***$$
4852-46924 089.1 36942700009
-4H
ANSWERTOPREFAMENDEDCOMPLMNTFORDAMAGES
PROOF OF SERVICE
Bricedia Lopez, et a1.v. Paul Bonifacio, et a1.
San Mateo Superior Court No. 18CIV01696
I am employed in the City and County of San Francisco by the law firm 0f Bullivant
Houser Bailey (“the business”), 101 Montgomery Street, Suite 2600, San Francisco, CA 94104.
I am over the age of eighteen (1 8) and not a party to this action. On November 28, 201 8, I served
the document entitled:
ANSWER TO FIRST AMENDED COMPLAINT FOR DAMAGES
upon the following parties:
MATTHEW D DAVIS
Walkup, Melodia, Kelly & Schoenbergm
650 Califomia Stleet, 26‘" Floor
San Flancisco, CA 94108— 2615
Telephone: 415.981.7210
1o Facsimile: 415.391.6965
Email: mdavis@walkuplawoffice.com
11
Attorneys for: Plaintiffs BRICEDIA LOPEZ and JOSE SOLIS
12
JULIE M. AZEVEDO
Lewis Brisbois Bisgaard & Smith, LLP
13
333 Bush Street, Suite 1100
14
San Francisco, CA 94104—2872
Telephone: 415.362.2580
Facsimile: 415.434.0882
15
Email: julie.azevedo@lewisbrisbois.com
16
Attorneys for: Defendants PAUL BONIFACIO and MARGAREG HYUN
17
(x) BY MAIL (CCP $101300): I am readily familiar with the ordinary practice of the
18 business with respect to the collection and processing of couespondence f01 mailing with
the United States Postal Service. I placed a tlue and cmrect copy of the above-titled
19 document 1n an envelope addlessed as above, with filst class postage thereon fully prepaid.
I sealed the afmesaid envelope and placed it f01 collection and mailing by the United
20 States Postal Service in accordance with the ordinary practice of the business.
Correspondence so placed is ordinarily deposited by the business with the United States
Postal Service on the same day.
22 () BY EMAIL OR ELECTRONIC TRANSFER: I caused a copy of the document t0 be
sent from e-mail address roberta.beach@bullivant.com to the persons at the e—mail
23 addlessed listed in the selvice list. I did not, within a reasonable time aftex the
transmission any electronic message or other indication that the tlansmission was
24 unsuccessful.
25 () BY FACSIMILE TRANSMISSION (CCP 81013(e). CRC 2.306): Itransmitted the
document by facsimile transmission by placing it in a facsimile machine (telephone
26 number 415-352-2701) and transmitting it to the facsimile machine telephone number
listed above. A tlansmission lepmt was plopelly issued by the tlansmitting facsimile
27 machine. The nansmission was _rep01ted as complete and without 61101 A true and com ect
copy 0f the txansmission lepon is attached hereto.
28
4852-4692-1089] 36942/00009 — 5 —
ANSWER TO FIRST AMENDED COMPLAINT FOR DAMAGES
() BY OVL RNIGHT DELIVERY (CCP $1 013(0): I am readily familiar with- the mdinaly
plactiCe 0f the business with respect t0 the collection and ploceSsi'n‘g 0f couespondencc
for mailing by Expws’s Mail caxriexs ploviding for ovcmight delively
Ix)»
and othex I placed
a true and con'ect copy 0f the above-titlcd document 1n an envelope addlessed as above
with first class postage thereon fully prepaid. I sealed the aforesaid envelope and placed
it fOr collection and mailing by Express Mail or other carrier for overnight delivery in
-§ accomdance with the ordinary practice 0f the business. Correspondence so placed is
ordinarily deposited b’y the business with Express Mail or other carrier 0n the same day.
UV
‘() BY PERSONAL SERVICE UPON AN ATTORNFY (CCP $1011 (a)): [placed a uue
O\
and correct copy of the 'above- titled document m a sealed envelope addressed as indicated
above Idelivered said envelopes by hand t0 a leccptionist 0r a pexson authmi76d t0 accept
fl same at the addless on the envelope 01, if no pexson was plesent, by leaving the envelope
in a conspicuous place in the office between the heurs 0f nine in the morning and five in
the afternoon.
() BY MESSENGER SERVICE: I placed a true and correct copy of the above-enlitled
document in a Sealed envelope addresSed as indicated above 'and provided it to a
professional messenger service for delivery during normal business hours on this date.
() BY PERSONAL SERVICE UPON A PAR’I‘Y (CCP $10110)»: I placed a hue and
correct copy 0f the above-titled document 1n a sealed enVelope addless'ed as indicated
above. I delivelcd each envelope by hand t0 a person of not less than eighteen (1 8) yeals
0f age at the addless listed on th'e envelope between the houls 0f eight m the morning and
six in the evening.
I declare under penalty 0f perjury, under the laws of the State of“ California, that the
foregoing is true and correct;
Executed 0n November 28, 201 8, at San Francisco, California.
kwégw J";fl/gééwML/
ROBERTA (Z BEACI‘I
*****
4852459240891 36942/00009 -6—
ANSWER TO FIRST AMENDED COMPLAINT FOR DAMAGES
Preview
Keith Gillette (SBN 191 082) BULLIVANTHOUSER BAILEY PC 101 Montgomely Sheet, Suite 2600 E E EL E g San Francisco, CA 94104—4146 SAN M&TEQ COUNTY Telephone: 415.352.2700 Facsimile: 415.352.2701 E—mail: keith.gillette@bullivant.com Attorneys for Defendant OOQOUIADJN AMERIGAS PROPANE, LP SUPERIOR-COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO 00 BRICEIDA LOPEZ, an individual, JOSE Case No.: 18CIV01696 SOLIS, an individual, ANSWER TO FIRST AMENDED Plaintiffs, COMPLAINT FOR DAMAGES v. PAUL BONIFACIO, an individual; MARGARET HYUN, an individual; AMERIGAS PROPANE, INC., a corporation; AMERIGAS, INC., a corporation; and DOES ONE through ONE—HUNDRED, inclusive, Defendants. Defendant AMERIGAS PROPANE, LP answers the unverified first amended complaint of plaintiffs BRICEIDA LOPEZ and‘jOSE SOLIS as follows: Defendant generally denies each and every allegation of plaintiff’s complaint pursqant to Code 0f Civil Procedure §43 1 .30 and specifically denies that plaintiffs were damaged inany sum 01‘sums alleged, t0 be alleged, 01'at all. As separate and affirmative defenses t0 the complaint and each cause of action thereof, defendant alleges as follows: D1596 A8_DGN_ 111 iix1M\iii\?\\\\\\\\\\\\\\\\\\\\ ANSWER TO FIRST AMENDED COMPLAINT FOR DAMAGES FIRST AFFIRMATIVE DEFENSE (Failure t0 State a Cause 0f Action) The first amended complaint and the causes of action alleged therein fail to state facts .h sufficient to constitute a cause of action against this answering defendant. SECOND AFFIRMATIVE DEFENSE 4 (Failure to Mitigate Damages) \DOOQQU‘I Plaintiffs failed and neglected to mitigate their losses and damages, if any there were, and recovery isbarred and proportionately reduced accordingly. THIRD AFFIRMATIVE DEFENSE 10 (Conduct 0f Third Parties) 11 The injuries and damages of which plaintiffs complain, if any there were, were 12 proximately caused by the conduct of persons and/or entities other than this answering 13 defendant, and recovery isbarred or proportionately reduced accordingly. i 14 FOURTH AFFIRMATIVE DEFENSE 15 (Intervening and Superseding Cause) 16 Defendant is informed and believes, and thereon allege, that plaintiffs’ alleged damages, 17 if any, were a direct and proximate result of the intervening and superseding negligence, fault 18 and/or acts of other parties, and that the intervening and superseding negligence, fault and/or 19 acts of said third parties bar recovery by plaintiffs against this answering defendant. 20 FIFTH AFFIRMATIVE DEFENSE 21 (Plaintiffs’ Comparative Negligence) 22 Plaintiffs were themselves negligent in and about the matters and events set forth in the 23 first amended complaint and said negligence proximately contributed to their alleged damages, 24 if any there were. Any verdict in favor of plaintiffs that may be rendered in this action must 25 therefore be reduced by the percentage 0f that negligence of plaintiffs, which contributed to the 26 damages complained of, ifany there were. 27 /// 28 /// 4852-4692-1089J 36942/00009 —2- ANSWER TO FIRST AMENDED COMPLAINT FOR DAMAGES SIXTH AFFIRMA’I‘IVE DEFENSE (No Causation) Defendant isinformed and believes, and thereon allege, that any negligence, strict .p other fault, act or omission on the part 0f each defendant, liability, 01‘ if any, was neither the cause-in-fact nor the proximate cause of plaintiffs’ damages, if any. Rather, any such alleged flail: acts 01'omissions, ifany, were only secondary, inconsequential, and indirect, and in no way contributed to or caused plaintiffs’ alleged damages, if any. SEVENTH AFFIRMATIVE DEFENSE (Statute of Limitation) 10 The first amended complaint and causes of action therein are barred by the applicable 11 statute of limitations, including, but not limited t0, California Code of Civil Procedfire §335.1, e1 12 seq. 13 EIGHTH AFFIRMATIVE DEFENSE 14 (Contribution and Indemnity) 15 Defendant is informed and believes, and thereon alleges, that itmay have separate 16 causes of action against third parties of which presently unaware. it is Defendant, therefore, 17 reserves the right to file a cross~comp1aint against third parties for causes of action, including, 18 but not limited to, contribution ahd/or indemnity. A 19 NINTH AFFIRMA’I‘IVE DEFENSE 20 (Uncertainty of Pleading) 21 The alleged cause of action is so vague, ambiguous and uncertain as to fail toallege facts 22 sufficient to state causes 0f action against each 0r any of the defendants. 23 TENTH AFFIRMATIVE DEFENSE (Failure to Join Necessary and/or Indispensable Parties) 25 Plaintiffs’ first amended complaint is barred in whole 01‘in part to the extent plaintiffs 26 have failed to join all necessary and indispensable parties needed for a just adjudication 0f this 27 action. 28 /// 4852469240391 36942/00009 —3 — ANSWER TO FIRST AMENDED COMPLAINT FOR DAMAGES ELEVENTH AFFERMATEVE DEFENSE (Proposition 5 1,Fair Responsibility Act of 1986) provisions of Proposition 51, the Fair Responsibility Act 0f 1986 (Civil "I‘h’e‘ Code §§1~430, 143 1, 11431.15 1431.2, 1431.3, 1431.4, 1431.5, and 1432) are applicable t0 thisactiou t0 the extent plaintiffs’ injuries and damages, ifany, were. leg‘al‘ly caused 0r contributed t0 by the O\ negligence 01'faultof persons 0r entities other than this ansWering defendant. fl' WHEREFORB, defendant prays as follows: 09 l. That plaintiffs take nothing by'thcir first amended complaint; Q 2. For a judgment and, dismissal 0f all claims; 3. For defendant’s costs and disbursements incurred herein; m.“ 4. For attorneys’fécs and costs Cf'suit herein; and "ms“ . 5. Court deems just, and pmpsr. For- ‘such other and, further- relief ’as the M—pw w DATED: November 2'8, 20] 8 ’ megnm.\,«\...‘......:-.-.xmy BULLIVAT HOUSER BAILEY PC m7.“ Ké‘fffiv (3i ”latte (Defendant r——,~r—V-m.m-.-.m‘V-V=n.\m—»zw Attorneys f0 AMERIGAS PROPANE, LP ***$$ 4852-46924 089.1 36942700009 -4H ANSWERTOPREFAMENDEDCOMPLMNTFORDAMAGES PROOF OF SERVICE Bricedia Lopez, et a1.v. Paul Bonifacio, et a1. San Mateo Superior Court No. 18CIV01696 I am employed in the City and County of San Francisco by the law firm 0f Bullivant Houser Bailey (“the business”), 101 Montgomery Street, Suite 2600, San Francisco, CA 94104. I am over the age of eighteen (1 8) and not a party to this action. On November 28, 201 8, I served the document entitled: ANSWER TO FIRST AMENDED COMPLAINT FOR DAMAGES upon the following parties: MATTHEW D DAVIS Walkup, Melodia, Kelly & Schoenbergm 650 Califomia Stleet, 26‘" Floor San Flancisco, CA 94108— 2615 Telephone: 415.981.7210 1o Facsimile: 415.391.6965 Email: mdavis@walkuplawoffice.com 11 Attorneys for: Plaintiffs BRICEDIA LOPEZ and JOSE SOLIS 12 JULIE M. AZEVEDO Lewis Brisbois Bisgaard & Smith, LLP 13 333 Bush Street, Suite 1100 14 San Francisco, CA 94104—2872 Telephone: 415.362.2580 Facsimile: 415.434.0882 15 Email: julie.azevedo@lewisbrisbois.com 16 Attorneys for: Defendants PAUL BONIFACIO and MARGAREG HYUN 17 (x) BY MAIL (CCP $101300): I am readily familiar with the ordinary practice of the 18 business with respect to the collection and processing of couespondence f01 mailing with the United States Postal Service. I placed a tlue and cmrect copy of the above-titled 19 document 1n an envelope addlessed as above, with filst class postage thereon fully prepaid. I sealed the afmesaid envelope and placed it f01 collection and mailing by the United 20 States Postal Service in accordance with the ordinary practice of the business. Correspondence so placed is ordinarily deposited by the business with the United States Postal Service on the same day. 22 () BY EMAIL OR ELECTRONIC TRANSFER: I caused a copy of the document t0 be sent from e-mail address roberta.beach@bullivant.com to the persons at the e—mail 23 addlessed listed in the selvice list. I did not, within a reasonable time aftex the transmission any electronic message or other indication that the tlansmission was 24 unsuccessful. 25 () BY FACSIMILE TRANSMISSION (CCP 81013(e). CRC 2.306): Itransmitted the document by facsimile transmission by placing it in a facsimile machine (telephone 26 number 415-352-2701) and transmitting it to the facsimile machine telephone number listed above. A tlansmission lepmt was plopelly issued by the tlansmitting facsimile 27 machine. The nansmission was _rep01ted as complete and without 61101 A true and com ect copy 0f the txansmission lepon is attached hereto. 28 4852-4692-1089] 36942/00009 — 5 — ANSWER TO FIRST AMENDED COMPLAINT FOR DAMAGES () BY OVL RNIGHT DELIVERY (CCP $1 013(0): I am readily familiar with- the mdinaly plactiCe 0f the business with respect t0 the collection and ploceSsi'n‘g 0f couespondencc for mailing by Expws’s Mail caxriexs ploviding for ovcmight delively Ix)» and othex I placed a true and con'ect copy 0f the above-titlcd document 1n an envelope addlessed as above with first class postage thereon fully prepaid. I sealed the aforesaid envelope and placed it fOr collection and mailing by Express Mail or other carrier for overnight delivery in -§ accomdance with the ordinary practice 0f the business. Correspondence so placed is ordinarily deposited b’y the business with Express Mail or other carrier 0n the same day. UV ‘() BY PERSONAL SERVICE UPON AN ATTORNFY (CCP $1011 (a)): [placed a uue O\ and correct copy of the 'above- titled document m a sealed envelope addressed as indicated above Idelivered said envelopes by hand t0 a leccptionist 0r a pexson authmi76d t0 accept fl same at the addless on the envelope 01, if no pexson was plesent, by leaving the envelope in a conspicuous place in the office between the heurs 0f nine in the morning and five in the afternoon. () BY MESSENGER SERVICE: I placed a true and correct copy of the above-enlitled document in a Sealed envelope addresSed as indicated above 'and provided it to a professional messenger service for delivery during normal business hours on this date. () BY PERSONAL SERVICE UPON A PAR’I‘Y (CCP $10110)»: I placed a hue and correct copy 0f the above-titled document 1n a sealed enVelope addless'ed as indicated above. I delivelcd each envelope by hand t0 a person of not less than eighteen (1 8) yeals 0f age at the addless listed on th'e envelope between the houls 0f eight m the morning and six in the evening. I declare under penalty 0f perjury, under the laws of the State of“ California, that the foregoing is true and correct; Executed 0n November 28, 201 8, at San Francisco, California. kwégw J";fl/gééwML/ ROBERTA (Z BEACI‘I ***** 4852459240891 36942/00009 -6— ANSWER TO FIRST AMENDED COMPLAINT FOR DAMAGES