Preview
Electronically Filed
11/12/2020 1:01 PM
Superior Court of California
County of Stanislaus
1 MARIA G. CORDOVA, ESQ., SBN 309778 Clerk of the Court
LAW OFFICES OF DAN D. ENDOSO & ASSOCIATES By: Sabrina Bouldt, Deputy
2 30 River Park Place West, Suite 160
Fresno, California 93720 $435 paid
3 Telephone: (559) 319-9666
Facsimile: (559) 433-6701
4 KILegal@kempercorporation.onmicrosoft.com
5
Attorneys for Defendants,
6 MARIA DE LOURDES HERNANDEZ TORRES AND LEANDRO MERCADO
RAMIREZ
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF STANISLAUS SUPERIOR COURT, CIVIL - UNLIMITED
10
11 CLAUDIA TULAIS-INFANTE, ) CASE NO.: CV-20-002920
)
12 )
Plaintiff, )
13 )
vs. ) ANSWER TO COMPLAINT AND
14 ) DEMAND FOR JURY TRIAL
MARIA DE LOURDES HERNANDEZ )
15 )
TORRES; LEANDRO MERCADO )
RAMIREZ, AND DOES 1 TO 20, )
16 Date Complaint Filed: July 7, 2020
)
17 )
Defendants. )
18
19
COME NOW the defendants, MARIA DE LOURDES HERNANDEZ TORRES AND
20
LEANDRO MERCADO RAMIREZ, answering the Complaint on file herein for themselves
21
only and no other parties, admit, deny and allege:
22
1. Pursuant to the provisions of Section 431.30 of the California Code of Civil
23
Procedure, these answering Defendants deny, both generally and specifically, each and every
24
allegation set forth in the various purported causes of action of said Complaint, deny specifically
25
that Plaintiff is or will be injured or damaged, either as alleged or otherwise, by any act, omission
26
or product of these answering Defendants, or of any of their agents or employees.
27
///
28
1
ANSWER TO COMPLAINT AND DEMAND FOR JURY TRIAL
1 AS A FIRST AFFIRMATIVE DEFENSE,
2 THESE ANSWERING DEFENDANTS ALLEGE:
3 2. Plaintiff was negligent, careless or otherwise at fault in and about the matters
4 herein complained of, which said negligence or fault was the primary and sole cause of the
5 subject incident, and the sole cause of the injuries and/or damages complained of by Plaintiff.
6
7 AS A SECOND AFFIRMATIVE DEFENSE,
8 THESE ANSWERING DEFENDANTS ALLEGE:
9 3. At all times and places mentioned in Plaintiff’s Complaint, Plaintiff was
10 negligent, careless, or otherwise at fault in and about the matters set forth in said Complaint. If
11 Plaintiff sustained any damages or injury, the same were proximately and legally caused and
12 contributed to by the said negligence, carelessness, or otherwise wrongful conduct of Plaintiff,
13 which bars Plaintiff’s recovery herein to the extent of Plaintiff’s fault.
14
15 AS A THIRD AFFIRMATIVE DEFENSE,
16 THESE ANSWERING DEFENDANTS ALLEGE:
17 4. At all relevant times and places, Plaintiff was, or in the exercise of reasonable
18 care, should have been aware of all the circumstances and conditions then and there existing and
19 prevailing, but nonetheless, Plaintiff voluntarily and in full appreciation of the potential
20 consequences thereof, exposed Plaintiff to whatever risks may have been attendant upon such
21 circumstances and conditions. Plaintiff’s recovery, if any, are therefore barred or must be
22 diminished to an extent to be determined by the triers of fact.
23
24 AS A FOURTH AFFIRMATIVE DEFENSE,
25 THESE ANSWERING DEFENDANTS ALLEGE:
26 5. That if said accident and/or injury were caused by negligence, the negligent acts
27 or omissions were by others, including Plaintiff, and not by these answering Defendants.
28 ///
2
ANSWER TO COMPLAINT AND DEMAND FOR JURY TRIAL
1 AS A FIFTH AFFIRMATIVE DEFENSE,
2 THESE ANSWERING DEFENDANTS ALLEGE:
3 6. The Complaint, and each and every cause of action therein, fails to allege facts
4 sufficient to constitute valid causes of action against these answering Defendants.
5
6 AS A SIXTH AFFIRMATIVE DEFENSE,
7 THESE ANSWERING DEFENDANTS ALLEGE:
8 7. The causes of action alleged in Plaintiff’s Complaint are barred by the applicable
9 statutes of limitations including, but not limited to, the provisions of Code of Civil Procedure
10 Section 335.1.
11
12 AS A SEVENTH AFFIRMATIVE DEFENSE,
13 THESE ANSWERING DEFENDANTS ALLEGE:
14 8. Any acts or omissions of these answering Defendants were superseded by the acts
15 or omissions of others, including Plaintiff, which were the sole proximate and legal causes of any
16 injury, damage or loss to the Plaintiff, either as alleged or otherwise.
17
18 AS AN EIGHTH AFFIRMATIVE DEFENSE,
19 THESE ANSWERING DEFENDANTS ALLEGE:
20 9. The acts and omissions of others, including Plaintiff, were intervening,
21 independent, and proximate and legal causes of any injury, damage or loss to Plaintiff, either as
22 alleged or otherwise.
23
24 AS A NINTH AFFIRMATIVE DEFENSE,
25 THESE ANSWERING DEFENDANTS ALLEGE:
26 10. The Complaint, and each cause of action therein, is barred and/or reduced by
27 reason of the limitations on joint and several liability established by Proposition 51, an Initiative
28
3
ANSWER TO COMPLAINT AND DEMAND FOR JURY TRIAL
1
passed by the People of the State of California on June 3, 1986, also known as the Fair
2
Responsibility Act of 1986 (See C.C.P. §1431 et seq.).
3
4 AS A TENTH AFFIRMATIVE DEFENSE,
5 THESE ANSWERING DEFENDANTS ALLEGE:
6 11. Plaintiff, at the time of the incident complained of, was in the course and scope of
7 her employment. Plaintiff’s employer and its agents, servants and employees, acting within the
8 course and scope of their employment, were negligent, careless, and otherwise acted wrongfully
9 in and about the matters referred to in the Complaint, which said negligence, carelessness and
10 wrongful conduct on the part of said employer, its agents, servants and employees, proximately
11 and legally caused or contributed to Plaintiff’s alleged injuries, if there were any; that said
12 negligence, carelessness and wrongful conduct consisted in part of the failure to use practices,
13 means and procedures to prevent the happening of the type of incident complained of by
14 Plaintiff; that these answering Defendants request that the Court apply the principles of Witt v.
15 Jackson, and the subsequent cases modifying that decision, so as to permit the trier of fact to
16 apportion liability according to fault and to offset any judgment against these answering
17 Defendants in the amount of any workers' compensation benefits Plaintiff has or will receive.
18
19 AS AN ELEVENTH AFFIRMATIVE DEFENSE,
20 THESE ANSWERING DEFENDANTS ALLEGE:
21 12. Defendants are informed and believe, and thereupon allege, that at the time of the
22 incident, Plaintiff, herein, was the owner or operator of a vehicle that was not insured as required
23 by the Financial Responsibility Laws of the State of California, and therefore, pursuant to Civil
24 Code Section 3333.4, plaintiff is not entitled to recover non-economic damages.
25 ///
26 ///
27 ///
28 ///
4
ANSWER TO COMPLAINT AND DEMAND FOR JURY TRIAL
1
AS A TWELFTH AFFIRMATIVE DEFENSE,
2
THESE ANSWERING DEFENDANTS ALLEGE:
3
13. Plaintiff has failed to mitigate the damages, if any, which plaintiff has sustained,
4
and to exercise reasonable care to avoid the consequences of harms, if any, in that, among other
5
things, plaintiff has failed to use reasonable diligence in caring for any injuries, failed to use
6
reasonable means to prevent aggravation of any injuries and failed to take reasonable precautions
7
to reduce any injuries and damages.
8
9
AS AN THIRTEENTH AFFIRMATIVE DEFENSE,
10
THESE ANSWERING DEFENDANTS ALLEGE:
11
14. Plaintiff has failed to exercise reasonable care and diligence to avoid loss and to
12
minimize the damages, if any, which plaintiff suffered. Plaintiff has failed to exercise reasonable
13
efforts on her part or to reasonably have made expenditures which could have prevented the
14
losses which plaintiff has allegedly suffered.
15
16
WHEREFORE, these answering Defendants pray for judgment that Plaintiff takes
17
nothing herein as against these answering Defendants, and that the latter may recover their costs,
18
expenses and fees incurred, and to be incurred herein, together with such other relief as may be
19
deemed appropriate by the Court.
20
Defendants hereby demand a trial by jury.
21
22
DATED: November 12, 2020 DAN D. ENDOSO & ASSOCIATES
23
24
25
/s/ Maria "Lupita"
By: ________________________________ Cordova
Maria G. Cordova, Esq.
26 Attorneys for Defendants,
MARIA DE LOURDES HERNANDEZ
27 TORRES AND LEANDRO MERCADO
RAMIREZ
28
5
ANSWER TO COMPLAINT AND DEMAND FOR JURY TRIAL
1 PROOF OF SERVICE
2 STATE OF CALIFORNIA )
3 ) Tulais-Infante v. Hernandez
COUNTY OF FRESNO )
4
I am over the age of 18 and not a party to the within action; my business address is 30
5 River Park Place West, Suite 160, Fresno, California 93720.
6 On November 12, 2020, I served the foregoing document described as ANSWER TO
7 COMPLAINT AND DEMAND FOR JURY TRIAL on the interested parties in this action by
email addressed as follows:
8
Shaun J. Bauman
9 BAUMAN LAW, APLC
10 6800 Owensmouth Avenue, Suite 410
Canoga Park CA 91303
11 info@thela-lawyer.com
Attorneys for Plaintiff
12
13 ___ BY MAIL: I deposited such envelope in the mail in Fresno, California. I am “readily
familiar” with the firm’s practice of collection and processing correspondence for mailing. Under
14 that practice it would be deposited with U.S. postal service on that same day with postage
thereon fully prepaid in Fresno, California in the ordinary course of business. I am aware that on
15 motion of the party served, service is presumed invalid if postal cancellation date or postage
16 meter date is more than one date after date of deposition for mailing in affidavit.
17 _X__ BY ELECTRONIC MAIL: The above-described transmission was reported as complete
without error.
18
19 I declare under penalty of perjury under the laws of the State of California that the above
is true and correct. Executed on November 12, 2020, in Fresno, California.
20
21
22 /s/ Douglas Perez
__________________________
Douglas Perez K72000511
23
24
25
26
27
28
6
ANSWER TO COMPLAINT AND DEMAND FOR JURY TRIAL
Preview
Electronically Filed 11/12/2020 1:01 PM Superior Court of California County of Stanislaus 1 MARIA G. CORDOVA, ESQ., SBN 309778 Clerk of the Court LAW OFFICES OF DAN D. ENDOSO & ASSOCIATES By: Sabrina Bouldt, Deputy 2 30 River Park Place West, Suite 160 Fresno, California 93720 $435 paid 3 Telephone: (559) 319-9666 Facsimile: (559) 433-6701 4 KILegal@kempercorporation.onmicrosoft.com 5 Attorneys for Defendants, 6 MARIA DE LOURDES HERNANDEZ TORRES AND LEANDRO MERCADO RAMIREZ 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF STANISLAUS SUPERIOR COURT, CIVIL - UNLIMITED 10 11 CLAUDIA TULAIS-INFANTE, ) CASE NO.: CV-20-002920 ) 12 ) Plaintiff, ) 13 ) vs. ) ANSWER TO COMPLAINT AND 14 ) DEMAND FOR JURY TRIAL MARIA DE LOURDES HERNANDEZ ) 15 ) TORRES; LEANDRO MERCADO ) RAMIREZ, AND DOES 1 TO 20, ) 16 Date Complaint Filed: July 7, 2020 ) 17 ) Defendants. ) 18 19 COME NOW the defendants, MARIA DE LOURDES HERNANDEZ TORRES AND 20 LEANDRO MERCADO RAMIREZ, answering the Complaint on file herein for themselves 21 only and no other parties, admit, deny and allege: 22 1. Pursuant to the provisions of Section 431.30 of the California Code of Civil 23 Procedure, these answering Defendants deny, both generally and specifically, each and every 24 allegation set forth in the various purported causes of action of said Complaint, deny specifically 25 that Plaintiff is or will be injured or damaged, either as alleged or otherwise, by any act, omission 26 or product of these answering Defendants, or of any of their agents or employees. 27 /// 28 1 ANSWER TO COMPLAINT AND DEMAND FOR JURY TRIAL 1 AS A FIRST AFFIRMATIVE DEFENSE, 2 THESE ANSWERING DEFENDANTS ALLEGE: 3 2. Plaintiff was negligent, careless or otherwise at fault in and about the matters 4 herein complained of, which said negligence or fault was the primary and sole cause of the 5 subject incident, and the sole cause of the injuries and/or damages complained of by Plaintiff. 6 7 AS A SECOND AFFIRMATIVE DEFENSE, 8 THESE ANSWERING DEFENDANTS ALLEGE: 9 3. At all times and places mentioned in Plaintiff’s Complaint, Plaintiff was 10 negligent, careless, or otherwise at fault in and about the matters set forth in said Complaint. If 11 Plaintiff sustained any damages or injury, the same were proximately and legally caused and 12 contributed to by the said negligence, carelessness, or otherwise wrongful conduct of Plaintiff, 13 which bars Plaintiff’s recovery herein to the extent of Plaintiff’s fault. 14 15 AS A THIRD AFFIRMATIVE DEFENSE, 16 THESE ANSWERING DEFENDANTS ALLEGE: 17 4. At all relevant times and places, Plaintiff was, or in the exercise of reasonable 18 care, should have been aware of all the circumstances and conditions then and there existing and 19 prevailing, but nonetheless, Plaintiff voluntarily and in full appreciation of the potential 20 consequences thereof, exposed Plaintiff to whatever risks may have been attendant upon such 21 circumstances and conditions. Plaintiff’s recovery, if any, are therefore barred or must be 22 diminished to an extent to be determined by the triers of fact. 23 24 AS A FOURTH AFFIRMATIVE DEFENSE, 25 THESE ANSWERING DEFENDANTS ALLEGE: 26 5. That if said accident and/or injury were caused by negligence, the negligent acts 27 or omissions were by others, including Plaintiff, and not by these answering Defendants. 28 /// 2 ANSWER TO COMPLAINT AND DEMAND FOR JURY TRIAL 1 AS A FIFTH AFFIRMATIVE DEFENSE, 2 THESE ANSWERING DEFENDANTS ALLEGE: 3 6. The Complaint, and each and every cause of action therein, fails to allege facts 4 sufficient to constitute valid causes of action against these answering Defendants. 5 6 AS A SIXTH AFFIRMATIVE DEFENSE, 7 THESE ANSWERING DEFENDANTS ALLEGE: 8 7. The causes of action alleged in Plaintiff’s Complaint are barred by the applicable 9 statutes of limitations including, but not limited to, the provisions of Code of Civil Procedure 10 Section 335.1. 11 12 AS A SEVENTH AFFIRMATIVE DEFENSE, 13 THESE ANSWERING DEFENDANTS ALLEGE: 14 8. Any acts or omissions of these answering Defendants were superseded by the acts 15 or omissions of others, including Plaintiff, which were the sole proximate and legal causes of any 16 injury, damage or loss to the Plaintiff, either as alleged or otherwise. 17 18 AS AN EIGHTH AFFIRMATIVE DEFENSE, 19 THESE ANSWERING DEFENDANTS ALLEGE: 20 9. The acts and omissions of others, including Plaintiff, were intervening, 21 independent, and proximate and legal causes of any injury, damage or loss to Plaintiff, either as 22 alleged or otherwise. 23 24 AS A NINTH AFFIRMATIVE DEFENSE, 25 THESE ANSWERING DEFENDANTS ALLEGE: 26 10. The Complaint, and each cause of action therein, is barred and/or reduced by 27 reason of the limitations on joint and several liability established by Proposition 51, an Initiative 28 3 ANSWER TO COMPLAINT AND DEMAND FOR JURY TRIAL 1 passed by the People of the State of California on June 3, 1986, also known as the Fair 2 Responsibility Act of 1986 (See C.C.P. §1431 et seq.). 3 4 AS A TENTH AFFIRMATIVE DEFENSE, 5 THESE ANSWERING DEFENDANTS ALLEGE: 6 11. Plaintiff, at the time of the incident complained of, was in the course and scope of 7 her employment. Plaintiff’s employer and its agents, servants and employees, acting within the 8 course and scope of their employment, were negligent, careless, and otherwise acted wrongfully 9 in and about the matters referred to in the Complaint, which said negligence, carelessness and 10 wrongful conduct on the part of said employer, its agents, servants and employees, proximately 11 and legally caused or contributed to Plaintiff’s alleged injuries, if there were any; that said 12 negligence, carelessness and wrongful conduct consisted in part of the failure to use practices, 13 means and procedures to prevent the happening of the type of incident complained of by 14 Plaintiff; that these answering Defendants request that the Court apply the principles of Witt v. 15 Jackson, and the subsequent cases modifying that decision, so as to permit the trier of fact to 16 apportion liability according to fault and to offset any judgment against these answering 17 Defendants in the amount of any workers' compensation benefits Plaintiff has or will receive. 18 19 AS AN ELEVENTH AFFIRMATIVE DEFENSE, 20 THESE ANSWERING DEFENDANTS ALLEGE: 21 12. Defendants are informed and believe, and thereupon allege, that at the time of the 22 incident, Plaintiff, herein, was the owner or operator of a vehicle that was not insured as required 23 by the Financial Responsibility Laws of the State of California, and therefore, pursuant to Civil 24 Code Section 3333.4, plaintiff is not entitled to recover non-economic damages. 25 /// 26 /// 27 /// 28 /// 4 ANSWER TO COMPLAINT AND DEMAND FOR JURY TRIAL 1 AS A TWELFTH AFFIRMATIVE DEFENSE, 2 THESE ANSWERING DEFENDANTS ALLEGE: 3 13. Plaintiff has failed to mitigate the damages, if any, which plaintiff has sustained, 4 and to exercise reasonable care to avoid the consequences of harms, if any, in that, among other 5 things, plaintiff has failed to use reasonable diligence in caring for any injuries, failed to use 6 reasonable means to prevent aggravation of any injuries and failed to take reasonable precautions 7 to reduce any injuries and damages. 8 9 AS AN THIRTEENTH AFFIRMATIVE DEFENSE, 10 THESE ANSWERING DEFENDANTS ALLEGE: 11 14. Plaintiff has failed to exercise reasonable care and diligence to avoid loss and to 12 minimize the damages, if any, which plaintiff suffered. Plaintiff has failed to exercise reasonable 13 efforts on her part or to reasonably have made expenditures which could have prevented the 14 losses which plaintiff has allegedly suffered. 15 16 WHEREFORE, these answering Defendants pray for judgment that Plaintiff takes 17 nothing herein as against these answering Defendants, and that the latter may recover their costs, 18 expenses and fees incurred, and to be incurred herein, together with such other relief as may be 19 deemed appropriate by the Court. 20 Defendants hereby demand a trial by jury. 21 22 DATED: November 12, 2020 DAN D. ENDOSO & ASSOCIATES 23 24 25 /s/ Maria "Lupita" By: ________________________________ Cordova Maria G. Cordova, Esq. 26 Attorneys for Defendants, MARIA DE LOURDES HERNANDEZ 27 TORRES AND LEANDRO MERCADO RAMIREZ 28 5 ANSWER TO COMPLAINT AND DEMAND FOR JURY TRIAL 1 PROOF OF SERVICE 2 STATE OF CALIFORNIA ) 3 ) Tulais-Infante v. Hernandez COUNTY OF FRESNO ) 4 I am over the age of 18 and not a party to the within action; my business address is 30 5 River Park Place West, Suite 160, Fresno, California 93720. 6 On November 12, 2020, I served the foregoing document described as ANSWER TO 7 COMPLAINT AND DEMAND FOR JURY TRIAL on the interested parties in this action by email addressed as follows: 8 Shaun J. Bauman 9 BAUMAN LAW, APLC 10 6800 Owensmouth Avenue, Suite 410 Canoga Park CA 91303 11 info@thela-lawyer.com Attorneys for Plaintiff 12 13 ___ BY MAIL: I deposited such envelope in the mail in Fresno, California. I am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. Under 14 that practice it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid in Fresno, California in the ordinary course of business. I am aware that on 15 motion of the party served, service is presumed invalid if postal cancellation date or postage 16 meter date is more than one date after date of deposition for mailing in affidavit. 17 _X__ BY ELECTRONIC MAIL: The above-described transmission was reported as complete without error. 18 19 I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on November 12, 2020, in Fresno, California. 20 21 22 /s/ Douglas Perez __________________________ Douglas Perez K72000511 23 24 25 26 27 28 6 ANSWER TO COMPLAINT AND DEMAND FOR JURY TRIAL