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MARC C. GESSFORD, ESQ. — State Bar No. 142905
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STRATMAN, PATTERSON, HUNTER& WIESNER
Mailing AddICSS .
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FILED
P. O Box 258829 Oklahoma City, OK 73125- 8829 0 5 2m3
Physical Address BEE
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3 100 Zinfandel Drive, Suite 350 .
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Rancho Cordova, CA 95670 USA -
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503-2777
Phone:
Fax:
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(916)503-2773
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Attorney for Defendant/Counter—Defendant,
FRED MENDEZ
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SUPERIOR COURT OF THE STATEOF CALIFORNIA
FOR THE COUNTY OF STANISLAUS
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DOROTHY BERNAL, DAVID BERNAL, Case NE); 2021243
12 ANGELICA BERNAL, a minor, by and through UNLIMITED JURISDICTION
her guardian ad litem, ROBERT BERNAL, -
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Plaintiffs, ASSIGNED T0 FOR ALL PURPOSES:
l4 ROGER M. BEAUCHESNE
vs. .
DEPT: 24
15
FRED MENDEZ, RALPH JUAREZ, GEORGE ANSWER TO CROSS-COMPLAINT
16 REED CONSTRUCTION, INC, COUNTY OF ’
STANISLAUS, CITY OF MODESTO,
17 CALIFORNIA DEPARTMENT OF
TRANSPORTATION, and DOES 1 through 100
18 inclusive,
19 Defendants.
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21
22.
GEORGE REED, INC,
(~
23 Cross—Complainant,
vs.
24
FRED MENDEZ, RALPHJUAREZ and ROES 1—
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25,
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Cross-Defendants.
27,
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ANSWER TO CROSSéCOMPLAlNT - l
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COMES NOW Cross-Defendant, FRED MENDEZ, and in answer to the Cross-Complaint of
Cross-Complainant, GEORGE REED, INC, 0n file herein admits, denies and alleges as follows:
_
I-
Under the provisions 0f Section 43 1.30 0f the California Code of Civil Procedure, Cross-
Defendants deny each, every and all ofthe allegations of said Cross-Complaint, and the whole thereof,
and denies Cross—Complainant sustained damages in any sum or sum alleged, or in any other sum, or at
all.
II
Further, answering the Cross-Complaint on file herein, and the Wholé thefeof, this answering
10 Cross—Defendant denies that the cross—complainant has sustained any injury; damages or loss, if any, by
11 reason 0f any act 0r omission 0f this answering Cross-Defendant or his agents or employécs.
12 FIRST AFFIRMATIVE DEFENSE
13 That the said Cross-Compla@t does not state facts sufficient to constitute a cause of action
14 against thié answering Cross-D'efendant.
15 SECOND AFFIRMATIVE DEFENSE
16 That Cross—Complainants were‘ careless and negligent with respect to the‘ matters alleged in the
17 Cross—Complaint and that such carelessness and negligence proximately contributed t0 the happening 9f
13 the accident and to the injuries, loss and damages complained and Cross-
0f, if any there were,
19 Complainants’ contributpry negligence either bars orjproportionally reduces any potential recovery.
V
20 THIRD AFFIRMATIVE DEFENSE *
r
21 That Cross—Complainants assumed the risk, if any there was, at the time and place of the accident
22 referred to in this Cross-Coniplaint.
23 FOURTH AFFIRMATIVE DEFENSE
24 That if it isdetermined that Cross-Défendant was negligent, as set forth in the Cross—Complaint,
25 said negligence was secondary and passive as contrasted with the active and primary negligence of the
26 Cross—Complainants and that by reason thereof, Cross—Complainants fie not, as a matter 0f law, entitled
27 t0 recovery from Cross-Defendant on the theory of indemnity.
28
ANSWER TO CROSS:COMPLAINT -2
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FIFTH AFFIRMATIVE DEFENSE
That no relationship existed between CroSs—Complainants and Cross—Defendant that would give
rise t0 indemnity as a resEllt of the matters stated in tfie Cross—Complaint.
SIXTH AFFIRMATIVE DEFENSE
If Cross—Complainants suffered any losses, damages, injuries, and/or harm, such losses, harm,
damages and/or injuries were proximately caused, contributed to and/or initiated by persons and/or
entities other than the answering Cross—Defendant, and the liability 0f all Cross—Defendants named 0r
unnamed, should be apportioned according to their relative degrees of fault, and the liability, if any, 0f
the answering Cross—Defendant should be-reduced accordingly. .
.10 SEVENTH AFFIRMATIVE DEFENSE
11 Under and pursuant to the terms of Civil Code Sections 1431.1 through 1431.5, Cross-
12 Complainants are barred and precluded from recovery against the answering Cross—Defendant for afiy
13 noneconomic damages except those Allocated in direct proportion to the percentage‘of fault allocatedvto
14 answering Cross—Defendant, if any.
15 EIGHTH AFFIRMATIVE DEFENSE
16 If Plaintiffs and/or Cross—Complainant(s), suffered any losses, damages, injuries, and/or harm,
17 such losses, harm, damages and/or injuries were proximately caused, contributed to and/or initiated by
18 persons and/or entities other than the answering Cross-Defendant, and the liability of all Cross—
l9 Defendants named 0r unnamed, should be apportioned according t0 their relative degrees of fault, and
20 the liability, if any, of the answering Cross-Defendant should be reduced accordingly.
21 NINTH AFFIRMATIVE DEFENSE
22 Under and pursuant t0 the terms 0f Civil Codé Sections 143 11 through 1431.5, Plaintiffs and
23 Cross-Complainant(s), are barred and precluded from ?ecovery against the answeringCross—Defendant
24 for any noneconomic damages except those allocated in direct proportion to the percentage 0f fault
25 allocated to answering Cross—Defendant, if any. r
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ANSWER TO CROSS-COMPLAINT -3
i
TENTH AFFIRMATIVE DEFENSE
As and for a further, separate and diStinct affirmative defense to the complaint 0n file herein, it is
hereby alieged upon information and belief that at thé time of the accident described in the complaint,
plaintiffs were in the course and scope of his/her employment with this answering defendant. Therefore,
the Worker’s Compensation statutes and/dr laws and the Worker’s Compensation Appeals Board have
exclusive jurisdiction Over 'and concerning plaintiffs’ claims and as a result the complaint isbarred with
this court having no jurisdiction.
WHEREFORE, Cross-Defendant pray that cross-complainants take nothing by reason of their
10 said CrQSS—Complaint and that Cross-Defendant pray be dismissed hence with his costs.
11 NOTICE
12 By placing the following statement in this Answer t0 Cross-Complaint, neither this Cross-
13 Defendant nor his counsel waives any privilege or obj ection regarding the admissibility of the following
‘
14 statement (or the existence of insuranfie coverage for 'the Cross-Defendant), and requests that this
15 statement be redacted as may be necessary and appropriate to protect the crorss-defendant.
16 All attorfieys and staff 0f the office 0f STRATMAN, PATTERSON, HUNTER & WIESNER are
17 employees of Farmers Insurance Exchange, a Membér of the Farmers Insurance Group 0f Companies,
13 and not a partnership.
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19 DATED: N0§ember _f0_, 2016 STRATMAN, PATTERSON, HUNTER & WIESNER
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22 BY: Mr”
MARC .GE ®RD,ESQ. >
23 Atto for D endant/Counter—Defendant,
FRE z
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ANSWER TO CROSS-COWLAINT - 4
Re: Bernal V. Mendez
Case Number: 2021243
PROOF 0F SERVICE _
Code 0f Civil Procedure §§ 1013a, 2015.5
I am a resideht 0f the State 0f California and over the age 0f eighteen years, ahd not a party t0 the
within action. My busyfi address is 3 100 Zinfandel Drive, Suite 350, Rancho Cordova, CA 95670
USA. On November ,2016, I-served the following document(s):
L
ANSWER TO CROSS—COMPLAINT
y placing the document(s) listed above in a sealed envelope addressed as
'
set forth
below, and placing the envelope for collection and mailing 1n the place designated for
such 1n our offices, following ordinary business practices.
10 By transmitting via facsimile the document(s) listed above t0 the fax number(s) 'set
forth below 0n this date before 5:00 p.m.
i1
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By causing a true copy thereof t0 be personally delivered t0 the person(s) at the
address(es) set forth below.
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14 By electronically serving the document(s) described above via a Court approved File
& Serve vendor on those recipients designated 0n the Transaction Receipt located 0n
15 the vcndor’ s Website.
16
By electromcally serving the document(s) t_othe electronic mail address set forth
17
below 0n this date before 5: 00 p. m pursuant t0 the signed stipulation 0fthe parties
and consistent with Code of Civil Procedure section 1010-. 6(a)(2)
18 SEE ATTACHED SERVICE LIST
19 I am readily familiar with the firm’s practice of collection and processing correspondence for
mailing with the United States Postal Service. Under that practice, it would be deposited with U.S.
20
Postal Service on that same day with postage thereon'fully prepaid in the ordinary course 0f business. I
21 am aware that on motion of the party served, service is presumed invalid if postal cancellation date 0r
postage meter date is more than one day after date 0f deposit for mailing in affidavit.
22
I declare under penalty 0f peljury under the laws 0f the State 0f .-
that the above istrue
23 and correct.
24
Exeguted 0n November «30 , 2016,
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CHRIST AR. J OBSON -
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ANSWER TO CROSS-COMPLAINT - 5
Re: Bernalv. Mendez
Case Number: 2021243
SERVICE LIST
,Wade M. Hansafd
McCormick, Barstow, Sheppard Wayte & Carruth LLP
7647 North Fresno Street
Fresno, CA 93720
Attorney for Plaintiffs Dorothy Bemal, David Bernal Angelica Berna], a minor by and through her
guardian ad litem; Robert Bemal'
Phone: (559) 433- 1300
Fax: (559) 433-2300
Bradley J. Swingle
Arata, Swingle, Sodhi & Van Egmond
PO Box 3287
10
Modesto, CA 95353
Attorney for Defendant, CITY OF MODESTO
Phone: (209) 522-2211
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Fax: (209) 522-2980
bswingle@arata-law.com
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Jenne Scherer
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California Department 0f Transportation - Legal Division
P.O. Box 1438
L1
Sacramento, CA 95812- 1438
Attorney for Defendant, CALIFORNIA DEPARTMENT OF TRANSPORTATION
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Phone. (916) 654— 2630
Fax:
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Gerald E. Brunn
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Law Offices of Brunn & Flynn
P. O. Box 3366
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Modesto, CA. 95354
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Attorney for Defendants/Cross-Complainant, GEORGE REED, INC.
Phone: (209) 521 ~2133
Fax: (209) 521-7584
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ANSWER TO CROSSiCOMPLAINT -6
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.4: MARC C. GESSFORD, ESQ. — State Bar No. 142905 ‘ . 4 V J STRATMAN, PATTERSON, HUNTER& WIESNER Mailing AddICSS . > . FILED P. O Box 258829 Oklahoma City, OK 73125- 8829 0 5 2m3 Physical Address BEE ’ 3 100 Zinfandel Drive, Suite 350 . G OF Rancho Cordova, CA 95670 USA - EEEU mggéfalgficf’um g, a ' 503-2777 Phone: Fax: (916) (916)503-2773 V Gfifl V .WY.. - £3 .. Q; Attorney for Defendant/Counter—Defendant, FRED MENDEZ /\/—I / SUPERIOR COURT OF THE STATEOF CALIFORNIA FOR THE COUNTY OF STANISLAUS 10 11 DOROTHY BERNAL, DAVID BERNAL, Case NE); 2021243 12 ANGELICA BERNAL, a minor, by and through UNLIMITED JURISDICTION her guardian ad litem, ROBERT BERNAL, - 13 Plaintiffs, ASSIGNED T0 FOR ALL PURPOSES: l4 ROGER M. BEAUCHESNE vs. . DEPT: 24 15 FRED MENDEZ, RALPH JUAREZ, GEORGE ANSWER TO CROSS-COMPLAINT 16 REED CONSTRUCTION, INC, COUNTY OF ’ STANISLAUS, CITY OF MODESTO, 17 CALIFORNIA DEPARTMENT OF TRANSPORTATION, and DOES 1 through 100 18 inclusive, 19 Defendants. 20 21 22. GEORGE REED, INC, (~ 23 Cross—Complainant, vs. 24 FRED MENDEZ, RALPHJUAREZ and ROES 1— 25 25, 26 Cross-Defendants. 27, 28 ANSWER TO CROSSéCOMPLAlNT - l .11 COMES NOW Cross-Defendant, FRED MENDEZ, and in answer to the Cross-Complaint of Cross-Complainant, GEORGE REED, INC, 0n file herein admits, denies and alleges as follows: _ I- Under the provisions 0f Section 43 1.30 0f the California Code of Civil Procedure, Cross- Defendants deny each, every and all ofthe allegations of said Cross-Complaint, and the whole thereof, and denies Cross—Complainant sustained damages in any sum or sum alleged, or in any other sum, or at all. II Further, answering the Cross-Complaint on file herein, and the Wholé thefeof, this answering 10 Cross—Defendant denies that the cross—complainant has sustained any injury; damages or loss, if any, by 11 reason 0f any act 0r omission 0f this answering Cross-Defendant or his agents or employécs. 12 FIRST AFFIRMATIVE DEFENSE 13 That the said Cross-Compla@t does not state facts sufficient to constitute a cause of action 14 against thié answering Cross-D'efendant. 15 SECOND AFFIRMATIVE DEFENSE 16 That Cross—Complainants were‘ careless and negligent with respect to the‘ matters alleged in the 17 Cross—Complaint and that such carelessness and negligence proximately contributed t0 the happening 9f 13 the accident and to the injuries, loss and damages complained and Cross- 0f, if any there were, 19 Complainants’ contributpry negligence either bars orjproportionally reduces any potential recovery. V 20 THIRD AFFIRMATIVE DEFENSE * r 21 That Cross—Complainants assumed the risk, if any there was, at the time and place of the accident 22 referred to in this Cross-Coniplaint. 23 FOURTH AFFIRMATIVE DEFENSE 24 That if it isdetermined that Cross-Défendant was negligent, as set forth in the Cross—Complaint, 25 said negligence was secondary and passive as contrasted with the active and primary negligence of the 26 Cross—Complainants and that by reason thereof, Cross—Complainants fie not, as a matter 0f law, entitled 27 t0 recovery from Cross-Defendant on the theory of indemnity. 28 ANSWER TO CROSS:COMPLAINT -2 "\4 m a .u FIFTH AFFIRMATIVE DEFENSE That no relationship existed between CroSs—Complainants and Cross—Defendant that would give rise t0 indemnity as a resEllt of the matters stated in tfie Cross—Complaint. SIXTH AFFIRMATIVE DEFENSE If Cross—Complainants suffered any losses, damages, injuries, and/or harm, such losses, harm, damages and/or injuries were proximately caused, contributed to and/or initiated by persons and/or entities other than the answering Cross—Defendant, and the liability 0f all Cross—Defendants named 0r unnamed, should be apportioned according to their relative degrees of fault, and the liability, if any, 0f the answering Cross—Defendant should be-reduced accordingly. . .10 SEVENTH AFFIRMATIVE DEFENSE 11 Under and pursuant to the terms of Civil Code Sections 1431.1 through 1431.5, Cross- 12 Complainants are barred and precluded from recovery against the answering Cross—Defendant for afiy 13 noneconomic damages except those Allocated in direct proportion to the percentage‘of fault allocatedvto 14 answering Cross—Defendant, if any. 15 EIGHTH AFFIRMATIVE DEFENSE 16 If Plaintiffs and/or Cross—Complainant(s), suffered any losses, damages, injuries, and/or harm, 17 such losses, harm, damages and/or injuries were proximately caused, contributed to and/or initiated by 18 persons and/or entities other than the answering Cross-Defendant, and the liability of all Cross— l9 Defendants named 0r unnamed, should be apportioned according t0 their relative degrees of fault, and 20 the liability, if any, of the answering Cross-Defendant should be reduced accordingly. 21 NINTH AFFIRMATIVE DEFENSE 22 Under and pursuant t0 the terms 0f Civil Codé Sections 143 11 through 1431.5, Plaintiffs and 23 Cross-Complainant(s), are barred and precluded from ?ecovery against the answeringCross—Defendant 24 for any noneconomic damages except those allocated in direct proportion to the percentage 0f fault 25 allocated to answering Cross—Defendant, if any. r I 26 /// 27 /// 28 /// ANSWER TO CROSS-COMPLAINT -3 i TENTH AFFIRMATIVE DEFENSE As and for a further, separate and diStinct affirmative defense to the complaint 0n file herein, it is hereby alieged upon information and belief that at thé time of the accident described in the complaint, plaintiffs were in the course and scope of his/her employment with this answering defendant. Therefore, the Worker’s Compensation statutes and/dr laws and the Worker’s Compensation Appeals Board have exclusive jurisdiction Over 'and concerning plaintiffs’ claims and as a result the complaint isbarred with this court having no jurisdiction. WHEREFORE, Cross-Defendant pray that cross-complainants take nothing by reason of their 10 said CrQSS—Complaint and that Cross-Defendant pray be dismissed hence with his costs. 11 NOTICE 12 By placing the following statement in this Answer t0 Cross-Complaint, neither this Cross- 13 Defendant nor his counsel waives any privilege or obj ection regarding the admissibility of the following ‘ 14 statement (or the existence of insuranfie coverage for 'the Cross-Defendant), and requests that this 15 statement be redacted as may be necessary and appropriate to protect the crorss-defendant. 16 All attorfieys and staff 0f the office 0f STRATMAN, PATTERSON, HUNTER & WIESNER are 17 employees of Farmers Insurance Exchange, a Membér of the Farmers Insurance Group 0f Companies, 13 and not a partnership. - b 19 DATED: N0§ember _f0_, 2016 STRATMAN, PATTERSON, HUNTER & WIESNER 20 21 22 BY: Mr” MARC .GE ®RD,ESQ. > 23 Atto for D endant/Counter—Defendant, FRE z 24 25 26 27 28 ANSWER TO CROSS-COWLAINT - 4 Re: Bernal V. Mendez Case Number: 2021243 PROOF 0F SERVICE _ Code 0f Civil Procedure §§ 1013a, 2015.5 I am a resideht 0f the State 0f California and over the age 0f eighteen years, ahd not a party t0 the within action. My busyfi address is 3 100 Zinfandel Drive, Suite 350, Rancho Cordova, CA 95670 USA. On November ,2016, I-served the following document(s): L ANSWER TO CROSS—COMPLAINT y placing the document(s) listed above in a sealed envelope addressed as ' set forth below, and placing the envelope for collection and mailing 1n the place designated for such 1n our offices, following ordinary business practices. 10 By transmitting via facsimile the document(s) listed above t0 the fax number(s) 'set forth below 0n this date before 5:00 p.m. i1 12 By causing a true copy thereof t0 be personally delivered t0 the person(s) at the address(es) set forth below. 13 14 By electronically serving the document(s) described above via a Court approved File & Serve vendor on those recipients designated 0n the Transaction Receipt located 0n 15 the vcndor’ s Website. 16 By electromcally serving the document(s) t_othe electronic mail address set forth 17 below 0n this date before 5: 00 p. m pursuant t0 the signed stipulation 0fthe parties and consistent with Code of Civil Procedure section 1010-. 6(a)(2) 18 SEE ATTACHED SERVICE LIST 19 I am readily familiar with the firm’s practice of collection and processing correspondence for mailing with the United States Postal Service. Under that practice, it would be deposited with U.S. 20 Postal Service on that same day with postage thereon'fully prepaid in the ordinary course 0f business. I 21 am aware that on motion of the party served, service is presumed invalid if postal cancellation date 0r postage meter date is more than one day after date 0f deposit for mailing in affidavit. 22 I declare under penalty 0f peljury under the laws 0f the State 0f .- that the above istrue 23 and correct. 24 Exeguted 0n November «30 , 2016, 25 26 CHRIST AR. J OBSON - 27 23 ANSWER TO CROSS-COMPLAINT - 5 Re: Bernalv. Mendez Case Number: 2021243 SERVICE LIST ,Wade M. Hansafd McCormick, Barstow, Sheppard Wayte & Carruth LLP 7647 North Fresno Street Fresno, CA 93720 Attorney for Plaintiffs Dorothy Bemal, David Bernal Angelica Berna], a minor by and through her guardian ad litem; Robert Bemal' Phone: (559) 433- 1300 Fax: (559) 433-2300 Bradley J. Swingle Arata, Swingle, Sodhi & Van Egmond PO Box 3287 10 Modesto, CA 95353 Attorney for Defendant, CITY OF MODESTO Phone: (209) 522-2211 11 Fax: (209) 522-2980 bswingle@arata-law.com 12 Jenne Scherer 13 California Department 0f Transportation - Legal Division P.O. Box 1438 L1 Sacramento, CA 95812- 1438 Attorney for Defendant, CALIFORNIA DEPARTMENT OF TRANSPORTATION 15 Phone. (916) 654— 2630 Fax: 16 ‘ Gerald E. Brunn 17 _ Law Offices of Brunn & Flynn P. O. Box 3366 18 Modesto, CA. 95354 19 Attorney for Defendants/Cross-Complainant, GEORGE REED, INC. Phone: (209) 521 ~2133 Fax: (209) 521-7584 20 21 22 23 24 25 26 27 28 ANSWER TO CROSSiCOMPLAINT -6