Preview
Electronically Filed
1/4/2021 3:58 PM
1 GINO BARRICA, ESQ. (SBN 303724) Superior Court of California
TIZA SERRANO THOMPSON & ASSOCIATES County of Stanislaus
2 Employees of the Law Department Clerk of the Court
State Farm Mutual Automobile Insurance Company By: Erin Barnett, Deputy
3 980 9th Street, Suite 2250
Sacramento, CA 95814
4 Telephone: (916) 561-2780
Facsimile: (855) 886-5559
5 Email: gino.barrica@statefarm.com
6 Attorneys for Defendants $435 paid
Katherine Lynn Burkhart and Brent Lee Burkhart
7 $150 paid
8 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF STANISLAUS COUNTY / UNLIMITED JURISDICTION
10
11 JUAN MAGALLON AND MELISSA NO. CV-20-004630
PEDROZA MAGALLON,
12 ANSWER TO UNVERIFIED
Plaintiffs, COMPLAINT AND DEMAND FOR
13 JURY TRIAL
v.
14
KATHERINE LYNN BURKHART, BRENT
15 LEE BURKHART AND DOES 1 TO 25,
16 Defendants.
17 Defendants, KATHERINE LYNN BURKHART AND BRENT LEE BURKHART, in
18 answer to the Unverified Complaint filed by Plaintiffs, JUAN MAGALLON AND MELISSA
19 PEDROZA MAGALLON, herein admit, deny and allege as follows:
20 Under the provisions of Section 431.30 of the Code of Civil Procedure of the State
21 of California, these answering defendants deny, generally and specifically, all and singular,
22 each and every allegation contained in the Unverified Complaint of Plaintiffs herein, and
23 the whole thereof, and specifically deny that Plaintiffs have been injured or damaged as
24 alleged herein, or in any other sum or manner, or otherwise or at all.
25 1. AS A FIRST AFFIRMATIVE DEFENSE to the Complaint and each alleged
26 Cause of Action thereof, these answering defendants allege that Plaintiffs were careless
27 and negligent in and about the matters referred to in said Complaint, and that said
28 carelessness and negligence on Plaintiffs' own part proximately contributed to the
-1-
_______________________________________
Answer to Unverified Complaint and Demand for Jury Trial
1 happening of the incident in question, and to the injuries, loss, and damages complained
2 of, if there were any.
3 2. AS A SECOND AFFIRMATIVE DEFENSE to the Complaint and each
4 alleged Cause of Action thereof, these answering defendants allege that the injuries and
5 damages complained of by Plaintiffs, if there were any, were either wholly or in part directly
6 and proximately caused by the negligence of persons or entities other than these
7 answering defendants, and said negligence comparatively reduces the proportion of
8 negligence and corresponding liability of these answering defendants.
9 3. AS A THIRD AFFIRMATIVE DEFENSE to the Complaint and each alleged
10 Cause of Action thereof, these answering defendants allege that said Complaint fails to
11 state facts sufficient to constitute a cause of action against these answering defendants or
12 at all.
13 4. AS A FOURTH AFFIRMATIVE DEFENSE to the Complaint and each
14 alleged Cause of Action thereof, these answering defendants allege that the injuries, loss
15 and damages complained of, if there were any, were increased by the failure of Plaintiffs
16 to use reasonable diligence to mitigate them.
17 5. AS A FIFTH AFFIRMATIVE DEFENSE to the Complaint and each alleged
18 Cause of Action thereof, these answering defendants allege that if liability is assessed
19 against them, pursuant to Civil Code Section 1431 et seq., these answering defendants
20 shall be liable only for the amount of non-economic damages allocated to them in direct
21 proportion to the percentage of fault assessed against them by the trier of fact and request
22 that a separate judgment be rendered against them for that amount.
23 6. AS A SIXTH AFFIRMATIVE DEFENSE to the Complaint and each alleged
24 Cause of Action thereof, these answering defendants allege that the Complaint and each
25 Cause of Action alleged therein is barred by California Code of Civil Procedure §335.1
26 and/or the applicable statute of limitations, including, but not limited to, California Code of
27 Civil Procedure §§337, 337.1, 337.15, 338, 339, 340.3 and 343.
28 7. AS A SEVENTH AFFIRMATIVE DEFENSE to the Complaint and each
-2-
_______________________________________
Answer to Unverified Complaint and Demand for Jury Trial
1 alleged Cause of Action thereof, these answering defendants allege that Plaintiffs knew,
2 or in the exercise of reasonable care should have known, of the risk and hazards involved
3 in the undertaking in which they engaged, but nevertheless and with full knowledge of
4 these things did fully and voluntarily consent to assume the risk and hazards involved in
5 this undertaking, thereby assuming all risks of any injuries and damages, if any, referred
6 to in the Complaint.
7 8. AS AN EIGHTH AFFIRMATIVE DEFENSE to the Complaint and each
8 alleged Cause of Action, these answering defendants are informed and believe that at all
9 times mentioned herein Plaintiffs were in the course and scope of their employment and
10 that Plaintiffs' exclusive remedy lies within the workers’ compensation laws; or, in the
11 alternative, the injuries sustained by Plaintiffs, if any, were caused or contributed to by the
12 carelessness, negligence or other fault of Plaintiffs' employer and/or said employer’s
13 agents, servants or employees and that from any award made to Plaintiffs these
14 defendants are entitled to a credit, set-off or reduction in damages in an amount in direct
15 proportion to said employer’s and/or said employer’s agents’, servants’ or employees’
16 percentage of fault pursuant to the rule of Witt v. Jackson.
17 WHEREFORE, these answering defendants pray that Plaintiffs take nothing by
18 reason of their Complaint, that these answering defendants have judgment for their costs
19 of suit incurred herein, and for such other and further relief as the Court may deem proper.
20 PLEASE TAKE NOTICE that Defendants, Brent Lee Burkhart and Katherine Lynn
21 Burkhart, demand a jury trial and have deposited jury fees in the amount of $150 with the
22 court pursuant to CCP Section 631.
23 Dated: January 4, 2021 TIZA SERRANO THOMPSON & ASSOCIATES
24
25
26 Gino Barrica
Attorneys for Defendants
27 Katherine Lynn Burkhart and Brent Lee
Burkhart
28 Electronic signature pursuant to Civil Code §1633.7(d).
-3-
_______________________________________
Answer to Unverified Complaint and Demand for Jury Trial
1 PROOF OF SERVICE
2
Magallon et al. v. Burkhart et el.
3 Stanislaus County Superior Court Case No. CV-20-004630
4 I, the undersigned, declare that I am a resident of the United States; employed
in the City of Sacramento and County of Sacramento, State of California; over the age
5 of 18 years; not a party to the within entitled cause; and my business address is 980
6 9th Street, Sacramento, CA 95814.
7 On January 4, 2021, I served the within document(s),
8 ANSWER TO UNVERIFIED COMPLAINT AND DEMAND FOR JURY TRIAL
9 on the interested parties in this action as follows:
10
Attorney(s) for Plaintiff Juan
11 Magallon, Plaintiff Melissa Pedroza
Magallon
12 Simon Esfandi
Compass Law Group, PC
13 8665 Wilshire Boulevard
Beverly Hills, CA 90211
14
simon@cmplawgroup.com
15
16 [ X ] ONLY BY ELECTRONIC SUBMISSION - Pursuant to California Code of Civil Procedure §
1010.6(e)(1), I served a true copy of the aforementioned document(s) via electronic mail on the
17 parties in said action by transmitting by e-mail to the e-mail addresses as set forth above on
this date before 5:00 p.m. No electronic message or other indication that the transmission was
18 unsuccessful was received within a reasonable time after the submission.
19 I declare under penalty of perjury under the laws of the State of California that
the above is true and correct, and that this declaration was executed on January 4,
20 2021, at Sacramento, California.
21
22
Debbie Ali
23
24
25
26
27
28
-1-
_____________________________________
Proof of Service