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1 DIEPENBROCK & COTTER, LLP Electronically Filed
JOHN P. COTTER, State Bar No. 158783 11/30/2020 9:16 AM
2 BRIAN J. O’CONNOR, State Bar No. 155159 Superior Court of California
1435 River Park Drive, Suite 400 County of Stanislaus
3 Sacramento, California 95815 Clerk of the Court
T. (916) 565-6222 | F. (916) 565-6220 By: Marie Brillon, Deputy
4 E. bjo@diepenbrockcotter.com
5 Attorneys for Defendant $435 PD
FOGLIO HAY SALES, INC. and
6 ROBERTO SATILLAN GUERRERO
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8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF STANISLAUS
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11 GUSTAVO PEREZ, Case No.: CV-20-004641
12 ANSWER TO COMPLAINT AND
Plaintiff,
DEMAND FOR JURY TRIAL
13
vs.
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FOGLIO HAY SALES, INC., ROBERTO
15 SATILLAN GUERRERO and DOES 1 to 10, Complaint Filed: 10/20/2020
inclusive, Trial Date: None
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17 Defendants.
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19 COME NOW defendants FOGLIO HAY SALES, INC. and ROBERTO SATILLAN
20 GUERRERO (hereinafter collectively referred to as “defendants”) and respond to the complaint
21 of plaintiff GUSTAVO PEREZ (hereinafter referred to as “plaintiff”), as follows:
22 I.
23 GENERAL DENIAL
24 These answering defendants deny both generally and specifically each, every and all of
25 the allegations contained in said complaint and deny that plaintiffs sustained damages in the sum
26 or sums alleged, or in any other sum or sums, or at all.
27 ///
28 ///
1
ANSWER TO COMPLAINT AND DEMAND FOR JURY TRIAL
1 II.
2 AFFIRMATIVE DEFENSES
3 AS SEPARATE AND DISTINCT AFFIRMATIVE DEFENSES, DEFENDANTS
4 ALLEGE AS FOLLOWS:
5 1. The complaint and each cause of action does not state facts sufficient to constitute
6 a cause of action against these answering defendants.
7 2. Plaintiff was contributory and/or comparatively careless and negligent and/or
8 otherwise at fault in and about and with respect to the matters alleged and referred to in the
9 Complaint, and said carelessness, negligence and/or fault on said plaintiff’s part proximately
10 caused and/or contributed to the happening of the subject occurrence(s) and to the alleged
11 injuries, losses and damages. Plaintiff’s comparative and/or contributory negligence and/or fault
12 shall proportionately reduce any and all injuries, losses and/or damages sustained by plaintiff.
13 3. Plaintiff’s alleged injuries, losses, and/or damages, if any, arose from certain risks,
14 dangers and/or hazards, all of which were open, obvious and known to the plaintiff at and before
15 the time of said injuries, losses and/or damages were sustained, and all of said risk, dangers
16 and/or hazards, if any, were voluntarily assumed by the plaintiff.
17 4. The Complaint and each cause of action is barred by the statute of limitations as
18 set forth in the California Code of Civil Procedure commencing with section 335.1, 337.1, 340.2,
19 340.8, 343.
20 5. The plaintiff has failed to mitigate or minimize damages, if there were any, in that
21 plaintiff failed to properly maintain, or otherwise conduct their activities, and otherwise failed to
22 take adequate measures to minimize damages, expenditures and costs.
23 6. At all times mentioned in the Complaint, any damages, or loss, if any, allegedly
24 suffered by plaintiff herein was directly and proximately caused and contributed to by the
25 negligence or fault of persons or entities separate and apart from these answering defendants,
26 whether they be named or unnamed in the within action. In the event a finding is made that
27 defendants are legally and/or proximately contributed to any injuries and/or damages, plaintiff’s
28 amount of recovery from these answering defendants, if any, shall be reduced on the basis of the
2
ANSWER TO COMPLAINT AND DEMAND FOR JURY TRIAL
1 comparative negligence of such other persons, named or unnamed, which these answering
2 defendants allege directly and proximately caused plaintiff’s injuries and/or damages.
3 7. Should plaintiff recover damages from these answering defendants, defendants
4 allege that they are entitled to indemnification and/or contribution, either in whole or in part, from
5 all persons and entities whose negligence and/or fault proximately contributes to plaintiff’s
6 damages, if any there are.
7 8. These answering defendants are informed and believe, and thereon allege that the
8 injuries and damages of which plaintiff complains were proximately caused by or contributed to
9 by the acts of other defendants, cross-defendants, persons, and/or entities, and that said acts were
10 an intervening and superseding cause of the injuries and damages, if any, of which plaintiff
11 complains, thus barring plaintiff from any recovery against these answering defendants.
12 9. Defendants allege that if they have any liability to plaintiff in this action, which is
13 denied, they are only severally liable for plaintiff’s non-economic damages under Civil Code
14 section 1431.2 and defendants request a judicial determination of the percentage of their
15 negligence, if any, which proximately contributed to the accident.
16 10. Defendants reserve the right to amend their answer to assert any additional
17 affirmative defenses based upon either the law of California or facts and circumstances which
18 may be disclosed throughout the course of discovery herein, to the extent applicable.
19 WHEREFORE, defendants pray for judgment as follows:
20 1. Defendants request a jury trial;
21 2. That the complaint on file herein and each cause of action therein contained be
22 hence dismissed;
23 3. That defendants be awarded costs of suit incurred herein, including attorney's fees;
24 and
25 //
26 //
27 //
28 //
3
ANSWER TO COMPLAINT AND DEMAND FOR JURY TRIAL
1 4. For such other and further relief as the Court deems fit and proper.
2
3 DATED: November 6, 2020 DIEPENBROCK & COTTER, LLP
4
By:
5 JOHN P. COTTER
BRIAN J. O’CONNOR
6 Attorneys for Defendant
FOGLIO HAY SALES, INC.,
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ANSWER TO COMPLAINT AND DEMAND FOR JURY TRIAL
1 Gustavo Perez v. Foglio Hay Sales, Inc., , et al.
Stanislaus County Superior Court Case No.: CV-20-004641
2
PROOF OF SERVICE
3
CCP § 1012, 1013 2015.5; CRC, Rules 2.306, 2.251
4
I, the undersigned, declare that:
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I am employed in the County of Sacramento, State of California. I am over 18 years of
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age and not a party to the within action; my business address is 1435 River Park Drive, Suite 400,
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Sacramento, California 95815.
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On the indicated date below, I served the following document(s) described as:
9
10 ANSWER TO COMPLAINT AND DEMAND FOR JURY TRIAL
11
BY MAIL: I placed the envelope for collection and mailing, following our ordinary business practices. I
12 am readily familiar with this business’s practices for collecting and processing correspondence for mailing.
On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary
13 course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid.
BY ELECTRONIC SERVICE: Pursuant to California Rules of Court 2.251 I electronically served those
14 documents listed and enumerated above. Each document references the electronic name of the file that was
transmitted. Electronic service was completed to the electronic address listed below. My electronic service
15 address is: karen@diepenbrockcotter.com. Electronic service was completed prior to 11:59 p.m. (PST).
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On the following interested parties in this action:
17
Christopher W. Wood
18 Larry Q. Phan
DREYER BABICH BUCCOLA WOOD CAMPORA
19 20 Bicentennial Circle
Sacramento, CA 95826
20 T: (916) 379-3500 | F: (916) 379-3599
lphan@dbbwc.com; cwood@dbbwc.com; eplaceres@dbbwc.com
21 ATTORNEY FOR PLAINTIFF
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I declare under penalty of perjury under the laws of the State of California that the
23
foregoing is true and correct. Executed on November 6, 2020, at Sacramento, California.
24
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KAREN JACKSON
26
27
28
5
ANSWER TO COMPLAINT AND DEMAND FOR JURY TRIAL
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1 DIEPENBROCK & COTTER, LLP Electronically Filed JOHN P. COTTER, State Bar No. 158783 11/30/2020 9:16 AM 2 BRIAN J. O’CONNOR, State Bar No. 155159 Superior Court of California 1435 River Park Drive, Suite 400 County of Stanislaus 3 Sacramento, California 95815 Clerk of the Court T. (916) 565-6222 | F. (916) 565-6220 By: Marie Brillon, Deputy 4 E. bjo@diepenbrockcotter.com 5 Attorneys for Defendant $435 PD FOGLIO HAY SALES, INC. and 6 ROBERTO SATILLAN GUERRERO 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF STANISLAUS 10 11 GUSTAVO PEREZ, Case No.: CV-20-004641 12 ANSWER TO COMPLAINT AND Plaintiff, DEMAND FOR JURY TRIAL 13 vs. 14 FOGLIO HAY SALES, INC., ROBERTO 15 SATILLAN GUERRERO and DOES 1 to 10, Complaint Filed: 10/20/2020 inclusive, Trial Date: None 16 17 Defendants. 18 19 COME NOW defendants FOGLIO HAY SALES, INC. and ROBERTO SATILLAN 20 GUERRERO (hereinafter collectively referred to as “defendants”) and respond to the complaint 21 of plaintiff GUSTAVO PEREZ (hereinafter referred to as “plaintiff”), as follows: 22 I. 23 GENERAL DENIAL 24 These answering defendants deny both generally and specifically each, every and all of 25 the allegations contained in said complaint and deny that plaintiffs sustained damages in the sum 26 or sums alleged, or in any other sum or sums, or at all. 27 /// 28 /// 1 ANSWER TO COMPLAINT AND DEMAND FOR JURY TRIAL 1 II. 2 AFFIRMATIVE DEFENSES 3 AS SEPARATE AND DISTINCT AFFIRMATIVE DEFENSES, DEFENDANTS 4 ALLEGE AS FOLLOWS: 5 1. The complaint and each cause of action does not state facts sufficient to constitute 6 a cause of action against these answering defendants. 7 2. Plaintiff was contributory and/or comparatively careless and negligent and/or 8 otherwise at fault in and about and with respect to the matters alleged and referred to in the 9 Complaint, and said carelessness, negligence and/or fault on said plaintiff’s part proximately 10 caused and/or contributed to the happening of the subject occurrence(s) and to the alleged 11 injuries, losses and damages. Plaintiff’s comparative and/or contributory negligence and/or fault 12 shall proportionately reduce any and all injuries, losses and/or damages sustained by plaintiff. 13 3. Plaintiff’s alleged injuries, losses, and/or damages, if any, arose from certain risks, 14 dangers and/or hazards, all of which were open, obvious and known to the plaintiff at and before 15 the time of said injuries, losses and/or damages were sustained, and all of said risk, dangers 16 and/or hazards, if any, were voluntarily assumed by the plaintiff. 17 4. The Complaint and each cause of action is barred by the statute of limitations as 18 set forth in the California Code of Civil Procedure commencing with section 335.1, 337.1, 340.2, 19 340.8, 343. 20 5. The plaintiff has failed to mitigate or minimize damages, if there were any, in that 21 plaintiff failed to properly maintain, or otherwise conduct their activities, and otherwise failed to 22 take adequate measures to minimize damages, expenditures and costs. 23 6. At all times mentioned in the Complaint, any damages, or loss, if any, allegedly 24 suffered by plaintiff herein was directly and proximately caused and contributed to by the 25 negligence or fault of persons or entities separate and apart from these answering defendants, 26 whether they be named or unnamed in the within action. In the event a finding is made that 27 defendants are legally and/or proximately contributed to any injuries and/or damages, plaintiff’s 28 amount of recovery from these answering defendants, if any, shall be reduced on the basis of the 2 ANSWER TO COMPLAINT AND DEMAND FOR JURY TRIAL 1 comparative negligence of such other persons, named or unnamed, which these answering 2 defendants allege directly and proximately caused plaintiff’s injuries and/or damages. 3 7. Should plaintiff recover damages from these answering defendants, defendants 4 allege that they are entitled to indemnification and/or contribution, either in whole or in part, from 5 all persons and entities whose negligence and/or fault proximately contributes to plaintiff’s 6 damages, if any there are. 7 8. These answering defendants are informed and believe, and thereon allege that the 8 injuries and damages of which plaintiff complains were proximately caused by or contributed to 9 by the acts of other defendants, cross-defendants, persons, and/or entities, and that said acts were 10 an intervening and superseding cause of the injuries and damages, if any, of which plaintiff 11 complains, thus barring plaintiff from any recovery against these answering defendants. 12 9. Defendants allege that if they have any liability to plaintiff in this action, which is 13 denied, they are only severally liable for plaintiff’s non-economic damages under Civil Code 14 section 1431.2 and defendants request a judicial determination of the percentage of their 15 negligence, if any, which proximately contributed to the accident. 16 10. Defendants reserve the right to amend their answer to assert any additional 17 affirmative defenses based upon either the law of California or facts and circumstances which 18 may be disclosed throughout the course of discovery herein, to the extent applicable. 19 WHEREFORE, defendants pray for judgment as follows: 20 1. Defendants request a jury trial; 21 2. That the complaint on file herein and each cause of action therein contained be 22 hence dismissed; 23 3. That defendants be awarded costs of suit incurred herein, including attorney's fees; 24 and 25 // 26 // 27 // 28 // 3 ANSWER TO COMPLAINT AND DEMAND FOR JURY TRIAL 1 4. For such other and further relief as the Court deems fit and proper. 2 3 DATED: November 6, 2020 DIEPENBROCK & COTTER, LLP 4 By: 5 JOHN P. COTTER BRIAN J. O’CONNOR 6 Attorneys for Defendant FOGLIO HAY SALES, INC., 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 ANSWER TO COMPLAINT AND DEMAND FOR JURY TRIAL 1 Gustavo Perez v. Foglio Hay Sales, Inc., , et al. Stanislaus County Superior Court Case No.: CV-20-004641 2 PROOF OF SERVICE 3 CCP § 1012, 1013 2015.5; CRC, Rules 2.306, 2.251 4 I, the undersigned, declare that: 5 I am employed in the County of Sacramento, State of California. I am over 18 years of 6 age and not a party to the within action; my business address is 1435 River Park Drive, Suite 400, 7 Sacramento, California 95815. 8 On the indicated date below, I served the following document(s) described as: 9 10 ANSWER TO COMPLAINT AND DEMAND FOR JURY TRIAL 11 BY MAIL: I placed the envelope for collection and mailing, following our ordinary business practices. I 12 am readily familiar with this business’s practices for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary 13 course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. BY ELECTRONIC SERVICE: Pursuant to California Rules of Court 2.251 I electronically served those 14 documents listed and enumerated above. Each document references the electronic name of the file that was transmitted. Electronic service was completed to the electronic address listed below. My electronic service 15 address is: karen@diepenbrockcotter.com. Electronic service was completed prior to 11:59 p.m. (PST). 16 On the following interested parties in this action: 17 Christopher W. Wood 18 Larry Q. Phan DREYER BABICH BUCCOLA WOOD CAMPORA 19 20 Bicentennial Circle Sacramento, CA 95826 20 T: (916) 379-3500 | F: (916) 379-3599 lphan@dbbwc.com; cwood@dbbwc.com; eplaceres@dbbwc.com 21 ATTORNEY FOR PLAINTIFF 22 I declare under penalty of perjury under the laws of the State of California that the 23 foregoing is true and correct. Executed on November 6, 2020, at Sacramento, California. 24 25 KAREN JACKSON 26 27 28 5 ANSWER TO COMPLAINT AND DEMAND FOR JURY TRIAL