Preview
1 Carla N. Braunstein (State Bar No. 251198)
cbraunstein@wshblaw.com
2 Michael J. Choi (State Bar No. 322412)
mchoi@wshblaw.com
3 WOOD, SMITH, HENNING & BERMAN LLP 5/20/2021
1401 Willow Pass Road, Suite 700
4 Concord, California 94520-7982
Phone: 925 222 3400 ♦ Fax: 925 356 8250
5
Attorneys for Defendants UBER TECHNOLOGIES, INC., RASIER, LLC,
6 and RASIER-CA, LLC (erroneously sued as RAISER-CA, LLC)
7 SUPERIOR COURT OF THE STATE OF CALIFORNIA
8 COUNTY OF SAN MATEO
9
10 SIRUSHTI MURUGESAN, an individual, Case No. 21-CIV-02235
11 Plaintiff, DEFENDANT RASIER-CA, LLC'S
WOOD, SMITH, HENNING & BERMAN LLP
(ERRONEOUSLY SUED AS RAISER-CA,
TELEPHONE 925 222 3400 ♦ FAX 925 356 8250
1401 WILLOW PASS ROAD, SUITE 700
12 v. LLC) ANSWER TO COMPLAINT
CONCORD, CALIFORNIA 94520-7982
13 WILBUR HEKI TANAKA, an individual; [Assigned for All Purposes to Judge V. Raymond Swope,
Attorneys at Law
RASIER, LLC, a business entity; RAISER- Dept. 23]
14 CA, LLC, a business entity; UBER
TECHNOLOGIES, INC., a business entity; Action Filed: 4/19/21
15 and DOES 1 through 20, inclusive,
Trial Date: None Set
16 Defendants.
17
18 COMES NOW, Defendant RASIER-CA, LLC (erroneously sued as Raiser-CA, LLC)
19 (hereinafter "Defendant"), severing itself from all other co-defendants, and answering the Complaint
20 (hereinafter “Complaint”) on file herein as follows:
21 1. Inasmuch as the Complaint is not verified under the provisions of Section 431.30 of
22 the California Code of Civil Procedure, this answering Defendant denies generally each, every and
23 all of the allegations in said Complaint, and the whole thereof, including denial of all sums and
24 amounts alleged, to be alleged or otherwise.
25 SEPARATE AFFIRMATIVE DEFENSES
26 2. This answering Defendant does not, by stating the matters set forth in these defenses,
27 allege or admit that it has the burden of proof and/or persuasion with respect to any of these matters,
28 and does not assume the burden of proof or persuasion as to any matters to which Plaintiff has the
21122021.1:11009-0745 Case No. 21-CIV-02235
DEFENDANT RASIER-CA, LLC'S (ERRONEOUSLY SUED AS RAISER-CA, LLC) ANSWER TO COMPLAINT
1 burden of proof or persuasion.
2 FIRST AFFIRMATIVE DEFENSE
3 [Apportionment of Fault]
4 3. As and for a first,separate and affirmative defense to the Complaint and to each
5 purported cause of action contained therein, this answering Defendant is informed and believes and
6 based thereon alleges: Defendant denies it was negligent in any fashion with respect to the damages,
7 losses, injuries and debts claimed by the Plaintiff in the Complaint on file herein; however, if this
8 answering Defendant is found to be negligent (which supposition is denied and merely stated for
9 the purpose of this affirmative defense), then this answering Defendant provisionally alleges that
10 Defendant’s negligence is not the sole and proximate cause of the resultant damages, losses and
11 injuries alleged by Plaintiff and that the damages awarded to Plaintiff, if any, be apportioned
WOOD, SMITH, HENNING & BERMAN LLP
TELEPHONE 925 222 3400 ♦ FAX 925 356 8250
1401 WILLOW PASS ROAD, SUITE 700
12 according to the respective fault of the parties, persons, and entities, or their agents, servants, and
CONCORD, CALIFORNIA 94520-7982
13 employees who contributed to and/or caused said resultant damages as alleged, according to the
Attorneys at Law
14 proof presented at the time of trial. That to assess any greater percentage of fault and damages
15 against this answering Defendant in excess of this answering Defendant’s percentage of fault would
16 be a denial of California equal protection and due process and Federal equal protection and due
17 process, all guaranteed by the respective Constitutions.
18 SECOND AFFIRMATIVE DEFENSE
19 [Comparative Fault]
20 4. As and for a second, separate and affirmative defense to the Complaint and to each
21 purported cause of action contained therein, this answering Defendant is informed and believes and
22 based thereon alleges: That the injuries to the Plaintiff, if any, were sustained in that Plaintiff failed
23 to exercise ordinary and reasonable care or caution concerning the matters alleged in the
24 Complaint; and such negligence on Plaintiff’s part constitutes a bar to any recovery by said Plaintiff,
25 or in the alternative, the recovery, if any, by said Plaintiff should be reduced in proportion to the
26 extent such negligence was a cause of Plaintiff’s injuries and damages, if any.
27 ///
28 ///
21122021.1:11009-0745 -2- Case No. 21-CIV-02235
DEFENDANT RASIER-CA, LLC'S (ERRONEOUSLY SUED AS RAISER-CA, LLC) ANSWER TO COMPLAINT
1 THIRD AFFIRMATIVE DEFENSE
2 [Assumption of Risk]
3 5. As and for a third, separate and affirmative defense to the Complaint, and to each
4 purported cause of action contained therein, this answering Defendant is informed and believes and
5 based thereon alleges: Plaintiff knowingly, willingly and voluntarily assumed the risk of all
6 damages, if any.
7 FOURTH AFFIRMATIVE DEFENSE
8 [Equitable Indemnity]
9 6. As and for a fourth, separate and affirmative defense to the Complaint, and to each
10 purported cause of action contained therein, this answering Defendant is informed and believes and
11 based thereon alleges: Any and all events, happenings, injuries and damages set forth in the
WOOD, SMITH, HENNING & BERMAN LLP
TELEPHONE 925 222 3400 ♦ FAX 925 356 8250
1401 WILLOW PASS ROAD, SUITE 700
12 Complaint, if any, were proximately caused and contributed to by the acts and/or omissions of
CONCORD, CALIFORNIA 94520-7982
13 Plaintiff, and such acts and/or omissions totally bar or reduce any recovery on the part of Plaintiff.
Attorneys at Law
14 FIFTH AFFIRMATIVE DEFENSE
15 [No Duty]
16 7. As and for a fifth,separate and affirmative defense to the Complaint, and to each
17 purported cause of action contained therein, this answering Defendant is informed and believes and
18 based thereon alleges: Any recovery on the Complaint, or any claim for relief averred therein, is
19 barred to the extent this answering Defendant owed no duty to Plaintiff.
20 SIXTH AFFIRMATIVE DEFENSE
21 [No Causation]
22 8. As and for a sixth, separate and affirmative defense to the Complaint, and to each
23 purported cause of action contained therein, this answering Defendant is informed and believes and
24 based thereon alleges: To the extent Plaintiff suffered damages, which Defendant denies, such
25 injury or damage was not proximately caused by any conduct or inaction of this answering
26 Defendant, or was not foreseeable, or both.
27 ///
28 ///
21122021.1:11009-0745 -3- Case No. 21-CIV-02235
DEFENDANT RASIER-CA, LLC'S (ERRONEOUSLY SUED AS RAISER-CA, LLC) ANSWER TO COMPLAINT
1 SEVENTH AFFIRMATIVE DEFENSE
2 [Alleged Injury or Damage Caused by Others]
3 9. As and for a seventh, separate and affirmative defense to the Complaint, and to each
4 purported cause of action contained therein, this answering Defendant is informed and believes and
5 based thereon alleges: To the extent Plaintiff suffered injury or damage, which Defendant denies,
6 such injury or damage was caused by the action or conduct of others, not this answering Defendant.
7 EIGHTH AFFIRMATIVE DEFENSE
8 [Existing Prior Injury]
9 10. As and for an eighth, separate and affirmative defense to the Complaint, and to each
10 purported cause of action contained therein, this answering Defendant is informed and believes and
11 based thereon alleges: To the extent Plaintiff suffered injury or damage, which Defendant denies,
WOOD, SMITH, HENNING & BERMAN LLP
TELEPHONE 925 222 3400 ♦ FAX 925 356 8250
1401 WILLOW PASS ROAD, SUITE 700
12 such injury or damage was sustained prior to the incident alleged by the Plaintiff in the Complaint
CONCORD, CALIFORNIA 94520-7982
13 on file herein.
Attorneys at Law
14 NINTH AFFIRMATIVE DEFENSE
15 [Uncertainty]
16 11. As and for a ninth, separate and affirmative defense to the Complaint, and to each
17 purported cause of action contained therein, this answering Defendant is informed and believes and
18 based thereon alleges: Plaintiff’s Complaint and the allegations thereof are uncertain, vague and
19 ambiguous.
20 TENTH AFFIRMATIVE DEFENSE
21 [Limitation on Damages]
22 12. As and for a tenth, separate and affirmative defense to the Complaint, and to each
23 purported cause of action contained therein, this answering Defendant is informed and believes and
24 based thereon alleges: Plaintiff’s Complaint seeks an award of improper damages, including but
25 not limited to medical damages beyond those permitted by law.
26 ///
27 ///
28 ///
21122021.1:11009-0745 -4- Case No. 21-CIV-02235
DEFENDANT RASIER-CA, LLC'S (ERRONEOUSLY SUED AS RAISER-CA, LLC) ANSWER TO COMPLAINT
1 ELEVENTH AFFIRMATIVE DEFENSE
2 [Offset]
3 13. As and for an eleventh, separate and affirmative defense to the Complaint, and to
4 each purported cause of action contained therein, this answering Defendant is informed and believes
5 and based thereon alleges: That the costs incurred, or paid by the Plaintiff, if any, for repair of
6 property damage, medical care, dental care, custodial care or rehabilitation services, loss of earning
7 or other economic loss, in the past or future, were or will, with reasonable certainty be replaced or
8 indemnified, in whole or in part, from one or more collateral source, including by or through
9 insurance available to the Plaintiff under the terms of the Patient Protection and Affordable Care
10 Act, and as such the Defendant is entitled to have any award reduced in the amount of such
11 payments.
WOOD, SMITH, HENNING & BERMAN LLP
TELEPHONE 925 222 3400 ♦ FAX 925 356 8250
1401 WILLOW PASS ROAD, SUITE 700
12 TWELFTH AFFIRMATIVE DEFENSE
CONCORD, CALIFORNIA 94520-7982
13 [Howell v. Hamilton Meats]
Attorneys at Law
14 14. As and for a twelfth, separate and affirmative defense to the Complaint and to each
15 purported cause of action contained therein, this answering Defendant is informed and believes and
16 based thereon alleges: Plaintiff’s recovery for past medical expenses or other economic loss or
17 benefit, if any, is limited to the lesser of the amount paid or the reasonable value of those services
18 or benefits.
19 THIRTEENTH AFFIRMATIVE DEFENSE
20 [Patient Protection and Affordable Care Act]
21 15. As and for a thirteenth, separate and affirmative defense to the Complaint and to each
22 purported cause of action contained therein, this answering Defendant is informed and believes and
23 based thereon alleges: Plaintiff is excluded from recovering any amounts which have been, or will,
24 indemnify Plaintiff, for any past or future claimed medical expenses, health care, life care, or other
25 economic loss or benefit that is offered, or provided under or in connection with the Patient
26 Protection and Affordable Care Act.
27 ///
28 ///
21122021.1:11009-0745 -5- Case No. 21-CIV-02235
DEFENDANT RASIER-CA, LLC'S (ERRONEOUSLY SUED AS RAISER-CA, LLC) ANSWER TO COMPLAINT
1 FOURTEENTH AFFIRMATIVE DEFENSE
2 [Failure to Obtain Health Insurance]
3 16. As and for a fourteenth, separate and affirmative defense to the Complaint and to
4 each purported cause of action contained therein, this answering Defendant is informed and believes
5 and based thereon alleges: In the event Plaintiff has failed to obtain health insurance coverage
6 available to her, which he is eligible to obtain under the Patient Protection and Affordable Care Act,
7 Plaintiff has failed to mitigate his damages and cannot recover for such failure.
8 FIFTEENTH AFFIRMATIVE DEFENSE
9 [Failure to Utilize Health Insurance Benefits]
10 17. As and for a fifteenth, separate and affirmative defense to the Complaint and to each
11 purported cause of action contained therein, this answering Defendant is informed and believes and
WOOD, SMITH, HENNING & BERMAN LLP
TELEPHONE 925 222 3400 ♦ FAX 925 356 8250
1401 WILLOW PASS ROAD, SUITE 700
12 based thereon alleges: To the extent Plaintiff failed to take reasonable steps to avail herself of the
CONCORD, CALIFORNIA 94520-7982
13 resources, service benefits, and coverage available to her under the Patient Protection and
Attorneys at Law
14 Affordable Care Act, Plaintiff has failed to mitigate her damages and cannot recover for such failure.
15 SIXTEENTH AFFIRMATIVE DEFENSE
16 [Affordable Care Act and Future Damages]
17 18. As and for a sixteenth, separate and affirmative defense to the Complaint and to each
18 purported cause of action contained therein, this answering Defendant is informed and believes and
19 based thereon alleges: Plaintiff will be limited to the reasonable value, if any, of future medical
20 services available to her under the Affordable Care Act.
21 SEVENTEENTH AFFIRMATIVE DEFENSE
22 [No Injury or Damage]
23 19. As and for a seventeenth, separate and affirmative defense to the Complaint, and to
24 each purported cause of action contained therein, this answering Defendant is informed and believes
25 and based thereon alleges: This answering Defendant denies Plaintiff suffered any injury or damage
26 whatsoever, and further denies it is liable to Plaintiff for any injury or damage claimed or for any
27 injury or damage whatsoever.
28 ///
21122021.1:11009-0745 -6- Case No. 21-CIV-02235
DEFENDANT RASIER-CA, LLC'S (ERRONEOUSLY SUED AS RAISER-CA, LLC) ANSWER TO COMPLAINT
1 EIGHTEENTH AFFIRMATIVE DEFENSE
2 [Vicarious Liability]
3 20. As and for an eighteenth, separate and affirmative defense to the Complaint and to
4 each purported cause of action contained therein, this answering Defendant is informed and believes
5 and based thereon alleges: This answering Defendant denies Plaintiff suffered any injury or damage
6 whatsoever, and further denies it is vicariously liable for the acts of other parties.
7 NINETEENTH AFFIRMATIVE DEFENSE
8 [Fails to State Facts – General]
9 21. As and for a nineteenth, separate and affirmative defense to the Complaint and to
10 each purported cause of action contained therein, this answering Defendant is informed and believes
11 and based thereon alleges: That the Complaint, and each purported cause of action contained
WOOD, SMITH, HENNING & BERMAN LLP
TELEPHONE 925 222 3400 ♦ FAX 925 356 8250
1401 WILLOW PASS ROAD, SUITE 700
12 therein, fails to state facts sufficient to constitute a cause of action against this answering Defendant.
CONCORD, CALIFORNIA 94520-7982
13 TWENTIETH AFFIRMATIVE DEFENSE
Attorneys at Law
14 [Statute of Limitations]
15 22. As and for a twentieth, separate and affirmative defense to the Complaint and to each
16 purported cause of action contained therein, this answering Defendant is informed and believes and
17 based thereon alleges: Each said cause of action is barred by the applicable statute of limitations,
18 including but not limited to, California Code of Civil Procedure Sections 335.1, 337, 337.1, 337.15,
19 338, 339, 340 and/or 343.
20 TWENTY-FIRST AFFIRMATIVE DEFENSE
21 [Failure to Mitigate Loss]
22 23. As and for a twenty-first, separate and affirmative defense to the Complaint, and to
23 each purported cause of action contained therein, this answering Defendant is informed and believes
24 and based thereon alleges: That if Plaintiff suffered any damage as a result of the allegations set
25 forth in the Complaint, Plaintiff is not entitled to recover from this answering Defendant any sum
26 of damages due to Plaintiff’s failure to take reasonable efforts to mitigate the damages said Plaintiff
27 allegedly incurred.
28 ///
21122021.1:11009-0745 -7- Case No. 21-CIV-02235
DEFENDANT RASIER-CA, LLC'S (ERRONEOUSLY SUED AS RAISER-CA, LLC) ANSWER TO COMPLAINT
1 TWENTY-SECOND AFFIRMATIVE DEFENSE
2 [Estoppel]
3 24. As and for a twenty-second, separate and affirmative defense to the Complaint, and
4 to each purported cause of action contained therein, this answering Defendant is informed and
5 believes and based thereon alleges: That each and every cause of action or purported cause of action
6 contained in the Complaint is barred by the Doctrine of Estoppel.
7 TWENTY-THIRD AFFIRMATIVE DEFENSE
8 [Waiver]
9 25. As and for a twenty-third, separate and affirmative defense to the Complaint, and to
10 each purported cause of action contained therein, this answering Defendant is informed and believes
11 and based thereon alleges: That each and every cause of action or purported cause of action
WOOD, SMITH, HENNING & BERMAN LLP
TELEPHONE 925 222 3400 ♦ FAX 925 356 8250
1401 WILLOW PASS ROAD, SUITE 700
12 contained in the Complaint is barred by the Doctrine of Waiver.
CONCORD, CALIFORNIA 94520-7982
13 TWENTY-FOURTH AFFIRMATIVE DEFENSE
Attorneys at Law
14 [Laches]
15 26. As and for a twenty-fourth, separate and affirmative defense to the Complaint, and
16 to each purported cause of action contained therein, this answering Defendant is informed and
17 believes and based thereon alleges: That each and every cause of action or purported cause of action
18 contained in the Complaint is barred by the Doctrine of Laches.
19 TWENTY-FIFTH AFFIRMATIVE DEFENSE
20 [Unclean Hands]
21 27. As and for a twenty-fifth, separate and affirmative defense to the Complaint, and to
22 each purported cause of action contained therein, this answering Defendant is informed and believes
23 and based thereon alleges: That each and every cause of action or purported cause of action
24 contained in the Complaint is barred by the Doctrine of Unclean Hands.
25 TWENTY-SIXTH AFFIRMATIVE DEFENSE
26 [Collateral Estoppel]
27 28. As and for a twenty-sixth, separate and affirmative defense to the Complaint, and to
28 each purported cause of action contained therein, this answering Defendant is informed and believes
21122021.1:11009-0745 -8- Case No. 21-CIV-02235
DEFENDANT RASIER-CA, LLC'S (ERRONEOUSLY SUED AS RAISER-CA, LLC) ANSWER TO COMPLAINT
1 and based thereon alleges: That each and every cause of action or purported cause of action
2 contained in the Complaint is barred by the Doctrine of Collateral Estoppel.
3 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
4 [Voluntary Conduct]
5 29. As and for a twenty-seventh, separate and affirmative defense to the Complaint, and
6 to each purported cause of action contained therein, this answering Defendant is informed and
7 believes and based thereon alleges: That Plaintiff has engaged in conduct with respect to the
8 activities and/or property which are the subject of the Complaint, and by reason of said activities
9 and conduct, is estopped from asserting any claims or damages or seeking any other relief against
10 this answering Defendant.
11 TWENTY-EIGHTH AFFIRMATIVE DEFENSE
WOOD, SMITH, HENNING & BERMAN LLP
TELEPHONE 925 222 3400 ♦ FAX 925 356 8250
1401 WILLOW PASS ROAD, SUITE 700
12 [Damages Uncertain]
CONCORD, CALIFORNIA 94520-7982
13 30. As and for a twenty-eighth, separate and affirmative defense to the Complaint, and
Attorneys at Law
14 to each purported cause of action contained therein, this answering Defendant is informed and
15 believes and based thereon alleges: That Plaintiff’s damages, if any, are speculative, uncertain and
16 not capable of being determined by a trier of fact.
17 TWENTY-NINTH AFFIRMATIVE DEFENSE
18 [Intervening Superseding Causes]
19 31. As and for a twenty-ninth, separate and affirmative defense to the Complaint, and to
20 each purported cause of action contained therein, this answering Defendant is informed and believes
21 and based thereon alleges: The damages of which Plaintiff complains were proximately caused or
22 contributed to by the acts of other defendants, persons and/or other entities. Such acts were an
23 intervening, supervening and superseding cause of the injuries and damages, if any, of which the
24 Plaintiff complains, thus barring Plaintiff from any recovery against this answering Defendant.
25 THIRTIETH AFFIRMATIVE DEFENSE
26 [No Vicarious or Agency Liability]
27 32. As and for a thirtieth, separate and affirmative defense to the Complaint, Defendant
28 alleges that at no time or place set forth in the Complaint did any other defendant or third person
21122021.1:11009-0745 -9- Case No. 21-CIV-02235
DEFENDANT RASIER-CA, LLC'S (ERRONEOUSLY SUED AS RAISER-CA, LLC) ANSWER TO COMPLAINT
1 alleged to be at fault operate as the agent or employee of Defendant, such that Defendant can be
2 held vicariously liable for their acts. Should any other defendant or third party be deemed to have
3 any affiliation with this Defendant, then such other defendant or third party was independently
4 responsible for their own means and methods. Accordingly, the doctrines of respondeat superior
5 and agency are inapplicable and Uber Technologies, Inc. has no vicarious liability for acts or
6 omissions by said other defendants or third parties.
7 THIRTY-FIRST AFFIRMATIVE DEFENSE
8 [Independent Contractor]
9 33. As and for a thirty-first, separate and affirmative defense to the Complaint, and as to
10 each and every cause of action contained therein, this answering Defendant alleges that the
11 Complaint and each cause of action set forth therein are barred, in whole or in part, under the
WOOD, SMITH, HENNING & BERMAN LLP
TELEPHONE 925 222 3400 ♦ FAX 925 356 8250
1401 WILLOW PASS ROAD, SUITE 700
12 independent contractor defense, as co-Defendant Driver was an independent contractor responsible
CONCORD, CALIFORNIA 94520-7982
13 for his own means and methods, making the doctrine of respondeat superior inapplicable.
Attorneys at Law
14 THIRTY-SECOND AFFIRMATIVE DEFENSE
15 [Failure to State Cause of Action]
16 34. As and for a thirty-second, separate and affirmative defense to the Complaint, a
17 separate and distinct affirmative defense, this answering Defendant is informed and believes and
18 thereon alleges that the Complaint, and each and every cause of action therein alleged against
19 Defendant fails to set forth facts sufficient to constitute a cause of action against this answering
20 Defendant.
21 THIRTY-THIRD AFFIRMATIVE DEFENSE
22 [Joint and Several Liability]
23 35. As and for thirty-third, separate and affirmative defense, this answering Defendant
24 alleges that the liability of this answering Defendant for the non-economic damages claimed or
25 proven by Plaintiff shall be and is limited by California Civil Code § 1431.2.
26 ///
27 ///
28 ///
21122021.1:11009-0745 -10- Case No. 21-CIV-02235
DEFENDANT RASIER-CA, LLC'S (ERRONEOUSLY SUED AS RAISER-CA, LLC) ANSWER TO COMPLAINT
1 THIRTY-FOURTH AFFIRMATIVE DEFENSE
2 [Not a Common Carrier]
3 36. As and for a thirty-fourth separate affirmative defense to the Complaint, and to each
4 purported cause of action contained therein, this answering Defendant is informed and believes, and
5 based thereon alleges: Defendant is a technology company and is not a transportation company or a
6 common carrier. Therefore, any and all claims asserted by Plaintiff under a common carrier theory
7 are barred.
8 THIRTY FIFTH AFFIRMATIVE DEFENSE
9 [Consent]
10 37. As and for a thirty-fifth, separate and affirmative defense to the Complaint, and to
11 each purported cause of action contained therein, this answering Defendant is informed and believes
WOOD, SMITH, HENNING & BERMAN LLP
TELEPHONE 925 222 3400 ♦ FAX 925 356 8250
1401 WILLOW PASS ROAD, SUITE 700
12 and based thereon alleges: That each and every cause of action or purported cause of action
CONCORD, CALIFORNIA 94520-7982
13 contained in the Complaint is barred due to the consent by Plaintiff to all actions alleged therein.
Attorneys at Law
14 THIRTY-SIXTH AFFIRMATIVE DEFENSE
15 [Contractual Indemnity]
16 38. As and for a thirty-sixth, separate and affirmative defense to the Complaint,
17 Defendant is informed and believes, and thereon alleges, that Co-Defendant, driver, is contractually
18 obligated to defend, indemnify and hold Defendant harmless for all claims asserted by Plaintiff.
19 THIRTY-SEVENTH AFFIRMATIVE DEFENSE
20 [Arbitration Agreement]
21 39. As and for a thirty-seventh, separate and affirmative defense, this answering
22 Defendant is informed and believes and thereon alleges this dispute is subject to an arbitration
23 agreement between Plaintiff and this answering Defendant, such that this matter is properly brought
24 before a qualified arbitrator rather than in the instant court.
25 THIRTY-EIGHTH AFFIRMATIVE DEFENSE
26 [No Seatbelt Usage]
27 40. As and for a thirty-eighth, separate and affirmative defense to the Complaint, and to
28 each purported cause of action therein, this answering Defendant is informed and believes, and
21122021.1:11009-0745 -11- Case No. 21-CIV-02235
DEFENDANT RASIER-CA, LLC'S (ERRONEOUSLY SUED AS RAISER-CA, LLC) ANSWER TO COMPLAINT
1 thereon alleges: Plaintiff’s recovery is barred or proportionately reduced due to her failure to wear
2 the available restraining device or to wear it properly.
3 THIRTY-NINTH AFFIRMATIVE DEFENSE
4 [Proposition 213]
5 41. As and for a thirty-ninth, separate and affirmative defense, this answering Defendant
6 is informed and believes, and thereon allege, that Plaintiff was uninsured at the time of the incident
7 alleged in the Complaint. Under Proposition 213, Civil Code section 3333.4, Plaintiff is barred from
8 recovering non-economic damages.
9 FORTIETH AFFIRMATIVE DEFENSE
10 [Reserved Defenses]
11 42. As and for a fortieth, separate and affirmative defense to the Complaint, and to each
WOOD, SMITH, HENNING & BERMAN LLP
TELEPHONE 925 222 3400 ♦ FAX 925 356 8250
1401 WILLOW PASS ROAD, SUITE 700
12 purported cause of action contained therein, this answering Defendant is informed and believes and
CONCORD, CALIFORNIA 94520-7982
13 based thereon alleges: That this answering Defendant presently has insufficient knowledge or
Attorneys at Law
14 insufficient information upon which to form a belief as to whether it may have additional, yet
15 unasserted, affirmative defenses. Defendant therefore reserves the right to assert additional
16 affirmative defenses in the event discovery indicates it would be appropriate.
17 WHEREFORE, this answering Defendant prays for judgment as follows:
18 1. That Plaintiff takes nothing by virtue of Plaintiff’s Complaint;
19 2. For costs of suit incurred herein; and
20 3. For such other and further relief as the court may deem just and proper.
21
22 DATED: May 20, 2021 WOOD, SMITH, HENNING & BERMAN LLP
23
24
By:
25 CARLA N. BRAUNSTEIN
MICHAEL J. CHOI
26 Attorneys for Defendants UBER TECHNOLOGIES,
INC., RASIER, LLC, and RASIER-CA, LLC
27
(erroneously sued as RAISER-CA, LLC)
28
21122021.1:11009-0745 -12- Case No. 21-CIV-02235
DEFENDANT RASIER-CA, LLC'S (ERRONEOUSLY SUED AS RAISER-CA, LLC) ANSWER TO COMPLAINT
1 PROOF OF SERVICE
2 Murugesan v.Tanaka
Case No. SMSC 21-CIV-02235
3
I am employed in the County of Contra Costa, State of California. I am over the age of
4 eighteen years and not a party to the within action. My business address is 1401 Willow Pass
Road, Suite 700, Concord, CA 94520-7982.
5
On May 20, 2021, I served the following document(s) described as DEFENDANT
6 RASIER-CA, LLC'S (ERRONEOUSLY SUED AS RAISER-CA, LLC) ANSWER TO
COMPLAINT on the interested parties in this action as follows:
7
Ross McKissick
8 Philip Alexander
Harris Personal Injury Lawyers
9 99 Osgood Place, Suite 100
San Francisco, CA 94133
10 Tel: 415-495-0440 / Fax: 408-320-0092
ross@harrispersonalinjury.com
11 palexander@harrispersonalinjury.com
WOOD, SMITH, HENNING & BERMAN LLP
Attorney for Plaintiff SIRUSHTI MURUGESAN
TELEPHONE 925 222 3400 ♦ FAX 925 356 8250
1401 WILLOW PASS ROAD, SUITE 700
12
CONCORD, CALIFORNIA 94520-7982
BY E-MAIL OR ELECTRONIC TRANSMISSION: Only by e-mailing the
13 document(s) to the persons at the e-mail address(es) listed based that, during the Coronavirus
Attorneys at Law
(Covid-19) pandemic, this office will be working remotely, not able to send physical mail as
14 usual, and is therefore using only electronic mail. No electronic message or other indication that
the transmission was unsuccessful was received within a reasonable time after the transmission.
15
I declare under penalty of perjury under the laws of the State of California that the
16 foregoing is true and correct.
17 Executed on May 20, 2021, at Concord, California.
18
19
Maura L Werner
20
21
22
23
24
25
26
27
28
21122021.1:11009-0745 -13- Case No. 21-CIV-02235
DEFENDANT RASIER-CA, LLC'S (ERRONEOUSLY SUED AS RAISER-CA, LLC) ANSWER TO COMPLAINT
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1 Carla N. Braunstein (State Bar No. 251198) cbraunstein@wshblaw.com 2 Michael J. Choi (State Bar No. 322412) mchoi@wshblaw.com 3 WOOD, SMITH, HENNING & BERMAN LLP 5/20/2021 1401 Willow Pass Road, Suite 700 4 Concord, California 94520-7982 Phone: 925 222 3400 ♦ Fax: 925 356 8250 5 Attorneys for Defendants UBER TECHNOLOGIES, INC., RASIER, LLC, 6 and RASIER-CA, LLC (erroneously sued as RAISER-CA, LLC) 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 COUNTY OF SAN MATEO 9 10 SIRUSHTI MURUGESAN, an individual, Case No. 21-CIV-02235 11 Plaintiff, DEFENDANT RASIER-CA, LLC'S WOOD, SMITH, HENNING & BERMAN LLP (ERRONEOUSLY SUED AS RAISER-CA, TELEPHONE 925 222 3400 ♦ FAX 925 356 8250 1401 WILLOW PASS ROAD, SUITE 700 12 v. LLC) ANSWER TO COMPLAINT CONCORD, CALIFORNIA 94520-7982 13 WILBUR HEKI TANAKA, an individual; [Assigned for All Purposes to Judge V. Raymond Swope, Attorneys at Law RASIER, LLC, a business entity; RAISER- Dept. 23] 14 CA, LLC, a business entity; UBER TECHNOLOGIES, INC., a business entity; Action Filed: 4/19/21 15 and DOES 1 through 20, inclusive, Trial Date: None Set 16 Defendants. 17 18 COMES NOW, Defendant RASIER-CA, LLC (erroneously sued as Raiser-CA, LLC) 19 (hereinafter "Defendant"), severing itself from all other co-defendants, and answering the Complaint 20 (hereinafter “Complaint”) on file herein as follows: 21 1. Inasmuch as the Complaint is not verified under the provisions of Section 431.30 of 22 the California Code of Civil Procedure, this answering Defendant denies generally each, every and 23 all of the allegations in said Complaint, and the whole thereof, including denial of all sums and 24 amounts alleged, to be alleged or otherwise. 25 SEPARATE AFFIRMATIVE DEFENSES 26 2. This answering Defendant does not, by stating the matters set forth in these defenses, 27 allege or admit that it has the burden of proof and/or persuasion with respect to any of these matters, 28 and does not assume the burden of proof or persuasion as to any matters to which Plaintiff has the 21122021.1:11009-0745 Case No. 21-CIV-02235 DEFENDANT RASIER-CA, LLC'S (ERRONEOUSLY SUED AS RAISER-CA, LLC) ANSWER TO COMPLAINT 1 burden of proof or persuasion. 2 FIRST AFFIRMATIVE DEFENSE 3 [Apportionment of Fault] 4 3. As and for a first,separate and affirmative defense to the Complaint and to each 5 purported cause of action contained therein, this answering Defendant is informed and believes and 6 based thereon alleges: Defendant denies it was negligent in any fashion with respect to the damages, 7 losses, injuries and debts claimed by the Plaintiff in the Complaint on file herein; however, if this 8 answering Defendant is found to be negligent (which supposition is denied and merely stated for 9 the purpose of this affirmative defense), then this answering Defendant provisionally alleges that 10 Defendant’s negligence is not the sole and proximate cause of the resultant damages, losses and 11 injuries alleged by Plaintiff and that the damages awarded to Plaintiff, if any, be apportioned WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE 925 222 3400 ♦ FAX 925 356 8250 1401 WILLOW PASS ROAD, SUITE 700 12 according to the respective fault of the parties, persons, and entities, or their agents, servants, and CONCORD, CALIFORNIA 94520-7982 13 employees who contributed to and/or caused said resultant damages as alleged, according to the Attorneys at Law 14 proof presented at the time of trial. That to assess any greater percentage of fault and damages 15 against this answering Defendant in excess of this answering Defendant’s percentage of fault would 16 be a denial of California equal protection and due process and Federal equal protection and due 17 process, all guaranteed by the respective Constitutions. 18 SECOND AFFIRMATIVE DEFENSE 19 [Comparative Fault] 20 4. As and for a second, separate and affirmative defense to the Complaint and to each 21 purported cause of action contained therein, this answering Defendant is informed and believes and 22 based thereon alleges: That the injuries to the Plaintiff, if any, were sustained in that Plaintiff failed 23 to exercise ordinary and reasonable care or caution concerning the matters alleged in the 24 Complaint; and such negligence on Plaintiff’s part constitutes a bar to any recovery by said Plaintiff, 25 or in the alternative, the recovery, if any, by said Plaintiff should be reduced in proportion to the 26 extent such negligence was a cause of Plaintiff’s injuries and damages, if any. 27 /// 28 /// 21122021.1:11009-0745 -2- Case No. 21-CIV-02235 DEFENDANT RASIER-CA, LLC'S (ERRONEOUSLY SUED AS RAISER-CA, LLC) ANSWER TO COMPLAINT 1 THIRD AFFIRMATIVE DEFENSE 2 [Assumption of Risk] 3 5. As and for a third, separate and affirmative defense to the Complaint, and to each 4 purported cause of action contained therein, this answering Defendant is informed and believes and 5 based thereon alleges: Plaintiff knowingly, willingly and voluntarily assumed the risk of all 6 damages, if any. 7 FOURTH AFFIRMATIVE DEFENSE 8 [Equitable Indemnity] 9 6. As and for a fourth, separate and affirmative defense to the Complaint, and to each 10 purported cause of action contained therein, this answering Defendant is informed and believes and 11 based thereon alleges: Any and all events, happenings, injuries and damages set forth in the WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE 925 222 3400 ♦ FAX 925 356 8250 1401 WILLOW PASS ROAD, SUITE 700 12 Complaint, if any, were proximately caused and contributed to by the acts and/or omissions of CONCORD, CALIFORNIA 94520-7982 13 Plaintiff, and such acts and/or omissions totally bar or reduce any recovery on the part of Plaintiff. Attorneys at Law 14 FIFTH AFFIRMATIVE DEFENSE 15 [No Duty] 16 7. As and for a fifth,separate and affirmative defense to the Complaint, and to each 17 purported cause of action contained therein, this answering Defendant is informed and believes and 18 based thereon alleges: Any recovery on the Complaint, or any claim for relief averred therein, is 19 barred to the extent this answering Defendant owed no duty to Plaintiff. 20 SIXTH AFFIRMATIVE DEFENSE 21 [No Causation] 22 8. As and for a sixth, separate and affirmative defense to the Complaint, and to each 23 purported cause of action contained therein, this answering Defendant is informed and believes and 24 based thereon alleges: To the extent Plaintiff suffered damages, which Defendant denies, such 25 injury or damage was not proximately caused by any conduct or inaction of this answering 26 Defendant, or was not foreseeable, or both. 27 /// 28 /// 21122021.1:11009-0745 -3- Case No. 21-CIV-02235 DEFENDANT RASIER-CA, LLC'S (ERRONEOUSLY SUED AS RAISER-CA, LLC) ANSWER TO COMPLAINT 1 SEVENTH AFFIRMATIVE DEFENSE 2 [Alleged Injury or Damage Caused by Others] 3 9. As and for a seventh, separate and affirmative defense to the Complaint, and to each 4 purported cause of action contained therein, this answering Defendant is informed and believes and 5 based thereon alleges: To the extent Plaintiff suffered injury or damage, which Defendant denies, 6 such injury or damage was caused by the action or conduct of others, not this answering Defendant. 7 EIGHTH AFFIRMATIVE DEFENSE 8 [Existing Prior Injury] 9 10. As and for an eighth, separate and affirmative defense to the Complaint, and to each 10 purported cause of action contained therein, this answering Defendant is informed and believes and 11 based thereon alleges: To the extent Plaintiff suffered injury or damage, which Defendant denies, WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE 925 222 3400 ♦ FAX 925 356 8250 1401 WILLOW PASS ROAD, SUITE 700 12 such injury or damage was sustained prior to the incident alleged by the Plaintiff in the Complaint CONCORD, CALIFORNIA 94520-7982 13 on file herein. Attorneys at Law 14 NINTH AFFIRMATIVE DEFENSE 15 [Uncertainty] 16 11. As and for a ninth, separate and affirmative defense to the Complaint, and to each 17 purported cause of action contained therein, this answering Defendant is informed and believes and 18 based thereon alleges: Plaintiff’s Complaint and the allegations thereof are uncertain, vague and 19 ambiguous. 20 TENTH AFFIRMATIVE DEFENSE 21 [Limitation on Damages] 22 12. As and for a tenth, separate and affirmative defense to the Complaint, and to each 23 purported cause of action contained therein, this answering Defendant is informed and believes and 24 based thereon alleges: Plaintiff’s Complaint seeks an award of improper damages, including but 25 not limited to medical damages beyond those permitted by law. 26 /// 27 /// 28 /// 21122021.1:11009-0745 -4- Case No. 21-CIV-02235 DEFENDANT RASIER-CA, LLC'S (ERRONEOUSLY SUED AS RAISER-CA, LLC) ANSWER TO COMPLAINT 1 ELEVENTH AFFIRMATIVE DEFENSE 2 [Offset] 3 13. As and for an eleventh, separate and affirmative defense to the Complaint, and to 4 each purported cause of action contained therein, this answering Defendant is informed and believes 5 and based thereon alleges: That the costs incurred, or paid by the Plaintiff, if any, for repair of 6 property damage, medical care, dental care, custodial care or rehabilitation services, loss of earning 7 or other economic loss, in the past or future, were or will, with reasonable certainty be replaced or 8 indemnified, in whole or in part, from one or more collateral source, including by or through 9 insurance available to the Plaintiff under the terms of the Patient Protection and Affordable Care 10 Act, and as such the Defendant is entitled to have any award reduced in the amount of such 11 payments. WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE 925 222 3400 ♦ FAX 925 356 8250 1401 WILLOW PASS ROAD, SUITE 700 12 TWELFTH AFFIRMATIVE DEFENSE CONCORD, CALIFORNIA 94520-7982 13 [Howell v. Hamilton Meats] Attorneys at Law 14 14. As and for a twelfth, separate and affirmative defense to the Complaint and to each 15 purported cause of action contained therein, this answering Defendant is informed and believes and 16 based thereon alleges: Plaintiff’s recovery for past medical expenses or other economic loss or 17 benefit, if any, is limited to the lesser of the amount paid or the reasonable value of those services 18 or benefits. 19 THIRTEENTH AFFIRMATIVE DEFENSE 20 [Patient Protection and Affordable Care Act] 21 15. As and for a thirteenth, separate and affirmative defense to the Complaint and to each 22 purported cause of action contained therein, this answering Defendant is informed and believes and 23 based thereon alleges: Plaintiff is excluded from recovering any amounts which have been, or will, 24 indemnify Plaintiff, for any past or future claimed medical expenses, health care, life care, or other 25 economic loss or benefit that is offered, or provided under or in connection with the Patient 26 Protection and Affordable Care Act. 27 /// 28 /// 21122021.1:11009-0745 -5- Case No. 21-CIV-02235 DEFENDANT RASIER-CA, LLC'S (ERRONEOUSLY SUED AS RAISER-CA, LLC) ANSWER TO COMPLAINT 1 FOURTEENTH AFFIRMATIVE DEFENSE 2 [Failure to Obtain Health Insurance] 3 16. As and for a fourteenth, separate and affirmative defense to the Complaint and to 4 each purported cause of action contained therein, this answering Defendant is informed and believes 5 and based thereon alleges: In the event Plaintiff has failed to obtain health insurance coverage 6 available to her, which he is eligible to obtain under the Patient Protection and Affordable Care Act, 7 Plaintiff has failed to mitigate his damages and cannot recover for such failure. 8 FIFTEENTH AFFIRMATIVE DEFENSE 9 [Failure to Utilize Health Insurance Benefits] 10 17. As and for a fifteenth, separate and affirmative defense to the Complaint and to each 11 purported cause of action contained therein, this answering Defendant is informed and believes and WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE 925 222 3400 ♦ FAX 925 356 8250 1401 WILLOW PASS ROAD, SUITE 700 12 based thereon alleges: To the extent Plaintiff failed to take reasonable steps to avail herself of the CONCORD, CALIFORNIA 94520-7982 13 resources, service benefits, and coverage available to her under the Patient Protection and Attorneys at Law 14 Affordable Care Act, Plaintiff has failed to mitigate her damages and cannot recover for such failure. 15 SIXTEENTH AFFIRMATIVE DEFENSE 16 [Affordable Care Act and Future Damages] 17 18. As and for a sixteenth, separate and affirmative defense to the Complaint and to each 18 purported cause of action contained therein, this answering Defendant is informed and believes and 19 based thereon alleges: Plaintiff will be limited to the reasonable value, if any, of future medical 20 services available to her under the Affordable Care Act. 21 SEVENTEENTH AFFIRMATIVE DEFENSE 22 [No Injury or Damage] 23 19. As and for a seventeenth, separate and affirmative defense to the Complaint, and to 24 each purported cause of action contained therein, this answering Defendant is informed and believes 25 and based thereon alleges: This answering Defendant denies Plaintiff suffered any injury or damage 26 whatsoever, and further denies it is liable to Plaintiff for any injury or damage claimed or for any 27 injury or damage whatsoever. 28 /// 21122021.1:11009-0745 -6- Case No. 21-CIV-02235 DEFENDANT RASIER-CA, LLC'S (ERRONEOUSLY SUED AS RAISER-CA, LLC) ANSWER TO COMPLAINT 1 EIGHTEENTH AFFIRMATIVE DEFENSE 2 [Vicarious Liability] 3 20. As and for an eighteenth, separate and affirmative defense to the Complaint and to 4 each purported cause of action contained therein, this answering Defendant is informed and believes 5 and based thereon alleges: This answering Defendant denies Plaintiff suffered any injury or damage 6 whatsoever, and further denies it is vicariously liable for the acts of other parties. 7 NINETEENTH AFFIRMATIVE DEFENSE 8 [Fails to State Facts – General] 9 21. As and for a nineteenth, separate and affirmative defense to the Complaint and to 10 each purported cause of action contained therein, this answering Defendant is informed and believes 11 and based thereon alleges: That the Complaint, and each purported cause of action contained WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE 925 222 3400 ♦ FAX 925 356 8250 1401 WILLOW PASS ROAD, SUITE 700 12 therein, fails to state facts sufficient to constitute a cause of action against this answering Defendant. CONCORD, CALIFORNIA 94520-7982 13 TWENTIETH AFFIRMATIVE DEFENSE Attorneys at Law 14 [Statute of Limitations] 15 22. As and for a twentieth, separate and affirmative defense to the Complaint and to each 16 purported cause of action contained therein, this answering Defendant is informed and believes and 17 based thereon alleges: Each said cause of action is barred by the applicable statute of limitations, 18 including but not limited to, California Code of Civil Procedure Sections 335.1, 337, 337.1, 337.15, 19 338, 339, 340 and/or 343. 20 TWENTY-FIRST AFFIRMATIVE DEFENSE 21 [Failure to Mitigate Loss] 22 23. As and for a twenty-first, separate and affirmative defense to the Complaint, and to 23 each purported cause of action contained therein, this answering Defendant is informed and believes 24 and based thereon alleges: That if Plaintiff suffered any damage as a result of the allegations set 25 forth in the Complaint, Plaintiff is not entitled to recover from this answering Defendant any sum 26 of damages due to Plaintiff’s failure to take reasonable efforts to mitigate the damages said Plaintiff 27 allegedly incurred. 28 /// 21122021.1:11009-0745 -7- Case No. 21-CIV-02235 DEFENDANT RASIER-CA, LLC'S (ERRONEOUSLY SUED AS RAISER-CA, LLC) ANSWER TO COMPLAINT 1 TWENTY-SECOND AFFIRMATIVE DEFENSE 2 [Estoppel] 3 24. As and for a twenty-second, separate and affirmative defense to the Complaint, and 4 to each purported cause of action contained therein, this answering Defendant is informed and 5 believes and based thereon alleges: That each and every cause of action or purported cause of action 6 contained in the Complaint is barred by the Doctrine of Estoppel. 7 TWENTY-THIRD AFFIRMATIVE DEFENSE 8 [Waiver] 9 25. As and for a twenty-third, separate and affirmative defense to the Complaint, and to 10 each purported cause of action contained therein, this answering Defendant is informed and believes 11 and based thereon alleges: That each and every cause of action or purported cause of action WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE 925 222 3400 ♦ FAX 925 356 8250 1401 WILLOW PASS ROAD, SUITE 700 12 contained in the Complaint is barred by the Doctrine of Waiver. CONCORD, CALIFORNIA 94520-7982 13 TWENTY-FOURTH AFFIRMATIVE DEFENSE Attorneys at Law 14 [Laches] 15 26. As and for a twenty-fourth, separate and affirmative defense to the Complaint, and 16 to each purported cause of action contained therein, this answering Defendant is informed and 17 believes and based thereon alleges: That each and every cause of action or purported cause of action 18 contained in the Complaint is barred by the Doctrine of Laches. 19 TWENTY-FIFTH AFFIRMATIVE DEFENSE 20 [Unclean Hands] 21 27. As and for a twenty-fifth, separate and affirmative defense to the Complaint, and to 22 each purported cause of action contained therein, this answering Defendant is informed and believes 23 and based thereon alleges: That each and every cause of action or purported cause of action 24 contained in the Complaint is barred by the Doctrine of Unclean Hands. 25 TWENTY-SIXTH AFFIRMATIVE DEFENSE 26 [Collateral Estoppel] 27 28. As and for a twenty-sixth, separate and affirmative defense to the Complaint, and to 28 each purported cause of action contained therein, this answering Defendant is informed and believes 21122021.1:11009-0745 -8- Case No. 21-CIV-02235 DEFENDANT RASIER-CA, LLC'S (ERRONEOUSLY SUED AS RAISER-CA, LLC) ANSWER TO COMPLAINT 1 and based thereon alleges: That each and every cause of action or purported cause of action 2 contained in the Complaint is barred by the Doctrine of Collateral Estoppel. 3 TWENTY-SEVENTH AFFIRMATIVE DEFENSE 4 [Voluntary Conduct] 5 29. As and for a twenty-seventh, separate and affirmative defense to the Complaint, and 6 to each purported cause of action contained therein, this answering Defendant is informed and 7 believes and based thereon alleges: That Plaintiff has engaged in conduct with respect to the 8 activities and/or property which are the subject of the Complaint, and by reason of said activities 9 and conduct, is estopped from asserting any claims or damages or seeking any other relief against 10 this answering Defendant. 11 TWENTY-EIGHTH AFFIRMATIVE DEFENSE WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE 925 222 3400 ♦ FAX 925 356 8250 1401 WILLOW PASS ROAD, SUITE 700 12 [Damages Uncertain] CONCORD, CALIFORNIA 94520-7982 13 30. As and for a twenty-eighth, separate and affirmative defense to the Complaint, and Attorneys at Law 14 to each purported cause of action contained therein, this answering Defendant is informed and 15 believes and based thereon alleges: That Plaintiff’s damages, if any, are speculative, uncertain and 16 not capable of being determined by a trier of fact. 17 TWENTY-NINTH AFFIRMATIVE DEFENSE 18 [Intervening Superseding Causes] 19 31. As and for a twenty-ninth, separate and affirmative defense to the Complaint, and to 20 each purported cause of action contained therein, this answering Defendant is informed and believes 21 and based thereon alleges: The damages of which Plaintiff complains were proximately caused or 22 contributed to by the acts of other defendants, persons and/or other entities. Such acts were an 23 intervening, supervening and superseding cause of the injuries and damages, if any, of which the 24 Plaintiff complains, thus barring Plaintiff from any recovery against this answering Defendant. 25 THIRTIETH AFFIRMATIVE DEFENSE 26 [No Vicarious or Agency Liability] 27 32. As and for a thirtieth, separate and affirmative defense to the Complaint, Defendant 28 alleges that at no time or place set forth in the Complaint did any other defendant or third person 21122021.1:11009-0745 -9- Case No. 21-CIV-02235 DEFENDANT RASIER-CA, LLC'S (ERRONEOUSLY SUED AS RAISER-CA, LLC) ANSWER TO COMPLAINT 1 alleged to be at fault operate as the agent or employee of Defendant, such that Defendant can be 2 held vicariously liable for their acts. Should any other defendant or third party be deemed to have 3 any affiliation with this Defendant, then such other defendant or third party was independently 4 responsible for their own means and methods. Accordingly, the doctrines of respondeat superior 5 and agency are inapplicable and Uber Technologies, Inc. has no vicarious liability for acts or 6 omissions by said other defendants or third parties. 7 THIRTY-FIRST AFFIRMATIVE DEFENSE 8 [Independent Contractor] 9 33. As and for a thirty-first, separate and affirmative defense to the Complaint, and as to 10 each and every cause of action contained therein, this answering Defendant alleges that the 11 Complaint and each cause of action set forth therein are barred, in whole or in part, under the WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE 925 222 3400 ♦ FAX 925 356 8250 1401 WILLOW PASS ROAD, SUITE 700 12 independent contractor defense, as co-Defendant Driver was an independent contractor responsible CONCORD, CALIFORNIA 94520-7982 13 for his own means and methods, making the doctrine of respondeat superior inapplicable. Attorneys at Law 14 THIRTY-SECOND AFFIRMATIVE DEFENSE 15 [Failure to State Cause of Action] 16 34. As and for a thirty-second, separate and affirmative defense to the Complaint, a 17 separate and distinct affirmative defense, this answering Defendant is informed and believes and 18 thereon alleges that the Complaint, and each and every cause of action therein alleged against 19 Defendant fails to set forth facts sufficient to constitute a cause of action against this answering 20 Defendant. 21 THIRTY-THIRD AFFIRMATIVE DEFENSE 22 [Joint and Several Liability] 23 35. As and for thirty-third, separate and affirmative defense, this answering Defendant 24 alleges that the liability of this answering Defendant for the non-economic damages claimed or 25 proven by Plaintiff shall be and is limited by California Civil Code § 1431.2. 26 /// 27 /// 28 /// 21122021.1:11009-0745 -10- Case No. 21-CIV-02235 DEFENDANT RASIER-CA, LLC'S (ERRONEOUSLY SUED AS RAISER-CA, LLC) ANSWER TO COMPLAINT 1 THIRTY-FOURTH AFFIRMATIVE DEFENSE 2 [Not a Common Carrier] 3 36. As and for a thirty-fourth separate affirmative defense to the Complaint, and to each 4 purported cause of action contained therein, this answering Defendant is informed and believes, and 5 based thereon alleges: Defendant is a technology company and is not a transportation company or a 6 common carrier. Therefore, any and all claims asserted by Plaintiff under a common carrier theory 7 are barred. 8 THIRTY FIFTH AFFIRMATIVE DEFENSE 9 [Consent] 10 37. As and for a thirty-fifth, separate and affirmative defense to the Complaint, and to 11 each purported cause of action contained therein, this answering Defendant is informed and believes WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE 925 222 3400 ♦ FAX 925 356 8250 1401 WILLOW PASS ROAD, SUITE 700 12 and based thereon alleges: That each and every cause of action or purported cause of action CONCORD, CALIFORNIA 94520-7982 13 contained in the Complaint is barred due to the consent by Plaintiff to all actions alleged therein. Attorneys at Law 14 THIRTY-SIXTH AFFIRMATIVE DEFENSE 15 [Contractual Indemnity] 16 38. As and for a thirty-sixth, separate and affirmative defense to the Complaint, 17 Defendant is informed and believes, and thereon alleges, that Co-Defendant, driver, is contractually 18 obligated to defend, indemnify and hold Defendant harmless for all claims asserted by Plaintiff. 19 THIRTY-SEVENTH AFFIRMATIVE DEFENSE 20 [Arbitration Agreement] 21 39. As and for a thirty-seventh, separate and affirmative defense, this answering 22 Defendant is informed and believes and thereon alleges this dispute is subject to an arbitration 23 agreement between Plaintiff and this answering Defendant, such that this matter is properly brought 24 before a qualified arbitrator rather than in the instant court. 25 THIRTY-EIGHTH AFFIRMATIVE DEFENSE 26 [No Seatbelt Usage] 27 40. As and for a thirty-eighth, separate and affirmative defense to the Complaint, and to 28 each purported cause of action therein, this answering Defendant is informed and believes, and 21122021.1:11009-0745 -11- Case No. 21-CIV-02235 DEFENDANT RASIER-CA, LLC'S (ERRONEOUSLY SUED AS RAISER-CA, LLC) ANSWER TO COMPLAINT 1 thereon alleges: Plaintiff’s recovery is barred or proportionately reduced due to her failure to wear 2 the available restraining device or to wear it properly. 3 THIRTY-NINTH AFFIRMATIVE DEFENSE 4 [Proposition 213] 5 41. As and for a thirty-ninth, separate and affirmative defense, this answering Defendant 6 is informed and believes, and thereon allege, that Plaintiff was uninsured at the time of the incident 7 alleged in the Complaint. Under Proposition 213, Civil Code section 3333.4, Plaintiff is barred from 8 recovering non-economic damages. 9 FORTIETH AFFIRMATIVE DEFENSE 10 [Reserved Defenses] 11 42. As and for a fortieth, separate and affirmative defense to the Complaint, and to each WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE 925 222 3400 ♦ FAX 925 356 8250 1401 WILLOW PASS ROAD, SUITE 700 12 purported cause of action contained therein, this answering Defendant is informed and believes and CONCORD, CALIFORNIA 94520-7982 13 based thereon alleges: That this answering Defendant presently has insufficient knowledge or Attorneys at Law 14 insufficient information upon which to form a belief as to whether it may have additional, yet 15 unasserted, affirmative defenses. Defendant therefore reserves the right to assert additional 16 affirmative defenses in the event discovery indicates it would be appropriate. 17 WHEREFORE, this answering Defendant prays for judgment as follows: 18 1. That Plaintiff takes nothing by virtue of Plaintiff’s Complaint; 19 2. For costs of suit incurred herein; and 20 3. For such other and further relief as the court may deem just and proper. 21 22 DATED: May 20, 2021 WOOD, SMITH, HENNING & BERMAN LLP 23 24 By: 25 CARLA N. BRAUNSTEIN MICHAEL J. CHOI 26 Attorneys for Defendants UBER TECHNOLOGIES, INC., RASIER, LLC, and RASIER-CA, LLC 27 (erroneously sued as RAISER-CA, LLC) 28 21122021.1:11009-0745 -12- Case No. 21-CIV-02235 DEFENDANT RASIER-CA, LLC'S (ERRONEOUSLY SUED AS RAISER-CA, LLC) ANSWER TO COMPLAINT 1 PROOF OF SERVICE 2 Murugesan v.Tanaka Case No. SMSC 21-CIV-02235 3 I am employed in the County of Contra Costa, State of California. I am over the age of 4 eighteen years and not a party to the within action. My business address is 1401 Willow Pass Road, Suite 700, Concord, CA 94520-7982. 5 On May 20, 2021, I served the following document(s) described as DEFENDANT 6 RASIER-CA, LLC'S (ERRONEOUSLY SUED AS RAISER-CA, LLC) ANSWER TO COMPLAINT on the interested parties in this action as follows: 7 Ross McKissick 8 Philip Alexander Harris Personal Injury Lawyers 9 99 Osgood Place, Suite 100 San Francisco, CA 94133 10 Tel: 415-495-0440 / Fax: 408-320-0092 ross@harrispersonalinjury.com 11 palexander@harrispersonalinjury.com WOOD, SMITH, HENNING & BERMAN LLP Attorney for Plaintiff SIRUSHTI MURUGESAN TELEPHONE 925 222 3400 ♦ FAX 925 356 8250 1401 WILLOW PASS ROAD, SUITE 700 12 CONCORD, CALIFORNIA 94520-7982 BY E-MAIL OR ELECTRONIC TRANSMISSION: Only by e-mailing the 13 document(s) to the persons at the e-mail address(es) listed based that, during the Coronavirus Attorneys at Law (Covid-19) pandemic, this office will be working remotely, not able to send physical mail as 14 usual, and is therefore using only electronic mail. No electronic message or other indication that the transmission was unsuccessful was received within a reasonable time after the transmission. 15 I declare under penalty of perjury under the laws of the State of California that the 16 foregoing is true and correct. 17 Executed on May 20, 2021, at Concord, California. 18 19 Maura L Werner 20 21 22 23 24 25 26 27 28 21122021.1:11009-0745 -13- Case No. 21-CIV-02235 DEFENDANT RASIER-CA, LLC'S (ERRONEOUSLY SUED AS RAISER-CA, LLC) ANSWER TO COMPLAINT