No Value: Louis Montano, Jr., et al. vs Ngochao Nguyen, et al.

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MAYR LAW
FIRM
1010 W. Taylor St.
San Jose, CA 95196
Ph 408-331-7606

MAYR LAW FIRM
RODNEY N. MAYR, ESQ. SBN #310165
1010 W. TAYLOR STREET

SAN JOSE, CALIFORNIA 95126

Telephone: 408-331-7606
Facsimile: 669-266-5612

Attorney for Defendant AUSTIN ALARCON

SUPERIOR COURT OF CALIFORNIA

COUNTY OF MONTEREY

LOUIS MONTANO, JR.; LOUIE MONTANO
TI; and MICHAEL MONTANO,

Plaintiffs,

v.

CITY OF SALINAS; GINO’S

RESTAURANT, INC.; GINO’S FINE

ITALIAN FOOD, INC.; BLFA PROPERTIES
LLC: NGOCLIAO TI NGUYEN: RALPII
BOZZO; ROSAURA ARCOS PANIAGUA;
AUSTIN ALARCON; and DOES 1-35,

Defendants.

CASE NO, 21CV003635

ANSWER TO THE COMPLAINT FOR
DAMAGES

(1) NEGLIGENCE

(2) PREMISES LIABILITY

(3) STATUTORY GOVERNMENT
ENTITY LIABILITY

Defendant AUSTIN ALARCON (hereinafter "Defendant"), by and through their

attorney, hereby answers Plaintiffs LOUIS MONTANO, JR.; LOUIE MONTANO ILL; and

MICHAEL MONTANO’S (hereinafter "Plaintiffs") Compiaini, which is unverified. Thereiore,

Pursuant to Code of Civil Procedure section 431.30, the Defendant deny, generally and

specifically, collectively and individually, each and every material allegation contained in the

Complaint, and the Defendant also denies that Plaintiff has been injured or damaged in any sum,

ANSWER TO THE COMPLAINT FOR DAMAGEStv

MAYR LAW
IRM
TOMO W. Taylor St
‘San Jose, CA 95126
Ph 408-331-7606

or at all, and they further deny that Plaintiff is entitled to damages in any form or any relief’

whatsoever.

AFFIRMATIV. SES

Defendant pleads the following separate defenses. Defendant also reserve the right to

assert additional affirmative defenses that discovery may indicate are proper.

FIRS’

FFIRMATIVE DEFENSE

(Failure to State A Claim)

1. As a First and Separate Affirmative Defense to the Complaint on file herein (and each
Cause of Action thereof), this answering Defendant alleges that the fails to state facts sufficient

to constitute any Cause of Action against him.

COND AFFIRMATIVE DEFEN:

(Negligence of Plaintiffs)

2. As a Second and Separate Affirmative Defense to the Complaint on file herein, this
answering Defendant is informed and believes, and upon such information and belief alleges,
that Plaintiffs were themselves careless and negligent in and about the matters alleged in the
Complaint. Therefore, that said carelessness and negligence on Plaintiffs’ own part, proximately

caused and/or contributed to Plaintiffs’ injuries, loss and damage complained therein, if any.

ANSWER TO THE COMPLAINT FOR DAMAGES

twMAYR LAW
FIRM
1010 W. Taylor St
Sun Jose, CA 95126
Ph 408-331-2606

THIRD AFFIRMATIVE DEFENSE

(Assumption of the Risk)

3. As a Third and Separate Affirmative Defense to the Complaint on file herein, this
answering Defendant is informed and believes, and upon such information and belief, alleges
that Plaintiffs knowingly and voluntarily assumed any and all risks, if any there were, at the time

and place of the alleged incident referred to in the Complaint.

FOURTH AFFIRMATIVE DEFENSE

(Failure to Mitigate)

4. As a Fourth and Separate Affirmative Defense to the Complaint on file herein, (and
each Cause of Action thereof), this answering Defendant alleges that Plaintiffs failed to take
reasonable steps to protect Plaintiffs from the damages alleged in the Complaint and to miligate

the damages alleged in the Complaint - if any damage was in fact suffered.

FIFTH AFFIRMATIVE DEFENSE

(Estoppel)

5. As a Fifth and Separate Affirmative Defense to the Complaint on file herein, (and each
Cause of Action thereof), this answering Defendant is informed and believes, and upon such
information and belief alleges that Plaintiffs are estopped, by action of law or by conduct, from

obtaining the relief sought in Plaintiffs’ Complaint.

ANSWER TO THE COMPLAINT FOR DAMAGES

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MAYR LAW
FIRM
1010 W. Taylor St.
San Jose, CA 95126
Ph 408-331-7606

SIXTH AFFIRMATIVE DEFENSE

(Unclean Hands)

6. As an Sixth and Separate Affirmative Defense to the Complaint on file herein, (and
each Cause of Action thereof), this answering Defendant is informed and believes, and upon
such information and belief, alleges that Plaintiffs are guilty of unclean hands, in the matters set
forth in the Complaint, which conduct extinguishes any right of Plaintiff to equitable relief in this

action.

SEVENTH AFFIRMATIVE DEFENSE

(Proximate Cause of Others)

7. As a Seventh and Separate Affirmative Defense to the Complaint on file herein, this

answering Daféndait ts informed and believes, and upon such Information and belief, alleges
that the damages complained of by Plaintiffs, if any, were either wholly or in part, directly and
proximately, caused by the negligence of persons or entities other than this Defendant, and said
negligence is cither imputed to the Plaintiffs, by reason of the relationship between Plaintiffs and
said persons or entities, or comparatively reduces the proportion of negligence and the
corresponding liability of this answering Defendant.

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ANSWER TO THE COMPLAINT FOR DAMAGEStu

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MAYR LAW
FIRM
1010 W. Taylor St
Sun Jose, CA 95126
Ph 408-331-7606

EIGHTH AFFIRMATIVE DEFENSE

(Negligence of Others)

8. As an Eighth and Separate Affirmative Defense to the Complaint on file herein, this
answering Defendant alleges that the damages sustained by Plaintiffs, if any, were proximately
caused by the acts, omissions, negligence, fraud and/or breach of obligations, by persons other

than answering Defendant and beyond answering Defendant's supervision and control.

NINTH AFFIRMATIVE DEFENSE

(Accident/Misunderstanding)

9, As a Ninth and Separate Affirmative Defense to the Complaint on file herein, this
answering Defendant alleges that the damages sustained by Plaintiffs, if any, were the result of
an unavoidable accident/misunderstanding, and so far as this answering Defendant is concerned,

occurred without any negligence, want of care, default, or other breach of duty to Plaintiffs on

the part of Defendant.

TENTH AFFIRMATIVE DEFENSE

(Comparative Negligence)

10. As a'Tenth and Separate Affirmative Defense to the Complaint on file herein, this
answering Defendant alleges that if Plaintiff suffered or sustained any loss, injury, damage or

detriment, the same was directly and proximately caused and contributed to by the conduct, acts,

ANSWER TO THE COMPLAINT FOR DAMAGESMW FF & bv

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MAYR LAW
IRM.
1010 W. Taylor St.
San Jose, CA 95126
Ph 408-331-7606

omissions, activities, carelessness, negligence, and/or intentional misconduct of Plaintiff, thereby]

completely or partially barring Plaintiff's recovery herein.

ELEVENTH AFFIRMATIVE DEFENSE

(Comparative Fault of Third Parties)

11. As an Eleventh and Separate Affirmative Defense to the Complaint on file herein, this
answering Defendant is informed and believes and, based thereon, alleges that it is not legally
responsible in any fashion with respect to the damages and injuries claimed by Plaintiff in the
Complaint; however, if Defendant is subjected to any liability to Plaintiff or any cross-
complainant herein, it will be due, in whole or in part, to the acts, omissions, activities,
carelessness, recklessness, negligence, and/or intentional misconduct of others: wherefore, any
recovery obtained by Plaintiff or any cross-complainant herein against Defendant should be
reduced in proportion to the respective negligence and fault and legal responsibility of all other
parties, persons and entities, their agents, servants and employees who contributed to and/or
caused any such injury and/or damages, in accordance with the law of comparative negligence;
the liability of Defendant, if any, is limited in direct proportion to the percentage of fault actually
attributed to it.

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ANSWER TO THE COMPLAINT FOR DAMAGEStai

MAYR LAW
FIRM
1010 W. Taylor St.
Sun Jose, CA 95126
Ph 408-331-7606,

TWELFTH AFFIRMATIVE DEFENSE

(intervening and Superseding Causes)

12. As an Twelfth and Separate Affirmative Defense to the Complaint on file herein, this
answering Defendant is informed and believes and, based thereon, alleges that the injuries and
damages of which Plaintiff complains were proximately caused by, or contributed to, by the acts
of other defendants, cross- defendants, persons and/or other entities, and that said acts were an
intervening and superseding cause of the injuries and damages, if any, of which Plaintiff

complains, thus barring Plaintiff from any recovery against Defendant.

THIRTEENTH AFFIRMATIVE DEFENSE
(Doe/Roe Defendants)

13. As an Thirteenth and Separate Affirmative Nefenss to the Complaint on file herein,
this answering Defendant is informed and believes and, based thercon, that he is not legally
responsible for the acts and/or omissions of those additional defendants named in the Complaint
and/or to be named as Does, or to cross-defendants that may be named as roes in any cross-

complaint filed in this action.

WHEREFORE, this answering Defendant prays that Plaintiffs take nothing by reason of
their Complaint on file herein. The Defendant prays that a judgment for reasonable attorney's
fees, for costs of suit incurred herein, and for such other and further relief as this Court may

deem just and proper is awarded to him.

ANSWER TO THE COMPLAINT FOR DAMAGEStw

WHEREFORE, Defendant pray for relief as follows:

1. That the Complaint be dismissed, with prejudice and in its entirety;

2. That Plaintiffs take nothing by reason of this Complaint and that judgment be entered against

Plaintiffs and in favor of the Defendant;

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3. That the Defendant be awarded his attorneys’ fees and costs incurred in defending this action;

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4, That the Defendant be granted such other and further relief as the Court may deem just and

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proper.
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17|| DATED: February 17, 2022 (Reb N faye
RodneyN. Mayr E!
18 Attorney for Defendants,

AUSTIN ALARCON

MAYR LAW
FIRM
1010 .W. Taylor St - - -

ee TAIT UT OU

Ph 408-33