Preview
1 LEWIS BRISBOIS BISGAARD & SMITH LLP
MATT D. ZUMSTEIN, SB# 201306
2 E-Mail: Matthew.Zumstein@lewisbrisbois.com
2185 North California Boulevard, Suite 300
3 Walnut Creek, California 94596
Telephone: 925.357.3456
4 Facsimile: 925.478.3260
5 Attorneys for Defendants
GINO’S FINE ITALIAN RESTAURANT
6
7
SUPERIOR COURT OF THE STATE OF CALIFORNIA
8
COUNTY OF MONTEREY
9
10
LOUIS MONTANO, JR.; LOUIE Case No. 21CV003635
11 MONTANO III; and MICHAEL MONTANO,
DEFENDANT GINO’S FINE ITALIAN
12 Plaintiffs, RESTAURANT, INC.’S ANSWER TO
PLAINTIFFS COMPLAINT FOR
13 vs. DAMAGES; NEGLIGENCE, PREMISES
LIABILITY AND STATUTORY
14 CITY OF SALINAS; GINO’S GOVERNMENT ENTITY LIABILITY
RESTAURANT, INC.; GINO’S FINE
15 ITALIAN FOOD, INC.; BLFA PROPERTIES Action Filed: November 16, 2021
LLC; NTN PROPERTIES LLC; NGOCHAO Trial Date: None Set
16 THI NGUYEN; RALPH BOZZO; ROSAURA
ARCOS PANIAGUA; AUSTIN ALARCON;
17 and DOES 1-35,
18 Defendants.
19
20 Defendant GINO’S FINE ITALIAN RESTAURANT (hereinafter referred to as “Gino’s”
21 or “Defendant”) in answering the Plaintiffs’ Complaint, deny and allege as follows:
22 Under the provisions of Code of Civil Procedure § 431.30(d), Gino’s denies, generally and
23 specifically, each allegation of the Complaint; Gino’s further denies that Plaintiffs have sustained
24 damages resulting from any wrongful act or omission of Gino’s or any of their agents or
25 employees.
26 ///
27 ///
28 ///
LEWIS 4863-0088-4748.1 1
BRISBOIS DEFENDANT GINO’S FINE ITALIAN RESTAURANT, INC.’S ANSWER TO PLAINTIFFS COMPLAINT
BISGAARD
& SMITH LLP FOR DAMAGES; NEGLIGENCE, PREMISES LIABILITY AND STATUTORY GOVERNMENT ENTITY
ATTORNEYS AT LAW LIABILITY
1 FIRST SEPARATE AND AFFIRMATIVE DEFENSE
2 (Failure to State a Claim)
3 Plaintiffs’ Complaint and each and every claim contained therein is uncertain and fails to
4 state facts sufficient to state a claim upon which relief ma y be granted.
5 SECOND SEPARATE AND AFFIRMATIVE DEFENSE
6 (Failure to Mitigate Medical Damages Under the ACA)
7 To the extent that Plaintiffs have failed to take reasonable steps to protect Plaintiffs from
8 medical costs, health care, or life care costs, or to avail themselves of the resources, services,
9 benefits, and coverage available under the Affordable Care Act, the Plaintiffs have failed to
10 mitigate their damages and cannot recover for such failures.
11 THIRD SEPARATE AND AFFIRMATIVE DEFENSE
12 (Proximate Cause)
13 In the event that Gino’s is in some manner found legally responsible for damages allegedly
14 sustained by Plaintiffs, and such damages were proximately caused or contributed to by Plaintiffs
15 and/or third parties, Gino’s should be indemnified by Plaintiffs and/or such third parties. This
16 defense is alleged in the alternative and does not admit any of the allegations contained in the
17 Complaint.
18 FOURTH SEPARATE AND AFFIRMATIVE DEFENSE
19 (Contribution)
20 As a separate, distinct and affirmative defense to the claim on file herein and to each cause
21 of action thereof, Gino’s alleges that should it be found liable to Plaintiffs, which liability is
22 expressly denied, Gino’s is entitled to have any reward against them abated, reduced, or
23 eliminated to the extent that the negligence, carelessness, fault, or defect caused by the remaining
24 parties in this action or by other persons, corporations, or business entities contributed to
25 Plaintiffs’ damages, if any.
26 FIFTH SEPARATE AND AFFIRMATIVE DEFENSE
27 (Failure to Mitigate Damages)
28 Gino’s alleges upon information and belief that Plaintiffs failed to act reasonably to mitigate
LEWIS 4863-0088-4748.1 2
BRISBOIS DEFENDANT GINO’S FINE ITALIAN RESTAURANT, INC.’S ANSWER TO PLAINTIFFS COMPLAINT
BISGAARD
& SMITH LLP FOR DAMAGES; NEGLIGENCE, PREMISES LIABILITY AND STATUTORY GOVERNMENT ENTITY
ATTORNEYS AT LAW LIABILITY
1 any damages that they have alleged in this action, if any at all.
2 SIXTH SEPARATE AND AFFIRMATIVE DEFENSE
3 (Waiver)
4 Gino’s is informed and believes and thereon alleges that Plaintiffs have waived any and all
5 claims that they may have had or has against Gino’s arising from the transactions and occurrences
6 contained in the Complaint.
7 SEVENTH SEPARATE AND AFFIRMATIVE DEFENSE
8 (Estoppel)
9 Gino’s is informed and believes and thereon alleges that Plaintiffs are estopped by their
10 own conduct and/or statements from asserting any and all claims they may have had or have
11 against Gino’s arising from the transactions and occurrences contained in the Complaint, including
12 but not limited to judicial estoppel.
13 EIGHTH SEPARATE AND AFFIRMATIVE DEFENSE
14 (Doctrine of Laches)
15 Gino’s is informed and believes and thereon alleges that Plaintiffs’ Complaint is barred, in
16 its entirety, by the Doctrine of Laches.
17 NINTH SEPARATE AND AFFIRMATIVE DEFENSE
18 (Unclean Hands)
19 Gino’s is informed and believes and thereon alleges that Plaintiffs’ Complaint is barred, in
20 its entirety, by the Doctrine of Unclean Hands.
21 TENTH SEPARATE AND AFFIRMATIVE DEFENSE
22 (Contributory Negligence)
23 Gino’s alleges based upon information and belief that any and all events and happenings,
24 injuries and damages, if any, referred to in said Complaint, were proximately caused and
25 contributed to by the negligence and fault of Plaintiffs and/or others, in that Plaintiffs did not
26 exercise ordinary care on their own behalf at the times and places referred to, and therefore,
27 Plaintiffs are completely barred from recovery herein, or in the alternative, under the doctrine of
28 pure comparative negligence and fault, said acts of Plaintiffs reduce Plaintiffs right to recovery
LEWIS 4863-0088-4748.1 3
BRISBOIS DEFENDANT GINO’S FINE ITALIAN RESTAURANT, INC.’S ANSWER TO PLAINTIFFS COMPLAINT
BISGAARD
& SMITH LLP FOR DAMAGES; NEGLIGENCE, PREMISES LIABILITY AND STATUTORY GOVERNMENT ENTITY
ATTORNEYS AT LAW LIABILITY
1 herein by the amount which such acts contributed to said incidents.
2 ELEVENTH SEPARATE AND AFFIRMATIVE DEFENSE
3 (Assumption of Risk)
4 Gino’s alleges that based upon information and belief that Plaintiffs freely and voluntarily
5 assumed the risk of injury and damage alleged in this action with full knowledge and appreciation
6 of the magnitude thereof.
7 TWELFTH SEPARATE AND AFFIRMATIVE DEFENSE
8 (Statute of Limitations)
9 Plaintiffs’ Complaint on file herein, and the whole thereof, including each and every
10 purported cause of action contained therein, is barred by the running of the statute of limitations as
11 set forth in the applicable Code of Civil Procedure § 335.1.
12 THIRTEENTH SEPARATE AND AFFIRMATIVE DEFENSE
13 (Proposition 51)
14 Gino’s is informed and believes and therefore presently contends that it is entitled to the
15 benefits, defenses, rights, immunities, protections, and privileges provided under The Fair
16 Responsibility Act of 1986, as set forth in California Civil Code §§ 1431.1, 1431.2 et seq.
17 FOURTEENTH SEPARATE AND AFFIRMATIVE DEFENSE
18 (Offset)
19 As a separate, distinct, and affirmative defense to the claim on file herein and to each cause
20 of action thereof, Gino’s alleges that should Plaintiffs recover damages against any Gino’s, it is
21 entitled to have the amount abated, reduced or eliminated to the extent the other third parties’ fault
22 caused or contributed to Plaintiffs damages, if any. This includes but is not limited to reductions
23 by any benefits or payments made or to be made to Plaintiffs by any workers’ compensation
24 carrier. See Witt v. Jackson, (1961) 57 Cal.2d 57.
25 FIFTEENTH SEPARATE AND AFFIRMATIVE DEFENSE
26 (Negligence of Others)
27 Gino’s specifically denies that any negligence on its part contributed to or was a proximate
28 cause of any injuries or damages sustained by Plaintiffs. But, in the event it is found that Gino’s
LEWIS 4863-0088-4748.1 4
BRISBOIS DEFENDANT GINO’S FINE ITALIAN RESTAURANT, INC.’S ANSWER TO PLAINTIFFS COMPLAINT
BISGAARD
& SMITH LLP FOR DAMAGES; NEGLIGENCE, PREMISES LIABILITY AND STATUTORY GOVERNMENT ENTITY
ATTORNEYS AT LAW LIABILITY
1 was negligent in any manner or degree, Gino’s alleges upon information and belief that certain co-
2 Defendants may be negligent to a certain degree for the injuries or damages, if any, sustained by
3 Plaintiffs and further alleges upon information and belief that there may be persons or parties not
4 named in this action who likewise may have contributed to a certain degree to the injuries alleged
5 to have been sustained by Plaintiffs; whereby Gino’s contends that in the event there is found to be
6 fault on the part of Gino’s which in any manner or degree contributed to the injuries of the
7 Plaintiffs, that a finding should be made apportioning and fixing the comparative fault of any and
8 all parties or persons whether named to this action or otherwise.
9 SIXTEENTH SEPARATE AND AFFIRMATIVE DEFENSE
10 (Open and Obvious Dangers)
11 As a separate, distinct, and affirmative defense to the claim on file herein and to each cause
12 of action thereof, Gino’s alleges that Plaintiffs’ Complaint and each count thereof may be barred,
13 in whole or in part, to the extent that the alleged dangers were open and obvious.
14 SEVENTEENTH SEPARATE AND AFFIRMATIVE DEFENSE
15 (Superseding or Intervening Cause or Omission)
16 As a separate, distinct and affirmative defense to the claim on file herein and to each cause
17 of action thereof, Gino’s alleges that Plaintiffs’ Complaint, and each count thereof may be barred,
18 in whole or in part, because the alleged injuries or damages complained of by Plaintiffs, if any,
19 were caused by the superseding acts, intervening acts, or omissions, or any combination thereof,
20 of Plaintiffs and/or third parties, for which Gino’s is neither responsible, or liable.
21 EIGHTEENTH SEPARATE AND AFFIRMATIVE DEFENSE
22 (Causation)
23 As a separate, distinct, and affirmative defense to the claim on file herein and to each cause
24 of action thereof, Gino’s alleges that it’s conduct was not the cause in fact nor the proximate cause
25 of any injury, loss, or damage alleged by Plaintiffs.
26 NINETEENTH SEPARATE AND AFFIRMATIVE DEFENSE
27 (Standing)
28 As a separate, distinct, and affirmative defense to the claim on file herein and to each cause
LEWIS 4863-0088-4748.1 5
BRISBOIS DEFENDANT GINO’S FINE ITALIAN RESTAURANT, INC.’S ANSWER TO PLAINTIFFS COMPLAINT
BISGAARD
& SMITH LLP FOR DAMAGES; NEGLIGENCE, PREMISES LIABILITY AND STATUTORY GOVERNMENT ENTITY
ATTORNEYS AT LAW LIABILITY
1 of action thereof, Gino’s alleges that Plaintiffs lack standing to assert claims set forth in Plaintiffs’
2 Complaint.
3 TWENTIETH SEPARATE AND AFFIRMATIVE DEFENSE
4 (Section 846 is Not Applicable)
5 As a separate, distinct, and affirmative defense to the claim on file herein and to each cause
6 of action thereof, Gino’s alleges that Plaintiffs are barred from recovery of any damages from Gino’s
7 on the grounds that Plaintiffs cannot establish any of the predicate facts to establish the applicability
8 of Civil Code Section 846 to this accident.
9 TWENTY-FIRST SEPARATE AND AFFIRMATIVE DEFENSE
10 (No Non-Economic Damages)
11 As a separate, distinct, and affirmative defense to the claim on file herein and to each cause
12 of action thereof, Gino’s alleges that Plaintiffs are barred from obtaining compensation for non-
13 economic losses to compensate for pain, suffering, inconvenience, physical impairment,
14 disfigurement, and other nonpecuniary damages by virtue of the limitation set forth in Civil Code
15 section 3333.4.
16 TWENTY-SECOND SEPARATE AND AFFIRMATIVE DEFENSE
17 (Trivial Defect)
18 Gino’s alleges that the alleged dangerous or defective condition as described in the
19 Complaint was trivial in nature, and as such bars any recovery in this action or diminishes
20 Plaintiffs’ recovery to the extent that Plaintiffs’ loss, damage, or injury is attributable to the
21 existence of the alleged dangerous or defective condition. Accordingly, Gino’s duty does not
22 extend to remedying or warning against minor or trivial defects.
23 TWENTY-THIRD SEPARATE AND AFFIRMATIVE DEFENSE
24 (Preventative Measures)
25 Gino’s alleges that their employees, and its agents took all necessary and reasonable
26 actions to protect Plaintiffs from the risk of injury allegedly created by the purported dangerous
27 condition alleged in the Complaint.
28 ///
LEWIS 4863-0088-4748.1 6
BRISBOIS DEFENDANT GINO’S FINE ITALIAN RESTAURANT, INC.’S ANSWER TO PLAINTIFFS COMPLAINT
BISGAARD
& SMITH LLP FOR DAMAGES; NEGLIGENCE, PREMISES LIABILITY AND STATUTORY GOVERNMENT ENTITY
ATTORNEYS AT LAW LIABILITY
1 TWENTY-FOURTH SEPARATE AND AFFIRMATIVE DEFENSE
2 (Knowledge of Potential Hazard)
3 Plaintiffs knew, or should have known, that the circumstances described in the Complaint
4 posed potential hazards and risks. In the event Plaintiffs are entitled to recovery of any damages,
5 the amount of those damages should be barred or reduced as a result of the Plaintiffs’ failure to act
6 accordingly notwithstanding this knowledge.
7 TWENTY-FIFTH SEPARATE AND AFFIRMATIVE DEFENSE
8 (Failure to Exhaust Remedies)
9 As a separate, distinct, and affirmative defense to the claim on file herein and to each cause
10 of action thereof, Gino’s alleges that Plaintiffs are barred from recovery of any damages from
11 Gino’s on the grounds that as an affirmative defense to each cause of action of the complaint, the
12 complaint is barred because Plaintiffs failed to exhaust her administrative and/or contractual
13 remedies.
14 TWENTY-SIXTH SEPARATE AND AFFIRMATIVE DEFENSE
15 (Reservation of Rights)
16 Defendant reserves the right to assert additional affirmative defenses at such time and to
17 such extent as warranted by discovery and factual developments in the case.
18 WHEREFORE, Defendant pray as follows:
19 1. Plaintiffs take nothing by the Complaint;
20 2. Judgment be rendered in favor of Gino’s;
21 3. Gino’s be awarded costs of suit;
22 4. Gino’s be awarded attorney’s fees in the defense of this action; and
23 5. Gino’s be awarded whatever further relief the Court deems just and proper.
24 DATED: March 14, 2022 LEWIS BRISBOIS BISGAARD & SMITH LLP
25
26 By:
MATTHEW ZUMSTEIN
27 Attorneys for Defendant GINO’S FINE ITALIAN
RESTAURANT
28
LEWIS 4863-0088-4748.1 7
BRISBOIS DEFENDANT GINO’S FINE ITALIAN RESTAURANT, INC.’S ANSWER TO PLAINTIFFS COMPLAINT
BISGAARD
& SMITH LLP FOR DAMAGES; NEGLIGENCE, PREMISES LIABILITY AND STATUTORY GOVERNMENT ENTITY
ATTORNEYS AT LAW LIABILITY
1 CALIFORNIA STATE COURT PROOF OF SERVICE
Louis Montano, Jr., et al. v. City of Salinas, et al.
2 Monterey County Superior Court Case No. 21CV003635
3 STATE OF CALIFORNIA, COUNTY OF CONTRA COSTA
4 At the time of service, I was over 18 years of age and not a party to this action. My
business address is 2185 North California Boulevard, Suite 300, Walnut Creek, CA 94596.
5
On March 14, 2022, I served true copies of the following document(s): DEFENDANT
6 GINO'S FINE ITALIAN RESTAURANT, INC.'S ANSWER TO PLAINTIFFS'
COMPLAINT FOR DAMAGES; NEGLIGENCE, PREMISES LIABILITY AND
7 STATUTORY GOVERNMENT ENTITY LIABILITY
8 I served the documents on the following persons at the following addresses (including fax
numbers and e-mail addresses, if applicable):
9
SEE ATTACHED SERVICE LIST
10
The documents were served by the following means:
11
(BY E-MAIL OR ELECTRONIC TRANSMISSION) Based on a court order or an
12 agreement of the parties to accept service by e-mail or electronic transmission, I caused the
documents to be sent from e-mail address Nicole.Tavis@lewisbrisbois.com to the persons
13 at the e-mail addresses listed above. I did not receive, within a reasonable time after the
transmission, any electronic message or other indication that the transmission was
14 unsuccessful.
15 I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
16
Executed on March 14, 2022, at Walnut Creek, California.
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19 Nicole Tavis
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LEWIS
BRISBOIS
BISGAARD
& SMITH LLP
4863-0088-4748.1 1
ATTORNEYS AT LAW PROOF OF SERVICE
1 SERVICE LIST
Louis Montano, Jr., et al. v. City of Salinas, et al.
2 Monterey County Superior Court Case No. 21CV003635
3 Emily A. Ruby Attorneys for Plaintiffs
GREENBERG AND RUBY
4 6100 Wilshire Boulevard, Suite 1170 Tel: 323.782.0535
Los Angeles, CA 90048 Fax: 323.782.0543
5 Email: eruby@calrialpros.com
6 Richard C. Alpers Attorneys for Plaintiffs
ALBERS LAW GROUP, INC.
7 PO Box 1540 Tel: 855.808.1174
Aptos, CA 95001 Fax: 855.870.1129
8 Email: rca@alperslawgroup.com
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LEWIS
BRISBOIS
BISGAARD
& SMITH LLP
4863-0088-4748.1 1
ATTORNEYS AT LAW SERVICE LIST
Preview
1 LEWIS BRISBOIS BISGAARD & SMITH LLP MATT D. ZUMSTEIN, SB# 201306 2 E-Mail: Matthew.Zumstein@lewisbrisbois.com 2185 North California Boulevard, Suite 300 3 Walnut Creek, California 94596 Telephone: 925.357.3456 4 Facsimile: 925.478.3260 5 Attorneys for Defendants GINO’S FINE ITALIAN RESTAURANT 6 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 COUNTY OF MONTEREY 9 10 LOUIS MONTANO, JR.; LOUIE Case No. 21CV003635 11 MONTANO III; and MICHAEL MONTANO, DEFENDANT GINO’S FINE ITALIAN 12 Plaintiffs, RESTAURANT, INC.’S ANSWER TO PLAINTIFFS COMPLAINT FOR 13 vs. DAMAGES; NEGLIGENCE, PREMISES LIABILITY AND STATUTORY 14 CITY OF SALINAS; GINO’S GOVERNMENT ENTITY LIABILITY RESTAURANT, INC.; GINO’S FINE 15 ITALIAN FOOD, INC.; BLFA PROPERTIES Action Filed: November 16, 2021 LLC; NTN PROPERTIES LLC; NGOCHAO Trial Date: None Set 16 THI NGUYEN; RALPH BOZZO; ROSAURA ARCOS PANIAGUA; AUSTIN ALARCON; 17 and DOES 1-35, 18 Defendants. 19 20 Defendant GINO’S FINE ITALIAN RESTAURANT (hereinafter referred to as “Gino’s” 21 or “Defendant”) in answering the Plaintiffs’ Complaint, deny and allege as follows: 22 Under the provisions of Code of Civil Procedure § 431.30(d), Gino’s denies, generally and 23 specifically, each allegation of the Complaint; Gino’s further denies that Plaintiffs have sustained 24 damages resulting from any wrongful act or omission of Gino’s or any of their agents or 25 employees. 26 /// 27 /// 28 /// LEWIS 4863-0088-4748.1 1 BRISBOIS DEFENDANT GINO’S FINE ITALIAN RESTAURANT, INC.’S ANSWER TO PLAINTIFFS COMPLAINT BISGAARD & SMITH LLP FOR DAMAGES; NEGLIGENCE, PREMISES LIABILITY AND STATUTORY GOVERNMENT ENTITY ATTORNEYS AT LAW LIABILITY 1 FIRST SEPARATE AND AFFIRMATIVE DEFENSE 2 (Failure to State a Claim) 3 Plaintiffs’ Complaint and each and every claim contained therein is uncertain and fails to 4 state facts sufficient to state a claim upon which relief ma y be granted. 5 SECOND SEPARATE AND AFFIRMATIVE DEFENSE 6 (Failure to Mitigate Medical Damages Under the ACA) 7 To the extent that Plaintiffs have failed to take reasonable steps to protect Plaintiffs from 8 medical costs, health care, or life care costs, or to avail themselves of the resources, services, 9 benefits, and coverage available under the Affordable Care Act, the Plaintiffs have failed to 10 mitigate their damages and cannot recover for such failures. 11 THIRD SEPARATE AND AFFIRMATIVE DEFENSE 12 (Proximate Cause) 13 In the event that Gino’s is in some manner found legally responsible for damages allegedly 14 sustained by Plaintiffs, and such damages were proximately caused or contributed to by Plaintiffs 15 and/or third parties, Gino’s should be indemnified by Plaintiffs and/or such third parties. This 16 defense is alleged in the alternative and does not admit any of the allegations contained in the 17 Complaint. 18 FOURTH SEPARATE AND AFFIRMATIVE DEFENSE 19 (Contribution) 20 As a separate, distinct and affirmative defense to the claim on file herein and to each cause 21 of action thereof, Gino’s alleges that should it be found liable to Plaintiffs, which liability is 22 expressly denied, Gino’s is entitled to have any reward against them abated, reduced, or 23 eliminated to the extent that the negligence, carelessness, fault, or defect caused by the remaining 24 parties in this action or by other persons, corporations, or business entities contributed to 25 Plaintiffs’ damages, if any. 26 FIFTH SEPARATE AND AFFIRMATIVE DEFENSE 27 (Failure to Mitigate Damages) 28 Gino’s alleges upon information and belief that Plaintiffs failed to act reasonably to mitigate LEWIS 4863-0088-4748.1 2 BRISBOIS DEFENDANT GINO’S FINE ITALIAN RESTAURANT, INC.’S ANSWER TO PLAINTIFFS COMPLAINT BISGAARD & SMITH LLP FOR DAMAGES; NEGLIGENCE, PREMISES LIABILITY AND STATUTORY GOVERNMENT ENTITY ATTORNEYS AT LAW LIABILITY 1 any damages that they have alleged in this action, if any at all. 2 SIXTH SEPARATE AND AFFIRMATIVE DEFENSE 3 (Waiver) 4 Gino’s is informed and believes and thereon alleges that Plaintiffs have waived any and all 5 claims that they may have had or has against Gino’s arising from the transactions and occurrences 6 contained in the Complaint. 7 SEVENTH SEPARATE AND AFFIRMATIVE DEFENSE 8 (Estoppel) 9 Gino’s is informed and believes and thereon alleges that Plaintiffs are estopped by their 10 own conduct and/or statements from asserting any and all claims they may have had or have 11 against Gino’s arising from the transactions and occurrences contained in the Complaint, including 12 but not limited to judicial estoppel. 13 EIGHTH SEPARATE AND AFFIRMATIVE DEFENSE 14 (Doctrine of Laches) 15 Gino’s is informed and believes and thereon alleges that Plaintiffs’ Complaint is barred, in 16 its entirety, by the Doctrine of Laches. 17 NINTH SEPARATE AND AFFIRMATIVE DEFENSE 18 (Unclean Hands) 19 Gino’s is informed and believes and thereon alleges that Plaintiffs’ Complaint is barred, in 20 its entirety, by the Doctrine of Unclean Hands. 21 TENTH SEPARATE AND AFFIRMATIVE DEFENSE 22 (Contributory Negligence) 23 Gino’s alleges based upon information and belief that any and all events and happenings, 24 injuries and damages, if any, referred to in said Complaint, were proximately caused and 25 contributed to by the negligence and fault of Plaintiffs and/or others, in that Plaintiffs did not 26 exercise ordinary care on their own behalf at the times and places referred to, and therefore, 27 Plaintiffs are completely barred from recovery herein, or in the alternative, under the doctrine of 28 pure comparative negligence and fault, said acts of Plaintiffs reduce Plaintiffs right to recovery LEWIS 4863-0088-4748.1 3 BRISBOIS DEFENDANT GINO’S FINE ITALIAN RESTAURANT, INC.’S ANSWER TO PLAINTIFFS COMPLAINT BISGAARD & SMITH LLP FOR DAMAGES; NEGLIGENCE, PREMISES LIABILITY AND STATUTORY GOVERNMENT ENTITY ATTORNEYS AT LAW LIABILITY 1 herein by the amount which such acts contributed to said incidents. 2 ELEVENTH SEPARATE AND AFFIRMATIVE DEFENSE 3 (Assumption of Risk) 4 Gino’s alleges that based upon information and belief that Plaintiffs freely and voluntarily 5 assumed the risk of injury and damage alleged in this action with full knowledge and appreciation 6 of the magnitude thereof. 7 TWELFTH SEPARATE AND AFFIRMATIVE DEFENSE 8 (Statute of Limitations) 9 Plaintiffs’ Complaint on file herein, and the whole thereof, including each and every 10 purported cause of action contained therein, is barred by the running of the statute of limitations as 11 set forth in the applicable Code of Civil Procedure § 335.1. 12 THIRTEENTH SEPARATE AND AFFIRMATIVE DEFENSE 13 (Proposition 51) 14 Gino’s is informed and believes and therefore presently contends that it is entitled to the 15 benefits, defenses, rights, immunities, protections, and privileges provided under The Fair 16 Responsibility Act of 1986, as set forth in California Civil Code §§ 1431.1, 1431.2 et seq. 17 FOURTEENTH SEPARATE AND AFFIRMATIVE DEFENSE 18 (Offset) 19 As a separate, distinct, and affirmative defense to the claim on file herein and to each cause 20 of action thereof, Gino’s alleges that should Plaintiffs recover damages against any Gino’s, it is 21 entitled to have the amount abated, reduced or eliminated to the extent the other third parties’ fault 22 caused or contributed to Plaintiffs damages, if any. This includes but is not limited to reductions 23 by any benefits or payments made or to be made to Plaintiffs by any workers’ compensation 24 carrier. See Witt v. Jackson, (1961) 57 Cal.2d 57. 25 FIFTEENTH SEPARATE AND AFFIRMATIVE DEFENSE 26 (Negligence of Others) 27 Gino’s specifically denies that any negligence on its part contributed to or was a proximate 28 cause of any injuries or damages sustained by Plaintiffs. But, in the event it is found that Gino’s LEWIS 4863-0088-4748.1 4 BRISBOIS DEFENDANT GINO’S FINE ITALIAN RESTAURANT, INC.’S ANSWER TO PLAINTIFFS COMPLAINT BISGAARD & SMITH LLP FOR DAMAGES; NEGLIGENCE, PREMISES LIABILITY AND STATUTORY GOVERNMENT ENTITY ATTORNEYS AT LAW LIABILITY 1 was negligent in any manner or degree, Gino’s alleges upon information and belief that certain co- 2 Defendants may be negligent to a certain degree for the injuries or damages, if any, sustained by 3 Plaintiffs and further alleges upon information and belief that there may be persons or parties not 4 named in this action who likewise may have contributed to a certain degree to the injuries alleged 5 to have been sustained by Plaintiffs; whereby Gino’s contends that in the event there is found to be 6 fault on the part of Gino’s which in any manner or degree contributed to the injuries of the 7 Plaintiffs, that a finding should be made apportioning and fixing the comparative fault of any and 8 all parties or persons whether named to this action or otherwise. 9 SIXTEENTH SEPARATE AND AFFIRMATIVE DEFENSE 10 (Open and Obvious Dangers) 11 As a separate, distinct, and affirmative defense to the claim on file herein and to each cause 12 of action thereof, Gino’s alleges that Plaintiffs’ Complaint and each count thereof may be barred, 13 in whole or in part, to the extent that the alleged dangers were open and obvious. 14 SEVENTEENTH SEPARATE AND AFFIRMATIVE DEFENSE 15 (Superseding or Intervening Cause or Omission) 16 As a separate, distinct and affirmative defense to the claim on file herein and to each cause 17 of action thereof, Gino’s alleges that Plaintiffs’ Complaint, and each count thereof may be barred, 18 in whole or in part, because the alleged injuries or damages complained of by Plaintiffs, if any, 19 were caused by the superseding acts, intervening acts, or omissions, or any combination thereof, 20 of Plaintiffs and/or third parties, for which Gino’s is neither responsible, or liable. 21 EIGHTEENTH SEPARATE AND AFFIRMATIVE DEFENSE 22 (Causation) 23 As a separate, distinct, and affirmative defense to the claim on file herein and to each cause 24 of action thereof, Gino’s alleges that it’s conduct was not the cause in fact nor the proximate cause 25 of any injury, loss, or damage alleged by Plaintiffs. 26 NINETEENTH SEPARATE AND AFFIRMATIVE DEFENSE 27 (Standing) 28 As a separate, distinct, and affirmative defense to the claim on file herein and to each cause LEWIS 4863-0088-4748.1 5 BRISBOIS DEFENDANT GINO’S FINE ITALIAN RESTAURANT, INC.’S ANSWER TO PLAINTIFFS COMPLAINT BISGAARD & SMITH LLP FOR DAMAGES; NEGLIGENCE, PREMISES LIABILITY AND STATUTORY GOVERNMENT ENTITY ATTORNEYS AT LAW LIABILITY 1 of action thereof, Gino’s alleges that Plaintiffs lack standing to assert claims set forth in Plaintiffs’ 2 Complaint. 3 TWENTIETH SEPARATE AND AFFIRMATIVE DEFENSE 4 (Section 846 is Not Applicable) 5 As a separate, distinct, and affirmative defense to the claim on file herein and to each cause 6 of action thereof, Gino’s alleges that Plaintiffs are barred from recovery of any damages from Gino’s 7 on the grounds that Plaintiffs cannot establish any of the predicate facts to establish the applicability 8 of Civil Code Section 846 to this accident. 9 TWENTY-FIRST SEPARATE AND AFFIRMATIVE DEFENSE 10 (No Non-Economic Damages) 11 As a separate, distinct, and affirmative defense to the claim on file herein and to each cause 12 of action thereof, Gino’s alleges that Plaintiffs are barred from obtaining compensation for non- 13 economic losses to compensate for pain, suffering, inconvenience, physical impairment, 14 disfigurement, and other nonpecuniary damages by virtue of the limitation set forth in Civil Code 15 section 3333.4. 16 TWENTY-SECOND SEPARATE AND AFFIRMATIVE DEFENSE 17 (Trivial Defect) 18 Gino’s alleges that the alleged dangerous or defective condition as described in the 19 Complaint was trivial in nature, and as such bars any recovery in this action or diminishes 20 Plaintiffs’ recovery to the extent that Plaintiffs’ loss, damage, or injury is attributable to the 21 existence of the alleged dangerous or defective condition. Accordingly, Gino’s duty does not 22 extend to remedying or warning against minor or trivial defects. 23 TWENTY-THIRD SEPARATE AND AFFIRMATIVE DEFENSE 24 (Preventative Measures) 25 Gino’s alleges that their employees, and its agents took all necessary and reasonable 26 actions to protect Plaintiffs from the risk of injury allegedly created by the purported dangerous 27 condition alleged in the Complaint. 28 /// LEWIS 4863-0088-4748.1 6 BRISBOIS DEFENDANT GINO’S FINE ITALIAN RESTAURANT, INC.’S ANSWER TO PLAINTIFFS COMPLAINT BISGAARD & SMITH LLP FOR DAMAGES; NEGLIGENCE, PREMISES LIABILITY AND STATUTORY GOVERNMENT ENTITY ATTORNEYS AT LAW LIABILITY 1 TWENTY-FOURTH SEPARATE AND AFFIRMATIVE DEFENSE 2 (Knowledge of Potential Hazard) 3 Plaintiffs knew, or should have known, that the circumstances described in the Complaint 4 posed potential hazards and risks. In the event Plaintiffs are entitled to recovery of any damages, 5 the amount of those damages should be barred or reduced as a result of the Plaintiffs’ failure to act 6 accordingly notwithstanding this knowledge. 7 TWENTY-FIFTH SEPARATE AND AFFIRMATIVE DEFENSE 8 (Failure to Exhaust Remedies) 9 As a separate, distinct, and affirmative defense to the claim on file herein and to each cause 10 of action thereof, Gino’s alleges that Plaintiffs are barred from recovery of any damages from 11 Gino’s on the grounds that as an affirmative defense to each cause of action of the complaint, the 12 complaint is barred because Plaintiffs failed to exhaust her administrative and/or contractual 13 remedies. 14 TWENTY-SIXTH SEPARATE AND AFFIRMATIVE DEFENSE 15 (Reservation of Rights) 16 Defendant reserves the right to assert additional affirmative defenses at such time and to 17 such extent as warranted by discovery and factual developments in the case. 18 WHEREFORE, Defendant pray as follows: 19 1. Plaintiffs take nothing by the Complaint; 20 2. Judgment be rendered in favor of Gino’s; 21 3. Gino’s be awarded costs of suit; 22 4. Gino’s be awarded attorney’s fees in the defense of this action; and 23 5. Gino’s be awarded whatever further relief the Court deems just and proper. 24 DATED: March 14, 2022 LEWIS BRISBOIS BISGAARD & SMITH LLP 25 26 By: MATTHEW ZUMSTEIN 27 Attorneys for Defendant GINO’S FINE ITALIAN RESTAURANT 28 LEWIS 4863-0088-4748.1 7 BRISBOIS DEFENDANT GINO’S FINE ITALIAN RESTAURANT, INC.’S ANSWER TO PLAINTIFFS COMPLAINT BISGAARD & SMITH LLP FOR DAMAGES; NEGLIGENCE, PREMISES LIABILITY AND STATUTORY GOVERNMENT ENTITY ATTORNEYS AT LAW LIABILITY 1 CALIFORNIA STATE COURT PROOF OF SERVICE Louis Montano, Jr., et al. v. City of Salinas, et al. 2 Monterey County Superior Court Case No. 21CV003635 3 STATE OF CALIFORNIA, COUNTY OF CONTRA COSTA 4 At the time of service, I was over 18 years of age and not a party to this action. My business address is 2185 North California Boulevard, Suite 300, Walnut Creek, CA 94596. 5 On March 14, 2022, I served true copies of the following document(s): DEFENDANT 6 GINO'S FINE ITALIAN RESTAURANT, INC.'S ANSWER TO PLAINTIFFS' COMPLAINT FOR DAMAGES; NEGLIGENCE, PREMISES LIABILITY AND 7 STATUTORY GOVERNMENT ENTITY LIABILITY 8 I served the documents on the following persons at the following addresses (including fax numbers and e-mail addresses, if applicable): 9 SEE ATTACHED SERVICE LIST 10 The documents were served by the following means: 11 (BY E-MAIL OR ELECTRONIC TRANSMISSION) Based on a court order or an 12 agreement of the parties to accept service by e-mail or electronic transmission, I caused the documents to be sent from e-mail address Nicole.Tavis@lewisbrisbois.com to the persons 13 at the e-mail addresses listed above. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was 14 unsuccessful. 15 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 16 Executed on March 14, 2022, at Walnut Creek, California. 17 18 19 Nicole Tavis 20 21 22 23 24 25 26 27 28 LEWIS BRISBOIS BISGAARD & SMITH LLP 4863-0088-4748.1 1 ATTORNEYS AT LAW PROOF OF SERVICE 1 SERVICE LIST Louis Montano, Jr., et al. v. City of Salinas, et al. 2 Monterey County Superior Court Case No. 21CV003635 3 Emily A. Ruby Attorneys for Plaintiffs GREENBERG AND RUBY 4 6100 Wilshire Boulevard, Suite 1170 Tel: 323.782.0535 Los Angeles, CA 90048 Fax: 323.782.0543 5 Email: eruby@calrialpros.com 6 Richard C. Alpers Attorneys for Plaintiffs ALBERS LAW GROUP, INC. 7 PO Box 1540 Tel: 855.808.1174 Aptos, CA 95001 Fax: 855.870.1129 8 Email: rca@alperslawgroup.com 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LEWIS BRISBOIS BISGAARD & SMITH LLP 4863-0088-4748.1 1 ATTORNEYS AT LAW SERVICE LIST