Preview
ALLISON M. LAWRENCE (SBN 290770)
Alawrence@tysonmendes.com F | ki E D
LOUIS R. BARELLA (SBN 118003) ALAMEDA COUNTY
N
lbarella@tysonmendes.com
W
TYSON & MENDES LLP NOV 29 2021
371 Bel Marin Keys Blvd., Suite 100
S&F
Novato, CA 94949
Telephone: (628) 253-5070
nA
Facsimile: (415) 785-3165
ON
Attorneys for Defendant,
<—)
MCMILLAN ELECTRIC
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF ALAMEDA
10
11 XL INSURANCE, Case No.: HG21110630
12 Plaintiff, Assigned to Hon. Delbert C. Gee
Dept. 514
13 v.
14 MANUEL INIGUEZ PALACIOS, an DEFENDANT MCMILLAN
individual; MCMILLAN ELECTRIC, a ELECTRIC’S ANSWER TO
15 California Corporation; and DOES | to20, PLAINTIFF’S COMPLAINT
inclusive,
16 Case Filed: August 20, 2021
- Defendants. Trial Date: — Not set.
17
18
19 COMES NOW, Defendant MCMILLAN ELECTRIC (“Defendant”), and answers
20 Plaintiffs complaint (“Complaint”) on file herein, and without waiver of this answering
21 Defendant’s rights to filecross-complaints or third-party actions, and answering for itselfand
a9 itselfalone, does admit, deny and alleges as follows:
23 DENIALS
24 e Defendant denies allof the allegations generally and specifically contained in the
25 unverified Complaint and each cause of action as they apply to them. Defendant specifically
26 denies that the Defendant is liableto the Plaintiff under the theories or in the matters set forth in
27 the Complaint and denies that Plaintiff was injured or damaged as alleged in the Complaint as a
28 result of any conduct of this Defendant.
7 1
DEFENDANT MCMILLAN ELECTRIC’S ANSWER TO PLAINTIFF’S COMPLAINT
2. Defendant denies responsibility for any damages, or any percentage of damages
claimed by the Plaintiff.
3. This answering Defendant does not, by stating the matters set forth in these
defenses, allege or admit that ithas the burden of proof and/or persuasion with respect to any of
these matters, and does not assume the burden of proof or persuasion as to any matters to which
Plaintiff has the burden of proof or persuasion.
olUOmlUlUlUCUOUMN CUD
SEPARATE AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
[Apportionment of Fault]
4. As and for a first separate affirmative defense to the Complaint, and to each
purported cause of action contained therein, this answering Defendant is informed and believes,
and based thereon alleges: Defendant denies it was negligent in any fashion with respect to the
damages, losses, injuries, and debts claimed by the Plaintiff in the Complaint on file herein;
however, if the answering Defendant isfound to be negligent (which supposition isdenied and
merely stated for the purpose of this affirmative defense), then this answering Defendant
provisionally alleges Defendant’s negligence is not the sole and proximate cause of the resultant
damages, losses, and injuries alleged by Plaintiff and that the damages awarded to Plaintiff, if
any, be apportioned according to the respective faultof the parties, persons, and entities,or their
agents, servants, and employees who contributed to and/or caused said resultant damages as
alleged, according to the proof presented at the time of trial. To assess any greater percentage of
fault and damages against this answering Defendant in excess of the answering Defendant’s
percentage of fault would be a denial of California equal protection and due process, and Federal
equal protection and due process, as guaranteed by the Constitutions of California and the United
States, respectively. . -
SECOND AFFIRMATIVE DEFENSE
[Comparative Fault]
5. As and for a second, separate, and affirmative defense to the Complaint and to
each purported cause of action contained therein, this answering Defendant is informed and
2
DEFENDANT MCMILLAN ELECTRIC’S ANSWER TO PLAINTIFF’S COMPLAINT
believes and based thereon alleges: The injuries to the Plaintiff, if any, were sustained in that
Plaintiff failed to exercise ordinary and reasonable care or caution concerning the matters alleged
in the Complaint; that any and all events, happenings, injuries and damages set forth in the
Complaint, if any, were therefore proximately caused and contributed to by the acts and/or
aN
omissions of Plaintiff and/or itsemployee, and such negligence on Plaintiffs part constitutes a
Ww
bar to any recovery by said Plaintiff, or in the alternative, the recovery, if any, by said Plaintiff
DAD
should be reduced in proportion to the extent such negligence was a cause of Plaintiff's injuries
YN
and damages, ifany.
THIRD AFFIRMATIVE DEFENSE
10 [Assumption of Risk]
1 6. As and for a third, separate, and affirmative defense to the Complaint, and to each
12 purported cause of action contained therein, the answering Defendant is informed and believes
13 and based thereon alleges: Plaintiff and/or itsemployee, knowingly, willingly and voluntarily
14 assumed the risk of alldamages, ifany. Furthermore, at all times relevant on and before the date
of the accident alleged herein, Plaintiff had actual knowledge of the particular danger, if any
16 there was, involved in the activitiesreferred to in the Complaint, and knew and understood the
17 degree of the risk involved, and istherefore barred from recovery of any damages as a matter of
18 law.
19 FOURTH AFFIRMATIVE DEFENSE
20 [Equitable Indemnity]
2] q, As and for a fourth separate affirmative defense to the Complaint, and to each
22 purported cause of action contained therein, this answering Defendant is informed and believes,
and based thereon alleges: Any and all events, happenings, injuries, and damages set forth in the
24 Complaint, if any, were proximately caused and contributed to by the acts and/or omissions of
25 Plaintiff and/or itsemployee, and such acts and/or omissions totally bar or reduce any recovery
26 on the partof Plaintiff.
27 ///
28 MI
3
DEFENDANT MCMILLAN ELECTRIC’S ANSWER TO PLAINTIFF’S COMPLAINT
FIFTH AFFIRMATIVE DEFENSE
[No Duty]
8. As and for a fifth, separate and affirmative defense to the Complaint, and to each
purported cause of action contained therein, this answering Defendant is informed and believes
and based thereon alleges: any recovery on the Complaint, orany claim for reliefaverred therein,
is barred tothe extent this answering Defendant owed no duty to Plaintiff and/or its employee.
SIXTH AFFIRMATIVE DEFENSE
[No Causation]
9. As and for a sixth, separate, and affirmative defense to the Complaint, and to each
10 purported cause of action contained therein, this answering Defendant is informed and believes
1 and based thereon alleges: to the extent Plaintiff suffered injuries and damages, which Defendant
12 denies, such injury or damage was not proximately caused by any conduct or inaction of this
13 answering Defendant, or was not foreseeable, or both.
14 SEVENTH AFFIRMATIVE DEFENSE
15 [Alleged Injury or Damage Caused by Others]
16 10. As and for a seventh, separate, and affirmative defense to the Complaint, and to
17 each purported cause of action contained therein, this answering Defendant is informed and
18 believes and based thereon alleges: to the extent Plaintiff suffered injury or damage, which
19 Defendant denies, such injury or damage was caused by the action or conduct of others, not this
20 answering Defendant.
21 EIGHTH AFFIRMATIVE DEFENSE
22 [Uncertainty]
23 11. As and for an eighth, separate and affirmative defense to the Complaint, and to
24 each purported cause of action contained therein, this answering Defendant is informed and
25 believes and based thereon alleges: Plaintiff's damages, if any, are speculative, uncertain, and
26 not capable of being determined by a trier of fact.
27 ///
28 /I//
4
DEFENDANT MCMILLAN ELECTRIC’S ANSWER TO PLAINTIFF’S COMPLAINT
NINTH AFFIRMATIVE DEFENSE
[Howell v.Hamilton Meats]
12. As and for a ninth separate, and affirmative defense to the Complaint, and to each
purported cause of action contained therein, this answering Defendant isinformed and believes
and based thereon alleges: Plaintiff's recovery for past medical expenses or other economic loss
or benefit, if any, is limited to the lesser of the amount paid or the reasonable value of those
services or benefits.
TENTH AFFIRMATIVE DEFENSE
[Patient Protection and Affordable Care Act]
13. As and for a tenth, separate and affirmative defense to the Complaint, and to each
purported cause of action contained therein, this answering Defendant is informed and believes
and based thereon allege: Plaintiffis excluded from recovering any amounts which have been, or
will, indemnify Plaintiff,for any past or future claimed medical expenses, health care, life care,
or other economic loss or benefit that isoffered, or provided under or in connection with the
Patient Protection and Affordable Care Act.
ELEVENTH AFFIRMATIVE DEFENSE
[Offset]
14. As and for an eleventh separate affirmative defense to the Complaint, and to each
purported cause of action contained therein, this answering Defendant is informed and believes,
and based thereon alleges: The costs incurred, or paid by the Plaintiff, if any, for repair of
property damage, medical care, dental care, custodial care or rehabilitation services, loss of
earning or other economic loss, in the past or future, were or will,with reasonable certainty, be
replaced or indemnified, inwhole or in part, from one or more collateral sources, including by or
. through insurance available to Plaintiff under the terms of the Patient Protection and Affordable
Care Act, and as such this Defendant isentitled to have any award reduced inthe amount of such
payments.
///
///
a
DEFENDANT MCMILLAN ELECTRIC’S ANSWER TO PLAINTIFF’*S COMPLAINT
TWELTH AFFIRMATIVE DEFENSE
[Vicarious Liability]
15. As and for a twelfth separate affirmative defense to the Complaint, and to each
purported cause of action contained therein, this answering Defendant isinformed and believes,
and based thereon alleges: this answering Defendant denies Plaintiff suffered any injury or
damage whatsoever, and further denies itisvicariously liable forthe acts of other parties.
THIRTEENTH AFFIRMATIVE DEFENSE
[Fails to State Facts — General]
16. As and fora thirteenth separate affirmative defense to the Complaint, and to each
10 purported cause of action contained therein, this answering Defendant isinformed and believes,
11 and based thereon alleges: The Complaint, and each purported cause of action contained therein,
12 failsto state facts sufficient to constitute a cause of action against this answering Defendant.
13 FOURTEENTH AFFIRMATIVE DEFENSE
14 [Statute of Limitations]
15 17, As and for a fourteenth separate affirmative defense to the Complaint, and to
16 each purported cause of action contained therein, this answering Defendant is informed and
17 believes, and based thereon alleges: Each said cause of action is barred by the applicable statute
18 of limitations, including but not limited to, California Code of Civil Procedure sections 335.1,
19 337, 337.1, 337.15, 338, 339, 340 and/or 343.
20 FIFTEENTH AFFIRMATIVE DEFENSE
21 [Contributory Fault/Negligence of Plaintiff]
22 18. As and for a fifteenth, separate, and affirmative defense to the Complaint and to
23 each purported cause of action contained therein, this answering Defendant is informed and
24 believes and based thereon alleges: Plaintiff and/or its employee was guilty of contributory
fault/negligence in the matters set forth in the Complaint which proximately caused or
26 contributed to the injuriesor damages complained of.
27 ///
28 ///
6
DEFENDANT MCMILLAN ELECTRIC’S ANSWER TO PLAINTIFF’S COMPLAINT
SIXTEENTH AFFIRMATIVE DEFENSE
[Failure toMitigate Loss]
19. As and for a sixteenth, separate, and affirmative defense to the Complaint and to
each purported cause of action contained therein, this answering Defendant is informed and
believe and based thereon allege: the Plaintiffs alleged injuries, if any there were, were
aggravated by the Plaintiff and/or its employee’s failure to use reasonable diligence to mitigate
oclUlUCOUCUCUCOOCUMUMNCDDN
Plaintiff's damages.
SEVENTEENTH AFFIRMATIVE DEFENSE
[Intervening Superseding Causes]
20. As and for an seventeenth, separate, and affirmative defense to the Complaint and
1] to each purported cause of action contained therein, this answering Defendant is informed and
12 believes and based thereon allege: Plaintiff's injuries and damages, ifany, were caused by the
13 negligence and fault of others than this answering Defendant, and that such fault on the part of
14 others proximately and concurrently caused or contributed to the happening of the accident and
15 to the loss and damage complained of by Plaintiff, if any there were. Such acts were the
16 intervening, supervening, and superseding cause of the injuries and damages, if any, of which the
17 Plaintiff complains, thus barring Plaintiff from any recovery against this answering Defendant.
18 EIGHTEENTH AFFIRMATIVE DEFENSE
19 [Comparative Fault of Third Parties]
20 21. As and for a eighteenth separate affirmative defense to the Complaint, and to each
21 purported cause of action contained therein, this answering Defendant isinformed and believes,
22 and based thereon alleges: Plaintiff's claims may be barred, in whole or in part, because
23 Plaintiff's injuries and damages were caused, in whole or in part, by the negligence, fault, or
24 wrongful conduct by third-parties. To the extent the negligence, fault, or wrongful conduct was
caused by Plaintiff, Defendant is entitled to a credit of amounts paid by Plaintiff in workers
26 compensation benefits pursuant to Associated Construction & Engineering Co. v. Workers’
27 Compensation Appeals Board, (1978) 22 Cal.3d 829. Accordingly, Plaintiff's claims should be
28 barred, limited, or proportionately reduced by the principles of thecomparative fault doctrine.
: 7
DEFENDANT MCMILLAN ELECTRIC’S ANSWER TO PLAINTIFF’?S COMPLAINT
NINETEENTH AFFIRMATIVE DEFENSE
[Joint and Several Liability]
22. As and for a nineteenth separate, and affirmative defense to the Complaint and to
each purported cause of action contained therein, this answering Defendant is informed and
believes and based thereon alleges: that other persons, or entities, and each of them, named and
unnamed in the Complaint, were guilty of negligence, or other acts or omissions in the matters
set forth in the Complaint, which proximately caused or contributed to the damages or loss
complained of, ifany, and thatDefendant is liable,if atall, only for the amount of non-economic
damages allocated to it in direct proportion to itspercentage of fault, and that the court is
requested to determine and allocate the percentage of negligence attributable to each of the other
persons or entities at fault as set forth in Civil Code §1431.2.
TWENTIETH AFFIRMATIVE DEFENSE
[Lack of Capacity to Sue]
23. As and for a twentieth separate affirmative defense to the Complaint, and to each
and every purported cause of action therein, this answering Defendant is informed and believes,
and based thereon alleges: Plaintiff lacks legal capacity to sue, and is not the real party in
interest, and is thus barred from any recovery against thisanswering Defendant.
TWENTY-FIRST AFFIRMATIVE DEFENSE
[Plaintiff And Its Employees and Agents Were Negligent]
24. As and for a twenty-first, separate, and affirmative defense to The Complaint and
each cause of action thereof, this answering Defendant alleges that Plaintiff and its employees
and agents were negligent and careless in and about the matters referred to in Plaintiff's
23 Complaint on file herein and that said negligence and carelessness contributed to and
24 proximately caused the damages and/or injuries alleged, ifany. -
25 TWENTY-SECOND AFFIRMATIVE DEFENSE
26 [Reserved Defenses]
27 25. As and for a twenty-second, separate, and affirmative defense to the Complaint,
28 and to each purported cause of action contained therein, this answering Defendant is informed
8
DEFENDANT MCMILLAN ELECTRIC’S ANSWER TO PLAINTIFF’S COMPLAINT
and believes and based thereon allege: this answering Defendant presently has insufficient
knowledge or insufficient information upon which to form a belief as to whether Defendant may
have additional, yet unasserted, affirmative defenses. Defendant therefore reserves the right to
assert additional affirmative defenses inthe event discovery indicates it would be appropriate.
WHEREFORE, this answering Defendant prays forjudgment as follows:
E. That Plaintiff take nothing by virtue of Plaintiff's Complaint;
2 For costs of suit incurred herein; and
3. For such other and further relief as the Court may deem just and proper.
10 Dated: November 29, 2021 TYSON & MENDES LLP
11
By
Preview
ALLISON M. LAWRENCE (SBN 290770) Alawrence@tysonmendes.com F | ki E D LOUIS R. BARELLA (SBN 118003) ALAMEDA COUNTY N lbarella@tysonmendes.com W TYSON & MENDES LLP NOV 29 2021 371 Bel Marin Keys Blvd., Suite 100 S&F Novato, CA 94949 Telephone: (628) 253-5070 nA Facsimile: (415) 785-3165 ON Attorneys for Defendant, <—) MCMILLAN ELECTRIC SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ALAMEDA 10 11 XL INSURANCE, Case No.: HG21110630 12 Plaintiff, Assigned to Hon. Delbert C. Gee Dept. 514 13 v. 14 MANUEL INIGUEZ PALACIOS, an DEFENDANT MCMILLAN individual; MCMILLAN ELECTRIC, a ELECTRIC’S ANSWER TO 15 California Corporation; and DOES | to20, PLAINTIFF’S COMPLAINT inclusive, 16 Case Filed: August 20, 2021 - Defendants. Trial Date: — Not set. 17 18 19 COMES NOW, Defendant MCMILLAN ELECTRIC (“Defendant”), and answers 20 Plaintiffs complaint (“Complaint”) on file herein, and without waiver of this answering 21 Defendant’s rights to filecross-complaints or third-party actions, and answering for itselfand a9 itselfalone, does admit, deny and alleges as follows: 23 DENIALS 24 e Defendant denies allof the allegations generally and specifically contained in the 25 unverified Complaint and each cause of action as they apply to them. Defendant specifically 26 denies that the Defendant is liableto the Plaintiff under the theories or in the matters set forth in 27 the Complaint and denies that Plaintiff was injured or damaged as alleged in the Complaint as a 28 result of any conduct of this Defendant. 7 1 DEFENDANT MCMILLAN ELECTRIC’S ANSWER TO PLAINTIFF’S COMPLAINT 2. Defendant denies responsibility for any damages, or any percentage of damages claimed by the Plaintiff. 3. This answering Defendant does not, by stating the matters set forth in these defenses, allege or admit that ithas the burden of proof and/or persuasion with respect to any of these matters, and does not assume the burden of proof or persuasion as to any matters to which Plaintiff has the burden of proof or persuasion. olUOmlUlUlUCUOUMN CUD SEPARATE AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE [Apportionment of Fault] 4. As and for a first separate affirmative defense to the Complaint, and to each purported cause of action contained therein, this answering Defendant is informed and believes, and based thereon alleges: Defendant denies it was negligent in any fashion with respect to the damages, losses, injuries, and debts claimed by the Plaintiff in the Complaint on file herein; however, if the answering Defendant isfound to be negligent (which supposition isdenied and merely stated for the purpose of this affirmative defense), then this answering Defendant provisionally alleges Defendant’s negligence is not the sole and proximate cause of the resultant damages, losses, and injuries alleged by Plaintiff and that the damages awarded to Plaintiff, if any, be apportioned according to the respective faultof the parties, persons, and entities,or their agents, servants, and employees who contributed to and/or caused said resultant damages as alleged, according to the proof presented at the time of trial. To assess any greater percentage of fault and damages against this answering Defendant in excess of the answering Defendant’s percentage of fault would be a denial of California equal protection and due process, and Federal equal protection and due process, as guaranteed by the Constitutions of California and the United States, respectively. . - SECOND AFFIRMATIVE DEFENSE [Comparative Fault] 5. As and for a second, separate, and affirmative defense to the Complaint and to each purported cause of action contained therein, this answering Defendant is informed and 2 DEFENDANT MCMILLAN ELECTRIC’S ANSWER TO PLAINTIFF’S COMPLAINT believes and based thereon alleges: The injuries to the Plaintiff, if any, were sustained in that Plaintiff failed to exercise ordinary and reasonable care or caution concerning the matters alleged in the Complaint; that any and all events, happenings, injuries and damages set forth in the Complaint, if any, were therefore proximately caused and contributed to by the acts and/or aN omissions of Plaintiff and/or itsemployee, and such negligence on Plaintiffs part constitutes a Ww bar to any recovery by said Plaintiff, or in the alternative, the recovery, if any, by said Plaintiff DAD should be reduced in proportion to the extent such negligence was a cause of Plaintiff's injuries YN and damages, ifany. THIRD AFFIRMATIVE DEFENSE 10 [Assumption of Risk] 1 6. As and for a third, separate, and affirmative defense to the Complaint, and to each 12 purported cause of action contained therein, the answering Defendant is informed and believes 13 and based thereon alleges: Plaintiff and/or itsemployee, knowingly, willingly and voluntarily 14 assumed the risk of alldamages, ifany. Furthermore, at all times relevant on and before the date of the accident alleged herein, Plaintiff had actual knowledge of the particular danger, if any 16 there was, involved in the activitiesreferred to in the Complaint, and knew and understood the 17 degree of the risk involved, and istherefore barred from recovery of any damages as a matter of 18 law. 19 FOURTH AFFIRMATIVE DEFENSE 20 [Equitable Indemnity] 2] q, As and for a fourth separate affirmative defense to the Complaint, and to each 22 purported cause of action contained therein, this answering Defendant is informed and believes, and based thereon alleges: Any and all events, happenings, injuries, and damages set forth in the 24 Complaint, if any, were proximately caused and contributed to by the acts and/or omissions of 25 Plaintiff and/or itsemployee, and such acts and/or omissions totally bar or reduce any recovery 26 on the partof Plaintiff. 27 /// 28 MI 3 DEFENDANT MCMILLAN ELECTRIC’S ANSWER TO PLAINTIFF’S COMPLAINT FIFTH AFFIRMATIVE DEFENSE [No Duty] 8. As and for a fifth, separate and affirmative defense to the Complaint, and to each purported cause of action contained therein, this answering Defendant is informed and believes and based thereon alleges: any recovery on the Complaint, orany claim for reliefaverred therein, is barred tothe extent this answering Defendant owed no duty to Plaintiff and/or its employee. SIXTH AFFIRMATIVE DEFENSE [No Causation] 9. As and for a sixth, separate, and affirmative defense to the Complaint, and to each 10 purported cause of action contained therein, this answering Defendant is informed and believes 1 and based thereon alleges: to the extent Plaintiff suffered injuries and damages, which Defendant 12 denies, such injury or damage was not proximately caused by any conduct or inaction of this 13 answering Defendant, or was not foreseeable, or both. 14 SEVENTH AFFIRMATIVE DEFENSE 15 [Alleged Injury or Damage Caused by Others] 16 10. As and for a seventh, separate, and affirmative defense to the Complaint, and to 17 each purported cause of action contained therein, this answering Defendant is informed and 18 believes and based thereon alleges: to the extent Plaintiff suffered injury or damage, which 19 Defendant denies, such injury or damage was caused by the action or conduct of others, not this 20 answering Defendant. 21 EIGHTH AFFIRMATIVE DEFENSE 22 [Uncertainty] 23 11. As and for an eighth, separate and affirmative defense to the Complaint, and to 24 each purported cause of action contained therein, this answering Defendant is informed and 25 believes and based thereon alleges: Plaintiff's damages, if any, are speculative, uncertain, and 26 not capable of being determined by a trier of fact. 27 /// 28 /I// 4 DEFENDANT MCMILLAN ELECTRIC’S ANSWER TO PLAINTIFF’S COMPLAINT NINTH AFFIRMATIVE DEFENSE [Howell v.Hamilton Meats] 12. As and for a ninth separate, and affirmative defense to the Complaint, and to each purported cause of action contained therein, this answering Defendant isinformed and believes and based thereon alleges: Plaintiff's recovery for past medical expenses or other economic loss or benefit, if any, is limited to the lesser of the amount paid or the reasonable value of those services or benefits. TENTH AFFIRMATIVE DEFENSE [Patient Protection and Affordable Care Act] 13. As and for a tenth, separate and affirmative defense to the Complaint, and to each purported cause of action contained therein, this answering Defendant is informed and believes and based thereon allege: Plaintiffis excluded from recovering any amounts which have been, or will, indemnify Plaintiff,for any past or future claimed medical expenses, health care, life care, or other economic loss or benefit that isoffered, or provided under or in connection with the Patient Protection and Affordable Care Act. ELEVENTH AFFIRMATIVE DEFENSE [Offset] 14. As and for an eleventh separate affirmative defense to the Complaint, and to each purported cause of action contained therein, this answering Defendant is informed and believes, and based thereon alleges: The costs incurred, or paid by the Plaintiff, if any, for repair of property damage, medical care, dental care, custodial care or rehabilitation services, loss of earning or other economic loss, in the past or future, were or will,with reasonable certainty, be replaced or indemnified, inwhole or in part, from one or more collateral sources, including by or . through insurance available to Plaintiff under the terms of the Patient Protection and Affordable Care Act, and as such this Defendant isentitled to have any award reduced inthe amount of such payments. /// /// a DEFENDANT MCMILLAN ELECTRIC’S ANSWER TO PLAINTIFF’*S COMPLAINT TWELTH AFFIRMATIVE DEFENSE [Vicarious Liability] 15. As and for a twelfth separate affirmative defense to the Complaint, and to each purported cause of action contained therein, this answering Defendant isinformed and believes, and based thereon alleges: this answering Defendant denies Plaintiff suffered any injury or damage whatsoever, and further denies itisvicariously liable forthe acts of other parties. THIRTEENTH AFFIRMATIVE DEFENSE [Fails to State Facts — General] 16. As and fora thirteenth separate affirmative defense to the Complaint, and to each 10 purported cause of action contained therein, this answering Defendant isinformed and believes, 11 and based thereon alleges: The Complaint, and each purported cause of action contained therein, 12 failsto state facts sufficient to constitute a cause of action against this answering Defendant. 13 FOURTEENTH AFFIRMATIVE DEFENSE 14 [Statute of Limitations] 15 17, As and for a fourteenth separate affirmative defense to the Complaint, and to 16 each purported cause of action contained therein, this answering Defendant is informed and 17 believes, and based thereon alleges: Each said cause of action is barred by the applicable statute 18 of limitations, including but not limited to, California Code of Civil Procedure sections 335.1, 19 337, 337.1, 337.15, 338, 339, 340 and/or 343. 20 FIFTEENTH AFFIRMATIVE DEFENSE 21 [Contributory Fault/Negligence of Plaintiff] 22 18. As and for a fifteenth, separate, and affirmative defense to the Complaint and to 23 each purported cause of action contained therein, this answering Defendant is informed and 24 believes and based thereon alleges: Plaintiff and/or its employee was guilty of contributory fault/negligence in the matters set forth in the Complaint which proximately caused or 26 contributed to the injuriesor damages complained of. 27 /// 28 /// 6 DEFENDANT MCMILLAN ELECTRIC’S ANSWER TO PLAINTIFF’S COMPLAINT SIXTEENTH AFFIRMATIVE DEFENSE [Failure toMitigate Loss] 19. As and for a sixteenth, separate, and affirmative defense to the Complaint and to each purported cause of action contained therein, this answering Defendant is informed and believe and based thereon allege: the Plaintiffs alleged injuries, if any there were, were aggravated by the Plaintiff and/or its employee’s failure to use reasonable diligence to mitigate oclUlUCOUCUCUCOOCUMUMNCDDN Plaintiff's damages. SEVENTEENTH AFFIRMATIVE DEFENSE [Intervening Superseding Causes] 20. As and for an seventeenth, separate, and affirmative defense to the Complaint and 1] to each purported cause of action contained therein, this answering Defendant is informed and 12 believes and based thereon allege: Plaintiff's injuries and damages, ifany, were caused by the 13 negligence and fault of others than this answering Defendant, and that such fault on the part of 14 others proximately and concurrently caused or contributed to the happening of the accident and 15 to the loss and damage complained of by Plaintiff, if any there were. Such acts were the 16 intervening, supervening, and superseding cause of the injuries and damages, if any, of which the 17 Plaintiff complains, thus barring Plaintiff from any recovery against this answering Defendant. 18 EIGHTEENTH AFFIRMATIVE DEFENSE 19 [Comparative Fault of Third Parties] 20 21. As and for a eighteenth separate affirmative defense to the Complaint, and to each 21 purported cause of action contained therein, this answering Defendant isinformed and believes, 22 and based thereon alleges: Plaintiff's claims may be barred, in whole or in part, because 23 Plaintiff's injuries and damages were caused, in whole or in part, by the negligence, fault, or 24 wrongful conduct by third-parties. To the extent the negligence, fault, or wrongful conduct was caused by Plaintiff, Defendant is entitled to a credit of amounts paid by Plaintiff in workers 26 compensation benefits pursuant to Associated Construction & Engineering Co. v. Workers’ 27 Compensation Appeals Board, (1978) 22 Cal.3d 829. Accordingly, Plaintiff's claims should be 28 barred, limited, or proportionately reduced by the principles of thecomparative fault doctrine. : 7 DEFENDANT MCMILLAN ELECTRIC’S ANSWER TO PLAINTIFF’?S COMPLAINT NINETEENTH AFFIRMATIVE DEFENSE [Joint and Several Liability] 22. As and for a nineteenth separate, and affirmative defense to the Complaint and to each purported cause of action contained therein, this answering Defendant is informed and believes and based thereon alleges: that other persons, or entities, and each of them, named and unnamed in the Complaint, were guilty of negligence, or other acts or omissions in the matters set forth in the Complaint, which proximately caused or contributed to the damages or loss complained of, ifany, and thatDefendant is liable,if atall, only for the amount of non-economic damages allocated to it in direct proportion to itspercentage of fault, and that the court is requested to determine and allocate the percentage of negligence attributable to each of the other persons or entities at fault as set forth in Civil Code §1431.2. TWENTIETH AFFIRMATIVE DEFENSE [Lack of Capacity to Sue] 23. As and for a twentieth separate affirmative defense to the Complaint, and to each and every purported cause of action therein, this answering Defendant is informed and believes, and based thereon alleges: Plaintiff lacks legal capacity to sue, and is not the real party in interest, and is thus barred from any recovery against thisanswering Defendant. TWENTY-FIRST AFFIRMATIVE DEFENSE [Plaintiff And Its Employees and Agents Were Negligent] 24. As and for a twenty-first, separate, and affirmative defense to The Complaint and each cause of action thereof, this answering Defendant alleges that Plaintiff and its employees and agents were negligent and careless in and about the matters referred to in Plaintiff's 23 Complaint on file herein and that said negligence and carelessness contributed to and 24 proximately caused the damages and/or injuries alleged, ifany. - 25 TWENTY-SECOND AFFIRMATIVE DEFENSE 26 [Reserved Defenses] 27 25. As and for a twenty-second, separate, and affirmative defense to the Complaint, 28 and to each purported cause of action contained therein, this answering Defendant is informed 8 DEFENDANT MCMILLAN ELECTRIC’S ANSWER TO PLAINTIFF’S COMPLAINT and believes and based thereon allege: this answering Defendant presently has insufficient knowledge or insufficient information upon which to form a belief as to whether Defendant may have additional, yet unasserted, affirmative defenses. Defendant therefore reserves the right to assert additional affirmative defenses inthe event discovery indicates it would be appropriate. WHEREFORE, this answering Defendant prays forjudgment as follows: E. That Plaintiff take nothing by virtue of Plaintiff's Complaint; 2 For costs of suit incurred herein; and 3. For such other and further relief as the Court may deem just and proper. 10 Dated: November 29, 2021 TYSON & MENDES LLP 11 By