`
` A
`
` PROFESSIONAL CORPORATION
`David A. Melton, SBN 176340
`350 University Avenue, Suite 200
`Sacramento, California 95825
`TEL: 916.929.1481
`FAX: 916.927.3706
`Dmelton@porterscott.com
`
`
`
`Attorneys for Defendant
`WALMART INC.
`
`
`
`DENNIS DEVER,
`
`
`
`
`
`
`vs.
`
`WALMART, INC., a Kansas corporation; and
`DOES 1 through 10,
`
`
`
`
`
`
`Applicant,
`
`Defendants.
`
`10/12/2022
`
` CASE NO: 22CV02005
`
`
`ANSWER TO COMPLAINT
`
`
`
`
`SUPERIOR COURT OF THE STATE OF CALIFORNIA
`FOR THE COUNTY OF BUTTE
`
`Defendant WALMART, INC. (“Defendant”) hereby answers the Original Complaint
`(“Complaint”) filed by Plaintiff DENNIS DEVER (“Plaintiff”):
`GENERAL AND SPECIFIC DENIALS
`Pursuant to the provisions of California Code of Civil Procedure section 431.30(d),
`Defendant denies, generally and specifically, each and every allegation contained in the Complaint,
`and further denies that Plaintiff has been damaged in the amount or amounts alleged therein, or in
`any other amount, or at all, by reason of any act or omission on the part of Defendant, or by any act
`or omission by any agent or employee of Defendant. Defendant further denies, generally and
`specifically, that Plaintiff is entitled to any relief whatsoever.
`//
`//
`
`{02804533.DOCX}
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`ANSWER TO COMPLAINT
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`AFFIRMATIVE DEFENSES
`FIRST AFFIRMATIVE DEFENSE
`(Failure to State a Cause of Action)
`The Complaint, and each and every cause of action alleged therein fails to state facts
`sufficient to constitute a cause of action for which relief may be granted.
`SECOND AFFIRMATIVE DEFENSE
`(Accidental or Unavoidable Injury)
`The Complaint, and each and every cause of action alleged therein, is barred because
`Defendant was not negligent at the time of the accident.
`THIRD AFFIRMATIVE DEFENSE
`(Acts of Other Parties)
`Defendant alleges that, if Defendant is subjected to any liability by Plaintiff, it will be due
`in whole or in part to the acts and/or omissions of other parties, or parties unknown at this time, and
`any recovery obtained by Plaintiff should be barred or reduced according to law, up to and including
`the whole thereof.
`
`FOURTH AFFIRMATIVE DEFENSE
`(Assumption of Risk)
`The Complaint, and each and every cause of action alleged therein, is barred in that Plaintiff,
`with full knowledge of all risks attendant thereto, voluntarily and knowingly assumed any and all
`risks attendant upon Plaintiff’s conduct, including any purported damages alleged to be related
`thereto and proximately caused thereby.
`FIFTH AFFIRMATIVE DEFENSE
`(Comparative Negligence)
`Defendant alleges that Plaintiff was negligent, and otherwise at fault, with regard to the
`events alleged in the Complaint, and such negligence and fault is the proximate cause of any
`liabilities or damages Plaintiff may incur. Accordingly, Plaintiff’s recovery, if any, should be
`precluded or reduced in proportion to their negligence and fault.
`//
`//
`
`
`{02804533.DOCX}
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`ANSWER TO COMPLAINT
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`SIXTH AFFIRMATIVE DEFENSE
`(Estoppel)
`The Complaint, and each and every cause of action alleged therein, is barred by the doctrine
`of estoppel.
`
`SEVENTH AFFIRMATIVE DEFENSE
`(Exercise of Reasonable Care)
`Defendant exercised reasonable care and did not know, and in the exercise of reasonable
`care could not have known, of the alleged acts or allegations in connection with the conditions which
`are the subject of the Complaint.
`EIGHTH AFFIRMATIVE DEFENSE
`(Failure of Others to Exercise Reasonable Care)
`If Defendant is subjected to any liability herein, it will be due in whole, or in part, to the acts
`and/or omissions of other Defendants or other parties unknown at this time, and any recovery
`obtained by Plaintiff should be barred or reduced according to law, up to and including the whole
`thereof.
`
`NINTH AFFIRMATIVE DEFENSE
`(Failure to Exercise Ordinary Care)
`The Complaint, and each and every cause of action alleged therein, is barred in that Plaintiff
`failed to exercise ordinary and reasonable care on Plaintiff’s own behalf and such negligence and
`carelessness was a proximate cause of some portion, up to and including the whole of, Plaintiff’s
`own alleged injuries and damages, if any, and Plaintiff’s recovery therefore should be barred or
`reduced according to law, up to and including the whole thereof.
`TENTH AFFIRMATIVE DEFENSE
`(Failure to Mitigate Damages)
`Plaintiff failed to take reasonable steps and make reasonable expenditures to reduce
`Plaintiff’s claims, damages, losses, if any, and that said failure to mitigate Plaintiff’s damages bars
`or reduces any claims, losses, or damages.
`//
`//
`
`
`{02804533.DOCX}
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`ANSWER TO COMPLAINT
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`ELEVENTH AFFIRMATIVE DEFENSE
`(Intervening Acts of Others)
`The Complaint, and each and every cause of action alleged therein, is barred because the
`injuries and damages sustained by Plaintiff, if any, were proximately caused by the intervening and
`superseding actions of others, which intervening and superseding actions bar and/or diminish
`Plaintiff’s recovery, if any, against Defendant.
`TWELFTH AFFIRMATIVE DEFENSE
`(Laches)
`The Complaint, and each and every cause of action alleged therein, is barred by the doctrine
`of laches.
`
`THIRTEENTH AFFIRMATIVE DEFENSE
`(Lack of Notice)
`Defendant alleges that it did not have either actual or constructive notice of the conditions,
`if any, which existed at the time and places mentioned in the Complaint, which conditions may have
`caused or contributed to the damages as alleged herein. Said lack of notice prevented Defendant
`from undertaking any measures to protect against or warn of said conditions.
`FOURTEENTH AFFIRMATIVE DEFENSE
`(No Constructive Notice of Dangerous Condition)
`The Complaint, and each and every cause of action alleged therein, is barred by the fact that
`Defendant did not have constructive notice of the allegedly unsafe conditions on the premises.
`FIFTEENTH AFFIRMATIVE DEFENSE
`(Obvious Danger)
`Defendant alleges that Plaintiff failed to exercise reasonable and ordinary care, caution, or
`prudence for Plaintiff’s own safety in order to avoid the alleged accident. The resulting injuries and
`damages, if any, sustained by Plaintiff were proximately caused and contributed to by the negligence
`of Plaintiff, in that any possible danger with regard to the accident in question was obvious to anyone
`using reasonable care.
`//
`//
`
`
`{02804533.DOCX}
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`4
`ANSWER TO COMPLAINT
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`SIXTEENTH AFFIRMATIVE DEFENSE
`(Res Judicata/Collateral Estoppel)
`The Complaint, and each and every cause of action alleged therein, is barred by the doctrines
`of res judicata and/or collateral estoppel.
`SEVENTEENTH AFFIRMATIVE DEFENSE
`(Several Liability for Non-Economic Damages)
`If Defendant has any liability to Plaintiff in this action, which is denied, it is only severally
`liable for Plaintiff’s non-economic damages under California Civil Code sections 1431.1 and
`1431.2. Therefore, Defendant requests a judicial determination of the percentage of its negligence,
`if any, which proximately contributed to the subject incident.
`EIGHTEENTH AFFIRMATIVE DEFENSE
`(Statute of Limitations)
`The Complaint, and each and every cause of action alleged therein, is barred by the
`applicable statute of limitations, including, but not limited to, Government Code sections 12960 and
`12965; Code of Civil Procedure sections 335.1, 337, 338, 339, 340 and 343; and Business and
`Professions Code section 17208.
`NINETEENTH AFFIRMATIVE DEFENSE
`(Additional Defenses)
`Defendant may have additional defenses that cannot be articulated due to Plaintiff’s failure
`to particularize Plaintiff’s claims, due to the fact that Defendant does not have copies of certain
`DOCUMENTS bearing on Plaintiff’s claims and due to Plaintiff’s failure to provide more specific
`information concerning the nature of the damage claims and claims for certain costs for which
`Plaintiff alleges that Defendant may share some responsibility. Defendant therefore reserves the
`right to assert additional defenses upon further particularization of Plaintiff’s claims, upon
`examination of the DOCUMENTS provided, upon discovery of further information concerning the
`alleged damage claims and claims for costs, and upon the development of other pertinent
`information.
`//
`//
`
`
`{02804533.DOCX}
`
`5
`ANSWER TO COMPLAINT
`
`
`
`//
`
`PRAYER FOR RELIEF
`WHEREFORE, Defendant prays for judgment as follows:
`1.
`That Plaintiff takes nothing by way of the Complaint;
`2.
`That judgment be entered against Plaintiff and in favor of Defendant on all causes of
`action;
`That Defendant be awarded attorneys’ fees and costs of suit incurred herein; and
`That Defendant be awarded such other and further relief as the Court may deem just
`and proper.
`
`3.
`4.
`
`DEMAND FOR JURY TRIAL
`Defendant hereby demands a trial by jury in the above-entitled matter.
`
`Dated: October 12, 2022
`
`PORTER SCOTT
`A PROFESSIONAL CORPORATION
`
`By ____________________________________
`David A. Melton
`Attorney for Defendant
`WALMART INC.
`
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`{02804533.DOCX}
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`6
`ANSWER TO COMPLAINT
`
`S
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`
`
`CASE NAME:
`COURT:
`CASE NO.:
`
`DEVER v. WALMART, INC.
`BUTTE COUNTY SUPERIOR COURT
`22CV02005
`
`PROOF OF SERVICE
`At the time of service, I was over 18 years of age and not a party to this action. My
`business address is 350 University Avenue, Suite 200, Sacramento, California 95825.
`On the date below, I served the following document:
`ANSWER TO COMPLAINT
`
`BY MAIL: I placed the envelope for collection and mailing, following our ordinary business practices.
`I am readily familiar with this business’ practice for collecting and processing correspondence for
`mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the
`ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully
`prepaid.
`BY FAX TRANSMISSION: Based on an agreement of the parties to accept service by fax
`transmission, I faxed the documents to the persons at the fax numbers listed below. No error was
`reported by the fax machine that I used. A copy of the record of the fax transmission, which I printed
`out, is attached
`XX BY ELECTRONIC SERVICE: Only by e-mailing the document(s) to the persons at the e-mail
`address(es). This is necessitated during the declared National Emergency due to the Coronavirus (Covid-
`19) pandemic because this office will be working remotely, not able to send physical mail as 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. We will provide a
`physical copy, upon request only, when we return to the office at the conclusion of the national
`emergency. This is made pursuant to Code Civ. Proc., § 1010.6 as amended per SB 1146, Emergency
`Rule 12.
`
`Addressed as follows:
`Nicholas Walton
`Eric Levine
`THE LEVINE FIRM, APC
`1648 Westwood Blvd.
`Los Angeles, CA 90024
`eric@levinefirmlaw.com
`nwalton@theatlasfirm.com
`I declare under penalty of perjury under the laws of the State of California that the
`foregoing is true and correct. Executed at Sacramento, California on October 12, 2022.
`
`Molly A. Flores
`
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`{02804481.DOCX}
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`PROOF OF SERVICE
`
`350 University Ave., Suite 200
`
`PORTER | SCOTT
`
`Sacramento, CA 95825
`
`FAX: 916.927.3706
`TEL: 916.929.1481
`
`M
`
`