1 STEPHEN M.

HARBER, STATE BAR #119830

STEVEN H. TAYLOR, STATE BAR #158848
2 McCUNE & HARBER, LLP
515 South Figueroa Street, Suite 1100
3 Los Angeles, California 90071
Telephone: (213) 689-2500/Facsimile: (213) 689-2501
4
Attorneys for Defendant, KAMILAH O'CONNOR [Public Entity Employee, Fee Exempt Pursuant to
5 Government Code §6103]
6

7
SUPERIOR COURT OF THE STATE OF CALIFORNIA
8
FOR THE COUNTY OF RIVERSIDE - CENTRAL
9

10
JUANA SALCEDO, individually and as Case No: RIC2003604
11 successor-in-interest to Diego Stolz; FELIPE Assigned to Judge Daniel Ottolia, Dept. 4
MCCUNE & HARBER, LLP
515 SOUTH FIGUEROA ST.
LOS ANGELES, CA 90071

SALCEDO, an individual; FERNANDO (Complaint filed on September 11, 2020)

Fax (213) 689-2501

12
(213) 689-2500

FLORES ZAPATA, an individual; DANIEL

ALEJANDRO STOLZ, by and through his DEFENDANT KAMILAH O'CONNOR'S
13 Guardian ad Litem, Juana Salcedo, ANSWER TO PLAINTIFFS’ COMPLAINT
individually and as successor-in-interest to
14 Diego Stolz,
15 Plaintiffs,
16 -vs.-
17 MORENO VALLEY UNIFIED SCHOOL
DISTRICT, a public entity; KAMILAH
18 O’CONNOR, an individual; PEDRO
GUTIERREZ, an individual; SCOTT
19 WALKER, an individual; J.D., a minor; M.E.,
a minor; and DOES 1 through 60, inclusive,
20
Defendants.
21

22

23 Defendant, KAMILAH O'CONNOR responds to the complaint of two or more plaintiffs, for
24
herself alone, and for no other defendant as follows:
25
The complaint in the above matter being unverified, and pursuant to §431.30 of the Code of
26
Civil Procedure, Defendant Kamilah O’Connor (“Defendant”) denies generally and specifically, each
27

28 and every allegation of plaintiffs' complaint, and denies that plaintiffs suffered damages in any sum.
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J:\WPDOCs\Stolz, Diego v. Moreno Valley USD\Pld\Answer by OConnor to CP.docx 21800017 Answer by O'Connor
 1 AS A FIRST, SEPARATE AND AFFIRMATIVE DEFENSE TO PLAINTIFFS'

2 COMPLAINT, THIS ANSWERING DEFENDANT ALLEGES:

3 The complaint fails to state facts sufficient to constitute a cause of action against this answering

4 defendant.

6 AS A SECOND, SEPARATE AND AFFIRMATIVE DEFENSE TO PLAINTIFFS'

7 COMPLAINT, THIS ANSWERING DEFENDANT ALLEGES:

8 At the time of the accident referred to in plaintiffs' complaint, the plaintiffs were negligent or at

9 fault and failed to use that degree of care and caution which a reasonably prudent person would have

10 used under the same or similar circumstances; that plaintiffs' negligence or fault must be compared with

11 the negligence or fault of this defendant, as well as that of any other persons and parties, and that any
MCCUNE & HARBER, LLP
515 SOUTH FIGUEROA ST.
LOS ANGELES, CA 90071
Fax (213) 689-2501

12 award to plaintiffs must be reduced by the amount that the plaintiffs' negligence or fault contributed to
(213) 689-2500

13 their injuries and damages.

14

15 AS A THIRD, SEPARATE AND AFFIRMATIVE DEFENSE TO PLAINTIFFS'

16 COMPLAINT, THIS ANSWERING DEFENDANT ALLEGES:

17 All events in connection with the accident alleged in the complaint and any resulting injuries or

18 damages, were contributed to and proximately caused by the negligence of plaintiffs in that they failed

19 to exercise ordinary care for their own safety under the circumstances, thereby barring the plaintiffs

20 from any recovery.

21

22 AS A FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE TO PLAINTIFFS'

23 COMPLAINT, THIS ANSWERING DEFENDANT ALLEGES:

24 At the time and place of the accident alleged in the plaintiffs' complaint, plaintiffs knew of the

25 danger and risk incident to their activity, but nevertheless freely and voluntarily exposed themselves to

26 all risks of harm and thus assumed all risk of harm incidental thereto.

27 ///

28 ///
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J:\WPDOCs\Stolz, Diego v. Moreno Valley USD\Pld\Answer by OConnor to CP.docx 21800017 Answer by O'Connor
 1 AS A FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO PLAINTIFFS'

2 COMPLAINT, THIS ANSWERING DEFENDANT ALLEGES:

3 The complaint and each purported cause of action stated therein are barred by the applicable

4 Statute of Limitations, including without limitation, those provided for in Code of Civil Procedure

5 section 335.1.

7 AS A SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE TO PLAINTIFFS'

8 COMPLAINT, THIS ANSWERING DEFENDANT ALLEGES:

9 The injuries sustained, if any, were either wholly or in part, negligently caused by persons,

10 firms, corporations, or entities other than this Defendant, and said negligence, and said negligence is

11 either imputed to plaintiffs, by reason of the relationship of said parties to plaintiffs and/or said
MCCUNE & HARBER, LLP
515 SOUTH FIGUEROA ST.
LOS ANGELES, CA 90071
Fax (213) 689-2501

12 negligence comparatively reduces the percentage of negligence, if any, by this Defendant.

(213) 689-2500

13

14 AS A SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO PLAINTIFFS'

15 COMPLAINT, THIS ANSWERING DEFENDANT ALLEGES:

16 Defendant did not breach any mandatory duty owed to plaintiffs including the alleged

17 mandatory duty to report suspected child abuse.

18

19 AS AN EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE TO PLAINTIFFS'

20 COMPLAINT, THIS ANSWERING DEFENDANT ALLEGES:

21 Defendant is immune from liability pursuant to the provisions of California Government Code

22 including sections 815, 815.2, 815.6, 820, 820.2, 820.4, 820.8, and 822.2.

23

24 AS A NINTH, SEPARATE AND AFFIRMATIVE DEFENSE TO PLAINTIFFS'

25 COMPLAINT, THIS ANSWERING DEFENDANT ALLEGES:

26 Defendant is not liable for the alleged injuries or damages because the acts or omissions which

27 created any alleged conditions were reasonable with the meaning of Government Code section 835.4.

28 ///
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J:\WPDOCs\Stolz, Diego v. Moreno Valley USD\Pld\Answer by OConnor to CP.docx 21800017 Answer by O'Connor
 1 AS A TENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO PLAINTIFFS'

2 COMPLAINT, THIS ANSWERING DEFENDANT ALLEGES:

3 The claim plaintiffs presented, if any, was insufficient pursuant to Government Code section

4 910 et seq.

6 AS AN ELEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO PLAINTIFFS'

7 COMPLAINT, THIS ANSWERING DEFENDANT ALLEGES:

8 Defendant exercised reasonable diligence in the discharge of her duties at all times.

10 AS A TWELFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO PLAINTIFFS'

11 COMPLAINT, THIS ANSWERING DEFENDANT ALLEGES:

MCCUNE & HARBER, LLP
515 SOUTH FIGUEROA ST.
LOS ANGELES, CA 90071
Fax (213) 689-2501

12 Defendant was not aware of any dangerous propensities of third-party perpetrators, if any, or
(213) 689-2500

13 had actual or constructive notice of such alleged dangerous propensity and therefore Defendant is

14 immune from any liability based upon such lack of notice.

15

16 AS A THIRTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO PLAINTIFFS'

17 COMPLAINT, THIS ANSWERING DEFENDANT ALLEGES:

18 Defendant is informed and believes, and on that basis alleges that the injuries and damages

19 sustained by plaintiffs, if any, were the direct and proximate result of the intervening and superseding

20 actions, including the criminal actions, of third parties, whether named or unnamed, and not this

21 answering defendant.

22

23 AS A FOURTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO PLAINTIFFS'

24 COMPLAINT, THIS ANSWERING DEFENDANT ALLEGES:

25 Defendant has never taken any action with conscious disregard of plaintiffs’ rights, and has not

26 engaged in any conduct with respect to plaintiffs which would constitute oppression, fraud or malice,

27 nor has this answering defendant ratified or approved any such act or acts of others.

28 ///
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J:\WPDOCs\Stolz, Diego v. Moreno Valley USD\Pld\Answer by OConnor to CP.docx 21800017 Answer by O'Connor
 1 AS A FIFTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO PLAINTIFFS'

2 COMPLAINT, THIS ANSWERING DEFENDANT ALLEGES:

3 Defendant acted in good faith and did not directly or indirectly perform any act whatsoever

4 which would constitute a violation of any rights possessed by plaintiffs, or any duty owed to plaintiffs.

6 AS A SIXTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO PLAINTIFFS'

7 COMPLAINT, THIS ANSWERING DEFENDANT ALLEGES:

8 Defendant’s alleged conduct was not a substantial factor in causing harm to plaintiffs.

10 AS A SEVENTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO

11 PLAINTIFFS' COMPLAINT, THIS ANSWERING DEFENDANT ALLEGES:

MCCUNE & HARBER, LLP
515 SOUTH FIGUEROA ST.
LOS ANGELES, CA 90071
Fax (213) 689-2501

12 By the exercise of reasonable effort, plaintiffs could have mitigated the amount of damages, if
(213) 689-2500

13 any there were, but plaintiffs failed and refused, and continue to fail and refuse to exercise a reasonable

14 effort to mitigate damages and therefore plaintiffs are barred from seeking recovery of those damages.

15

16 WHEREFORE, Defendant prays that plaintiffs take nothing by reason of their complaint and

17 that this defendant be given judgment for her costs of suit incurred herein, to be incurred, and for such

18 other and further relief as the Court deems just and proper.

19
DATED: November 23, 2020 McCUNE & HARBER, LLP
20

21 By:
STEPHEN M. HARBER, ESQ
22 STEVEN H. TAYLOR, ESQ
Attorneys for Defendant, KAMILAH O'CONNOR
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J:\WPDOCs\Stolz, Diego v. Moreno Valley USD\Pld\Answer by OConnor to CP.docx 21800017 Answer by O'Connor
 1 PROOF OF SERVICE

2 STATE OF CALIFORNIA )
)
3 ) ss.
)
4 COUNTY OF LOS ANGELES )
5
I am employed in the County of Los Angeles, State of California. I am over the age of eighteen and not
6 a party to the within action; my business address is 515 South Figueroa Street, Suite 1100, Los
Angeles, California 90071.
7
On November 23, 2020, I served the foregoing document described as DEFENDANT KAMILAH
8 O'CONNOR'S ANSWER TO PLAINTIFFS’ COMPLAINT, on the interested parties by placing a
true copy thereof enclosed in sealed envelope(s) addressed as follows:
9

10 PLEASE SEE ATTACHED SERVICE LIST

11
MCCUNE & HARBER, LLP
515 SOUTH FIGUEROA ST.
LOS ANGELES, CA 90071

X BY ELECTRONIC MAIL: I caused to be transmitted a true and correct copy of the above-entitled document(s) to
Fax (213) 689-2501

12
(213) 689-2500

recipients noted via electronic service at the recipient’s office. This is necessitated during the declared national emergency and governor’s
executive order due to the Coronavirus (COVID-19) pandemic because staff in this office is working remotely, and is unable to send
13 physical mail as usual. Therefore, the document(s) referenced above is/are served only by using electronic mail..

14 BY MAIL: I served the documents by enclosing them in an envelope and placing the envelope for collection and mailing
following our ordinary business practices. I am readily familiar with this business’s practice of collection and processing of
15 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.
16
BY PERSONAL SERVICE: I caused such envelope to be delivered by hand to the office of the addressee(s).
17
BY FACSIMILE TRANSMISSION: The facsimile machine I used complied with California Rules of Court 2.301
18 and no error was reported by the machine. Pursuant to rule 2.306(h), I caused the machine to print a record of the transmission, a copy of
which is attached to this proof of service.
19
BY OVERNIGHT DELIVERY: I caused the above-referenced document(s) to be delivered via overnight delivery,
20 for delivery to the above address(es).

21
X (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct.
22
(Federal) I declare that I am employed in the office of a member of the bar of this court at whose direction the service was
23 made.

24 Executed on November 23, 2020, at Los Angeles, California.

25
__________________________________
26 COLLEEN P. AOYS
[email protected]
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 SERVICE LIST FOR STOLZ, DIEGO V. MORENO VALLEY USD
1

2 David M. Ring
Neil K. Gehlawat
3 Taylor & Ring
1230 Rosecrans Avenue, Suite 360
4 Manhattan Beach California 90266
Tel (310) 209-4100
5 Fax (310) 208-5052
[email protected]
6 Attorneys for Plaintiffs, JUANA SALCEDO, individually and as successor-in-interest to Diego Stolz;
FELIPE SALCEDO, an individual; FERNANDO FLORES ZAPATA, an individual; DANIEL
7 ALEJANDRO STOLZ, by and through his Guardian ad Litem, Juana Salcedo, individually and as
successor-in-interest to Diego Stolz
8

10

11
MCCUNE & HARBER, LLP
515 SOUTH FIGUEROA ST.
LOS ANGELES, CA 90071
Fax (213) 689-2501

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(213) 689-2500

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