Free Answer to Complaint - District Court of California - California

Case 3:07-cv-04807-MHP

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Frank A. Silane (State Bar No.: 90940) Jennifer J. Johnston (State Bar No.: 125737) Christopher B. Queally (State Bar No.: 229154) CONDON & FORSYTH LLP 1901 Avenue of the Stars, Suite 850 Los Angeles, California 90067-6010 Telephone: (310) 557-2030 Facsimile: (310) 557-1299 Email: [email protected] Email: [email protected] Email: [email protected] Attorneys for Defendant BUMBO (PTY) LTD. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

DYLAN LAMM, a minor by and through ) his guardian ad litem MARY CATHERINE ) DOHERTY; and KEVIN LAMM, ) ) Plaintiffs, ) ) vs. ) ) BUMBO, BUMBO LIMITED, BUMBO ) (PTY) LTD.; TARGET CORPORATION; ) and DOES 1 to 20, ) ) Defendants. ) ) ) ) )

Case No. C-07-04807 MHP DEFENDANT BUMBO (PTY) LTD.'S ANSWER TO PLAINTIIFF'S COMPLAINT Complaint filed: November 2, 2007

Defendant Bumbo (PTY) LTD. (hereinafter "Bumbo" or "defendant"), by and through its attorneys of record, Condon and Forsyth LLP, hereby answers plaintiffs' Complaint for Damages as follows: PARTIES TO THE ACTION 1. Bumbo denies knowledge or information sufficient to form a belief as to the truth

of the allegations contained in paragraphs 1 and 2 of the complaint and, on this basis, denies the allegations. 2. Answering paragraph 3 of the complaint, Bumbo admits that Bumbo is a

ANSWER OF BUMBO (PTY) LTD. TO PLAINTIFF'S COMPLAINT CASE NO.: C 07-04807 MHP

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corporation organized an existing under the laws of South Africa and is domiciled in South Africa, and that its products are sometimes distributed in the State of California. 3. Bumbo denies knowledge or information sufficient to form a belief as to the truth

of the allegations contained in paragraphs 4, 5, and 6 of the complaint and, on this basis, denies the allegations.

JURISDICTION AND VENUE 4. Bumbo denies knowledge or information with respect to whether the plaintiffs

became injured within Sonoma County and whether the product was sold within Sonoma County and, on that basis denies the allegations contained in paragraph 7 of the complaint. Bumbo otherwise denies the allegations contained in paragraph 7 of the complaint. 5. Bumbo denies the allegations contained in paragraph 8 of the complaint.

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GENERAL ALLEGATIONS 6. Bumbo admits that it manufacturers a product called the "Bumbo Baby Sitter"

which is intended as a product to be used by children ages 3 months to 14 months pursuant to the warnings and instructions and under close parental supervision. Bumbo otherwise denies the allegations contained in paragraph 9 of the complaint including a description of the product which, as alleged in the complaint, is incomplete. 7. Defendant Bumbo denies the allegations contained in paragraph 10 of the

complaint except admits that it is a party to an agreement with defendant Target Corporation ("Target") through which Bumbo distributes the Bumbo Baby Sitter for retail sales through some of Target's retail stores in California and in the other areas of the United States. 8. Bumbo denies knowledge or information sufficient to form a belief as to the truth

of the allegations contained in paragraphs 11 and 12 of the complaint and, on this basis, denies the allegations. //

ANSWER OF BUMBO (PTY) LTD. TO PLAINTIFF'S COMPLAINT CASE NO.: C 07-04807 MHP

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AS TO THE FIRST CAUSE OF ACTION FOR STRICT PRODUCT LIABILITY 9. Responding to paragraph 13 of the complaint, defendant Bumbo repeats each and

every admission, allegation, and denial of paragraphs 1 through 8 of this answer as if herein set forth in full. 10. Bumbo denies the allegations contained in paragraphs 14, 15, 16, 17, 18, and 19

of the complaint.

AS TO THE SECOND CAUSE OF ACTION FOR NEGLIGENCE 11. Responding to paragraph 20, defendant Bumbo repeats each and every admission,

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allegation, and denial of paragraphs 1 through 10 of this answer as if herein set forth in full. 12. Bumbo denies knowledge or information sufficient to form a belief as to the truth

of the allegations contained in paragraph 21 of the complaint and, on this basis, denies the allegations. 13. Bumbo denies the allegations contained in paragraph 22 of the complaint except

Bumbo admits that it had an obligation to use due care with respect to those activities for which it was engaged in connection with the design, production, and sale of the Bumbo Baby Sitter. 14. complaint. AS TO THE THIRD CAUSE OF ACTION FOR WRONGFUL INFLICTION OF EMOTIONAL DISTRESS 15. Responding to paragraph 27 of the complaint, defendant Bumbo repeats each and Bumbo denies the allegations contained in paragraphs 23, 24, 25, and 26 of the

every admission, allegation, and denial of paragraphs 1 through 14 of this answer as if herein set forth in full. 16. Bumbo denies knowledge or information sufficient to form a belief as to the truth

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of the allegations contained in paragraph 28 of the complaint and, on this basis, denies the allegations. 17. complaint. Bumbo denies the allegations contained in paragraphs 29, 30, and 31 of the

AS TO THE FOURTH CAUSE OF ACTION INJUNCTIVE RELIEF UNDER BUSINESS AND PROFESSIONS CODE § 17200 18. Responding to paragraph 32 of the complaint, defendant Bumbo repeats each and

every admission, allegation, and denial of paragraphs 1 through 17 of this answer as if herein set forth in full. 19. 20. Bumbo admits the allegations contained in paragraph 33 of the complaint. Paragraphs 34, 35, and 36 of the complaint constitute attempts to summarize legal

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principles and procedures without any factual context. California law is established and exists by statute and case precedent. Bumbo admits the substance of California law and procedures as established by statute in case precedent, but otherwise denies the allegations and these paragraphs. 21. Bumbo denies the allegations contained in paragraphs 37, 38, 39, 40, 41, and 42

of the complaint.

FIRST AFFIRMATIVE DEFENSE TO EACH AND EVERY CAUSE OF ACTION 22. The complaint fails to state facts sufficient to state a cause of action against

Bumbo upon which relief may be granted. // // //

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SECOND AFFIRMATIVE DEFENSE TO EACH AND EVERY CAUSE OF ACTION 23. Plaintiffs' damages, if any, are due to the acts or omissions of persons or entities

other than Bumbo; however, in the event a finding is made that liability exists on the part of Bumbo, Bumbo is entitled to indemnity and/or contribution from such persons or entities in direct proportion to their respective fault.

THIRD AFIRMATIVE DEFENSE TO EACH AND EVERY CAUSE OF ACTION 24. The incident alleged in the complaint, and injuries and/or damages plaintiffs

allege they sustained, were caused by an intervening and superseding cause, not caused by Bumbo.

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FOURTH AFFIRMATIVE DEFENSE TO EACH AND EVERY CAUSE OF ACTION 25. The incident alleged in the complaint, and the injuries and/or damages plaintiffs

allege they sustained, were caused by the negligent and careless supervision of the activity of the minor plaintiff by the guardian ad litem and/or parents of the minor plaintiff.

FIFTH AFFIRMATIVE DEFENSE TO EACH AND EVERY CAUSE OF ACTION 26. The incident alleged in the complaint, and any injuries and damages alleged, were

the result of the misuse of the product in a manner which was not intended by Bumbo in that, inter alia, the product was used on a raised surface and, upon information and belief, with a child who was unattended, contrary to the express warnings issued with the product. // //

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SIXTH AFFIRMATIVE DEFENSE TO EACH AND EVERY CAUSE OF ACTION 27. unclean hands. The plaintiffs' claims for injunctive relief is barred by the equitable doctrine of

SEVENTH AFFIRMATIVE DEFENSE TO EACH AND EVERY CAUSE OF ACTION 28. The plaintiffs' claims are pre-empted by federal statutes and regulations including

but not limited to, the Consumer Product Safety Act, 15 U.S.C. § 2051 et seq., and the regulatory and administrative authority of the Consumer Product Safety Commission.

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EIGHTH AFFIRMATIVE DEFENSE TO EACH AND EVERY CAUSE OF ACTION This court should decline to exercise jurisdiction over this case including, without

limitation, the claim for injunctive relief, on the grounds that the determination of the safety of this product and its fitness for sale to the general public is within the special expertise of the Consumer Product Safety Commission and the exercise of the courts' jurisdiction will disrupt the proper relationships between the courts and the decisions of the Consumer Product Safety Commission under the doctrine of primary jurisdiction.

NINTH AFFIRMATIVE DEFENSE TO EACH AND EVERY CAUSE OF ACTION All of plaintiffs' causes of action are barred by the equitable doctrine of laches.

TENTH AFFIRMATIVE DEFENSE TO EACH AND EVERY CAUSE OF ACTION The Bumbo Baby Sitter was manufactured to the state-of-the-art and was

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manufactured to all applicable industry standards. ELEVENTH AFFIRMATIVE DEFENSE TO EACH AND EVERY CAUSE OF ACTION 32. Plaintiffs' damages are barred because plaintiffs knowingly, voluntarily and freely

assumed the risk of all activities alleged in plaintiffs' complaint, and plaintiffs are legally and proximately responsible for risks their minor child is intentionally, knowingly or negligently exposed to.

TWELFTH AFFIRMATIVE DEFENSE TO EACH AND EVERY CAUSE OF ACTION 33. Plaintiffs were implicitly and expressly required to notify Bumbo of any defects

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in the product within a reasonable period of time, and plaintiffs failed to notify Bumbo so as to give Bumbo an opportunity to make an inspection and effectuate the repairs, if any were necessary, and said plaintiffs have waived their right to have said repairs made and/or estopped to assert a claim for damages based on the failure to make repairs when Bumbo never had an opportunity to do so.

THIRTEENTH AFFIRMATIVE DEFENSE TO EACH AND EVERY CAUSE OF ACTION 34. Plaintiffs engaged in an unforeseeable abuse, misuse and/or alteration of the

Bumbo Baby Sitter after it left the manufacturer's hands, and this unforeseeable abuse, misuse and/or alteration was the proximate cause of any injuries sustained by plaintiffs.

FOURTEENTH AFFIRMATIVE DEFENSE TO EACH AND EVERY CAUSE OF ACTION 35. The challenged design of the Bumbo Baby Sitter outweighs any risk of danger or

injury alleged to be inherent in the design.

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FIFTEENTH AFFIRMATIVE DEFENSE TO EACH AND EVERY CAUSE OF ACTION 36. Bumbo is exempt from liability because Bumbo provided several clear,

conspicuous warnings on the product and its packaging, which in common understanding would and should call a reasonable person's attention to read, and Bumbo had an expectation that purchasers and consumer would read the warnings prior to use and prior to allowing use by their minor child and follow instructions and avoid misuse or abuse of the product.

SIXTEENTH AFFIRMATIVE DEFENSE TO EACH AND EVERY CAUSE OF ACTION 37. The clear, conspicuous warnings provided by Bumbo on the product and its

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packaging, constitute valid and binding exclusions, modifications and disclaimers of any express or implied warranties pursuant to California Commercial Code § 2316.

SEVENTEETH AFFIRMATIVE DEFENSE TO EACH AND EVERY CAUSE OF ACTION 38. Bumbo and the Bumbo Baby Sitter comply with all relevant federal and state

statutory and administrative standards and regulations.

EIGHTEENTH AFFIRMATIVE DEFENSE TO EACH AND EVERY CAUSE OF ACTION 39. Plaintiffs' prayer for equitable relief including but not limited to plaintiffs' prayer

for injunction, is moot since the Consumer Product Safety Commission has already determined the Bumbo Baby Sitter need not be removed from the market and additional warnings have been provided on the product and its packaging pursuant to the voluntary Consumer Product Safety Commission recall.

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NINTEENTH AFFIRMATIVE DEFENSE TO EACH AND EVERY CAUSE OF ACTION 40. The product did not possess any design defect, manufacturing defect or failure to

warn defect at the time it left the hands of Bumbo.

TWENTIETH AFFIRMATIVE DEFENSE TO EACH AND EVERY CAUSE OF ACTION 41. Plaintiffs have failed to satisfy the heightened pleading requirements of Federal

Rule of Civil Procedure 9(b) since plaintiffs allege a unified course of fraudulent conduct but fail to sufficiently allege the time, place and other details of such fraudulent conduct.

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TWENTY-FIRST AFFIRMATIVE DEFENSE TO EACH AND EVERY CAUSE OF ACTION Plaintiffs' causes of action and claim for equitable relief including but not limited

to injunction are barred in light of the fact that plaintiffs have an adequate remedy at law.

TWENTY-SECOND AFFIRMATIVE DEFENSE TO EACH AND EVERY CAUSE OF ACTION Plaintiffs' causes of action and claim for equitable relief, including but not limited

to claim for injunction, are barred because the equities balance against an injunction or any other form of equitable relief.

TWENTY-THIRD AFFIRMATIVE DEFENSE TO EACH AND EVERY CAUSE OF ACTION Bumbo does not presently know all of the facts and circumstances surrounding

plaintiffs' claims. Bumbo therefore reserves the right to amend or supplement this Answer should it later discover facts demonstrating the existence of additional affirmative defenses.

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WHEREFORE Bumbo prays that plaintiffs take nothing by way of this action and that Bumbo be awarded costs and all other relief the Court deems just an proper.

Dated: September 11, 2008

CONDON & FORSYTH LLP

By: FRANK A. SILANE JENNIFER J. JOHNSTON CHRISTOPHER B. QUEALLY Attorneys for Defendant BUMBO (PTY) LTD.

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