To Complaint Atty Judson

Response

Cal. Super. - 6th Dist.October 2, 2017

10 I 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 17CV316575 Santa Clara - Civil STEPHEN M. JUDSON #121579 RAMSEY LAW GROUP 3736 Mt. Diablo Boulevard, Suite 300 Lafayette, CA 94549 Telephone: (925) 284-2811 Facsimile: (925) 403-7773 Email: sjudson@ramseylawgroup.com Attorneys for Defendant ANCIENT MARINER, a former sole proprietorship Electronically Filed by Superior Court of CA, County of Santa Clara, on 6/22/2018 2:40 PM Reviewed By: A. Hwang Case #17CV316575 Envelope: 1653711 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA CALIFORNIA CAPITAL INSURANCE COMPANY, as subrogee of Blossom Hill Dental Center, Plaintiff, VS. TRIPPE MANUFACTURING CO; JEFFREY L. JACINTO dba SEALIFE AQUARIUM MAINTENANCE; SEALIFE PROFESSIONAL AQUARIUM SERVICES; SHAWN TAHERI, D.D.S. and DOES 1 through 20, inclusive, Defendants. AND RELATED CROSS-ACTIONS Case No.: 17CV316575 ANSWER OF ANCIENT MARINER, A FORMER SOLE PROPRIETORSHIP, TO COMPLAINT OF CALIFORNIA CAPITAL INSURANCE COMPANY, as subrogee of Blossom Hill Dental Center Defendant ANCIENT MARINER, a former sole proprietorship as a fictitious business name of Diane Getsinger, erroneously sued herein as Ancient Mariner, Inc., a dissolved California corporation (“ANCIENT MARINER), for itself only and for no other party, hereby responds to the Complaint filed October 2, 2018, and amended to name this responding party erroneously as a DOE Defendant. ANCIENT MARINER reserves the right to amend, add or strike affirmative defenses due to any inadvertence. ANCIENT MARINER further reserves the right to raise any affirmative defense which is subsequently discovered, and admit such as a defense at trial. . Hwang ANSWER OF ANCIENT MARINER TO COMPLAINT OF CALIFORNIA CAPITAL INS. Case No.: 17CV316575 H W oO ow a A 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GENERAL DENIAL By virtue of the provisions of Code of Civil Procedure §431.30, ANCIENT MARINER denies each and every allegation contained in the Complaint and each purported cause of action contained therein, and further denies that the complaining party, or any of them, sustained any damages in the sums alleged, or in any sum, or at all, by reason of any act, breach, or omission on the part of ANCIENT MARINER, or on the part of any agent, servant, representative, employee, predecessor, or successor of ANCIENT MARINER. AFFIRMATIVE DEFENSES Without admitting, except as noted above, any of the allegations of the Complaint herein, g assuming any burden of pleading or proof that would otherwise rest with the Complainant, ANCIENT MARINER asserts the following affirmative defenses: FIRST AFFIRMATIVE DEFENSE (Failure to State Facts Sufficient to Constitute a Cause of Action) The Complaint, and each and every cause of action alleged therein, fails to state facts that, if proven, are sufficient to constitute a cause of action upon which the requested relief may be grante against these answering parties. SECOND AFFIRMATIVE DEFENSE (Statutes of Limitations) The Complaint, and each and every cause of action alleged therein, is barred by the applicab statutes of limitation, including but not limited to, C.C.P. Sections 335, 335.1, 336, 337.1, 337.2, 337.3, 337.5, 337.6, 337.15, 338.1, 339, 339.5. 340,340 1, 340.2, 340.3, 340.4, 340.5, 340.7, 340.9 340.10, 340.15, 340.35, 341, 341.5, 342, 343, 344, 345, 346, 347, 348, 349, 349.1, 349.2, and 349.4. THIRD AFFIRMATIVE DEFENSE (Laches) The Complaint, and each and every cause of action alleged therein, is barred due to Complaining Party’s delay in asserting his/her/their allegations to the prejudice of these answering parties, and Complainant should be denied relief under the doctrine of laches. JL [o N le ANSWER OF ANCIENT MARINER TO COMPLAINT OF CALIFORNIA CAPITAL INS. Case No.: 17CV316575 WO 0 N O N th BA W N N S N N N N O N O N R N N e m a he m p e p m pe d e d pe d p m ead XR ~~ n n Bs W N = O O e N N W N = FOURTH AFFIRMATIVE DEFENSE (Unclean Hands) The Complaint, and each and every cause of action alleged therein, is barred by the doctrine of unclean hands. FIFTH AFFIRMATIVE DEFENSE (Lack of Standing) On information and belief, these answering parties allege that Complaining Party lacks standing to bring the claims alleged in the Complaint. SIXTH AFFIRMATIVE DEFENSE (Lack of Standing -No Injury In Fact) On information and belief, these answering parties allege that Complaining Party lacks standing to bring the claims alleged in the Complaint because she did not suffer any injury in fact, and did not suffer an actual or imminent injury as required by applicable law. SEVENTH AFFIRMATIVE DEFENSE (Estoppel) The Complaint, and each and every cause of action alleged therein, is barred by the doctrin of estoppel. EIGHTH AFFIRMATIVE DEFENSE (Waiver) The Complaint, and each and every cause of action alleged therein, is barred by the doctrine of waiver. NINTH AFFIRMATIVE DEFENSE (No Breach of Duty) These answering parties allege that they did not directly or indirectly perform or fail to perform any acts which constitute a violation of any duty or obligation, if any, owed to Complaining Party. TENTH AFFIRMATIVE DEFENSE (Justification) 23. [¢] ANSWER OF ANCIENT MARINER TO COMPLAINT OF CALIFORNIA CAPITAL INS. Case No.: 17CV316575 o e N N D n BR W N ) ee N O N NN N N N N N N e s a e r e m e m p l e d A pe d em C 0 3 S Y nn RAR W N D O N N R N OD These answering parties allege that they were contractually and/or equitably justified in doing any and/or all of the acts alleged in the Complaint. ELEVENTH AFFIRMATIVE DEFENSE (Failure to Mitigate Damages) These answering patties, on information and belief, allege that had Complaining Party taken reasonable steps to mitigate his/her/their losses (he/she/they did not), Complaining Party would no have suffered the damages allegedly sustained, and Complaining Party’s rights to recover damages are barred or diminished accordingly. TWELFTH AFFIRMATIVE DEFENSE (Avoidable Consequences) The Complaint and each and every purported cause of action alleged therein, is barred by Complaining Party taking unnecessary actions which caused his/her/their alleged damages, if any. THIRTEENTH AFFIRMATIVE DEFENSE (Ratification) The Complaint, and each and every purported cause of action alleged therein, is barred by Complaining Party's ratification of the actions allegedly undertaken. FOURTEENTH AFFIRMATIVE DEFENSE (Offset) These answering parties allege that they have incurred damages and expenses in an amount fo be ascertained and applied as an offset against Complaining Party’s claims FIFTEENTH AFFIRMATIVE DEFENSE (Acts and Omissions of Others) These answering patties allege that the incident complained of by Complaining Party the Complaint was due to the acts and/or omissions of persons and entities other than these answering defendants. SIXTEENTH AFFIRMATIVE DEFENSE 4 ANSWER OF ANCIENT MARINER TO COMPLAINT OF CALIFORNIA CAPITAL INS. Case No.: 17CV316575 Oo 0 J O N nn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (Good Faith) The Complaint, and each and every cause of action alleged therein, is barred because these answering parties acted at all times in good faith and with good cause. These answering parties’ conduct was within the reasonable expectations of the parties, and these answering parties at no time acted so as to deprive Complaining Party of any rights or to cause Complaining Party the injuries alleged in the Complaint, if any exist. SEVENTEENTH AFFIRMATIVE DEFENSE (Consent) Complaining Party had actual, implied, and/or constructive knowledge of all acts and/or omissions alleged in the Complaint and, while conscious of those acts and/or omissions, Complaining Party gave express or implied consent to all such alleged acts and/or omissions, and assumed the risk of same. EIGHTEENTH AFFIRMATIVE DEFENSE (Performance Prevented / Excused) These answering parties allege that the performance of these parties was prevented or excusgd by the prior breach of contract by Complaining Party. NINETEENTH AFFIRMATIVE DEFENSE (Causation/Third-Party Conduct as Superseding Cause) Complaining Party’s claims are barred against this answering Defendant because the damages suffered by Complaining Party, if any, were legally caused by the negligence and/or lega - = fault and/or liability of third parties occurring after any alleged conduct of this answering party ang without any fault or want of care on the part of this answering party or on the part of any person or persons for whose acts this answering party was or is legally responsible. TWENTIETH AFFIRMATIVE DEFENSE (Comparative Fault of Complaining Party) Defendant is entitled to reduction of liability based on the comparative fault of the Complaining Party. TWENTY-FIRST AFFIRMATIVE DEFENSE -5- ANSWER OF ANCIENT MARINER TO COMPLAINT OF CALIFORNIA CAPITAL INS. Case No.: 17CV316575 ~~ N h BR Ww 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (Comparative Fault of Third Parties) Defendant is entitled to reduction of liability based on the comparative fault of third parties and others herein. Any judgment in favor of Complainant must be reduced by an amount corresponding to the percentage of the negligence and/or legal fault and/or liability attributed to third parties in accordance with common law and Civil Code Sections 1431, 1431.1, and 1431.2. TWENTY-SECOND AFFIRMATIVE DEFENSE (Failure to Mitigate) Complainant failed at all times mentioned in complaint to mitigate its damages. TWENTY-THIRD AFFIRMATIVE DEFENSE (Assumption of Risk) Complaining Party voluntarily assumed the risks of the transaction alleged in the Complaiy and that assumption of the same constituted the sole proximate cause or contributing of their alleged damages, if any, which are specifically denied to exist. DATED: June 21, 2018 RAMSEY LAW GROUP Fda, WD /Stephe M. Judson Attorney for Defendant AgCient Mariner, a former sole proprietorship By &- ANSWER OF ANCIENT MARINER TO COMPLAINT OF CALIFORNIA CAPITAL INS. Case No.: 17CV316575 h r O N O N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 PROOF OF SERVICE (CCP §§ 1013(a) and 2015.5; FRCP 5) I, the undersigned, am employed in the County of Contra Costa, State of California. Iam over the age of eighteen and not a party to the within action. My business address is Ramsey Law Group, 3736 Mount Diablo Boulevard, Suite 300, Lafayette, California, 94549. On June 22, 2018, 1 served the following document(s): ANSWER OF ANCIENT MARINER , A FORMER SOLE PROPRIETORSHIP, TO COMPLAINT OF CALIFORNIA CAPITAL INSURANCE COMPANY, as subrogee of Blossom Hill Dent Center on the interested parties in this action by placing a true and correct copy of each document thereof, enclosed 1 a sealed envelope, addressed as follows: [SEE ATTACHED SERVICE LIST] [ X]@BY FIRST CLASS) - I caused such envelope(s) with postage thereon fully prepaid to be placed in the United States mail in Lafayette, California to be served on the parties as indicated on the Service List. I am “readily familiar’ with the firm’s practice of collection and processing correspondence for mailing. Under that practice, it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Lafayette, California in the ordinary course of business. [am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. [ ]1(BY CERTIFIED MAIL) - I caused such envelope(s) with postage thereon fully prepaid via Certified Mail Return Receipt Requested to be placed in the United States Mail in Lafayette, California. [ 1@BY EXPRESS MAIL OR ANOTHER METHOD OF DELIVERY PROVIDING FOR OVERNIGHT DELIVERY) [ (BY ELECTRONIC FILING AND/OR SERVICE) - I served a true copy, with all exhibits, electronically on designated recipients listed on the Service List on: (date) at (time) | ] (FEDERAL EXPRESS) I caused the envelope to be delivered to an authorized courier or driver authorized to receive documents with delivery fees provided for. [ 1 (BY FACSIMILE) - I caused the above-described document(s) to be transmitted to the offices of the interested parties at the facsimile number(s) indicated on the Service List and the activity report(s) generated by facsimile numbg (925) 403-0710 indicated all pages were transmitted. 1 declare under penalty of perjury under the laws of the State of California that the above is true and correct and that this declaration was executed on June 22, 2018, at Lafayette, CA. - D5 ~~ Trina Audley ke / 7- ANSWER OF ANCIENT MARINER TO COMPLAINT OF CALIFORNIA CAPITAL INS. Case No.: 17CV316575 ~~ Ww ~ N 10 11 12 13 14 15 16 17 18 19 20 21 22, 23 24 25 26 27 28 SERVICE LIST Garry J.D. Hubert Miriam P. Maxwell Law Offices of Hubert & Yasutake 1320 Willow Pass Road, Suite 590 Concord, CA 94520 Attorneys for Plaintiff, STATE FARM GENERAL INSURANCE COMPANY Phone (925) 680-4266 Fax: (925) 680-4259 Email: ghubert@hy-litigators.com Daniel R. Watkins, Esq. (SBN 163571) Nicole A. Naleway (SBN 300701) Watkins & Letofsky, LLP 2900 S. Harbor Blvd., Suite 240 Santa Ana, CA 92704 Attorneys for Plaintiff, THE DENTISTS INSURANCE COMPANY and for Defendant, SHAWN TAHERI, DDS and SHAWN TAHERI, DDS, MS, INC. Phone: (949) 476-9400 Fax: (949) 476-9407 dw@wl-llp.com nnaleway(@wI-llp.com Sean Moriarty Cesari Werner And Moriarty 75 Southgate Avenue Daly City, CA 94015 Attorneys for Defendant/Cross-Defendant, JEFF JACINTO dba SEALIFE AQUARIUM MAINTENANCE Phone (650) 991-5126 Fax: (650) 991-5134 dmoriarty@cwmlaw.com smoriarty@cwmlaw.com Kevin J. Price, Esq. CUMMINS & WHITE LLP 2424 SE Bristol Street, Suite 300 Newport Beach, CA 92660 Attorneys for Defendant, TRIPPE MANUFACTURING Phone: (949) 852-1800 Fax: (949) 852-8510 kprice@cwlawyers.com Eric M. Schroeder, Esq. Amanda R. Stevens, Esq. Schroeder Loscotoff, LLP 7 410 Greenhaven Drive, Suite 200 Sacramento, CA 95831 Attorneys for Plaintiff, CALIFORNIA CAPITAL INSURANCE COMPANY Phone: (916) 438-8300 Fax: (916) 438-8306 emschroeder@calsubro.com astevens@calsubro.com Jeffrey A. Baruh Adelson, Hess & Kelly, APC 577 Salmar Avenue, Second Floor Campbell, California 95008 Attorneys for Plaintiff, JOHN WILKINSON, D.D.S. Phone: (408)"341-0234 Fax: (408) 341-0250 jbaruh@ahldaw.com Richard B. Vaught RBYV Law Finn 14440 Big Basin Way, Suite 15 Saratoga, CA 95070 Attorneys for Plaintiff, NED L. NIX Phone: (408) 275-8523 richard@rbvlawfirm.com -8- ANSWER OF ANCIENT MARINER TO COMPLAINT OF CALIFORNIA CAPITAL INS. Case No.: 17CV316575