Answer Cross Complaint

Cal. Super. - 6th Dist.April 23, 2020

KOOOQQLh-bUJNr-t NNNNNNNNNr-Ar-Ar-AHHHHr-dr-dr-d OOQQUl-hUJNF-‘OKOOOQONUI-bUJNHO LAW OFFICES OF STEPHENSON, ACQUISTO & COLMAN, INC. JOY STEPHENSON-LAWS, ESQ. (SBN 113755) RICHARD A. LOVICH, ESQ. (SBN 113472) KARLENE J. ROGERs-ABERMAN, ESQ. (SBN 237883) CHRISTOPHER J. HAPAK, ESQ. (SBN 267212) GERALDINE s. GARCIA, ESQ. (SBN 3 19561) 303 N. Glenoaks B1Vd., Suite 700 Burbank, CA 91502 _ _ Telephone: (818) 559-4477 E'eCtronlcally filed . . . by Superior Court of CA,Fa031mlle. (818) 559-5484 County Of Santa Clara, on 11/4/2020 12:06 PM Attorneys for Plaintiff Reviewed ByzR. Tien CALIFORNIA SPINE AND NEUROSURGERY Case #ZOCV366206 INSTITUTE, a California for profit corporation EnV #5237281 SUPERIOR COURT OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA UNLIMITED JURISDICTION CALIFORNIA SPINE AND Case N0.: 20CV366206 NEUROSURGERY INSTITUTE, a California for profit corporation PLAINTIFF/CROSS'DEFENDANT’S RESPONSE TO DEFENDANT/CROSS- Plaintiff, COMPLAINANT’S CROSS COMPLAINT V. APPLE INC. HEALTH AND BENEFITS PLAN; and DOES 1 THROUGH 25, inclusive, Defendants. - 1 - PLAINTIFF/CROSS-DEFENDANT’S RESPONSE TO DEFENDANT/CROSS-COMPLAINANT’S CROSS COMPLAINT KOOOQQLh-bUJNr-t NNNNNNNNNr-Ar-Ar-AHHHHr-dr-dr-d OOQQUl-hUJNF-‘OKOOOQONUI-bUJNHO APPLE INC. HEALTH AND WELFARE BENEFIT PLAN, Cross-Complainant, V. CALIFORNIA SPINE AND NEUROSURGERY INSTITUTE, Cross-Defendant. Plaintiff and Cross-Defendant CALIFORNIA SPINE AND NEUROSURGERY INSTITUTE (“CALIFORNIA SPINE”) answers Defendant and Cross-Complainant APPLE INC. HEALTH AND WELFARE BENEFIT PLAN’s (“APPLE”) Cross-Complaint as follows: GENERAL DENIAL Pursuant to California Rule 0f Civil Procedure 428. 10 CALIFORNIA SPINE denies generally and specifically each and every allegation ofAPPLE’S Counterclaim and the Whole thereof. CALIFORNIA SPINE further denies that APPLE is entitled t0 the relief requested, 0r any relief at all, and further denies that APPLE has been damaged in the sums alleged, or in any other sums, or at all. AFFIRMATIVE DEFENSES CALIFORNIA SPINE asserts the following separate affirmative defenses: FIRST AFFIRMATIVE DEFENSE (FAILURE TO STATE A CLAIM) As a separate affirmative defense, CALIFORNIA SPINE asserts that the Counterclaim fails t0 state facts sufficient t0 constitute a cause 0f action again CALIFORNIA SPINE upon which relief can be granted. SECOND AFFIRMATIVE DEFENSE (FAILURE OF CONDITION PRECEDENT) - 2 - PLAINTIFF/CROSS-DEFENDANT’S RESPONSE TO DEFENDANT/CROSS-COMPLAINANT’S CROSS COMPLAINT KOOOQQLh-bUJNr-t NNNNNNNNNr-Ar-Ar-AHHHHr-dr-dr-d OOQQUl-hUJNF-‘OKOOOQONUI-bUJNHO As a separate affirmative defense, CALIFORNIA SPINE asserts that at all times, APPLE has failed t0 fulfill conditions precedent to the performance 0f the implied and/or express agreement between CALIFORNIA SPINE and APPLE. THIRD AFFIRMATIVE DEFENSE (UNCLEAN HANDS) As a separate affirmative defense, CALIFORNIA SPINE asserts that APPLE is barred from recovery pursuant t0 the doctrine 0funclean hands by reason of its own conduct. FOURTH AFFIRMATIVE DEFENSE (FAILURE TO MITIGATE) As a separate affirmative defense, APPLE failed t0 exercise reasonable care and diligence t0 minimize and mitigate the alleged damages. FIFTH AFFIRMATIVE DEFENSE (UNCERTAINTY) As a separate affirmative defense, the Counterclaim is uncertain. SIXTH AFFIRMATIVE DEFENSE (CONSENT) As a separate affirmative defense, APPLE consented to CALIFORNIA SPINE’S conduct. SEVENTH AFFIRMATIVE DEFENSE (JUSTIFICATION/PRIVILEGE) As a separate affirmative defense, any conduct of CALIFORNIA SPINE was justified and/or privileged under the circumstances. EIGHTH AFFIRMATIVE DEFENSE (NO LOSS OR DAMAGES) As a separate affirmative defense, APPLE suffered no loss or damages. NINTH AFFIRMATIVE DEFENSE (GOOD FAITH) - 3 - PLAINTIFF/CROSS-DEFENDANT’S RESPONSE TO DEFENDANT/CROSS-COMPLAINANT’S CROSS COMPLAINT KOOOQQLh-bUJNr-t NNNNNNNNNr-Ar-Ar-AHHHHr-dr-dr-d OOQQUl-hUJNF-‘OKOOOQONUI-bUJNHO CALIFORNIA SPINE acted in good faith at all times and did not directly 0r indirectly perform any acts that constitute a Violation 0f any right 0r duty owed, if any, t0 APPLE. TENTH AFFIRMATIVE DEFENSE (NO STATUTORY INTEREST OR PENALTIES) APPLE is not entitled t0 an award 0f statutory interest and/or penalties. ELEVENTH AFFIRMATIVE DEFENSE (MISREPRESENTATION) As a separate affirmative defense, any obligation of CALIFORNIA SPINE has been excused by acts 0f misrepresentation by APPLE. TWELFTH AFFIRMATIVE DEFENSE (UNJUST ENRICHMENT) As a separate affirmative defense, APPLE would be unjustly enriched if allowed t0 recover under the Counterclaim. THIRTEENTH AFFIRMATIVE DEFENSE (UNKNOWN AFFIRMATIVE DEFENSES) CALIFORNIA SPINE reserves the right t0 amend this answer and assert more affirmative defenses based 0n investigation and review 0f facts developed during the discovery phase 0f this case. PRAYER WHEREFORE CALIFORNIA SPINE prays for judgment as follows: 1. That APPLE takes nothing by way 0f its Counterclaim herein; 2. That the Counterclaim is dismissed in its entirety With prejudice, and that judgment is entered in favor 0f CALIFORNIA SPINE; and 3. For such other and further relief as this Court deems just and proper. - 4 - PLAINTIFF/CROSS-DEFENDANT’S RESPONSE TO DEFENDANT/CROSS-COMPLAINANT’S CROSS COMPLAINT KOOOQQLh-bUJNr-t NNNNNNNNNr-Ar-Ar-AHHHHr-dr-dr-d OOQQUl-hUJNF-‘OKOOOQONUI-bUJNHO Dated: 4 November 2020 LAW OFFICES OF STEPHENSON, ACQUISTO & COLMAN, INC. /s/Gera1dine S. Garcia Attorneys for CALIFORNIA SPINE AND NEUROSURGERY INSTITUTE, a California for profit corporation -5- PLAINTIFF/CROSS-DEFENDANT’S RESPONSE TO DEFENDANT/CROSS-COMPLAINANT’S CROSS COMPLAINT GOOQQUl-RUJNr-ik NNNNNNNNNr-dr-dr-dr-Ar-Ar-Ar-Ar-AHH OOQQU‘I-hUJNF-‘OKOOOQQU‘I-RUJNHO PROOF OF SERVICE I am employed in the county of Los Angeles, State 0f California. I am over the age 0f 18 and not a party to the within action; my business address is 303 North Glenoaks Boulevard, Suite 700, Burbank, California 91502-3226. On 4 November 2020, I served the foregoing document(s) entitled: PLAINTIFF/CROSS-DEFENDANT’S RESPONSE TO DEFENDANT/CROSS-COMPLAINANT’S CROSS COMPLAINT by placing a true copy thereof enclosed in a sealed envelope addressed per the attached Service List. [] [] [] [] BY U.S. MAIL: I am "readily familiar" With the firm's practice 0f collection and processing correspondence for mailing. Under that practice it would be deposited With the United States Postal Service on that same day with postage thereon fully prepaid at Burbank, California in the ordinary course 0f business. I am aware that on motion 0f the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date 0f deposit for mailing in affidavit. [C.C.P. 1013a(3); F.R.C.P. 5(b)] BY FEDERAL EXPRESS: I caused such envelope(s), with overnight Federal Express Delivery Charges t0 be paid by this firm, t0 be deposited with the Federal Express Corporation at a regularly maintained facility 0n the aforementioned date. [C.C.P. 1013(0) 1013(d)] BY PERSONAL SERVICE: I caused the above-stated document(s) t0 be served by personally delivering a true copy thereof t0 the individuals identified above. [C.C.P. 101 1(a); F.R.C.P. 5(b)] BY EXPRESS MAIL: I caused such envelope(s), With postage thereon fully prepaid and addressed to the party(s) shown above, t0 be deposited in a facility operated by the U.S. Postal Service and regularly maintained for the receipt of Express Mail 0n the aforementioned date. [C.C.P. 1013(0)] BY TELECOPIER: Service was effected 0n all parties at approximately_ am/pm by transmitting said document(s) from this firm's facsimile machine (818/559-4477) to the facsimile machine number(s) shown above. Transmission t0 said numbers was successful as evidenced by a Transmission Report produced by the machine indicating the documents had GOOQOUI-RUJNH NNNNNNNNNr-Ar-tr-tr-r-tr-Ar-kr-r-tt-t OOQQUI-bUJNP-‘OKDOOQO‘NUl-bUJNF-‘O been transmitted completely and Without error. C.R.C. 2008(6), Cal. CiV. Proc. Code § 1013(6). [X ] BY ELECTRONIC SERVICE: By emailing true and correct copies to the persons at the electronic notification address(es) shown on the accompanying service list. The document(s) was/were served electronically and the transmission was reported as complete and Without error. [ X ] State: I declare under penalty 0f perjury under the laws 0f the State 0f California that the above is true and correct. Executed on 4 November 2020 in Burbank, California. /S/ Melissa Cruz MELISSA CRUZ mcruz@sacfirm.com SERVICE LIST Clarissa A. Kang, Esq. Brian D. Murray, Esq. TRUCKER HUSS, APC One Embarcadero Center, 12th Floor San Francisco, CA 941 11 ckang@truckerhuss.com bmurrav@truckerhuss.com