defendant the regents of the university of californias answer to compl

Cal. Super. - 1st Dist.July 15, 2021

27284 - 1 - DEFENDANT THE REGENTS OF THE UNIVERSITY OF CALIFORNIA's ANSWER TO COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LAW OFFICES OF STEPHENSON, ACQUISTO & COLMAN, INC. JOY STEPHENSON-LAWS, ESQ. (SBN 113755) BARRY SULLIVAN, ESQ. (SBN 136571) DAVID F. MASTAN, ESQ. (SBN 152109) 303 N. Glenoaks Blvd., Suite 700 Burbank, CA 91502 Telephone: (818) 559-4477 Facsimile: (818) 559-5484 Attorneys for Defendant THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, a California public trust corporation, on behalf of itself and University of California, San Francisco Medical Center (erroneously sued as University of California, Board of Regents, UCSF Health and UCSF Medical Center) (No Filing Fee Per Cal. Gov't Code § 6103) SUPERIOR COURT OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO UNLIMITED JURISDICTION CAROLYN MCCONE, Plaintiff, v. ALLSTATE INSURANCE COMPANY, a corporation doing business in California, UNIVERSITY OF CALIFORNIA, BOARD OF REGENTS; UCSF HEALTH; UCSF MEDICAL CENTER, and DOES 1 THROUGH 50, INCLUSIVE, Defendants. Case No.: CGC-20-582198 DEFENDANT THE REGENTS OF THE UNIVERSITY OF CALIFORNIA's ANSWER TO COMPLAINT Assigned for all purposes to Hon. Garrett L. Wong //// //// Defendant THE REGENTS OF THE UNIVERSITY OF ELECTRONICALLY F I L E D Superior Court of California, County of San Francisco 10/28/2020 Clerk of the Court BY: VANESSA WU Deputy Clerk 27284 - 2 - DEFENDANT THE REGENTS OF THE UNIVERSITY OF CALIFORNIA's ANSWER TO COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CALIFORNIA, a California public trust corporation, on behalf of itself and University of California, San Francisco Medical Center (erroneously sued as University of California, Board of Regents, UCSF Health, and UCSF Medical Center) (hereinafter, "UCSF Medical Center") hereby answers Plaintiff CAROLYN MCCONE’S Complaint as follows: ANSWER TO GENERAL ALLEGATIONS 1. Under and pursuant to California Code of Civil Procedure section 431.30(d), UCSF Medical Center denies, generally and specifically, each and every allegation contained in Plaintiff’s unverified Complaint and each allegation of every cause of action set forth therein, and the whole thereof, and denies that Plaintiff sustained damages in the sum or sums alleged, or in any other sum or sums, or at all. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE 2. UCSF Medical Center alleges that the Complaint, and each purported cause of action alleged therein, fails to state facts sufficient to constitute a cause of action against UCSF Medical Center. SECOND AFFIRMATIVE DEFENSE 3. UCSF Medical Center alleges that any and all of the actions taken by any officer, director, managing agent, employee, representative, and/or agent of UCSF Medical Center were good faith assertions of the rights of UCSF Medical Center and were therefore privileged and/or justified. //// 27284 - 3 - DEFENDANT THE REGENTS OF THE UNIVERSITY OF CALIFORNIA's ANSWER TO COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THIRD AFFIRMATIVE DEFENSE 4. UCSF Medical Center alleges that if Plaintiff has sustained any damages as alleged in the Complaint, which UCSF Medical Center denies, she failed to mitigate her damages. FOURTH AFFIRMATIVE DEFENSE 5. UCSF Medical Center is informed and believes and based thereon alleges that Plaintiff is barred from any recovery on its Complaint and each of the purported causes of action alleged therein under the doctrine of waiver. FIFTH AFFIRMATIVE DEFENSE 6. UCSF Medical Center is informed and believes and based thereon alleges that Plaintiff is barred from any recovery on this Complaint and each of the purported causes of action alleged therein under the doctrine of estoppel. SIXTH AFFIRMATIVE DEFENSE 7. UCSF Medical Center is informed and believes, and on that basis alleges that its purported obligations, if any, as alleged in the Complaint were fully performed. SEVENTH AFFIRMATIVE DEFENSE 8. UCSF Medical Center is informed and believes, and on that basis alleges that if UCSF Medical Center failed to perform any obligations owed to Plaintiff, which UCSF Medical Center categorically denies, such performance was prevented or made impossible as a result of acts or omissions of Plaintiff and/or other third parties. 27284 - 4 - DEFENDANT THE REGENTS OF THE UNIVERSITY OF CALIFORNIA's ANSWER TO COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EIGHTH AFFIRMATIVE DEFENSE 9. UCSF Medical Center alleges that, without conceding that Plaintiff sustained any damages as alleged in the Complaint, if any such damages were sustained by Plaintiff, Plaintiff failed to and did not exercise ordinary care, caution or prudence on its own behalf and that the alleged damages, if any, either sustained by Plaintiff or referred to in the Complaint were directly and proximately caused and contributed to by the acts and/or omissions of Plaintiff. Accordingly, recovery, if any, on the part of Plaintiff against UCSF Medical Center must be reduced by a proportionate percentage of the wrong attributable to Plaintiff. NINTH AFFIRMATIVE DEFENSE 10. UCSF Medical Center alleges that, without conceding Plaintiff has sustained any damages as alleged in this Complaint, if any such damages were sustained by Plaintiff, they were caused and contributed by persons or entities other than UCSF Medical Center, and at all times, these other persons or entities were acting without the consent, authorization, knowledge or ratification of UCSF Medical Center, with regard to any and all of the acts alleged in the Complaint, and the award of damages, if any, should be reduced by the proportionate percentage of the wrong attributable to those persons or entities. TENTH AFFIRMATIVE DEFENSE 11. Without conceding that the Plaintiff has suffered any damages as alleged in the Complaint, UCSF Medical Center alleges that if any such damages were sustained by the Plaintiff, those damages should be properly apportioned among all persons or entities who contributed to those damages in proportion to the fault of those persons or entities, pursuant to California Civil Code Section 1431.2 and any relevant provisions of California common and 27284 - 5 - DEFENDANT THE REGENTS OF THE UNIVERSITY OF CALIFORNIA's ANSWER TO COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 statutory law. ELEVENTH AFFIRMATIVE DEFENSE 12. UCSF Medical Center alleges that it has fully performed all of its duties and obligations, if any, under any contract or relationship with Plaintiff. All events, happenings, injuries and damages referred to in Plaintiff’s Complaint were proximately caused by the negligence and/or fault of Plaintiff and/or firms, persons, corporations or entities other than UCSF Medical Center and as to whom UCSF Medical Center exercises no control. TWELFTH AFFIRMATIVE DEFENSE 13. UCSF Medical Center alleges that Plaintiff’s Complaint, and each purported cause of action contained therein, is barred, in whole or in part, by the applicable statute of limitations. THIRTEENTH AFFIRMATIVE DEFENSE 14. UCSF Medical Center alleges that any and all actions taken by UCSF Medical Center were fair and reasonable and were performed in good faith based on all the relevant facts known to UCSF Medical Center at all applicable times. FOURTEENTH AFFIRMATIVE DEFENSE 15. UCSF Medical Center alleges that the Complaint, and each purported cause of action contained therein, fails to state any facts that would entitle Plaintiff to recover general, compensatory, punitive and/or other damages (including attorney's fees and costs) against UCSF Medical Center. FIFTEENTH AFFIRMATIVE DEFENSE 16. UCSF Medical Center alleges that Plaintiff has no right to 27284 - 6 - DEFENDANT THE REGENTS OF THE UNIVERSITY OF CALIFORNIA's ANSWER TO COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 recover benefits and/or damages against UCSF Medical Centers under applicable law or the terms and conditions of the subject policies, plans and/or certificates of insurance at issue in the Complaint. SIXTEENTH AFFIRMATIVE DEFENSE 17. UCSF Medical Center alleges that Plaintiff has no right to recover benefits and/or damages against UCSF Medical Center because UCSF Medical Center complied with the terms and conditions of the policies, plans and/or certificates of insurance at issue in the Complaint and applicable law when allegedly changing and/or reducing the scope of coverage under Plaintiff’s policies, plans and/or certificates of insurance at issue in the Complaint. SEVENTEENTH AFFIRMATIVE DEFENSE 18. UCSF Medical Center alleges that Plaintiff is barred from any recovery on its Complaint and each of the purported causes of action alleged therein on the grounds that all benefits due and owing under the subject policies, plans, and/or certificates of insurance were properly and timely paid pursuant to the terms and conditions of the subject policies, plans, and/or certificates of insurance and applicable law. EIGHTEENTH AFFIRMATIVE DEFENSE 19. UCSF Medical Center alleges that Plaintiff consented and/or acquiesced to the conduct set forth in the Complaint, and Plaintiff is therefore barred from seeking any relief therein or any relief at all. NINTEENTH AFFIRMATIVE DEFENSE 20. UCSF Medical Center is informed and believes, and upon such information and belief alleges, that the causes of action alleged in Plaintiff’s 27284 - 7 - DEFENDANT THE REGENTS OF THE UNIVERSITY OF CALIFORNIA's ANSWER TO COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Complaint are barred by reason of the fact that Plaintiff, upon being fully informed of the acts and events of which it now complains, ratified and affirmed all conduct with respect to those acts and events, and therefore Plaintiff has waived its claims and is estopped from asserting the same against UCSF Medical Center. TWENTIETH AFFIRMATIVE DEFENSE 21. UCSF Medical Center alleges that it breached no duty, contractual, fiduciary or otherwise, owed to Plaintiff, if any such duty was owed. TWENTY-FIRST AFFIRMATIVE DEFENSE 22. UCSF Medical Center alleges that Plaintiff’s claims is barred by the doctrine of accord and satisfaction. TWENTY-SECOND AFFIRMATIVE DEFENSE 23. UCSF Medical Center alleges that any of its purported obligations alleged or referred to in the Complaint have been discharged. TWENTY-THIRD AFFIRMATIVE DEFENSE 24. UCSF Medical Center alleges that Plaintiff is not entitled to any relief and/or recovery from UCSF Medical Center since any acts and/or omissions alleged in the Complaint were legally and factually justified. TWENTY-FOURTH AFFIRMATIVE DEFENSE 25. UCSF Medical Center alleges that Plaintiff’s claims are barred, in whole and/or in part, because UCSF Medical Center acted in accordance with its responsibilities under the subject policies, plans, and/or certificates of insurance and under all applicable laws and did not engage in willful and/or negligent conduct with respect to Plaintiff, or in any other conduct that would subject UCSF 27284 - 8 - DEFENDANT THE REGENTS OF THE UNIVERSITY OF CALIFORNIA's ANSWER TO COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Medical Center to liability or damages to Plaintiff. TWENTY-FIFTH AFFIRMATIVE DEFENSE 26. UCSF Medical Center alleges that Plaintiff is barred from any recovery on its Complaint and each of the purported causes of action alleged therein under the doctrine of unclean hands. TWENTY-SIXTH AFFIRMATIVE DEFENSE 27. UCSF Medical Center alleges that no acts or omissions by UCSF Medical Center constitute the proximate or legal cause of any of Plaintiff’s alleged damages. Therefore, Plaintiff has no valid claim against UCSF Medical Center. TWENTY-SEVENTH AFFIRMATIVE DEFENSE 28. UCSF Medical Center alleges that the Complaint is barred because the alleged conduct of UCSF Medical Center is excused. TWENTY-EIGHTH AFFIRMATIVE DEFENSE 29. UCSF Medical Center alleges that Plaintiff is barred from any recovery on her Complaint and each of the purported causes of action alleged therein under the doctrine of laches. TWENTY-NINTH AFFIRMATIVE DEFENSE 30. UCSF Medical Center is informed and believes, and based thereon alleges, that Plaintiff has failed to do equity and Plaintiff is therefore not entitled to any equitable or legal relief in this action. 27284 - 9 - DEFENDANT THE REGENTS OF THE UNIVERSITY OF CALIFORNIA's ANSWER TO COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THIRTIETH AFFIRMATIVE DEFENSE 31. UCSF Medical Center is informed and believes, and on that basis alleges, that without conceding that Plaintiff has sustained any damages as alleged in the Complaint, if any such damages were sustained by Plaintiff, she did not suffer irreparable harm. THIRTY-FIRST AFFIRMATIVE DEFENSE 32. UCSF Medical Center alleges that Plaintiff’s action for conversion is barred because Plaintiff did not own the alleged goods and property at the time this answering UCSF Medical Center allegedly converted said goods. THIRTY-SECOND AFFIRMATIVE DEFENSE 33. UCSF Medical Center alleges that Plaintiff’s action for conversion is barred because Plaintiff did not have possession of the alleged goods and property at the time this answering UCSF Medical Center allegedly converted said goods. THIRTY-THIRD AFFIRMATIVE DEFENSE 34. UCSF Medical Center alleges that Plaintiff’s action for conversion is barred because at the time this answering UCSF Medical Center allegedly converted said goods UCSF Medical Center had no intention or purpose to convert the goods and/or to exercise ownership over them, or to prevent Plaintiff from taking possession of property established to be hers. THIRTY-FOURTH AFFIRMATIVE DEFENSE 35. UCSF Medical Center alleges that Plaintiff’s action is barred by the doctrine of unjust enrichment. 27284 - 10 - DEFENDANT THE REGENTS OF THE UNIVERSITY OF CALIFORNIA's ANSWER TO COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THIRTY-FIFTH AFFIRMATIVE DEFENSE 36. UCSF Medical Center alleges that Plaintiff fails to state a cause of action under Government Code section 815, et. seq. THIRTY-SIXTH AFFIRMATIVE DEFENSE 37. UCSF Medical Center alleges that Plaintiff’s action is barred by the doctrine of offset. THIRTY-SEVENTHAFFIRMATIVE DEFENSE 38. UCSF Medical Center alleges that Plaintiff’s action is barred due to Plaintiff’s lack of standing. THIRTY-EIGHTH AFFIRMATIVE DEFENSE 39. UCSF Medical Center alleges that Plaintiff’s Complaint and each cause of action therein is so vague, ambiguous, unintelligible, uncertain, and indefinite that UCSF Medical Center is unable to understand the full nature and character of the allegations, and is thereby prejudiced in ascertaining all defenses which may be available to it. THIRTY-NINTH AFFIRMATIVE DEFENSE 40. UCSF Medical Center alleges that Plaintiff is barred from any recovery against this UCSF Medical Center because Plaintiff’s alleged damages are speculative. FORTIETH AFFIRMATIVE DEFENSE 41. UCSF Medical Center presently has insufficient knowledge or information on which to form a belief whether it may have additional, yet unstated affirmative defenses. UCSF Medical Center reserves the right to assert additional 27284 - 11 - DEFENDANT THE REGENTS OF THE UNIVERSITY OF CALIFORNIA's ANSWER TO COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 affirmative defenses in the event discovery or further investigation indicates that asserting additional affirmative defenses would be warranted. PRAYER 1. WHEREFORE, UCSF Medical Center prays for judgment in their favor and against Plaintiff as follows: 2. An order dismissing the entire Complaint, with prejudice, as to UCSF Medical Center herein and with respect to all causes of action; 3. An order declaring that Plaintiff shall take nothing by her Complaint; 4. An order declaring that no benefits or damages are payable to Plaintiff as alleged in the Complaint; 5. For judgment against Plaintiff and in favor of UCSF Medical Center; 6. That UCSF Medical Center recover its costs of suit incurred herein, including reasonable attorneys' fees; and 7. For such other and further relief as this Court deems just and proper. 27284 - 12 - DEFENDANT THE REGENTS OF THE UNIVERSITY OF CALIFORNIA's ANSWER TO COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: 28 October 2020 LAW OFFICES OF STEPHENSON, ACQUISTO & COLMAN, INC. DAVID F. MASTAN Attorneys for THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, a California public trust corporation, on behalf of itself and University of California, San Francisco Medical Center p o s a n - 1 C O M P L A 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I am employed in the county of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is 303 North Glenoaks Boulevard, Suite 700, Burbank, California 91502-3226. On 28 October 2020, I served the foregoing document(s) entitled: DEFENDANT THE REGENTS OF THE UNIVERSITY OF CALIFORNIA's ANSWER TO COMPLAINT by placing a true copy thereof enclosed in a sealed envelope addressed per the attached Service List. [ X ] BY U.S. MAIL: 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 United States Postal Service on that same day with postage thereon fully prepaid at Burbank, California in the ordinary course of business. I 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. [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 to be paid by this firm, to be deposited with the Federal Express Corporation at a regularly maintained facility on the aforementioned date. [C.C.P. 1013(c) 1013(d)] [ ] BY PERSONAL SERVICE: I caused the above-stated document(s) to be served by personally delivering a true copy thereof to the individuals identified above. [C.C.P. 1011(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, to be deposited in a facility operated by the U.S. Postal Service and regularly maintained for the receipt of Express Mail on the aforementioned date. [C.C.P. 1013(c)] [ ] BY TELECOPIER: Service was effected on 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 to said numbers was successful as evidenced by a Transmission Report produced by the machine indicating the documents had p o s a n - 2 C O M P L A 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 been transmitted completely and without error. C.R.C. 2008(e), Cal. Civ. Proc. Code § 1013(e). [ ] 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 of perjury under the laws of the State of California that the above is true and correct. Executed on 28 October 2020 in Burbank, California. LORENA BENCOMO lbencomo@sacfirm.com SERVICE LIST John C. McCaslin, Esq. Law Office of John C. McCaslin 11335 Gold Express Drive, Suite 125 Gold River, CA 95670-6309 (916) 330-4147 john@johnmccaslinlaw.com Jeffry Butler, Esq. Elizabeth Papay, Esq. Dentons US LLP One Market Plaza, Spear Tower, 24 th Floor San Francisco, CA 94105 (415) 267-4000 jeffry.butler@dentons.com elizabeth.papay@dentons.com