Preview
1 SOLTMAN, LEVITT, FLAHERTY & WATTLES LLP
90 E. Thousand Oaks Blvd., Suite 300
2 Thousand Oaks, CA 91360
Telephone: (805) 497-7706 ELECTRONICALLY
3 Facsimile: (805) 497-1147
FILED
Superior Court of California,
County of San Francisco
JOHN S. LEVITT, ESQ., SBN: 110820
Attorneys for Bass Underwriters, Inc. 07/26/2019
Clerk of the Court
BY: EDWARD SANTOS
Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO
10
TOM RICHARDS AND LINDA RICHARDS, ) Case No. CGC-19-576745
)
12 Plaintiffs, ) Complaint Filed: June 14, 2019
vs )
13 )
NORTHFIELD INSURANCE COMPANY, BASS) ANSWER TO UNVERIFIED COMPLAINT
10 UNDERWRITERS, INC., CALENDER-)
ROBINSON, ETC., ET AL, )
)
Defendants. )
)
COMES NOW Bass Underwriters, Inc., for itself alone (" Defendant" ) and answers the Complaint
20 (" Complaint" ) as follows:
21 Defendant, pursuant to Code of Civil Procedure $ 431.30, denies, generally and specifically, the
allegations of the Complaint, and further denies that Defendant is responsible for, or liable for, any of the
23 happenings or events mentioned in the Complaint, and further denies that Plaintiffs were damaged in any sum
24 or sums, or in any other sum, or at all, as a result of any act or omission on the part of Defendant.
2J 1. Under theprovisionsof41431.30 of the California Code ofCivilProcedure, Defendantdenies each
26 and every allegation in said unverified Complaint, and the whole thereof, and denies that Plaintiffs sustained
22 damages in the sum of sums alleged, or in any other sum or sums, or at all.
He B20-029%leadingsiAnswer.wint
ANSWER TO UNVERIFIED COMPLAINT
2. Defendant, pursuant to Code of Civil Procedure $ 43 L30, denies, generally and specifically, the
allegations of the Complaint, and further denies that it is responsible for, or liable for, any of the happenings
or events mentioned in the Complaint, and further denies that Plaintiffs were damaged in any sum or sums
alleged, or in any other sum, or at alh
AS AND FOR A FIRST, SEPARATE AND AFFIRMATIVE DEFENSE,
DEFENDANT ALLEGKS:
(Failure to State Causes of Action)
All purported causes of action of the Complaint, and each and every allegation therein contained therein,
fails to state facts sufficient to constitute a cause of action against Defendant.
10 AS AND FOR A SECOND SEPARATE AND AFFIRMATIVE DEFENSE,
DEFENDANTALLEGES:
12 (Laches)
13 At all times and places herein mentioned in the Complaint, and with respect to each and every cause
A of action of against Defendant, Plaintiffs are barred by the doctrine of laches.
AS AND FOR A THIRD, SEPARATE AND AFFIRMATIVE DEFENSE,
DEFENDANT ALLKGES:
(Waiver)
At all times and places herein mentioned in the Complaint, and with respect to each and every cause
/9 of action against Defendant, Plaintiffs are barred by the decline of waiver.
20 AS AND FOR A FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE,
21 DEFENDANT ALLEGES:
(Reduction Due to Comparative Fault of Plaintiffs)
23 At all times and places mentioned in the Complaint, and with respect to each and every cause of action,
Plaintiffs were careless, reckless and negligent in and about the matters and things alleged in the Complaint,
which said carelessness, recklessness and negligence concurred in point of time with the alleged negligence
and/or bad faith of the Defendant, if any there may have been, and proximately caused and contributed to
whatever injury and/or damage Plaintiffs may have sustained, if any, and recovery by the Plaintiffs, if any,
should be proportionately reduced according to the percentage of fault of the Plaintiffs.
H:ui20-029\pleadings&nswer.wps
-2 —
ANSWER TO UNVKRIFIKD COMPLAINT
1 AS AND FOR A FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE,
2 DEFENDANT ALLEGES:
(Mitigation of Damages)
With respect to each alleged cause of action, Defendant is informed and believes, and thereupon alleges,
that Plaintiffs failed to fulfill the duty to mitigate any damages caused by any violations of the law which might
be found against Defendant.
AS AND FOR A SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE,
DEFENDANT ALLEGES:
(Estoppel)
10 With respect to each alleged cause of action, Defendant is informed and believes, and thereupon alleges,
that Plaintiffs are barred by the doctrine of estoppel.
12 AS AND FOR A SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE,
13 DEFENDANT ALLEGES:
(Assumption of the Risk)
At all times and places mentioned in the Complaint, Plaintiffs, in the exercise of reasonable care, should
have been aware of each and every condition and circumstance then and there existing and prevailing, but
nonetheless knowingly and voluntarily exposed themselves to each and every risk which, then and there, may
have been attendant upon such circumstances and conditions, and thereby assumed all risks attendant thereto.
AS AND FOR AN EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE,
DEFENDANT ALLEGES:
21 (Negligence of Third Persons)
22 In addition to the aforementioned negligence of the Plaintiffs, any damages incurred by Plaintiffs were
23 directly and proximately caused and contributed to by the negligence of third persons.
AS AND FOR A NINTH, SEPARATE AND AFFIRMATIVE DEFENSE,
DEFENDANT ALLEGES:
(Contributory Negligence of Plaintiffs)
At all times and places mentioned in the Complaint, Plaintiffs failed to exercise that quantity and quality
of care and caution which reasonable individuals in Plaintiffs'r similar circumstances would have exercised
H:ui20429%lesdingsixnswenwpd
— 3- ANSWER TO UNVERIFIED COMPLAINT
for the protection of themselves and their property. Said failure and contributing negligence proximately
caused in full Plaintiffs's alleged damages, if any, and Plaintiffs are barred from recovery herein as responding
Defendant was not in comparison negligent to any extent, or at all.
Said failure, carelessness and/or negligence of Plaintiffs was the sole proximate cause of the loss and
any damages alleged by Plaintiffs. Plaintiffs are, therefore, barred from recovery herein as Defendant is not
in comparison negligent to any extent, or at all.
AS AND FOR A TENTH SEPARATE AND AFFIRMATIVE DEFENSE,
DEFENDANT ALLEGES:
(Allocation of Fault to Third Persons)
If it should be found that the Defendant is in any manner legally responsible for damages sustained by
11 Plaintiffs, if any, which supposition is not admitted but merely stated for the purpose of this affirmative
12 defense, then any such damages found to have been incurred or suffered by the Plaintiffs in this action were
13 proximately contributed to by other persons or entities; therefore, it is necessary that the proportionate degree
of negligence or fault of each such person or entitybe determined and prorated so that Defendants pay only that
amount of damages that were caused by the negligence of Defendant, if any.
AS AND FOR AN ELEVENTH SEPARATE AND AFFIRMATIVE DEFENSE,
DEFENDANTALLEGES:
(Statute of Limitations)
/F The causes of action stated in the Complaint and each of them, are barred by the applicable statutes of
20 limitations including, but not limited to those limitations set forth in Code of Civil Procedure section 338, 339
21 and 340.
AS AND FOR A TWELFTH, SEPARATE AND AFFIRMATIVE DEFENSE
23 DEFENDANT ALLEGES:
(Defendants and Does 1-100)
25 Defendant is not legally responsible for the acts and/or omissions of the named defendants or defendants
identified as DOES 1-100, or any of them.
Hda20429U'leedineeMeeweewpd
-4 —
ANSWER TO UNVERIFIED COMPLAINT
1 AS AND FOR A THIRTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE
2 DEFENDANT ALLKGES:
(Offset)
Defendant is entitled to an offset for the amount it paid as contribution to the settlement between
Plaintiff and any other party.
AS AND FOR A FOURTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE
DEFENDANT ALLEGES:
(Cause of Action Premature)
Plaintiffs'ause of action for breach of reformed contract is premature and is based on non-existent but
10 only potential future events and, therefore, does not state any present cause of action or theory of recovery
against Defendant.
12 AS AND FOR A FIFTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE
DEFENDANT ALLEGES:
(Genuine Dispute)
This action is barred by the Genuine Dispute Doctrine.
AS AND FOR A SIXTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE
DEFENDANT ALLEGES:
(Compliance)
19 To the extent required, Defendant has complied with all applicable codes, standards, regulations and
20 laws adopted and promulgated by the State of California.
21 FOR A SEVENTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE
22 THIS ANSWERING DEFENDANT ALLEGES:
23 (Delay)
Any and all alleged delays are the result of the actions, or inactions, of the Plaintiffs and are not the
result of any wrongful conduct on the part of the Defendant which, at all times, acted within the terms of the
contract, if any, and applicable law.
Hn a20-029%lesdings&nswenwpd
— 5- ANSWER TO UNVERIFIED COMPLAINT
FOR A EIGHTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE
THIS ANSWERING DEFENDANT ALLKGES:
(Duty of Care)
To the extent that the Defendant owed a duty of care, duty of good faith or any other duty to the
Plaintiff, which it denies, Defendant honored and fulfilled those duties.
FOR A NINETEENTH, SEPARATE AND AFFIRMATIVE DEFENSE
THIS ANSWERING DEFENDANT ALLEGES:
(Lack of Coverage)
Defendant is not liable to the Plaintiff because the policy of insurance at issue in this case did not
provide coverage for the amounts in excess of those specifically requested by the Plaintiffs, which amounts
were paid in full, therefore there was no breach of the insurance contract or act of bad faith.
FOR A NINETEENTH, SEPARATE AND AFFIRMATIVE DEFENSE
THIS ANSWERING DEFENDANT ALLEGES:
(Defendant Not Insurer)
Defendant is not liable to the Plaintiffs because it is not an insurer, was not their insurer, was not a party
to the insurance contract at issued in this action, had no contract with the Plaintiffs, had no contact directly with
the Plaintiffs, was acting as a surplus lines broker, and procured the insurance specifically requested by the
Plaintiffs and the limits of coverage specifically requested by the Plaintiffs
FOR A TWENTIETH, SEPARATE AND AFFIRMATIVE DEFENSE
THIS ANSWERING DEFENDANT ALLEGKS:
(No Mistake)
Defendant asserts that there was no mistake made in the formation of the insurance policy at issue. The
policy was issued by the insurer in the form and with the policy limits requested by the insured. There was
neither mutual mistake nor a unilateral mistake of which the insurer took advantage. If the policy is incorrect
it was due to the want of that degree of care and diligence which would be exercised by Plaintiffs of reasonable
prudence under the same circumstances and a court has no power to make a new contract for the parties. The
policy at issue was issued exactly as the insurer intended and did not contain any mistake. The contract is
Rui20-029%1esdingsQnswenwpd
— 6- ANSWER TO UNVERIFIED COMPLAINT
presumed to express the parties'ntention correctly. The burden is on the party seeking reformation to
overcome such presumption by clear and convincing evidence.
WHEREFORE, Defendant prays:
1. That Plaintiffs stake nothing by this action;
2. That this responding Defendant be discharged hence with costs of suit incurred herein;
3. For such other and further relief as the court deems just and proper.
10 Dated: July 22, 2019 SO WATTLES LLP
12 By:
Att ers, inc.
20
21
23
H:0920-029M'leedinge&newenwpd
-7 —
ANSWER TO UNVERIFIED COMPLAINT
1 PROOF OF SERVICE
STATE OF CALIFORNIA - COUNTY OF VENTURA
I am employed in the County of Ventura, State of California.
I am over the age of eighteen (18) and not a party to the within action. My business address is
90 E. Thousand Oaks Blvd., Suite 300, Thousand Oaks, California 91360
On July 26, 2019, I served the foregoing document described as ANSWER TO UNVERIFIED
COMPLAINT on the interested parties in this action by placing a true and correct copy thereof enclosed
in sealed envelopes, and caused to be delivered to the addressees, as follows:
See attached service list
10
[By Mail] I am "readily familiar" with the firm's practice of collection and processing
X correspondence for mailing. Under that practice it would be deposited in the U.S. Postal
Service on that same day with postage thereon fully prepaid at Agoura Hills, California, in
the ordinary course of business. I am aware that on motion of the party served, service is
12
presumed invalid if postal cancellation date or postage meter date is more than one day after
the date of deposit for mailing in affidavit.
13
14 [By Overnight Delivery] I enclosed the documents in an envelope provided by an
overnight delivery carrier and addressed to the person(s) listed above. I placed the
envelope for collection and overnight delivery at an office or a regularly utilized drop box
15
of the overnight delivery carrier.
16
[By Facsimile] Based on an agreement of the parties to accept service by fax
transmission, I faxed the documents to the person(s) at the fax number(s) above. No error
17 was reported by the fax machine that II used. A copy of the record of the fax transmission,
which I printed out, is attached.
18
[By Messenger Service] I served the documents by placing them in an envelope
19
addressed to the person(s) at the address(es) above and providing them to a professional
messenger service for service. (See Declaration of Messenger below.)
20
[By Electronic Service] Based on a court order or an agreement of the parties to accept
21
service by electronic transmission, I caused the documents to be sent to the person(s) at
the electronic notification address(es) above.
22
23 [By Personal Service] I served the document noted above by placing it in an envelope
addressed to the person(s) at the address(es) above and personally handed the envelope
to the addressee(s).
24
[STATE] I declare under penalty of perjury, under the laws of the State of California, that
25 the foregoing is true and correct.
26
EXECUTED this 26th day of July, 2019, at Thousand Oaks, California.
27
28
Linda Abemethy
SERVICE LIST
2
E. Gerard Mannion, Esq.
3 MANNION & LOWE
655 Montgomery Street
4 Suite 1900
San Francisco, CA 94111
5 Phone:415-733-1050
Fax: 415-434-4810
6 gerrv(Rmannionlowe.corn
ATTORNEYS FOR PLAINTIFFS
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Preview
1 SOLTMAN, LEVITT, FLAHERTY & WATTLES LLP 90 E. Thousand Oaks Blvd., Suite 300 2 Thousand Oaks, CA 91360 Telephone: (805) 497-7706 ELECTRONICALLY 3 Facsimile: (805) 497-1147 FILED Superior Court of California, County of San Francisco JOHN S. LEVITT, ESQ., SBN: 110820 Attorneys for Bass Underwriters, Inc. 07/26/2019 Clerk of the Court BY: EDWARD SANTOS Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO 10 TOM RICHARDS AND LINDA RICHARDS, ) Case No. CGC-19-576745 ) 12 Plaintiffs, ) Complaint Filed: June 14, 2019 vs ) 13 ) NORTHFIELD INSURANCE COMPANY, BASS) ANSWER TO UNVERIFIED COMPLAINT 10 UNDERWRITERS, INC., CALENDER-) ROBINSON, ETC., ET AL, ) ) Defendants. ) ) COMES NOW Bass Underwriters, Inc., for itself alone (" Defendant" ) and answers the Complaint 20 (" Complaint" ) as follows: 21 Defendant, pursuant to Code of Civil Procedure $ 431.30, denies, generally and specifically, the allegations of the Complaint, and further denies that Defendant is responsible for, or liable for, any of the 23 happenings or events mentioned in the Complaint, and further denies that Plaintiffs were damaged in any sum 24 or sums, or in any other sum, or at all, as a result of any act or omission on the part of Defendant. 2J 1. Under theprovisionsof41431.30 of the California Code ofCivilProcedure, Defendantdenies each 26 and every allegation in said unverified Complaint, and the whole thereof, and denies that Plaintiffs sustained 22 damages in the sum of sums alleged, or in any other sum or sums, or at all. He B20-029%leadingsiAnswer.wint ANSWER TO UNVERIFIED COMPLAINT 2. Defendant, pursuant to Code of Civil Procedure $ 43 L30, denies, generally and specifically, the allegations of the Complaint, and further denies that it is responsible for, or liable for, any of the happenings or events mentioned in the Complaint, and further denies that Plaintiffs were damaged in any sum or sums alleged, or in any other sum, or at alh AS AND FOR A FIRST, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT ALLEGKS: (Failure to State Causes of Action) All purported causes of action of the Complaint, and each and every allegation therein contained therein, fails to state facts sufficient to constitute a cause of action against Defendant. 10 AS AND FOR A SECOND SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANTALLEGES: 12 (Laches) 13 At all times and places herein mentioned in the Complaint, and with respect to each and every cause A of action of against Defendant, Plaintiffs are barred by the doctrine of laches. AS AND FOR A THIRD, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT ALLKGES: (Waiver) At all times and places herein mentioned in the Complaint, and with respect to each and every cause /9 of action against Defendant, Plaintiffs are barred by the decline of waiver. 20 AS AND FOR A FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE, 21 DEFENDANT ALLEGES: (Reduction Due to Comparative Fault of Plaintiffs) 23 At all times and places mentioned in the Complaint, and with respect to each and every cause of action, Plaintiffs were careless, reckless and negligent in and about the matters and things alleged in the Complaint, which said carelessness, recklessness and negligence concurred in point of time with the alleged negligence and/or bad faith of the Defendant, if any there may have been, and proximately caused and contributed to whatever injury and/or damage Plaintiffs may have sustained, if any, and recovery by the Plaintiffs, if any, should be proportionately reduced according to the percentage of fault of the Plaintiffs. H:ui20-029\pleadings&nswer.wps -2 — ANSWER TO UNVKRIFIKD COMPLAINT 1 AS AND FOR A FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE, 2 DEFENDANT ALLEGES: (Mitigation of Damages) With respect to each alleged cause of action, Defendant is informed and believes, and thereupon alleges, that Plaintiffs failed to fulfill the duty to mitigate any damages caused by any violations of the law which might be found against Defendant. AS AND FOR A SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES: (Estoppel) 10 With respect to each alleged cause of action, Defendant is informed and believes, and thereupon alleges, that Plaintiffs are barred by the doctrine of estoppel. 12 AS AND FOR A SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE, 13 DEFENDANT ALLEGES: (Assumption of the Risk) At all times and places mentioned in the Complaint, Plaintiffs, in the exercise of reasonable care, should have been aware of each and every condition and circumstance then and there existing and prevailing, but nonetheless knowingly and voluntarily exposed themselves to each and every risk which, then and there, may have been attendant upon such circumstances and conditions, and thereby assumed all risks attendant thereto. AS AND FOR AN EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES: 21 (Negligence of Third Persons) 22 In addition to the aforementioned negligence of the Plaintiffs, any damages incurred by Plaintiffs were 23 directly and proximately caused and contributed to by the negligence of third persons. AS AND FOR A NINTH, SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES: (Contributory Negligence of Plaintiffs) At all times and places mentioned in the Complaint, Plaintiffs failed to exercise that quantity and quality of care and caution which reasonable individuals in Plaintiffs'r similar circumstances would have exercised H:ui20429%lesdingsixnswenwpd — 3- ANSWER TO UNVERIFIED COMPLAINT for the protection of themselves and their property. Said failure and contributing negligence proximately caused in full Plaintiffs's alleged damages, if any, and Plaintiffs are barred from recovery herein as responding Defendant was not in comparison negligent to any extent, or at all. Said failure, carelessness and/or negligence of Plaintiffs was the sole proximate cause of the loss and any damages alleged by Plaintiffs. Plaintiffs are, therefore, barred from recovery herein as Defendant is not in comparison negligent to any extent, or at all. AS AND FOR A TENTH SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES: (Allocation of Fault to Third Persons) If it should be found that the Defendant is in any manner legally responsible for damages sustained by 11 Plaintiffs, if any, which supposition is not admitted but merely stated for the purpose of this affirmative 12 defense, then any such damages found to have been incurred or suffered by the Plaintiffs in this action were 13 proximately contributed to by other persons or entities; therefore, it is necessary that the proportionate degree of negligence or fault of each such person or entitybe determined and prorated so that Defendants pay only that amount of damages that were caused by the negligence of Defendant, if any. AS AND FOR AN ELEVENTH SEPARATE AND AFFIRMATIVE DEFENSE, DEFENDANTALLEGES: (Statute of Limitations) /F The causes of action stated in the Complaint and each of them, are barred by the applicable statutes of 20 limitations including, but not limited to those limitations set forth in Code of Civil Procedure section 338, 339 21 and 340. AS AND FOR A TWELFTH, SEPARATE AND AFFIRMATIVE DEFENSE 23 DEFENDANT ALLEGES: (Defendants and Does 1-100) 25 Defendant is not legally responsible for the acts and/or omissions of the named defendants or defendants identified as DOES 1-100, or any of them. Hda20429U'leedineeMeeweewpd -4 — ANSWER TO UNVERIFIED COMPLAINT 1 AS AND FOR A THIRTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE 2 DEFENDANT ALLKGES: (Offset) Defendant is entitled to an offset for the amount it paid as contribution to the settlement between Plaintiff and any other party. AS AND FOR A FOURTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE DEFENDANT ALLEGES: (Cause of Action Premature) Plaintiffs'ause of action for breach of reformed contract is premature and is based on non-existent but 10 only potential future events and, therefore, does not state any present cause of action or theory of recovery against Defendant. 12 AS AND FOR A FIFTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE DEFENDANT ALLEGES: (Genuine Dispute) This action is barred by the Genuine Dispute Doctrine. AS AND FOR A SIXTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE DEFENDANT ALLEGES: (Compliance) 19 To the extent required, Defendant has complied with all applicable codes, standards, regulations and 20 laws adopted and promulgated by the State of California. 21 FOR A SEVENTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE 22 THIS ANSWERING DEFENDANT ALLEGES: 23 (Delay) Any and all alleged delays are the result of the actions, or inactions, of the Plaintiffs and are not the result of any wrongful conduct on the part of the Defendant which, at all times, acted within the terms of the contract, if any, and applicable law. Hn a20-029%lesdings&nswenwpd — 5- ANSWER TO UNVERIFIED COMPLAINT FOR A EIGHTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE THIS ANSWERING DEFENDANT ALLKGES: (Duty of Care) To the extent that the Defendant owed a duty of care, duty of good faith or any other duty to the Plaintiff, which it denies, Defendant honored and fulfilled those duties. FOR A NINETEENTH, SEPARATE AND AFFIRMATIVE DEFENSE THIS ANSWERING DEFENDANT ALLEGES: (Lack of Coverage) Defendant is not liable to the Plaintiff because the policy of insurance at issue in this case did not provide coverage for the amounts in excess of those specifically requested by the Plaintiffs, which amounts were paid in full, therefore there was no breach of the insurance contract or act of bad faith. FOR A NINETEENTH, SEPARATE AND AFFIRMATIVE DEFENSE THIS ANSWERING DEFENDANT ALLEGES: (Defendant Not Insurer) Defendant is not liable to the Plaintiffs because it is not an insurer, was not their insurer, was not a party to the insurance contract at issued in this action, had no contract with the Plaintiffs, had no contact directly with the Plaintiffs, was acting as a surplus lines broker, and procured the insurance specifically requested by the Plaintiffs and the limits of coverage specifically requested by the Plaintiffs FOR A TWENTIETH, SEPARATE AND AFFIRMATIVE DEFENSE THIS ANSWERING DEFENDANT ALLEGKS: (No Mistake) Defendant asserts that there was no mistake made in the formation of the insurance policy at issue. The policy was issued by the insurer in the form and with the policy limits requested by the insured. There was neither mutual mistake nor a unilateral mistake of which the insurer took advantage. If the policy is incorrect it was due to the want of that degree of care and diligence which would be exercised by Plaintiffs of reasonable prudence under the same circumstances and a court has no power to make a new contract for the parties. The policy at issue was issued exactly as the insurer intended and did not contain any mistake. The contract is Rui20-029%1esdingsQnswenwpd — 6- ANSWER TO UNVERIFIED COMPLAINT presumed to express the parties'ntention correctly. The burden is on the party seeking reformation to overcome such presumption by clear and convincing evidence. WHEREFORE, Defendant prays: 1. That Plaintiffs stake nothing by this action; 2. That this responding Defendant be discharged hence with costs of suit incurred herein; 3. For such other and further relief as the court deems just and proper. 10 Dated: July 22, 2019 SO WATTLES LLP 12 By: Att ers, inc. 20 21 23 H:0920-029M'leedinge&newenwpd -7 — ANSWER TO UNVERIFIED COMPLAINT 1 PROOF OF SERVICE STATE OF CALIFORNIA - COUNTY OF VENTURA I am employed in the County of Ventura, State of California. I am over the age of eighteen (18) and not a party to the within action. My business address is 90 E. Thousand Oaks Blvd., Suite 300, Thousand Oaks, California 91360 On July 26, 2019, I served the foregoing document described as ANSWER TO UNVERIFIED COMPLAINT on the interested parties in this action by placing a true and correct copy thereof enclosed in sealed envelopes, and caused to be delivered to the addressees, as follows: See attached service list 10 [By Mail] I am "readily familiar" with the firm's practice of collection and processing X correspondence for mailing. Under that practice it would be deposited in the U.S. Postal Service on that same day with postage thereon fully prepaid at Agoura Hills, California, in the ordinary course of business. I am aware that on motion of the party served, service is 12 presumed invalid if postal cancellation date or postage meter date is more than one day after the date of deposit for mailing in affidavit. 13 14 [By Overnight Delivery] I enclosed the documents in an envelope provided by an overnight delivery carrier and addressed to the person(s) listed above. I placed the envelope for collection and overnight delivery at an office or a regularly utilized drop box 15 of the overnight delivery carrier. 16 [By Facsimile] Based on an agreement of the parties to accept service by fax transmission, I faxed the documents to the person(s) at the fax number(s) above. No error 17 was reported by the fax machine that II used. A copy of the record of the fax transmission, which I printed out, is attached. 18 [By Messenger Service] I served the documents by placing them in an envelope 19 addressed to the person(s) at the address(es) above and providing them to a professional messenger service for service. (See Declaration of Messenger below.) 20 [By Electronic Service] Based on a court order or an agreement of the parties to accept 21 service by electronic transmission, I caused the documents to be sent to the person(s) at the electronic notification address(es) above. 22 23 [By Personal Service] I served the document noted above by placing it in an envelope addressed to the person(s) at the address(es) above and personally handed the envelope to the addressee(s). 24 [STATE] I declare under penalty of perjury, under the laws of the State of California, that 25 the foregoing is true and correct. 26 EXECUTED this 26th day of July, 2019, at Thousand Oaks, California. 27 28 Linda Abemethy SERVICE LIST 2 E. Gerard Mannion, Esq. 3 MANNION & LOWE 655 Montgomery Street 4 Suite 1900 San Francisco, CA 94111 5 Phone:415-733-1050 Fax: 415-434-4810 6 gerrv(Rmannionlowe.corn ATTORNEYS FOR PLAINTIFFS 7 10 12 13 14 17 18 19 20 21 22 23 24 25 26 27 28