Preview
1 Craig J. Mariam (SBN: 225280)
cmariam@gordonrees.com
2 GORDON REES SCULLY MANSUKHANI, LLP
ELECTRONICALLY
275 Battery Street, Suite 2000
3 San Francisco CA 94111 FILED
Superior Court of California,
Telephone: (415) 986-5900 County of San Francisco
4 Facsimile: (877) 306-0043
02/18/2020
5 Attorney for Defendant Clerk of the Court
BY: KALENE APOLONIO
ELITE MD, INC. Deputy Clerk
6
7
8 SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF SAN FRANCISCO
10 ANNA DEANDA, an individual ) CASE NO. CGC-19-581216
)
11 Plaintiff, DEFENDANT ELITE MD, INC.’S
Gordon Rees Scully Mansukhani, LLP
)
) ANSWER AND AFFIRMATIVE
275 Battery Street, Suite 2000
12 vs. DEFENSES TO COMPLAINT
)
San Francisco, CA 94111
13 )
ELITE MD, INC., a California
corporation; NEXSTAR MEDIA GROUP, ) Judge: Hon. Garrett L. Wong
14 INC., a Delaware corporation, d/b/a ) Dept.: 206
KRON 4; and DOES 1 through 20, )
15 inclusive, )
) Complaint Filed: December 3, 2019
16 Defendants. ) Trial Date: Not Set
)
17 )
[Notice of Demurrer and Demurrer,
18
19 Defendant Elite MD, Inc. (“Elite MD”), by and through its attorneys of record, hereby
20 respectfully submits this Answer and its Affirmative Defenses in response to plaintiff, Anna
21 DeAnda (“Plaintiff”)’s unverified Complaint as follows:
22 GENERAL DENIAL
23 Pursuant to California Code of Civil Procedure Section 431.30, Defendant Elite MD
24 denies generally and specifically each and every, any and all of the allegations and purported
25 causes of action contained in the Complaint. Defendant Elite MD denies that Plaintiff has
26 sustained or will sustain any injury, damage, or loss in the sum or sums alleged, or in any sum at
27 all, by reason of any act, omission, or breach on the part of Defendant Elite MD. Defendant Elite
28 MD denies that Plaintiff is entitled to damages in any amount, attorneys’ fees, or any other
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DEFENDANT ELITE MD, INC.’S ANSWER TO COMPLAINT
1 damage as alleged in the Complaint. Defendant Elite MD further denies that Plaintiff is entitled
2 to any relief sought in the Complaint on any of the grounds proffered therein, or at all.
3 AFFIRMATIVE DEFENSES
4 Defendant Elite MD further alleges the following separate affirmative defenses to the
5 Complaint. By asserting the defenses set forth below, Elite MD does not thereby admit or agree
6 that it has the burden of proof, persuasion or production with respect to any elements of any
7 defense or that Plaintiff has properly asserted any claim or cause of action against Defendant
8 Elite MD.
9 FIRST AFFIRMATIVE DEFENSE
10 (Lack of Standing)
11 As a first separate and distinct affirmative defense, Elite MD alleges that Plaintiff lacks
Gordon Rees Scully Mansukhani, LLP
275 Battery Street, Suite 2000
12 legal standing to sue for the claims set forth in the Complaint.
San Francisco, CA 94111
13 SECOND AFFIRMATIVE DEFENSE
14 (Failure to Join Indispensable Parties)
15 As a further, separate and distinct affirmative defense, Elite MD alleges that Plaintiff’s
16 claims require, for their complete adjudication, the joining of additional, necessary, or
17 indispensable parties, without whom the purported claims and causes of action cannot be fully,
18 finally, and completely resolved.
19 THIRD AFFIRMATIVE DEFENSE
20 (Uncertainty)
21 As a further, separate and distinct affirmative defense, Elite MD alleges that the
22 purported claims and causes of action in the Complaint and each of them are uncertain,
23 ambiguous, and/or unintelligible.
24 FOURTH AFFIRMATIVE DEFENSE
25 (Consent)
26 As a further, separate and distinct affirmative defense, Elite MD alleges that Plaintiff has
27 expressly or impliedly consented to the alleged conduct set forth in the Complaint, if and to the
28 extent it occurred, and therefore is barred from any recovery.
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DEFENDANT ELITE MD, INC.’S ANSWER TO COMPLAINT
1 FIFTH AFFIRMATIVE DEFENSE
2 (Waiver and Release)
3 As a further, separate and affirmative defense, Elite MD alleges that Plaintiff has waived
4 and released her claims, thereby barring Plaintiff from seeking the relief prayed for in the
5 Complaint.
6 SIXTH AFFIRMATIVE DEFENSE
7 (Justified Conduct)
8 As a further, separate and distinct affirmative defense, Elite MD alleges that Plaintiff’s
9 claims are barred, in whole or in part, because at all times material to the events alleged in the
10 Complaint, Elite MD’s conduct was justified.
11 SEVENTH AFFIRMATIVE DEFENSE
Gordon Rees Scully Mansukhani, LLP
275 Battery Street, Suite 2000
12 (Privileged Actions)
San Francisco, CA 94111
13 As a further, separate and distinct affirmative defense, Elite MD alleges that the conduct
14 set forth in the Complaint, if and to the extent it occurred, was privileged and done in good faith
15 and no action may be taken against Elite MD on account of such conduct, if any.
16 EIGHTH AFFIRMATIVE DEFENSE
17 (Incidental Use)
18 As a further, separate and distinct affirmative defense, Elite MD alleges that Plaintiff’s
19 claims are barred, in whole or in part, because any of the alleged use of Plaintiff’s photographs
20 or likeness set forth in the Complaint, if and to the extent it occurred, was at best an incidental
21 use which does not give rise to any actionable claims.
22 NINTH AFFIRMATIVE DEFENSE
23 (Civil Code §3344 (d))
24 As a further, separate and distinct affirmative defense, Elite MD alleges that Plaintiff’s
25 claims are barred, in whole or in part, pursuant to Civil Code §3344 (d), which exempts any use
26 of photographs or likeness in connection with any news or public affairs.
27 ///
28 ///
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DEFENDANT ELITE MD, INC.’S ANSWER TO COMPLAINT
1 TENTH AFFIRMATIVE DEFENSE
2 (Civil Code §3344 (e))
3 As a further, separate and distinct affirmative defense, Elite MD alleges that Plaintiff’s
4 claims are barred, in whole or in part, pursuant to Civil Code §3344 (e), which exempts any use
5 in a commercial medium that is not so directly connected with the commercial sponsorship or the
6 paid advertising associated with such use.
7 ELEVENTH AFFIRMATIVE DEFENSE
8 (Matters Of Public Concern)
9 As a further, separate and distinct affirmative defense, Elite MD alleges that Plaintiff’s
10 claims are barred, in whole or in part, because the alleged use of photographs or likeness set
11 forth in the Complaint involved matters of public concern.
Gordon Rees Scully Mansukhani, LLP
275 Battery Street, Suite 2000
12 TWELFTH AFFIRMATIVE DEFENSE
San Francisco, CA 94111
13 (First Amendment)
14 As a further, separate and distinct affirmative defense, Elite MD alleges that the conduct
15 set forth in the Complaint, if and to the extent it occurred, was protected by the First
16 Amendment’s guarantee of freedom of speech and expression.
17 THIRTEENTH AFFIRMATIVE DEFENSE
18 (Necessity)
19 As a further, separate and distinct affirmative defense, Elite MD alleges that the conduct,
20 with respect to the matters alleged, was lawful and necessary and, by reason of the foregoing,
21 Plaintiff is barred from any recovery.
22 FOURTEENTH AFFIRMATIVE DEFENSE
23 (Permissible Conduct)
24 As a further, separate and distinct affirmative defense, Elite MD alleges that it is not
25 responsible for Plaintiff’s harm, if any, because Elite MD’s conduct was permissible.
26 ///
27 ///
28 ///
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DEFENDANT ELITE MD, INC.’S ANSWER TO COMPLAINT
1 FIFTEENTH AFFIRMATIVE DEFENSE
2 (Lack of Intent or Knowledge)
3 As a further, separate and distinct affirmative defense, Elite MD alleges that Plaintiff’s
4 claims are barred, in whole or in part, due to the lack of requisite intent or knowledge on the part
5 of Elite MD.
6 SIXTEENTH AFFIRMATIVE DEFENSE
7 (No Proximate Causation)
8 As a further, separate and distinct affirmative defense, Elite MD alleges that none of its
9 conduct, acts, or omissions was a substantial or proximate cause of Plaintiff’s injuries, if any.
10 SEVENTEENTH AFFIRMATIVE DEFENSE
11 (Conduct Not Unfair)
Gordon Rees Scully Mansukhani, LLP
275 Battery Street, Suite 2000
12 As a further, separate and distinct affirmative defense, Elite MD alleges that its purported
San Francisco, CA 94111
13 conduct, acts and omissions were not unfair or unlawful.
14 EIGHTEENTH AFFIRMATIVE DEFENSE
15 (Business Necessity)
16 As a further, separate and distinct affirmative defense, Elite MD alleges that Plaintiff is
17 not entitled to relief on any of her purported causes of action because Elite MD’s actions were
18 reasonable in response to a legitimate business necessity and were taken for legitimate business
19 reasons.
20 NINETEENTH AFFIRMATIVE DEFENSE
21 (No Deception)
22 As a further, separate and distinct affirmative defense, Elite MD alleges that none of the
23 purported conduct, acts and omissions constitutes false or fraudulent representation or pretense;
24 none of the purported conduct, acts and omissions misled Plaintiff or any third party; and that
25 none of the purported conduct, acts and omissions were likely to mislead Plaintiff or any third
26 party.
27 ///
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DEFENDANT ELITE MD, INC.’S ANSWER TO COMPLAINT
1 TWENTIETH AFFIRMATIVE DEFENSE
2 (No Reliance)
3 As a further, separate and distinct affirmative defense, Elite MD alleges that neither
4 Plaintiff nor any third party did or could reasonably rely on any matters allegedly
5 misrepresented.
6 TWENTY-FIRST AFFIRMATIVE DEFENSE
7 (Reasonable Conduct)
8 As a further, separate and distinct affirmative defense, Elite MD alleges that Plaintiff is
9 not entitled to relief on any of her purported causes of action because Elite MD’s conduct was at
10 all times reasonable, in complete good faith, based upon good cause, and undertaken pursuant to
11 the terms of applicable laws and regulations.
Gordon Rees Scully Mansukhani, LLP
275 Battery Street, Suite 2000
12 TWENTY-SECOND AFFIRMATIVE DEFENSE
San Francisco, CA 94111
13 (Unintentional Acts and Bona Fide Error)
14 As a further, separate and distinct affirmative defense, Elite MD alleges that Plaintiff’s
15 claims are barred, in whole or in part, from recovery because any alleged conduct, acts or
16 omissions set forth in the Complaint were not intentional, and resulted from a bona fide error
17 despite Elite MD’s use of reasonable procedures adapted to avoid any such error. Elite MD has
18 also promptly taken all reasonable, practical and effective measures to make appropriate
19 correction or other remedy to address such error, if any.
20 TWENTY-THIRD AFFIRMATIVE DEFENSE
21 (Assumption of Risk)
22 As a further, separate and distinct affirmative defense, Elite MD alleges that Plaintiff
23 acted with full knowledge of all the facts and circumstances surrounding her injury and assumed
24 the risk of the matters causing the injury, and that said matters of which Plaintiff assumed the
25 risk proximately contributed to and proximately caused her injury, if any.
26 ///
27 ///
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DEFENDANT ELITE MD, INC.’S ANSWER TO COMPLAINT
1 TWENTY-FOURTH AFFIRMATIVE DEFENSE
2 (Plaintiff’s Own Conduct)
3 As a further, separate and distinct affirmative defense, Elite MD alleges that any damages
4 sustained by Plaintiff were either wholly or, in part, caused by Plaintiff’s own actions, inactions,
5 or delay in acting, and said conduct by Plaintiff comparatively reduces the percentage of fault, if
6 any, of Elite MD.
7 TWENTY-FIFTH AFFIRMATIVE DEFENSE
8 (Estoppel)
9 As a further, separate and distinct affirmative defense, Elite MD alleges that by reasons
10 of her own actions, Plaintiff is estopped from proceeding with the causes of action alleged in the
11 Complaint.
Gordon Rees Scully Mansukhani, LLP
275 Battery Street, Suite 2000
12 TWENTY-SIXTH AFFIRMATIVE DEFENSE
San Francisco, CA 94111
13 (Ratification)
14 As a further, separate and distinct affirmative defense, Elite MD alleges that Plaintiff
15 directed, ordered, approved and/or ratified the conduct of Elite MD and is on that basis estopped
16 from asserting any claim based thereon.
17 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
18 (Laches)
19 As a further, separate and distinct affirmative defense, Elite MD alleges that Plaintiff’s
20 Complaint is barred by the doctrine of laches.
21 TWENTY-EIGHTH AFFIRMATIVE DEFENSE
22 (Unclean Hands)
23 As a further, separate and distinct affirmative defense, Elite MD alleges that Plaintiff’s
24 claims and requests for relief are barred under the doctrine of unclean hands.
25 TWENTY-NINTH AFFIRMATIVE DEFENSE
26 (Bad Faith)
27 As a further, separate and distinct affirmative defense, Elite MD alleges that the
28 Complaint is brought in bad faith and without legal basis, is intended to harass, annoy, and
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DEFENDANT ELITE MD, INC.’S ANSWER TO COMPLAINT
1 damage Elite MD, thereby entitling it to its cost of suit, attorneys’ fees, and such other and
2 further relief as the Court deems just and proper, while barring Plaintiff from any recovery from
3 Elite MD.
4 THIRTIETH AFFIRMATIVE DEFENSE
5 (Lack of Equity)
6 As a further, separate and distinct affirmative defense, Elite MD alleges that Plaintiff has
7 not done equity, such that Plaintiff is therefore barred from any recovery from Elite MD.
8 THIRTY-FIRST AFFIRMATIVE DEFENSE
9 (Failure to Plead Fraud with Specificity)
10 As a further, separate and distinct affirmative defense, Elite MD alleges that to the extent
11 Plaintiff claims that Elite MD committed fraud, such claim does not allege the requisite elements
Gordon Rees Scully Mansukhani, LLP
275 Battery Street, Suite 2000
12 and specifically fails to provide any factual basis to show the intent required to prevail on a fraud
San Francisco, CA 94111
13 claim, and that such intent does not and never did exist such that Plaintiff cannot prevail in this
14 regard.
15 THIRTY-SECOND AFFIRMATIVE DEFENSE
16 (No Actual Loss)
17 As a further, separate and distinct affirmative defense, Elite MD alleges that Plaintiff did
18 not suffer an actual loss as a result of any acts or omissions by Elite MD.
19 THIRTY-THIRD AFFIRMATIVE DEFENSE
20 (Failure to Mitigate)
21 As a further, separate and distinct affirmative defense, Elite MD alleges that Plaintiff
22 failed to mitigate her damages, barring Plaintiff from recovery in this action.
23 THIRTY-FOURTH AFFIRMATIVE DEFENSE
24 (Damages Result From Unrelated, Pre-existing, or Subsequent Conditions)
25 As a further, separate and affirmative defense, Elite MD alleges that Plaintiff’s damages,
26 if any, are the results of unrelated, pre-existing, and subsequent conditions and are thus barred.
27 ///
28 ///
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DEFENDANT ELITE MD, INC.’S ANSWER TO COMPLAINT
1 THIRTY-FIFTH AFFIRMATIVE DEFENSE
2 (Speculative Damages)
3 As a further, separate and distinct affirmative defense, Elite MD alleges that Plaintiff’s
4 alleged damages are speculative and therefore not recoverable.
5 THIRTY-SIXTH AFFIRMATIVE DEFENSE
6 (Unjust Enrichment)
7 As a further, separate and distinct affirmative defense, Elite MD alleges that Plaintiff is
8 barred from recovery because any recovery awarded to Plaintiff would constitute unjust
9 enrichment.
10 THIRTY-SEVENTH AFFIRMATIVE DEFENSE
11 (Undue Hardship)
Gordon Rees Scully Mansukhani, LLP
275 Battery Street, Suite 2000
12 As a further, separate and distinct affirmative defense, Elite MD alleges that Plaintiff’s
San Francisco, CA 94111
13 proposed recovery and requested damages would create an undue hardship on Elite MD and are
14 therefore barred.
15 THIRTY-EIGHTH AFFIRMATIVE DEFENSE
16 (Contrary to Public Policy)
17 As a further, separate and distinct affirmative defense, Elite MD alleges that Plaintiff’s
18 claims and remedies are contrary to public policy and therefore barred.
19 THIRTY-NINTH AFFIRMATIVE DEFENSE
20 (Statute of Limitations)
21 As a further, separate and distinct affirmative defense, Elite MD alleges that Plaintiff’s
22 claims are barred by the applicable statute of limitations.
23 FORTIETH AFFIRMATIVE DEFENSE
24 (Conduct Of Third Parties)
25 As a further, separate and distinct affirmative defense, Elite MD alleges that the alleged
26 damages and/or injuries allegedly sustained by Plaintiff were caused by the acts, omissions, or
27 negligence of other third parties and not of Elite MD, its agents or employees. Any damages
28 awarded should be diminished in proportion to that amount of fault attributed to third parties and
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DEFENDANT ELITE MD, INC.’S ANSWER TO COMPLAINT
1 a judgment of indemnification and contribution against such other parties should be made in
2 accordance with the apportionment of fault.
3 FORTY-FIRST AFFIRMATIVE DEFENSE
4 (Contribution/Apportionment of Liability)
5 As a further, separate and distinct affirmative defense, Elite MD alleges that the damages
6 suffered by Plaintiff, if any, were the direct and proximate result of the acts, omissions, or
7 negligence of parties or persons other than Elite MD, and that the liability of Elite MD, if any, is
8 limited in direct proportion to the percentage of fault actually attributable to Elite MD and Elite
9 MD is entitled to have any liability abated, reduced, or eliminated to the extent other third
10 parties’ fault caused or contributed to Plaintiff’s damages, if any.
11 FORTY-SECOND AFFIRMATIVE DEFENSE
Gordon Rees Scully Mansukhani, LLP
275 Battery Street, Suite 2000
12 (No Liability for Acts Exceeding Scope of Authority)
San Francisco, CA 94111
13 As a further, separate and distinct affirmative defense, Elite MD alleges that if Plaintiff
14 suffered or sustained any damages as alleged in the Complaint and those damages were
15 proximately caused and contributed to by any acts or omissions by agents or employees of Elite
16 MD, such agents or employees were, at that time, acting outside the scope of their agency or
17 employment with Elite MD, and without any authority from Elite MD of any kind whatsoever.
18 Elite MD is therefore not responsible for those acts or omissions, and any damages resulting
19 therefrom.
20 FORTY-THIRD AFFIRMATIVE DEFENSE
21 (Adequate Remedy at Law)
22 As a further, separate and distinct affirmative defense, Elite MD alleges that any claims
23 for equitable remedies, including injunctive or restitution remedies, are barred because adequate
24 remedies exist at law.
25 FORTY-FOURTH AFFIRMATIVE DEFENSE
26 (No Threat of Future Harm)
27 As a further, separate and distinct affirmative defense, Elite MD alleges that Plaintiff is
28 not entitled to any injunctive relief because there is no threat of future harm to Plaintiff by Elite
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DEFENDANT ELITE MD, INC.’S ANSWER TO COMPLAINT
1 MD.
2 FORTY-FIFTH AFFIRMATIVE DEFENSE
3 (Unconstitutionality of Statutory Damages Claim)
4 As a further, separate and distinct affirmative defense, Elite MD alleges that Plaintiff’s
5 claims for statutory damages under Civil Code §3344 are in contravention of Elite MD’s rights
6 under applicable clauses of the United States and California Constitutions, including without
7 limitation: (a) the claims violate the Excessive Fines Clause of the Eighth Amendment to the
8 United States Constitution; (b) the claims violate Elite MD’s right to due process under the Fifth
9 and Fourteenth Amendment to the United States Constitution, and under the California
10 Constitution; (c) the claims contravene the constitutional prohibition against laws that are vague
11 and overbroad; (d) the claims reflect an unlawful delegation of prosecutorial power to private
Gordon Rees Scully Mansukhani, LLP
275 Battery Street, Suite 2000
12 parties in violation of the separation of powers doctrine; and (e) an award on the claims would
San Francisco, CA 94111
13 constitute an unlawful taking of property in violation of the Fifth and Fourteenth Amendments to
14 the United States Constitution and Article I, Section 19 of the California Constitution.
15 FORTY-SIXTH AFFIRMATIVE DEFENSE
16 (Attorneys’ Fees Not Recoverable)
17 As a further, separate and distinct affirmative defense, Elite MD alleges that Plaintiff is
18 barred from recovering attorneys’ fees under applicable provisions of California law and
19 common law, on the grounds including without limitation that there are special circumstances
20 which would render unjust an award of attorneys’ fees.
21 FORTY-SEVENTH AFFIRMATIVE DEFENSE
22 (No Malice, Oppression, or Fraud)
23 As a further, separate and distinct affirmative defense, Elite MD alleges that Plaintiff is
24 not entitled to recover punitive damages because Plaintiff fails to plead and cannot prove facts
25 sufficient to support allegations of malice, oppression, and/or fraud as required by California
26 Civil Code §3294. In addition, Elite MD did not commit any malicious, oppressive, or fraudulent
27 acts or omissions, did not engage in any despicable conduct, nor did Elite MD authorize or
28 otherwise ratify in any way, any such conduct, acts or omissions.
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DEFENDANT ELITE MD, INC.’S ANSWER TO COMPLAINT
1 FORTY-EIGHTH AFFIRMATIVE DEFENSE
2 (Illegality of Punitive Damages Claim)
3 As a further, separate and distinct affirmative defense, Elite MD specifically incorporates
4 by reference any and all standards or limitations regarding the determination and enforceability
5 of punitive damage awards which arose in the decision of BMW of North America v. Gore, 116
6 U.S. 1589 (1996) and interpretive cases.
7 FORTY-NINTH AFFIRMATIVE DEFENSE
8 (Unconstitutionality of Punitive Damages Claim)
9 As a further, separate and distinct affirmative defense, Elite MD alleges that to the extent
10 that Elite MD seeks exemplary or punitive damages, including those potentially available
11 pursuant to section 3294 of the California Civil Code, the Complaint violates Elite MD’s rights
Gordon Rees Scully Mansukhani, LLP
275 Battery Street, Suite 2000
12 to procedural and substantive due process under the Fifth and Fourteenth Amendment of the
San Francisco, CA 94111
13 United States Constitution and the California Constitution. The Complaint also violates Elite
14 MD’s rights to protection from excessive fines as provided in the Eighth Amendment to the
15 United States Constitution and Article I, Section 17, of the California Constitution. Plaintiff
16 therefore fails to state a cause of action supporting the punitive or exemplary damages claimed.
17 FIFTIETH AFFIRMATIVE DEFENSE
18 (Reservation of Rights)
19 As a further, separate and distinct affirmative defense, Elite MD alleges that it may have
20 additional defenses that cannot be articulated due to Plaintiff’s failure to particularize her claims
21 and due to Plaintiff’s failure to provide more specific information concerning the nature of the
22 damage claims and claims for costs for which Plaintiff alleges that Elite MD may have
23 responsibility. Elite MD therefore reserves the right to assert additional defenses upon further
24 particularization of Plaintiff’s claims, upon examination of documents, upon discovery of further
25 information concerning the alleged damage claims and claims for costs, and upon the
26 development of other pertinent information.
27 ///
28 ///
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DEFENDANT ELITE MD, INC.’S ANSWER TO COMPLAINT
1 WHEREFORE, Defendant Elite MD prays that judgment be entered as follows:
2 1. That Plaintiff take nothing by way of the Complaint and that this action be
3 dismissed in its entirety and with prejudice;
4 2. That judgment be entered in favor of Defendant Elite MD;
5 3. For recovery of costs of suit incurred by Defendant Elite MD in defending this
6 action;
7 4. For recovery of attorneys’ fees incurred by Defendant Elite MD in defending this
8 action;
9 5. For such other relief as the Court deems just and proper.
10
11 Respectfully submitted,
Gordon Rees Scully Mansukhani, LLP
275 Battery Street, Suite 2000
12 Dated: February 18, 2020 GORDON REES SCULLY
San Francisco, CA 94111
MANSUKHANI, LLP
13
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By:
15 Craig J. Mariam
Attorney for Defendant
16 Elite MD, Inc.
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DEFENDANT ELITE MD, INC.’S ANSWER TO COMPLAINT
Preview
1 Craig J. Mariam (SBN: 225280) cmariam@gordonrees.com 2 GORDON REES SCULLY MANSUKHANI, LLP ELECTRONICALLY 275 Battery Street, Suite 2000 3 San Francisco CA 94111 FILED Superior Court of California, Telephone: (415) 986-5900 County of San Francisco 4 Facsimile: (877) 306-0043 02/18/2020 5 Attorney for Defendant Clerk of the Court BY: KALENE APOLONIO ELITE MD, INC. Deputy Clerk 6 7 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SAN FRANCISCO 10 ANNA DEANDA, an individual ) CASE NO. CGC-19-581216 ) 11 Plaintiff, DEFENDANT ELITE MD, INC.’S Gordon Rees Scully Mansukhani, LLP ) ) ANSWER AND AFFIRMATIVE 275 Battery Street, Suite 2000 12 vs. DEFENSES TO COMPLAINT ) San Francisco, CA 94111 13 ) ELITE MD, INC., a California corporation; NEXSTAR MEDIA GROUP, ) Judge: Hon. Garrett L. Wong 14 INC., a Delaware corporation, d/b/a ) Dept.: 206 KRON 4; and DOES 1 through 20, ) 15 inclusive, ) ) Complaint Filed: December 3, 2019 16 Defendants. ) Trial Date: Not Set ) 17 ) [Notice of Demurrer and Demurrer, 18 19 Defendant Elite MD, Inc. (“Elite MD”), by and through its attorneys of record, hereby 20 respectfully submits this Answer and its Affirmative Defenses in response to plaintiff, Anna 21 DeAnda (“Plaintiff”)’s unverified Complaint as follows: 22 GENERAL DENIAL 23 Pursuant to California Code of Civil Procedure Section 431.30, Defendant Elite MD 24 denies generally and specifically each and every, any and all of the allegations and purported 25 causes of action contained in the Complaint. Defendant Elite MD denies that Plaintiff has 26 sustained or will sustain any injury, damage, or loss in the sum or sums alleged, or in any sum at 27 all, by reason of any act, omission, or breach on the part of Defendant Elite MD. Defendant Elite 28 MD denies that Plaintiff is entitled to damages in any amount, attorneys’ fees, or any other -1- DEFENDANT ELITE MD, INC.’S ANSWER TO COMPLAINT 1 damage as alleged in the Complaint. Defendant Elite MD further denies that Plaintiff is entitled 2 to any relief sought in the Complaint on any of the grounds proffered therein, or at all. 3 AFFIRMATIVE DEFENSES 4 Defendant Elite MD further alleges the following separate affirmative defenses to the 5 Complaint. By asserting the defenses set forth below, Elite MD does not thereby admit or agree 6 that it has the burden of proof, persuasion or production with respect to any elements of any 7 defense or that Plaintiff has properly asserted any claim or cause of action against Defendant 8 Elite MD. 9 FIRST AFFIRMATIVE DEFENSE 10 (Lack of Standing) 11 As a first separate and distinct affirmative defense, Elite MD alleges that Plaintiff lacks Gordon Rees Scully Mansukhani, LLP 275 Battery Street, Suite 2000 12 legal standing to sue for the claims set forth in the Complaint. San Francisco, CA 94111 13 SECOND AFFIRMATIVE DEFENSE 14 (Failure to Join Indispensable Parties) 15 As a further, separate and distinct affirmative defense, Elite MD alleges that Plaintiff’s 16 claims require, for their complete adjudication, the joining of additional, necessary, or 17 indispensable parties, without whom the purported claims and causes of action cannot be fully, 18 finally, and completely resolved. 19 THIRD AFFIRMATIVE DEFENSE 20 (Uncertainty) 21 As a further, separate and distinct affirmative defense, Elite MD alleges that the 22 purported claims and causes of action in the Complaint and each of them are uncertain, 23 ambiguous, and/or unintelligible. 24 FOURTH AFFIRMATIVE DEFENSE 25 (Consent) 26 As a further, separate and distinct affirmative defense, Elite MD alleges that Plaintiff has 27 expressly or impliedly consented to the alleged conduct set forth in the Complaint, if and to the 28 extent it occurred, and therefore is barred from any recovery. -2- DEFENDANT ELITE MD, INC.’S ANSWER TO COMPLAINT 1 FIFTH AFFIRMATIVE DEFENSE 2 (Waiver and Release) 3 As a further, separate and affirmative defense, Elite MD alleges that Plaintiff has waived 4 and released her claims, thereby barring Plaintiff from seeking the relief prayed for in the 5 Complaint. 6 SIXTH AFFIRMATIVE DEFENSE 7 (Justified Conduct) 8 As a further, separate and distinct affirmative defense, Elite MD alleges that Plaintiff’s 9 claims are barred, in whole or in part, because at all times material to the events alleged in the 10 Complaint, Elite MD’s conduct was justified. 11 SEVENTH AFFIRMATIVE DEFENSE Gordon Rees Scully Mansukhani, LLP 275 Battery Street, Suite 2000 12 (Privileged Actions) San Francisco, CA 94111 13 As a further, separate and distinct affirmative defense, Elite MD alleges that the conduct 14 set forth in the Complaint, if and to the extent it occurred, was privileged and done in good faith 15 and no action may be taken against Elite MD on account of such conduct, if any. 16 EIGHTH AFFIRMATIVE DEFENSE 17 (Incidental Use) 18 As a further, separate and distinct affirmative defense, Elite MD alleges that Plaintiff’s 19 claims are barred, in whole or in part, because any of the alleged use of Plaintiff’s photographs 20 or likeness set forth in the Complaint, if and to the extent it occurred, was at best an incidental 21 use which does not give rise to any actionable claims. 22 NINTH AFFIRMATIVE DEFENSE 23 (Civil Code §3344 (d)) 24 As a further, separate and distinct affirmative defense, Elite MD alleges that Plaintiff’s 25 claims are barred, in whole or in part, pursuant to Civil Code §3344 (d), which exempts any use 26 of photographs or likeness in connection with any news or public affairs. 27 /// 28 /// -3- DEFENDANT ELITE MD, INC.’S ANSWER TO COMPLAINT 1 TENTH AFFIRMATIVE DEFENSE 2 (Civil Code §3344 (e)) 3 As a further, separate and distinct affirmative defense, Elite MD alleges that Plaintiff’s 4 claims are barred, in whole or in part, pursuant to Civil Code §3344 (e), which exempts any use 5 in a commercial medium that is not so directly connected with the commercial sponsorship or the 6 paid advertising associated with such use. 7 ELEVENTH AFFIRMATIVE DEFENSE 8 (Matters Of Public Concern) 9 As a further, separate and distinct affirmative defense, Elite MD alleges that Plaintiff’s 10 claims are barred, in whole or in part, because the alleged use of photographs or likeness set 11 forth in the Complaint involved matters of public concern. Gordon Rees Scully Mansukhani, LLP 275 Battery Street, Suite 2000 12 TWELFTH AFFIRMATIVE DEFENSE San Francisco, CA 94111 13 (First Amendment) 14 As a further, separate and distinct affirmative defense, Elite MD alleges that the conduct 15 set forth in the Complaint, if and to the extent it occurred, was protected by the First 16 Amendment’s guarantee of freedom of speech and expression. 17 THIRTEENTH AFFIRMATIVE DEFENSE 18 (Necessity) 19 As a further, separate and distinct affirmative defense, Elite MD alleges that the conduct, 20 with respect to the matters alleged, was lawful and necessary and, by reason of the foregoing, 21 Plaintiff is barred from any recovery. 22 FOURTEENTH AFFIRMATIVE DEFENSE 23 (Permissible Conduct) 24 As a further, separate and distinct affirmative defense, Elite MD alleges that it is not 25 responsible for Plaintiff’s harm, if any, because Elite MD’s conduct was permissible. 26 /// 27 /// 28 /// -4- DEFENDANT ELITE MD, INC.’S ANSWER TO COMPLAINT 1 FIFTEENTH AFFIRMATIVE DEFENSE 2 (Lack of Intent or Knowledge) 3 As a further, separate and distinct affirmative defense, Elite MD alleges that Plaintiff’s 4 claims are barred, in whole or in part, due to the lack of requisite intent or knowledge on the part 5 of Elite MD. 6 SIXTEENTH AFFIRMATIVE DEFENSE 7 (No Proximate Causation) 8 As a further, separate and distinct affirmative defense, Elite MD alleges that none of its 9 conduct, acts, or omissions was a substantial or proximate cause of Plaintiff’s injuries, if any. 10 SEVENTEENTH AFFIRMATIVE DEFENSE 11 (Conduct Not Unfair) Gordon Rees Scully Mansukhani, LLP 275 Battery Street, Suite 2000 12 As a further, separate and distinct affirmative defense, Elite MD alleges that its purported San Francisco, CA 94111 13 conduct, acts and omissions were not unfair or unlawful. 14 EIGHTEENTH AFFIRMATIVE DEFENSE 15 (Business Necessity) 16 As a further, separate and distinct affirmative defense, Elite MD alleges that Plaintiff is 17 not entitled to relief on any of her purported causes of action because Elite MD’s actions were 18 reasonable in response to a legitimate business necessity and were taken for legitimate business 19 reasons. 20 NINETEENTH AFFIRMATIVE DEFENSE 21 (No Deception) 22 As a further, separate and distinct affirmative defense, Elite MD alleges that none of the 23 purported conduct, acts and omissions constitutes false or fraudulent representation or pretense; 24 none of the purported conduct, acts and omissions misled Plaintiff or any third party; and that 25 none of the purported conduct, acts and omissions were likely to mislead Plaintiff or any third 26 party. 27 /// 28 /// -5- DEFENDANT ELITE MD, INC.’S ANSWER TO COMPLAINT 1 TWENTIETH AFFIRMATIVE DEFENSE 2 (No Reliance) 3 As a further, separate and distinct affirmative defense, Elite MD alleges that neither 4 Plaintiff nor any third party did or could reasonably rely on any matters allegedly 5 misrepresented. 6 TWENTY-FIRST AFFIRMATIVE DEFENSE 7 (Reasonable Conduct) 8 As a further, separate and distinct affirmative defense, Elite MD alleges that Plaintiff is 9 not entitled to relief on any of her purported causes of action because Elite MD’s conduct was at 10 all times reasonable, in complete good faith, based upon good cause, and undertaken pursuant to 11 the terms of applicable laws and regulations. Gordon Rees Scully Mansukhani, LLP 275 Battery Street, Suite 2000 12 TWENTY-SECOND AFFIRMATIVE DEFENSE San Francisco, CA 94111 13 (Unintentional Acts and Bona Fide Error) 14 As a further, separate and distinct affirmative defense, Elite MD alleges that Plaintiff’s 15 claims are barred, in whole or in part, from recovery because any alleged conduct, acts or 16 omissions set forth in the Complaint were not intentional, and resulted from a bona fide error 17 despite Elite MD’s use of reasonable procedures adapted to avoid any such error. Elite MD has 18 also promptly taken all reasonable, practical and effective measures to make appropriate 19 correction or other remedy to address such error, if any. 20 TWENTY-THIRD AFFIRMATIVE DEFENSE 21 (Assumption of Risk) 22 As a further, separate and distinct affirmative defense, Elite MD alleges that Plaintiff 23 acted with full knowledge of all the facts and circumstances surrounding her injury and assumed 24 the risk of the matters causing the injury, and that said matters of which Plaintiff assumed the 25 risk proximately contributed to and proximately caused her injury, if any. 26 /// 27 /// 28 /// -6- DEFENDANT ELITE MD, INC.’S ANSWER TO COMPLAINT 1 TWENTY-FOURTH AFFIRMATIVE DEFENSE 2 (Plaintiff’s Own Conduct) 3 As a further, separate and distinct affirmative defense, Elite MD alleges that any damages 4 sustained by Plaintiff were either wholly or, in part, caused by Plaintiff’s own actions, inactions, 5 or delay in acting, and said conduct by Plaintiff comparatively reduces the percentage of fault, if 6 any, of Elite MD. 7 TWENTY-FIFTH AFFIRMATIVE DEFENSE 8 (Estoppel) 9 As a further, separate and distinct affirmative defense, Elite MD alleges that by reasons 10 of her own actions, Plaintiff is estopped from proceeding with the causes of action alleged in the 11 Complaint. Gordon Rees Scully Mansukhani, LLP 275 Battery Street, Suite 2000 12 TWENTY-SIXTH AFFIRMATIVE DEFENSE San Francisco, CA 94111 13 (Ratification) 14 As a further, separate and distinct affirmative defense, Elite MD alleges that Plaintiff 15 directed, ordered, approved and/or ratified the conduct of Elite MD and is on that basis estopped 16 from asserting any claim based thereon. 17 TWENTY-SEVENTH AFFIRMATIVE DEFENSE 18 (Laches) 19 As a further, separate and distinct affirmative defense, Elite MD alleges that Plaintiff’s 20 Complaint is barred by the doctrine of laches. 21 TWENTY-EIGHTH AFFIRMATIVE DEFENSE 22 (Unclean Hands) 23 As a further, separate and distinct affirmative defense, Elite MD alleges that Plaintiff’s 24 claims and requests for relief are barred under the doctrine of unclean hands. 25 TWENTY-NINTH AFFIRMATIVE DEFENSE 26 (Bad Faith) 27 As a further, separate and distinct affirmative defense, Elite MD alleges that the 28 Complaint is brought in bad faith and without legal basis, is intended to harass, annoy, and -7- DEFENDANT ELITE MD, INC.’S ANSWER TO COMPLAINT 1 damage Elite MD, thereby entitling it to its cost of suit, attorneys’ fees, and such other and 2 further relief as the Court deems just and proper, while barring Plaintiff from any recovery from 3 Elite MD. 4 THIRTIETH AFFIRMATIVE DEFENSE 5 (Lack of Equity) 6 As a further, separate and distinct affirmative defense, Elite MD alleges that Plaintiff has 7 not done equity, such that Plaintiff is therefore barred from any recovery from Elite MD. 8 THIRTY-FIRST AFFIRMATIVE DEFENSE 9 (Failure to Plead Fraud with Specificity) 10 As a further, separate and distinct affirmative defense, Elite MD alleges that to the extent 11 Plaintiff claims that Elite MD committed fraud, such claim does not allege the requisite elements Gordon Rees Scully Mansukhani, LLP 275 Battery Street, Suite 2000 12 and specifically fails to provide any factual basis to show the intent required to prevail on a fraud San Francisco, CA 94111 13 claim, and that such intent does not and never did exist such that Plaintiff cannot prevail in this 14 regard. 15 THIRTY-SECOND AFFIRMATIVE DEFENSE 16 (No Actual Loss) 17 As a further, separate and distinct affirmative defense, Elite MD alleges that Plaintiff did 18 not suffer an actual loss as a result of any acts or omissions by Elite MD. 19 THIRTY-THIRD AFFIRMATIVE DEFENSE 20 (Failure to Mitigate) 21 As a further, separate and distinct affirmative defense, Elite MD alleges that Plaintiff 22 failed to mitigate her damages, barring Plaintiff from recovery in this action. 23 THIRTY-FOURTH AFFIRMATIVE DEFENSE 24 (Damages Result From Unrelated, Pre-existing, or Subsequent Conditions) 25 As a further, separate and affirmative defense, Elite MD alleges that Plaintiff’s damages, 26 if any, are the results of unrelated, pre-existing, and subsequent conditions and are thus barred. 27 /// 28 /// -8- DEFENDANT ELITE MD, INC.’S ANSWER TO COMPLAINT 1 THIRTY-FIFTH AFFIRMATIVE DEFENSE 2 (Speculative Damages) 3 As a further, separate and distinct affirmative defense, Elite MD alleges that Plaintiff’s 4 alleged damages are speculative and therefore not recoverable. 5 THIRTY-SIXTH AFFIRMATIVE DEFENSE 6 (Unjust Enrichment) 7 As a further, separate and distinct affirmative defense, Elite MD alleges that Plaintiff is 8 barred from recovery because any recovery awarded to Plaintiff would constitute unjust 9 enrichment. 10 THIRTY-SEVENTH AFFIRMATIVE DEFENSE 11 (Undue Hardship) Gordon Rees Scully Mansukhani, LLP 275 Battery Street, Suite 2000 12 As a further, separate and distinct affirmative defense, Elite MD alleges that Plaintiff’s San Francisco, CA 94111 13 proposed recovery and requested damages would create an undue hardship on Elite MD and are 14 therefore barred. 15 THIRTY-EIGHTH AFFIRMATIVE DEFENSE 16 (Contrary to Public Policy) 17 As a further, separate and distinct affirmative defense, Elite MD alleges that Plaintiff’s 18 claims and remedies are contrary to public policy and therefore barred. 19 THIRTY-NINTH AFFIRMATIVE DEFENSE 20 (Statute of Limitations) 21 As a further, separate and distinct affirmative defense, Elite MD alleges that Plaintiff’s 22 claims are barred by the applicable statute of limitations. 23 FORTIETH AFFIRMATIVE DEFENSE 24 (Conduct Of Third Parties) 25 As a further, separate and distinct affirmative defense, Elite MD alleges that the alleged 26 damages and/or injuries allegedly sustained by Plaintiff were caused by the acts, omissions, or 27 negligence of other third parties and not of Elite MD, its agents or employees. Any damages 28 awarded should be diminished in proportion to that amount of fault attributed to third parties and -9- DEFENDANT ELITE MD, INC.’S ANSWER TO COMPLAINT 1 a judgment of indemnification and contribution against such other parties should be made in 2 accordance with the apportionment of fault. 3 FORTY-FIRST AFFIRMATIVE DEFENSE 4 (Contribution/Apportionment of Liability) 5 As a further, separate and distinct affirmative defense, Elite MD alleges that the damages 6 suffered by Plaintiff, if any, were the direct and proximate result of the acts, omissions, or 7 negligence of parties or persons other than Elite MD, and that the liability of Elite MD, if any, is 8 limited in direct proportion to the percentage of fault actually attributable to Elite MD and Elite 9 MD is entitled to have any liability abated, reduced, or eliminated to the extent other third 10 parties’ fault caused or contributed to Plaintiff’s damages, if any. 11 FORTY-SECOND AFFIRMATIVE DEFENSE Gordon Rees Scully Mansukhani, LLP 275 Battery Street, Suite 2000 12 (No Liability for Acts Exceeding Scope of Authority) San Francisco, CA 94111 13 As a further, separate and distinct affirmative defense, Elite MD alleges that if Plaintiff 14 suffered or sustained any damages as alleged in the Complaint and those damages were 15 proximately caused and contributed to by any acts or omissions by agents or employees of Elite 16 MD, such agents or employees were, at that time, acting outside the scope of their agency or 17 employment with Elite MD, and without any authority from Elite MD of any kind whatsoever. 18 Elite MD is therefore not responsible for those acts or omissions, and any damages resulting 19 therefrom. 20 FORTY-THIRD AFFIRMATIVE DEFENSE 21 (Adequate Remedy at Law) 22 As a further, separate and distinct affirmative defense, Elite MD alleges that any claims 23 for equitable remedies, including injunctive or restitution remedies, are barred because adequate 24 remedies exist at law. 25 FORTY-FOURTH AFFIRMATIVE DEFENSE 26 (No Threat of Future Harm) 27 As a further, separate and distinct affirmative defense, Elite MD alleges that Plaintiff is 28 not entitled to any injunctive relief because there is no threat of future harm to Plaintiff by Elite -10- DEFENDANT ELITE MD, INC.’S ANSWER TO COMPLAINT 1 MD. 2 FORTY-FIFTH AFFIRMATIVE DEFENSE 3 (Unconstitutionality of Statutory Damages Claim) 4 As a further, separate and distinct affirmative defense, Elite MD alleges that Plaintiff’s 5 claims for statutory damages under Civil Code §3344 are in contravention of Elite MD’s rights 6 under applicable clauses of the United States and California Constitutions, including without 7 limitation: (a) the claims violate the Excessive Fines Clause of the Eighth Amendment to the 8 United States Constitution; (b) the claims violate Elite MD’s right to due process under the Fifth 9 and Fourteenth Amendment to the United States Constitution, and under the California 10 Constitution; (c) the claims contravene the constitutional prohibition against laws that are vague 11 and overbroad; (d) the claims reflect an unlawful delegation of prosecutorial power to private Gordon Rees Scully Mansukhani, LLP 275 Battery Street, Suite 2000 12 parties in violation of the separation of powers doctrine; and (e) an award on the claims would San Francisco, CA 94111 13 constitute an unlawful taking of property in violation of the Fifth and Fourteenth Amendments to 14 the United States Constitution and Article I, Section 19 of the California Constitution. 15 FORTY-SIXTH AFFIRMATIVE DEFENSE 16 (Attorneys’ Fees Not Recoverable) 17 As a further, separate and distinct affirmative defense, Elite MD alleges that Plaintiff is 18 barred from recovering attorneys’ fees under applicable provisions of California law and 19 common law, on the grounds including without limitation that there are special circumstances 20 which would render unjust an award of attorneys’ fees. 21 FORTY-SEVENTH AFFIRMATIVE DEFENSE 22 (No Malice, Oppression, or Fraud) 23 As a further, separate and distinct affirmative defense, Elite MD alleges that Plaintiff is 24 not entitled to recover punitive damages because Plaintiff fails to plead and cannot prove facts 25 sufficient to support allegations of malice, oppression, and/or fraud as required by California 26 Civil Code §3294. In addition, Elite MD did not commit any malicious, oppressive, or fraudulent 27 acts or omissions, did not engage in any despicable conduct, nor did Elite MD authorize or 28 otherwise ratify in any way, any such conduct, acts or omissions. -11- DEFENDANT ELITE MD, INC.’S ANSWER TO COMPLAINT 1 FORTY-EIGHTH AFFIRMATIVE DEFENSE 2 (Illegality of Punitive Damages Claim) 3 As a further, separate and distinct affirmative defense, Elite MD specifically incorporates 4 by reference any and all standards or limitations regarding the determination and enforceability 5 of punitive damage awards which arose in the decision of BMW of North America v. Gore, 116 6 U.S. 1589 (1996) and interpretive cases. 7 FORTY-NINTH AFFIRMATIVE DEFENSE 8 (Unconstitutionality of Punitive Damages Claim) 9 As a further, separate and distinct affirmative defense, Elite MD alleges that to the extent 10 that Elite MD seeks exemplary or punitive damages, including those potentially available 11 pursuant to section 3294 of the California Civil Code, the Complaint violates Elite MD’s rights Gordon Rees Scully Mansukhani, LLP 275 Battery Street, Suite 2000 12 to procedural and substantive due process under the Fifth and Fourteenth Amendment of the San Francisco, CA 94111 13 United States Constitution and the California Constitution. The Complaint also violates Elite 14 MD’s rights to protection from excessive fines as provided in the Eighth Amendment to the 15 United States Constitution and Article I, Section 17, of the California Constitution. Plaintiff 16 therefore fails to state a cause of action supporting the punitive or exemplary damages claimed. 17 FIFTIETH AFFIRMATIVE DEFENSE 18 (Reservation of Rights) 19 As a further, separate and distinct affirmative defense, Elite MD alleges that it may have 20 additional defenses that cannot be articulated due to Plaintiff’s failure to particularize her claims 21 and due to Plaintiff’s failure to provide more specific information concerning the nature of the 22 damage claims and claims for costs for which Plaintiff alleges that Elite MD may have 23 responsibility. Elite MD therefore reserves the right to assert additional defenses upon further 24 particularization of Plaintiff’s claims, upon examination of documents, upon discovery of further 25 information concerning the alleged damage claims and claims for costs, and upon the 26 development of other pertinent information. 27 /// 28 /// -12- DEFENDANT ELITE MD, INC.’S ANSWER TO COMPLAINT 1 WHEREFORE, Defendant Elite MD prays that judgment be entered as follows: 2 1. That Plaintiff take nothing by way of the Complaint and that this action be 3 dismissed in its entirety and with prejudice; 4 2. That judgment be entered in favor of Defendant Elite MD; 5 3. For recovery of costs of suit incurred by Defendant Elite MD in defending this 6 action; 7 4. For recovery of attorneys’ fees incurred by Defendant Elite MD in defending this 8 action; 9 5. For such other relief as the Court deems just and proper. 10 11 Respectfully submitted, Gordon Rees Scully Mansukhani, LLP 275 Battery Street, Suite 2000 12 Dated: February 18, 2020 GORDON REES SCULLY San Francisco, CA 94111 MANSUKHANI, LLP 13 14 By: 15 Craig J. Mariam Attorney for Defendant 16 Elite MD, Inc. 17 18 19 20 21 22 23 24 25 26 27 28 -13- DEFENDANT ELITE MD, INC.’S ANSWER TO COMPLAINT