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1 Kristen G. Hilton (SBN 245670) ELECTRONICALLY
khilton@sussmanshank.com FILED
2 SUSSMAN SHANK LLP Superior Court of California,
County of San Francisco
1000 SW Broadway, Suite 1400
3 Portland, OR 97205-3089 09/11/2019
Telephone: (503) 227-1111 Clerk of the Court
BY: EDWARD SANTOS
4 Facsimile: (503) 248-0130 Deputy Clerk
5 Attorneys for Defendant George Carollo
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF SAN FRANCISCO - UNLIMITED
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THIRD STREET DATA, INC. d/b/a Case No. CGC-19-578354
11 TOPFUNNEL,
DEFENDANT GEORGE CAROLLO'S
12 Plaintiff, ANSWER AND AFFIRMATIVE DEFENSES
13 v.
14 GEORGE CAROLLO, an individual, and
STAYA, INC., a California corporation d/b/a
15 DOVER,
16 Defendants.
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18 Defendant George Carollo ("Carollo") hereby answers the allegations and causes of
19 actions asserted by Plaintiff Third Street Data, Inc. d/b/a TopFunnel ("TopFunnel" or "Plaintiff'')
20 as follows:
21 GENERAL DENIAL
22 Pursuant to California Code of Civil Procedure Section 431.30(d), Carollo denies,
23 generally and specifically, each and every material allegation in Plaintiffs complaint, and each
24 and every cause of action therein. Carollo specifically denies that he is in any way liable to
25 Plaintiff or that Plaintiff has been damaged in any sum or sums.
26 SEPARATE AND AFFIRMATIVE DEFENSES
27 Carollo has not completed his investigation of the facts of this case, has not completed
28 discovery in this matter, and has not completed his preparations for trial. The defenses stated
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DEFENDANT GEORGE CAROLLO'S ANSWER AND AFFIRMATIVE DEFENSES
1 below are based on Carollo's knowledge, information, and belief at this tiine. Carollo
2 specifically reserves the right to modify, amend, or supplement any defense at any time.
3 Carollo asserts the following defenses, without admitting any obligations regarding who
4 bears the burden of proof or persuasion as to anyone of them:
5 FIRST DEFENSE
6 (Failure to State a Cause of Action)
7 The Complaint, and each and every cause of action therein, is barred to the extent it fails
8 to state facts sufficient to constitute a cause of action.
9 SECOND DEFENSE
10 (Failure to Mitigate Damages)
11 Plaintiff failed to take reasonable steps and to exercise due diligence in an effort to
12 minimize or mitigate the alleged damages, if any.
13 THIRD DEFENSE
14 (Unclean Hands)
15 The Complaint, and each and every cause of action therein, is barred by the doctrine of
16 unclean hands.
17 FOURTH DEFENSE
18 (Preemption)
19 Plaintiffs claims are barred, in whole or in part, to the extent they are preempted by
20 California Civil Code sections 3426, et seq.
21 FIFTH DEFENSE
22 (Information Ascertainable by Proper Means)
23 Plaintiffs claims are barred, in whole or in part, because the information alleged by
24 Plaintiff as trade secrets is and was readily ascertainable by proper means.
25 SIXTH DEFENSE
26 (Not a Trade Secret)
27 Plaintiffs claims are barred, in whole or in part, because the information allegedly taken
28 by Carollo is not a trade secret pursuant to applicable law.
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DEFENDANT GEORGE CAROLLO'S ANSWER AND AFFIRMATIVE DEFENSES
1 SEVENTH DEFENSE
2 (Waiver)
3 Plaintiff waived Carollo's performance and/or any alleged breach under the agreement
4 alleged in the Complaint.
5 EIGHTH DEFENSE
6 (Fault of Others)
7 If Plaintiff suffered or sustained any loss, injury, damage, or detriment, the same was
8 directly and proximately caused and contributed to by the breach, conduct, acts, omissions,
9 activities, carelessness, recklessness, negligence, and/or intentional misconduct of others,
10 including Plaintiff, and not by Defendants.
11 NINTH DEFENSE
12 (Justification I Privilege)
13 The conduct of Carollo was justified or privileged, or both, under the circumstances,
14 barring any recovery against Carollo.
15 TENTH DEFENSE
16 (Unjust Enrichment)
17 Plaintiffs claims' are barred, in whole or in part, because the grant of relief would
18 unjustly enrich Plaintiff at Carollo's expense and detriment.
19 ELEVENTH DEFENSE
20 (Not Liable for Punitive Damages)
21 Carollo is not liable for punitive damages herein because he did not commit any alleged
22 oppressive, fraudulent or malicious acts, or authorize or ratify such an act with a conscious
23 disregard of the rights or safety of others as required by California Civil Code section 3294(b).
24 TWELFTH DEFENSE
25 (Protection from Excessive Fines)
26 Plaintiffs Complaint, to the extent that it seeks punitive or exemplary damages, violates
27 the rights of Carollo to protection from "excessive fines" as provided in the Eighth Amendment
28 of the United States Constitution and in Article I, Section 17 of the Constitution of the State of
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DEFENDANT GEORGE CAROLLO'S ANSWER AND AFFIRMATIVE DEFENSES
1 California, and, therefore, fails to state a cause of action on which punitive or exemplary
2 damages may be awarded.
3 THIRTEENTH DEFENSE
4 (Attorneys' Fees and Costs Unwarranted)
5 Plaintiffs' Complaint fails to state facts sufficient to support an award of attorneys' fees
6 or costs.
7 FOURTEENTH DEFENSE
8 (Unlawful Restraint of Trade)
9 Plaintiffs' claims are barred, in whole or in part, by Business and Professions Code
· 10 Sections 16600, et seq.
11 FIFTEENTH DEFENSE
12 (No Injury in Fact)
13 Plaintiff lacks standing to assert any claim under California Business and Professions
14 Code sections 17200, et seq., because Plaintiff has not suffered any injury in fact, and has not
15 lost money or property as a result of any alleged non-trade secret conduct by Carollo.
16 SIXTEENTH DEFENSE
17 (Lack of Reasonable Cause and Good Faith Belief)
18 Plaintiff brought this lawsuit without reasonable cause and without a good faith belief
19 that there was a justifiable controversy under the facts and law which warranted the filing of its
20 Complaint against Carollo .. Plaintiff is responsible for all Carollo's reasonable and necessary
21 costs, in addition to those costs normally awarded to the prevailing party, in accordance with the
22 California Code of Civil Procedure, including, but not limited to, section 1032.
23 RESERVATION OF RIGHTS
24 Carollo reserves the right to assert such additional affirmative defenses that may appear
25 and prove applicable during the course of this litigation.
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27 WHEREFORE, Carollo prays for judgment as follows:
28 1. That Plaintiff takes nothing by virtue of the Complaint, and that the Complaint be
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DEFENDANT GEORGE CAROLLO'S ANSWER AND AFFIRMATIVE DEFENSES
1 dismissed with prejudice;
2 2. Judgment be entered in favor of Carollo and against Plaintiff on all causes of
3 action;
4 3. That Carollo be awarded his attorneys' fees and costs as allowed by law; and
5 4. The Court award Carollo such other and further relief as it deems proper.
6 Dated this / ( :ay of September, 201~.
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SUSSMAN SHANK LLP
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By:~!l1~-
Kristen G. Hilton
Attorneys for Defendant
11 GEORGE CAROLLO
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DEFENDANT GEORGE CAROLLO'S ANSWER AND AFFIRMATIVE DEFENSES
1 CERTIFICATE OF SERVICE
2 I hereby certify that on September 11, 2019 I caused to be served a full and exact copy of
3 the foregoing DEFENDANT GEORGE CAROLLO'S ANSWER AND AFFIRMATIVE
4 DEFENSES on the following persons:
5 Eugene Y. Mar (State Bar No. 227071)
6 emar@fbm.com
Deepak Gupta (State Bar No. 226991)
7 dgupta@fbm.com
Matthew S.L. Cate (State Bar No. 295546)
8 mcate@fbm.com
Farella Braun+ Martel LLP
9 235 Montgomery Street, 17th Floor
10 San Francisco, CA 94104
Attorneys for TopFunnel
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12 Frank J. Weiss (SBN 178903)
Haley M. Morrison (SBN 259913)
13 TONKON TORP LLP
888 SW Fifth Avenue, Suite 1600
14 Portland, OR 97204
Phone: 503.221.1440
15 Fax: 503.274.8779
Email: frank. weiss@tonkon.com
16 Email: haley.morrison@tonkon.com
Attorneys for Defendant Staya, Inc.
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by the following indicated method(s):
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x First Class Mail, postage prepaid, deposited in the US mail at Portland, OR
19 D Hand delivery
D Facsimile transmission
20 D Overnight delivery
x Email
21 D Electronic filing notification
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Dated: September 11, 2019
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25 Kristen G. Hilton
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*25269-001 (03250705)
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DEFENDANT GEORGE CAROLLO'S ANSWER AND AFFIRMATIVE DEFENSES
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1 Kristen G. Hilton (SBN 245670) ELECTRONICALLY khilton@sussmanshank.com FILED 2 SUSSMAN SHANK LLP Superior Court of California, County of San Francisco 1000 SW Broadway, Suite 1400 3 Portland, OR 97205-3089 09/11/2019 Telephone: (503) 227-1111 Clerk of the Court BY: EDWARD SANTOS 4 Facsimile: (503) 248-0130 Deputy Clerk 5 Attorneys for Defendant George Carollo 6 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 COUNTY OF SAN FRANCISCO - UNLIMITED 9 10 THIRD STREET DATA, INC. d/b/a Case No. CGC-19-578354 11 TOPFUNNEL, DEFENDANT GEORGE CAROLLO'S 12 Plaintiff, ANSWER AND AFFIRMATIVE DEFENSES 13 v. 14 GEORGE CAROLLO, an individual, and STAYA, INC., a California corporation d/b/a 15 DOVER, 16 Defendants. 17 18 Defendant George Carollo ("Carollo") hereby answers the allegations and causes of 19 actions asserted by Plaintiff Third Street Data, Inc. d/b/a TopFunnel ("TopFunnel" or "Plaintiff'') 20 as follows: 21 GENERAL DENIAL 22 Pursuant to California Code of Civil Procedure Section 431.30(d), Carollo denies, 23 generally and specifically, each and every material allegation in Plaintiffs complaint, and each 24 and every cause of action therein. Carollo specifically denies that he is in any way liable to 25 Plaintiff or that Plaintiff has been damaged in any sum or sums. 26 SEPARATE AND AFFIRMATIVE DEFENSES 27 Carollo has not completed his investigation of the facts of this case, has not completed 28 discovery in this matter, and has not completed his preparations for trial. The defenses stated SUSSMAN SHANK -1- LLP DEFENDANT GEORGE CAROLLO'S ANSWER AND AFFIRMATIVE DEFENSES 1 below are based on Carollo's knowledge, information, and belief at this tiine. Carollo 2 specifically reserves the right to modify, amend, or supplement any defense at any time. 3 Carollo asserts the following defenses, without admitting any obligations regarding who 4 bears the burden of proof or persuasion as to anyone of them: 5 FIRST DEFENSE 6 (Failure to State a Cause of Action) 7 The Complaint, and each and every cause of action therein, is barred to the extent it fails 8 to state facts sufficient to constitute a cause of action. 9 SECOND DEFENSE 10 (Failure to Mitigate Damages) 11 Plaintiff failed to take reasonable steps and to exercise due diligence in an effort to 12 minimize or mitigate the alleged damages, if any. 13 THIRD DEFENSE 14 (Unclean Hands) 15 The Complaint, and each and every cause of action therein, is barred by the doctrine of 16 unclean hands. 17 FOURTH DEFENSE 18 (Preemption) 19 Plaintiffs claims are barred, in whole or in part, to the extent they are preempted by 20 California Civil Code sections 3426, et seq. 21 FIFTH DEFENSE 22 (Information Ascertainable by Proper Means) 23 Plaintiffs claims are barred, in whole or in part, because the information alleged by 24 Plaintiff as trade secrets is and was readily ascertainable by proper means. 25 SIXTH DEFENSE 26 (Not a Trade Secret) 27 Plaintiffs claims are barred, in whole or in part, because the information allegedly taken 28 by Carollo is not a trade secret pursuant to applicable law. SUSSMAN SHANK -2- LLP DEFENDANT GEORGE CAROLLO'S ANSWER AND AFFIRMATIVE DEFENSES 1 SEVENTH DEFENSE 2 (Waiver) 3 Plaintiff waived Carollo's performance and/or any alleged breach under the agreement 4 alleged in the Complaint. 5 EIGHTH DEFENSE 6 (Fault of Others) 7 If Plaintiff suffered or sustained any loss, injury, damage, or detriment, the same was 8 directly and proximately caused and contributed to by the breach, conduct, acts, omissions, 9 activities, carelessness, recklessness, negligence, and/or intentional misconduct of others, 10 including Plaintiff, and not by Defendants. 11 NINTH DEFENSE 12 (Justification I Privilege) 13 The conduct of Carollo was justified or privileged, or both, under the circumstances, 14 barring any recovery against Carollo. 15 TENTH DEFENSE 16 (Unjust Enrichment) 17 Plaintiffs claims' are barred, in whole or in part, because the grant of relief would 18 unjustly enrich Plaintiff at Carollo's expense and detriment. 19 ELEVENTH DEFENSE 20 (Not Liable for Punitive Damages) 21 Carollo is not liable for punitive damages herein because he did not commit any alleged 22 oppressive, fraudulent or malicious acts, or authorize or ratify such an act with a conscious 23 disregard of the rights or safety of others as required by California Civil Code section 3294(b). 24 TWELFTH DEFENSE 25 (Protection from Excessive Fines) 26 Plaintiffs Complaint, to the extent that it seeks punitive or exemplary damages, violates 27 the rights of Carollo to protection from "excessive fines" as provided in the Eighth Amendment 28 of the United States Constitution and in Article I, Section 17 of the Constitution of the State of SUSSMAN SHANK -3- LLP DEFENDANT GEORGE CAROLLO'S ANSWER AND AFFIRMATIVE DEFENSES 1 California, and, therefore, fails to state a cause of action on which punitive or exemplary 2 damages may be awarded. 3 THIRTEENTH DEFENSE 4 (Attorneys' Fees and Costs Unwarranted) 5 Plaintiffs' Complaint fails to state facts sufficient to support an award of attorneys' fees 6 or costs. 7 FOURTEENTH DEFENSE 8 (Unlawful Restraint of Trade) 9 Plaintiffs' claims are barred, in whole or in part, by Business and Professions Code · 10 Sections 16600, et seq. 11 FIFTEENTH DEFENSE 12 (No Injury in Fact) 13 Plaintiff lacks standing to assert any claim under California Business and Professions 14 Code sections 17200, et seq., because Plaintiff has not suffered any injury in fact, and has not 15 lost money or property as a result of any alleged non-trade secret conduct by Carollo. 16 SIXTEENTH DEFENSE 17 (Lack of Reasonable Cause and Good Faith Belief) 18 Plaintiff brought this lawsuit without reasonable cause and without a good faith belief 19 that there was a justifiable controversy under the facts and law which warranted the filing of its 20 Complaint against Carollo .. Plaintiff is responsible for all Carollo's reasonable and necessary 21 costs, in addition to those costs normally awarded to the prevailing party, in accordance with the 22 California Code of Civil Procedure, including, but not limited to, section 1032. 23 RESERVATION OF RIGHTS 24 Carollo reserves the right to assert such additional affirmative defenses that may appear 25 and prove applicable during the course of this litigation. 26 27 WHEREFORE, Carollo prays for judgment as follows: 28 1. That Plaintiff takes nothing by virtue of the Complaint, and that the Complaint be SUSSMAN SHANK -4- LLP DEFENDANT GEORGE CAROLLO'S ANSWER AND AFFIRMATIVE DEFENSES 1 dismissed with prejudice; 2 2. Judgment be entered in favor of Carollo and against Plaintiff on all causes of 3 action; 4 3. That Carollo be awarded his attorneys' fees and costs as allowed by law; and 5 4. The Court award Carollo such other and further relief as it deems proper. 6 Dated this / ( :ay of September, 201~. 7 SUSSMAN SHANK LLP 8 9 10 By:~!l1~- Kristen G. Hilton Attorneys for Defendant 11 GEORGE CAROLLO 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SUSSMAN SHANK -5- LLP DEFENDANT GEORGE CAROLLO'S ANSWER AND AFFIRMATIVE DEFENSES 1 CERTIFICATE OF SERVICE 2 I hereby certify that on September 11, 2019 I caused to be served a full and exact copy of 3 the foregoing DEFENDANT GEORGE CAROLLO'S ANSWER AND AFFIRMATIVE 4 DEFENSES on the following persons: 5 Eugene Y. Mar (State Bar No. 227071) 6 emar@fbm.com Deepak Gupta (State Bar No. 226991) 7 dgupta@fbm.com Matthew S.L. Cate (State Bar No. 295546) 8 mcate@fbm.com Farella Braun+ Martel LLP 9 235 Montgomery Street, 17th Floor 10 San Francisco, CA 94104 Attorneys for TopFunnel 11 12 Frank J. Weiss (SBN 178903) Haley M. Morrison (SBN 259913) 13 TONKON TORP LLP 888 SW Fifth Avenue, Suite 1600 14 Portland, OR 97204 Phone: 503.221.1440 15 Fax: 503.274.8779 Email: frank. weiss@tonkon.com 16 Email: haley.morrison@tonkon.com Attorneys for Defendant Staya, Inc. 17 by the following indicated method(s): 18 x First Class Mail, postage prepaid, deposited in the US mail at Portland, OR 19 D Hand delivery D Facsimile transmission 20 D Overnight delivery x Email 21 D Electronic filing notification 22 Dated: September 11, 2019 23 24 25 Kristen G. Hilton 26 27 *25269-001 (03250705) 28 SUSSMAN SHANK -6- LLP DEFENDANT GEORGE CAROLLO'S ANSWER AND AFFIRMATIVE DEFENSES