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James W. Rushford, Esq. (SBN 088739)
Hasan B. Shaik, Esq. (SBN 311239)
August A. P. Beam, Esq. (SBN 308474)
GURNEE MASON RUSHFORD
BONOTTO & FORESTIERE, LLP ELECTRONICALLY
2240 Douglas Blvd., Ste. 150 FILED
Roseville, CA 95661 Superior Court of California,
Phone: (916) 797-3100 County of San Francisco
Fax: er 797-3131 01/15/2020
jrushford@gurneelaw.com Clerk of the Court
shaik@gurneelaw.com BY: Sean puke Clerk
abeam@gurneelaw.com
Attorneys for Defendant,
JEWISH SENIOR LIVING GROUP
SUPERIOR COURT OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
JOSE MANULAT, by and through his ) Case No.: CGC-19-576935
Guardian ad Litem, Rodulfo
Manulat, DEFENDANT JEWISH SENIOR
Plaintiffs, LIVING GROUP’S ANSWER TO
PLAINTIFFS’ FIRST AMENDED
vs. COMPLAINT
surg genon srs pour
BA N
SERVICES, INC.; HEBREW HOME COMPLAINT FILED: 06/24/19
FOR AGED DISABLED, INC. dba ee
JEWISH HOME & REHAB CENTER
D/P SNF; SAN FRANCISCO CAMPUS
FOR JEWISH LIVING; and Does 1
through 100, inclusive
Defendants.
Comes now defendant, Jewish Senior Living Group, a California
nonprofit public benefit corporation, and in answer to the Plaintiffs’ First
Amended Complaint (hereinafter “Complaint”) on file herein, admits,
denies and alleges as follows:
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DEFENDANT JEWISH SENIOR LIVING GROUP’S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINTow On DH BF WN
NNNNNNNNN BBB BB Be Be Be
oarvagckR OnF FC BOaOUTSHKRBONES
GENERAL DENIAL
1. Pursuant to section 431.30 of the California Code of Civil
Procedure, this answering defendant denies each, every and all of the
allegations of the said Complaint, and the whole thereof, and deny that the
plaintiff has sustained damages in the sum or sums alleged, or in any other
sum, or at all.
2. Further answering the plaintiffs’ Complaint on file herein, and
the whole thereof, this answering defendant denies that the plaintiff has
sustained any injury, damage or loss, if any, by reason of any act or
omission of this answering defendant or their agents or employees.
3. Further, this answering defendant specifically denies it has ever
been the subject of prior lawsuits relating to patient care, including the
Feygenberg and Khazanov matters as alleged on page 14 of Plaintiffs’
unverified Complaint.
FIRST AFFIRMATIVE DEFENSE
Failure to State a Cause of Action
This answering defendant alleges that the Complaint fails to state
facts sufficient to constitute a cause of action, or any cause of action,
against this answering defendant.
SECOND AFFIRMATIVE DEFENSE
No Custodial Relationship
This answering defendant alleges that at all times relevant herein,
there was never any caretaking or custodial relationship, involving ongoing
responsibility for one or more of decedent’s basic needs between plaintiffs
or decedent and this answering defendant so as to support a claim for
elder abuse per Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th
148; nor was defendant at any time a “Care Custodian” of decedent as that
term is defined in Welfare & Institutions Code Sec. 15610.17.
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DEFENDANT JEWISH SENIOR LIVING GROUP’S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINTow ON DH BF WN
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THIRD AFFIRMATIVE DEFENSE
No Control
This answering defendant alleges that it is not, and has never been,
an owner of the subject “FACILITY” (as that term is used in plaintiffs’
unverified Complaint), an occupant of the subject FACILITY, an operator of
the subject FACILITY; nor has this answering defendant ever had control or
a right to control or possess the subject FACILITY.
FOURTH AFFIRMATIVE DEFENSE
Medical Expenses Paid
To the extent that decedent’s expenses for past medical care and
services have been paid, either by decedent, plaintiffs, or by an
independent source, the maximum amount plaintiffs may recover for that
care is the amount paid, and accepted as payment in full, by the medical
care provider, despite the fact that it is less than the prevailing market rate
or rates otherwise charged by the provider for that same care or those
same services. (Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308;
Howell v. Hamilton Meats & Provisions (2011) 52 Cal.4th 541; Hanif v.
Housing Authority (1988) 200 Cal.App.3d 635; Nishihama v. City and
County of San Francisco (2001) 93 Cal.App.4th 298, 306; Cabrera v. Rojas
(2011) 192 Cal.App.4th 1319 and related subsequent case authority.)
FIFTH AFFIRMATIVE DEFENSE
No Cause of Action for Punitive Damages
This answering defendant alleges that the Complaint fails to state
facts sufficient to set forth a claim for punitive damages pursuant to
California Civil Code sections 3294 and 3295.
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DEFENDANT JEWISH SENIOR LIVING GROUP’S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINToOo On DUH FF WN
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SIXTH AFFIRMATIVE DEFENSE
No Liability for Acts of Others
That other defendants in this lawsuit, as well as other persons and
entities not parties to this lawsuit, were themselves responsible for the
plaintiffs’ damages, if any there were. This defendant requests that its
liability, if any, be assessed in proportion to the liability of other co-
defendants, persons and entities who are not parties to this action, and
that this defendant be required to pay only for their proportionate share of
fault, if any there be.
SEVENTH AFFIRMATIVE DEFENSE
Comparative Negligence of Plaintiff
This answering defendant alleges that at the time and place referred
to in said Complaint and immediately prior thereto, decedent was careless
and negligent in that decedent failed to exercise ordinary care for his own
safety, and such carelessness and negligence on the part of decedent
caused and contributed to the injuries and damages complained of, if any
there were; and that by reason of the doctrine of comparative negligence,
plaintiffs are barred from recovery, in whole and/or in part, of such portion
of said damages, if any, as resulted from the aforementioned conduct.
EIGHTH AFFIRMATIVE DEFENSE
Contributory Negligence of Third Parties
This answering defendant alleges that at the time and place referred
to in said Complaint and immediately prior thereto, other defendants in this
lawsuit, as well as other persons and entities not parties to this lawsuit,
were themselves careless and negligent in that such third parties failed to
exercise ordinary care for their own safety, and such carelessness and
negligence on the part of any third party caused and contributed to the
injuries and damages complained of, if any there were; and that by reason
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DEFENDANT JEWISH SENIOR LIVING GROUP’S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINToO ON DUH FF WN
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of the doctrine of comparative negligence, plaintiffs’ are barred from
recovery, in whole and/or in part, of such portion of said damages, if any,
as resulted from the aforementioned conduct.
NINTH AFFIRMATIVE DEFENSE
Superseding Intervening Acts of Third Parties
This answering defendant alleges that plaintiffs’ alleged injuries and
damages, if any, were caused by the intervening, superseding negligence
or other wrongful conduct of either parties to this litigation and/or unknown
third parties, and not by this answering defendant. This answering
defendant alleges that such conduct of the other parties to this litigation or
the unknown third parties, who were not under the supervision or control
of this answering defendant was unforeseeable.
TENTH AFFIRMATIVE DEFENSE
Apportionment of Fault
As to each and every cause of action set forth in the Complaint, this
answering defendant alleges that to the extent, and only in the event, that
it is found liable to plaintiffs in any sum whatsoever, which liability
defendant expressly denies and disputes, such liability in whole or in part
will be the direct or imputed fault and responsibility of other parties to this
litigation, be they the decedent, plaintiffs, cross-complainants or cross-
defendants, and/or other third parties. As a result, this defendant requests
that in such an event, an apportionment of fault and responsibility be made
among all parties in accordance with those equitable apportionment
principles set forth in Li v. Yellow Cab Company (1975) 13 Cal.3d 804, and
American Motorcycle Association v. Superior Court (1978) 20 Cal.3d 578.
This defendant further requests that a judgment and declaration of total or
partial indemnification and distribution issue against all other parties in
accordance with such apportionment of fault and responsibility.
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DEFENDANT JEWISH SENIOR LIVING GROUP’S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINToO ON DH RWN KB
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ELEVENTH AFFIRMATIVE DEFENSE
Waiver and Release
This answering defendant alleges that the Complaint and each of its
causes of action are barred because the plaintiffs, through statements,
actions and conduct, have voluntarily and knowingly waived and released
all rights, claims and causes of action, if any, against this answering
defendant in this action.
TWELFTH AFFIRMATIVE DEFENSE
Knowledge/Consent
This answering defendant alleges that defendant is informed and
believes, and on that ground alleges, that the plaintiffs and plaintiffs’
representatives had knowledge of the acts/events giving rise to plaintiffs’
Complaint and consented to such acts/events.
THIRTEENTH AFFIRMATIVE DEFENSE
Statute of Limitations
This answering defendant alleges that this Complaint, and each cause
of action thereof, is barred by the statute of limitations set forth in the
California Code of Civil Procedure, commencing with section 312 and
continuing through section 349.4, more particularly, but not limited to, the
following: section 335.1, 337, section 337.1, section 337.15, section 338,
section 339, section 340.5 and, section 364, including the notice of intent
required thereby.
FOURTEENTH AFFIRMATIVE DEFENSE
Laches
This answering defendant alleges that plaintiffs have unreasonably
delayed in the bringing of this action without good cause therefore. Said
delay has directly resulted in prejudice to this defendant, and this action is,
therefore, barred by the Doctrine of Laches.
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DEFENDANT JEWISH SENIOR LIVING GROUP’S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINToOo ON DH RW YN
NNN NNNNN YN BBB Be Be Be Be Be eB
aoanN DU BWNYN RF TODO HO DBN DUH KF WN FP OC
FIFTEENTH AFFIRMATIVE DEFENSE
Primary/Secondary Conduct
This answering defendant alleges that if, and to the extent, any other
party to this action is found to be liable to plaintiffs, such liability will
attach by reason of the active and primary negligence, misconduct, fault,
or error of the other party or third person and that any such negligence,
misconduct, fault, or error bars plaintiffs from seeking damages and/or
indemnity from this answering defendant who denies any negligence, fault,
or misconduct on defendant's part.
SIXTEENTH AFFIRMATIVE DEFENSE
Proposition 51
This answering defendant alleges that its liability for damages, if any,
should be reduced pursuant to the provisions of California Civil Code
section 1431, et seq.
SEVENTEENTH AFFIRMATIVE DEFENSE
Failure to Mitigate
This answering defendant alleges that plaintiffs and decedent, with
the exercise of reasonable diligence and effort, would have and could have
mitigated the damages alleged in the Complaint, if indeed any there are;
that the resultant damages, if any, complained of in said Complaint were
directly caused by the failure, negligence and refusal of the plaintiffs
and/or decedent to exercise reasonable diligence in an effort to mitigate
the damages alleged.
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DEFENDANT JEWISH SENIOR LIVING GROUP’S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINToO ON DH FWY
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EIGHTEENTH AFFIRMATIVE DEFENSE
No Notice
This answering defendant alleges that the conditions alleged in
plaintiffs’ Complaint on file herein were conditions of which this answering
defendant did not have notice, either actual and/or constructive and had
insufficient time, and indeed had no authority, prior to the alleged incident
to have taken any remedial action.
NINETEENTH AFFIRMATIVE DEFENSE
Standing
This answering defendant aileges that piaintiffs lack standing to sue
this answering defendant.
TWENTIETH AFFIRMATIVE DEFENSE
Reduction of Damages
This answering defendant alleges that the plaintiffs are barred, in
whole or in part, from any recovery in this action to the extent that any
consideration from this answering defendant, or from anyone else in
satisfaction of any purported rights, claims, or causes of action as alleged
in the Complaint were received.
TWENTY-FIRST AFFIRMATIVE DEFENSE
Good Faith Defense
This answering defendant alleges that all of the actions taken with
respect to the decedent were made in good faith, within the scope of the
duties of the defendant, and their employees, and in the best interests of
the plaintiffs and/or decedent in a manner which was not reckless, wanton,
intentional or grossly negligent.
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DEFENDANT JEWISH SENIOR LIVING GROUP’S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINToO ON DUM FF WN
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TWENTY-SECOND AFFIRMATIVE DEFENSE
Estoppel
This answering defendant alleges that plaintiffs and/or plaintiffs’
representatives directed, ordered, approved, and/or ratified defendants’
conduct, and plaintiffs are therefore estopped from asserting any claim
based thereon.
TWENTY-THIRD AFFIRMATIVE DEFENSE
Unclean Hands
This answering defendant alleges that plaintiffs’ Complaint, and each
cause of action thereof, is barred by virtue of the conduct of plaintiffs
and/or plaintiffs’ representatives relating to the alleged incidents giving rise
to this litigation under the doctrine of unclean hands.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
Attorneys' Fees
This answering defendant alleges that in the event that this
answering defendant is determined to be the prevailing party relative to
plaintiffs’ claims, defendant shall be entitled to recover reasonable attorney
fees and costs pursuant to Code of Civil Procedure section 1021.6 and Civil
Code section 1717.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
Spoliation of Evidence
This answering defendant alleges that the Complaint and each cause
of action contained therein are absolutely barred to the extent, and in the
event, that plaintiffs are found to be liable to any party, including this
answering defendant, or any other party, excluding this answering
defendant, are found liable to plaintiffs by reason of their willful misconduct
and concealment, intentional and/or negligent spoliation of crucial physical
evidence, interference with this defendant's work and/or work product, and
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DEFENDANT JEWISH SENIOR LIVING GROUP’S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINTOo ON DH BW NY
NNNNNNNNN KBB BRB BB Be
eavac kK ONXFFCoOaUVaankR Wns
that such willful misconduct, concealment, spoliation, and interference will
absolutely bar plaintiffs and all other parties from any right to recover
anything from this answering defendant.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
Collateral Source
This answering defendant alleges that Plaintiffs’ medical, hospital and
related obligations and expenses and other items alleged as Special
Damages have been compensated and reimbursed by third parties.
Accordingly, pursuant to Civil Code Sec. 3333.1, plaintiffs are barred from
recovering the same in this action.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
Limitations on Non-Economic Damages
This answering defendant alleges plaintiffs’ non-economic damages,
if any, are limited to $250,000 pursuant to the provisions of Civil Code Sec.
3333.2.
PRAYER
WHEREFORE, Defendant Jewish Senior Living Group prays that:
1. This lawsuit be tried before a jury;
2. Plaintiffs’ request for relief, in all respects, be denied, and that
plaintiffs take nothing by this action;
3. Judgment be entered dismissing the Complaint and each cause
of action alleged against this answering defendant;
4, Defendant be awarded costs of suit incurred in this action,
including reasonable attorneys’ fees; and
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DEFENDANT JEWISH SENIOR LIVING GROUP’S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINTow ON DUH RF WN
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5. The Court grant such other further relief as may be deemed
just and proper.
Dated: January 15, 2020
GURNEE MASON RUSHFORD
BONOTTO & FORESTIERE, LLP
By: Ss
James W. Rushford
August A. P. Beam
Attorneys for Defendant, JEWISH
SENIOR LIVING GROUP
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DEFENDANT JEWISH SENIOR LIVING GROUP’S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINToO ON DH BW DN
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PROOF OF SERVICE
(CCP §§1013(a) and 2015.5)
I, Siobhan Riggs, declare that:
I am a citizen of the United States and am employed in Placer County,
California. I am over the age of 18 years and not a party to this action. My
business address is 2240 Douglas Boulevard, Suite 150, Roseville, CA 95661.
On 1/15/20, I served the attached document entitled DEFENDANT
JEWISH SENIOR LIVING GROUP’S ANSWER TO PLAINTIFFS’ FIRST
AMENDED COMPLAINT on the following parties as listed below:
Kathryn A. Stebner, Esq. Attorneys for Plaintiff
George N. Kawamoto, Esq. Phone: (415) 362-9800
Stebner & Associates Fax: (415) 362-9801
870 Market Street, Ste. 1212 kathryn@stebnerassociates.com
San Francisco, CA 94102 george@stebnerassociates.com
Craig E. Needham, Esq. Co-Counsel for Plaintiff
Kirsten M. Fish, Esq. Phone: (408) 244-2166
Needham Kepner & Fish, LLP Fax: (408) 244-7815
1960 The Alameda, Ste. 210 cneedham@nkf-law.com
San Jose, CA 95126-1451 kfish@nkf-law.com
Vincent W. Marsella, Esq. Attorney for Co-Defendant Hebrew
Lewis Brisbois Bisgaard & Smith LLP, Home for the Aged
333 Bush St Ste 1100 Phone: (415) 262-8599
San Francisco, CA 94104-2875 Fax: (415) 434-0882
Vincent.Marsella@lewisbrisbois.com
The following is the procedure in which service of this document was
affected:
XX | Via Notice of Electronic Service - Counsel who have consented to
electronic service have been automatically served by the Notice of Electronic
Filing, which is automatically generated by File & Serve Xpress at the time said
document was filed.
I hereby declare under penalty of perjury under the laws of the State of
California that the foregoing is true and correct. Executed on 1/15/20, in
Roseville, California.
(lu Riggs)
“illwatig sorh
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DEFENDANT JEWISH SENIOR LIVING GROUP’S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT
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oO On DH FF WN 10 James W. Rushford, Esq. (SBN 088739) Hasan B. Shaik, Esq. (SBN 311239) August A. P. Beam, Esq. (SBN 308474) GURNEE MASON RUSHFORD BONOTTO & FORESTIERE, LLP ELECTRONICALLY 2240 Douglas Blvd., Ste. 150 FILED Roseville, CA 95661 Superior Court of California, Phone: (916) 797-3100 County of San Francisco Fax: er 797-3131 01/15/2020 jrushford@gurneelaw.com Clerk of the Court shaik@gurneelaw.com BY: Sean puke Clerk abeam@gurneelaw.com Attorneys for Defendant, JEWISH SENIOR LIVING GROUP SUPERIOR COURT OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO JOSE MANULAT, by and through his ) Case No.: CGC-19-576935 Guardian ad Litem, Rodulfo Manulat, DEFENDANT JEWISH SENIOR Plaintiffs, LIVING GROUP’S ANSWER TO PLAINTIFFS’ FIRST AMENDED vs. COMPLAINT surg genon srs pour BA N SERVICES, INC.; HEBREW HOME COMPLAINT FILED: 06/24/19 FOR AGED DISABLED, INC. dba ee JEWISH HOME & REHAB CENTER D/P SNF; SAN FRANCISCO CAMPUS FOR JEWISH LIVING; and Does 1 through 100, inclusive Defendants. Comes now defendant, Jewish Senior Living Group, a California nonprofit public benefit corporation, and in answer to the Plaintiffs’ First Amended Complaint (hereinafter “Complaint”) on file herein, admits, denies and alleges as follows: /// /// 1 DEFENDANT JEWISH SENIOR LIVING GROUP’S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINTow On DH BF WN NNNNNNNNN BBB BB Be Be Be oarvagckR OnF FC BOaOUTSHKRBONES GENERAL DENIAL 1. Pursuant to section 431.30 of the California Code of Civil Procedure, this answering defendant denies each, every and all of the allegations of the said Complaint, and the whole thereof, and deny that the plaintiff has sustained damages in the sum or sums alleged, or in any other sum, or at all. 2. Further answering the plaintiffs’ Complaint on file herein, and the whole thereof, this answering defendant denies that the plaintiff has sustained any injury, damage or loss, if any, by reason of any act or omission of this answering defendant or their agents or employees. 3. Further, this answering defendant specifically denies it has ever been the subject of prior lawsuits relating to patient care, including the Feygenberg and Khazanov matters as alleged on page 14 of Plaintiffs’ unverified Complaint. FIRST AFFIRMATIVE DEFENSE Failure to State a Cause of Action This answering defendant alleges that the Complaint fails to state facts sufficient to constitute a cause of action, or any cause of action, against this answering defendant. SECOND AFFIRMATIVE DEFENSE No Custodial Relationship This answering defendant alleges that at all times relevant herein, there was never any caretaking or custodial relationship, involving ongoing responsibility for one or more of decedent’s basic needs between plaintiffs or decedent and this answering defendant so as to support a claim for elder abuse per Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148; nor was defendant at any time a “Care Custodian” of decedent as that term is defined in Welfare & Institutions Code Sec. 15610.17. 2 DEFENDANT JEWISH SENIOR LIVING GROUP’S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINTow ON DH BF WN 10 THIRD AFFIRMATIVE DEFENSE No Control This answering defendant alleges that it is not, and has never been, an owner of the subject “FACILITY” (as that term is used in plaintiffs’ unverified Complaint), an occupant of the subject FACILITY, an operator of the subject FACILITY; nor has this answering defendant ever had control or a right to control or possess the subject FACILITY. FOURTH AFFIRMATIVE DEFENSE Medical Expenses Paid To the extent that decedent’s expenses for past medical care and services have been paid, either by decedent, plaintiffs, or by an independent source, the maximum amount plaintiffs may recover for that care is the amount paid, and accepted as payment in full, by the medical care provider, despite the fact that it is less than the prevailing market rate or rates otherwise charged by the provider for that same care or those same services. (Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308; Howell v. Hamilton Meats & Provisions (2011) 52 Cal.4th 541; Hanif v. Housing Authority (1988) 200 Cal.App.3d 635; Nishihama v. City and County of San Francisco (2001) 93 Cal.App.4th 298, 306; Cabrera v. Rojas (2011) 192 Cal.App.4th 1319 and related subsequent case authority.) FIFTH AFFIRMATIVE DEFENSE No Cause of Action for Punitive Damages This answering defendant alleges that the Complaint fails to state facts sufficient to set forth a claim for punitive damages pursuant to California Civil Code sections 3294 and 3295. /// /// /// 3 DEFENDANT JEWISH SENIOR LIVING GROUP’S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINToOo On DUH FF WN 10 SIXTH AFFIRMATIVE DEFENSE No Liability for Acts of Others That other defendants in this lawsuit, as well as other persons and entities not parties to this lawsuit, were themselves responsible for the plaintiffs’ damages, if any there were. This defendant requests that its liability, if any, be assessed in proportion to the liability of other co- defendants, persons and entities who are not parties to this action, and that this defendant be required to pay only for their proportionate share of fault, if any there be. SEVENTH AFFIRMATIVE DEFENSE Comparative Negligence of Plaintiff This answering defendant alleges that at the time and place referred to in said Complaint and immediately prior thereto, decedent was careless and negligent in that decedent failed to exercise ordinary care for his own safety, and such carelessness and negligence on the part of decedent caused and contributed to the injuries and damages complained of, if any there were; and that by reason of the doctrine of comparative negligence, plaintiffs are barred from recovery, in whole and/or in part, of such portion of said damages, if any, as resulted from the aforementioned conduct. EIGHTH AFFIRMATIVE DEFENSE Contributory Negligence of Third Parties This answering defendant alleges that at the time and place referred to in said Complaint and immediately prior thereto, other defendants in this lawsuit, as well as other persons and entities not parties to this lawsuit, were themselves careless and negligent in that such third parties failed to exercise ordinary care for their own safety, and such carelessness and negligence on the part of any third party caused and contributed to the injuries and damages complained of, if any there were; and that by reason 4 DEFENDANT JEWISH SENIOR LIVING GROUP’S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINToO ON DUH FF WN 10 of the doctrine of comparative negligence, plaintiffs’ are barred from recovery, in whole and/or in part, of such portion of said damages, if any, as resulted from the aforementioned conduct. NINTH AFFIRMATIVE DEFENSE Superseding Intervening Acts of Third Parties This answering defendant alleges that plaintiffs’ alleged injuries and damages, if any, were caused by the intervening, superseding negligence or other wrongful conduct of either parties to this litigation and/or unknown third parties, and not by this answering defendant. This answering defendant alleges that such conduct of the other parties to this litigation or the unknown third parties, who were not under the supervision or control of this answering defendant was unforeseeable. TENTH AFFIRMATIVE DEFENSE Apportionment of Fault As to each and every cause of action set forth in the Complaint, this answering defendant alleges that to the extent, and only in the event, that it is found liable to plaintiffs in any sum whatsoever, which liability defendant expressly denies and disputes, such liability in whole or in part will be the direct or imputed fault and responsibility of other parties to this litigation, be they the decedent, plaintiffs, cross-complainants or cross- defendants, and/or other third parties. As a result, this defendant requests that in such an event, an apportionment of fault and responsibility be made among all parties in accordance with those equitable apportionment principles set forth in Li v. Yellow Cab Company (1975) 13 Cal.3d 804, and American Motorcycle Association v. Superior Court (1978) 20 Cal.3d 578. This defendant further requests that a judgment and declaration of total or partial indemnification and distribution issue against all other parties in accordance with such apportionment of fault and responsibility. 5 DEFENDANT JEWISH SENIOR LIVING GROUP’S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINToO ON DH RWN KB 10 ELEVENTH AFFIRMATIVE DEFENSE Waiver and Release This answering defendant alleges that the Complaint and each of its causes of action are barred because the plaintiffs, through statements, actions and conduct, have voluntarily and knowingly waived and released all rights, claims and causes of action, if any, against this answering defendant in this action. TWELFTH AFFIRMATIVE DEFENSE Knowledge/Consent This answering defendant alleges that defendant is informed and believes, and on that ground alleges, that the plaintiffs and plaintiffs’ representatives had knowledge of the acts/events giving rise to plaintiffs’ Complaint and consented to such acts/events. THIRTEENTH AFFIRMATIVE DEFENSE Statute of Limitations This answering defendant alleges that this Complaint, and each cause of action thereof, is barred by the statute of limitations set forth in the California Code of Civil Procedure, commencing with section 312 and continuing through section 349.4, more particularly, but not limited to, the following: section 335.1, 337, section 337.1, section 337.15, section 338, section 339, section 340.5 and, section 364, including the notice of intent required thereby. FOURTEENTH AFFIRMATIVE DEFENSE Laches This answering defendant alleges that plaintiffs have unreasonably delayed in the bringing of this action without good cause therefore. Said delay has directly resulted in prejudice to this defendant, and this action is, therefore, barred by the Doctrine of Laches. 6 DEFENDANT JEWISH SENIOR LIVING GROUP’S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINToOo ON DH RW YN NNN NNNNN YN BBB Be Be Be Be Be eB aoanN DU BWNYN RF TODO HO DBN DUH KF WN FP OC FIFTEENTH AFFIRMATIVE DEFENSE Primary/Secondary Conduct This answering defendant alleges that if, and to the extent, any other party to this action is found to be liable to plaintiffs, such liability will attach by reason of the active and primary negligence, misconduct, fault, or error of the other party or third person and that any such negligence, misconduct, fault, or error bars plaintiffs from seeking damages and/or indemnity from this answering defendant who denies any negligence, fault, or misconduct on defendant's part. SIXTEENTH AFFIRMATIVE DEFENSE Proposition 51 This answering defendant alleges that its liability for damages, if any, should be reduced pursuant to the provisions of California Civil Code section 1431, et seq. SEVENTEENTH AFFIRMATIVE DEFENSE Failure to Mitigate This answering defendant alleges that plaintiffs and decedent, with the exercise of reasonable diligence and effort, would have and could have mitigated the damages alleged in the Complaint, if indeed any there are; that the resultant damages, if any, complained of in said Complaint were directly caused by the failure, negligence and refusal of the plaintiffs and/or decedent to exercise reasonable diligence in an effort to mitigate the damages alleged. /// /// /// /// /// 7 DEFENDANT JEWISH SENIOR LIVING GROUP’S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINToO ON DH FWY 10 EIGHTEENTH AFFIRMATIVE DEFENSE No Notice This answering defendant alleges that the conditions alleged in plaintiffs’ Complaint on file herein were conditions of which this answering defendant did not have notice, either actual and/or constructive and had insufficient time, and indeed had no authority, prior to the alleged incident to have taken any remedial action. NINETEENTH AFFIRMATIVE DEFENSE Standing This answering defendant aileges that piaintiffs lack standing to sue this answering defendant. TWENTIETH AFFIRMATIVE DEFENSE Reduction of Damages This answering defendant alleges that the plaintiffs are barred, in whole or in part, from any recovery in this action to the extent that any consideration from this answering defendant, or from anyone else in satisfaction of any purported rights, claims, or causes of action as alleged in the Complaint were received. TWENTY-FIRST AFFIRMATIVE DEFENSE Good Faith Defense This answering defendant alleges that all of the actions taken with respect to the decedent were made in good faith, within the scope of the duties of the defendant, and their employees, and in the best interests of the plaintiffs and/or decedent in a manner which was not reckless, wanton, intentional or grossly negligent. /// /// /// 8 DEFENDANT JEWISH SENIOR LIVING GROUP’S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINToO ON DUM FF WN 10 TWENTY-SECOND AFFIRMATIVE DEFENSE Estoppel This answering defendant alleges that plaintiffs and/or plaintiffs’ representatives directed, ordered, approved, and/or ratified defendants’ conduct, and plaintiffs are therefore estopped from asserting any claim based thereon. TWENTY-THIRD AFFIRMATIVE DEFENSE Unclean Hands This answering defendant alleges that plaintiffs’ Complaint, and each cause of action thereof, is barred by virtue of the conduct of plaintiffs and/or plaintiffs’ representatives relating to the alleged incidents giving rise to this litigation under the doctrine of unclean hands. TWENTY-FIFTH AFFIRMATIVE DEFENSE Attorneys' Fees This answering defendant alleges that in the event that this answering defendant is determined to be the prevailing party relative to plaintiffs’ claims, defendant shall be entitled to recover reasonable attorney fees and costs pursuant to Code of Civil Procedure section 1021.6 and Civil Code section 1717. TWENTY-SIXTH AFFIRMATIVE DEFENSE Spoliation of Evidence This answering defendant alleges that the Complaint and each cause of action contained therein are absolutely barred to the extent, and in the event, that plaintiffs are found to be liable to any party, including this answering defendant, or any other party, excluding this answering defendant, are found liable to plaintiffs by reason of their willful misconduct and concealment, intentional and/or negligent spoliation of crucial physical evidence, interference with this defendant's work and/or work product, and 9 DEFENDANT JEWISH SENIOR LIVING GROUP’S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINTOo ON DH BW NY NNNNNNNNN KBB BRB BB Be eavac kK ONXFFCoOaUVaankR Wns that such willful misconduct, concealment, spoliation, and interference will absolutely bar plaintiffs and all other parties from any right to recover anything from this answering defendant. TWENTY-SEVENTH AFFIRMATIVE DEFENSE Collateral Source This answering defendant alleges that Plaintiffs’ medical, hospital and related obligations and expenses and other items alleged as Special Damages have been compensated and reimbursed by third parties. Accordingly, pursuant to Civil Code Sec. 3333.1, plaintiffs are barred from recovering the same in this action. TWENTY-EIGHTH AFFIRMATIVE DEFENSE Limitations on Non-Economic Damages This answering defendant alleges plaintiffs’ non-economic damages, if any, are limited to $250,000 pursuant to the provisions of Civil Code Sec. 3333.2. PRAYER WHEREFORE, Defendant Jewish Senior Living Group prays that: 1. This lawsuit be tried before a jury; 2. Plaintiffs’ request for relief, in all respects, be denied, and that plaintiffs take nothing by this action; 3. Judgment be entered dismissing the Complaint and each cause of action alleged against this answering defendant; 4, Defendant be awarded costs of suit incurred in this action, including reasonable attorneys’ fees; and /// /// /// /// 10 DEFENDANT JEWISH SENIOR LIVING GROUP’S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINTow ON DUH RF WN 10 5. The Court grant such other further relief as may be deemed just and proper. Dated: January 15, 2020 GURNEE MASON RUSHFORD BONOTTO & FORESTIERE, LLP By: Ss James W. Rushford August A. P. Beam Attorneys for Defendant, JEWISH SENIOR LIVING GROUP 11 DEFENDANT JEWISH SENIOR LIVING GROUP’S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINToO ON DH BW DN 10 PROOF OF SERVICE (CCP §§1013(a) and 2015.5) I, Siobhan Riggs, declare that: I am a citizen of the United States and am employed in Placer County, California. I am over the age of 18 years and not a party to this action. My business address is 2240 Douglas Boulevard, Suite 150, Roseville, CA 95661. On 1/15/20, I served the attached document entitled DEFENDANT JEWISH SENIOR LIVING GROUP’S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT on the following parties as listed below: Kathryn A. Stebner, Esq. Attorneys for Plaintiff George N. Kawamoto, Esq. Phone: (415) 362-9800 Stebner & Associates Fax: (415) 362-9801 870 Market Street, Ste. 1212 kathryn@stebnerassociates.com San Francisco, CA 94102 george@stebnerassociates.com Craig E. Needham, Esq. Co-Counsel for Plaintiff Kirsten M. Fish, Esq. Phone: (408) 244-2166 Needham Kepner & Fish, LLP Fax: (408) 244-7815 1960 The Alameda, Ste. 210 cneedham@nkf-law.com San Jose, CA 95126-1451 kfish@nkf-law.com Vincent W. Marsella, Esq. Attorney for Co-Defendant Hebrew Lewis Brisbois Bisgaard & Smith LLP, Home for the Aged 333 Bush St Ste 1100 Phone: (415) 262-8599 San Francisco, CA 94104-2875 Fax: (415) 434-0882 Vincent.Marsella@lewisbrisbois.com The following is the procedure in which service of this document was affected: XX | Via Notice of Electronic Service - Counsel who have consented to electronic service have been automatically served by the Notice of Electronic Filing, which is automatically generated by File & Serve Xpress at the time said document was filed. I hereby declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on 1/15/20, in Roseville, California. (lu Riggs) “illwatig sorh 12 DEFENDANT JEWISH SENIOR LIVING GROUP’S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT