Answer: COMMONWEALTH LAND TITLE INSURANCE COMPANY VS. FEDEX OFFICE AND PRINT SERVICES, INC et al (PROVIDE ACCESS)

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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

Document Scanning Lead Sheet
Dec-30-2010 9:03 am

Case Number: CGC-10-503332
Filing Date: Dec-gg-2010 9:01
Juke Box: 001 Image: 03077009
ANSWER

INWEALTH LAND TITLE INSURANCE COMPANY VS. FEDEX OFFICE AND PRINT SERVI

001003077009

Instructions:
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Craig J. Bassett (SB# 106825) F I

Attorney at Law Sugari iL E

25 W. First Street weg adtenD

Morgan Hill, CA 95037-4559 0

TEL (408) 779-0007 C$ 6 2010

FAX (408) 778-6005 CLERK OF T,

EMAIL cbassett@garlic.com By HE COuRT
‘Sopaly Gisa—

Attorneys for Defendants

JAY CHANDRAKANT SHAH

and ELVIA PALOMINO.

SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN FRANCISCO
Civil Division, 400 McAllister Street, San Francisco, California 94102-4514
(Unlimited Jurisdiction Civil Case)

COMMONWEALTH LAND TITLE Case No. CGC-10-503332

INSURANCE COMPANY; ANSWER (GENERAL DENIAL) OF SHAH
Plaintiff, AND PALOMINO TO COMPLAINT
YS: Complaint Filed: Sep 08 2010
FEDEX OFFICE AND PRINT Trial: No Date Set

SERVICES, INC.; WINSTON LUM; CMC: Feb 10 2011 9:00 a.m. Dept. 212

BRUNO AESCHBACHER; STEPHEN
FELLMANN; KAUSHAL NIROULA,
JAY CHANDRAKANT SHAH; ELVIA
PALOMINO; MORAD AFRAIMI;
MELVIN LEE EMERICH; MARTINI &
CHNOOGLE: GRACHELLE
LANGUBAN; and DOES | to 25:

Defendants.

Each of defendants (1) JAY CHANDRAKANT SHAH and (2) ELVIA PALOMINO
(erroneously sued herein under the name of “ELVIA PALIMINO”) in answer to the complaint of
plaintiff COMMONWEALTH LAND TITLE INSURANCE COMPANY on file herein admits,

denies, and alleges as follows:

-1-

Answer (General Denial) of Shah and Palomino to Complaint December 22, 2010iy L GENERAL DENIAL

Under the provisions of section 431.30(d) of the California Code of Civil Procedure, as

we

3 || amended, this answering defendant generally denies each and every and all the allegations in said
4 || complaint, and the whole thereof, and further denies that plaintiffhas sustained damages in any sum

s | or sums whatsoever and further denies that plaintiff is entitled to any relief against this answering

6 |) defendant.
7 O. AFFIRMATIVE DEFENSES
8 Defendant asserts the following affirmative defenses. By alleging the matters set forth in

o | these defenses, defendant does not allege or admit that it has the burden of proof or persuasion with
10 || respect to any of these matters. Additionally, the complaint does not describe the claims or facts
it {| with sufficient particularity to permit this answering defendant to ascertain what other defenses may
12 | exist. This answering defendant will rely on any and all further defenses that become available or
13 | appear during discovery in this action and specifically reserves the right to amend this answer for
14 |] the purposes of asserting such additional defenses.

15 1. Failure to State a Cause of Action. The complaint, and each cause of action therein,

16 || fails to state facts sufficient to constitute a cause of action against this answering defendant.

17 2. Failure to State a cause of Action for Punitive Damages. The complaint, and each
1s | cause of action therein, fails to state facts sufficient to constitute a cause of action for punitive
19 || damages against this answering defendant.

20 3. Contributory Negligence — Plaintiff. Plaintiff was careless and negligent in and
21 || about the matters alleged in the complaint, and that said carelessness and negligence proximately
2 || caused or contributed to the happening of the incidents giving rise to the complaint, and to the
23 | damages complained of, if any, and that such fault bars and/or proportionately reduces any recovery
24 || plaintiff may have against this answering defendant.

25 4. Contributory Negligence of Others. Persons or entities other than plaintiff and this

answering defendant, to wit, all other defendants, including DOES named in the complaint, were

-2-

Answer (General Denial) of Shah and Palomino to Complaint December 22, 20102

ee a

careless and negligent in and about the matters alleged in the complaint, and that said carelessness
and negligence proximately caused or contributed to the happening of the incidents giving rise to the
complaint, and to the damages complained of, if any, and that such fault bars and/or proportionately
reduces any recovery plaintiff may have against this answering defendant.

5. Willful Misconduct of Others. Defendant was relieved of liability to plaintiff by
the contributory willful misconduct of the other defendants herein, including the DOE defendants.

6. Failure to Mitigate. Plaintiff failed and neglected to use reasonable care to mitigate
the losses, injury and damage complained of, if any there were, and is barred from recovery in whole
or in part by said failure to mitigate.

7. Discovery is Not Completed — Reservation of Rights. As to the complaint and
each cause of action alleged therein, discovery is not completed, and on the basis of said discovery
other affirmative defenses may become known or substantiated. This answering defendant reserves
the right to add said affirmative defenses within a reasonable time after the facts underlying said
affirmative defenses may become known to this answering defendant.

8. Indemnification. Should defendant be held liable, defendant is entitled to
indemnification, either in whole or in part, from all persons or entities whose negligence and/or fault
proximately contributed to the damages alleged in the complaint, if any there were.

9. Comparative Fault. Plaintiff is at fault in and about the matters referred to in the
complaint, and each cause of action alleged therein, and such fault on its part proximately caused and
contributed to the damages complained of, if any there were. Any fault not attributable to plaintiff
is the result of fault on the part of persons and/or entities other than this answering defendant. Such
fault bars and proportionately reduces any recovery by plaintiff against this answering defendant.

10. Conclusionary Terms — Reservation of Rights. The complaint, and each cause
of action therein, is stated in conclusionary terms and, therefore, this answering defendant cannot
fully anticipate all affirmative defenses that may be applicable to this action. Accordingly, this
answering defendant hereby reserves its right to add additional affirmative defenses, if and to the
extent such affirmative defenses are applicable to this action.

-3-

Answer (General Denial) of Shah and Palomino to Complaint December 22, 20102

11, Failure to Exercise Care and Caution. The complaint, and each cause of action
alleged therein, is barred in whole or in part in that plaintiff failed to exercise the quality and quantity
of care and caution which a reasonable individual in similar circumstances would have exercised;
said failure and negligence of plaintiff proximately caused and contributed to its alleged damages,
and the recovery, if any, of plaintiff is thereby diminished or barred.

12. Active Negligence of Plaintiff. The negligence and carelessness of plaintiff was
primary, active and direct, whereas the negligence and carelessness, if any, of this answering
defendant was secondary, passive, and/or indirect, completely barring recovery herein by plaintiff.

13. No Joint and Several Liability. The complaint, and each cause of action therein,
fails to state facts, or to allege claims, which would impose joint and several liability for any of the
damages claimed by any party against this answering defendant. Any liability of this answering
defendant, which liability is expressly denied, would therefore be limited to those injuries, losses,
or damages, if any there were, for which this answering defendant's actionable conduct, if any, was
a primary contributing factor.

14. Waiver. The causes of action are barred, in whole or in part, by the doctrine of
waiver.

15. Estoppel. The causes of action are barred, in whole or in part, by the doctrine of
estoppel.

16. | Unclean Hands. The causes of action are barred, in whole or in part, by misconduct
of plaintiff that relates to plaintiff's causes of action, which misconduct constitutes unclean hands.

17. Breach of Agreement. Plaintiff materially breached the agreements which excused
defendant’s performance thereunder.

18. Set-Off. Defendant is entitled to set-off against money due to plaintiff, which

defendant disclaims any liability for.

Dated: December 22, 2010

Craig J. > Attorney for Defendants
JAY CHANDRAKANT SHAH and
ELVIA PALOMINO

-4-
Answer (General Denial) of Shah and Palomino to Complaint December 22. 2010o
~~

ATTORNEY FOR PARTY MAKING SERVICE (Name, state bar number, and address); FOR COURT USE ONLY:

Craig J. Bassett, Attorney at Law, SB# 106825

25 W. 1" Street, Morgan Hill, CA 95037-4559

TEL (408) 779-0007 FAX (408) 778-6005

EMAIL chbassett@garlic.com

ATTORNEY FOR (Name; Defendants JAY CHANDRAKANT
SHAH and ELVIA PALOMINO

———

NAME AND ADDRESS OF COURT:
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

Civil Division, 400 McAllister Street
San Francisco, CA 94102-4514
(Unlimited Jurisdiction Civil Case)

TITLE OF CASE (ABBREVIATED): CASE NUMBER:
CommonWealth Land Title Ins. Co. v. CGC-10-503332
FedEx Office and Print Services, Inc.

PROOF OF SERVICE BY REGULAR MAIL

STATE OF CALIFORNIA } ss.
COUNTY OF SANTA CLARA )

Iam a citizen of the United States and a resident of the county aforesaid; I am over the age of
eighteen years and not a party to the within entitled action; my business address is shown above.

On the date set out below I served a copy of the document described below on the attorneys
ot parties of record in said action, by placing a true copy thereof enclosed in a sealed envelope with
postage thereon fully prepaid deposited directly in the United States mail at Morgan Hill, California
addressed as follows:

DOCUMENT(S);
« ANSWER (GENERAL DENIAL) OF SHAH AND PALOMINO TO COMPLAINT

ATTORNEYS FOR PLAINITFF COMMONWEALTH:
Edward A. Kunnes, Peter K. Wolff, Jr.
Fidelity National Law Group

100 N. Wiget Lane, Suite 150

Walnut Creek, CA 94598-5900

TEL (925) 930-9550

FAX (925) 930-9588

EMAIL ekunnesé fhf.com

EMAIL pwolff@fnf.com

ATTORNEYS FOR DEFENDANT FEDEX OFFICE:
David A. Clinton, Todd M. Austin
Clinton & Clinton

100 Oceangate, Suite 1400

Long Beach, CA 90802-4323

TEL (562) 216-5000

FAX (562) 216-5001

EMAIL delinton@clinton-clinton.com
EMAIL taustin@ clinton-clinton.com

ee
CCP §¥ 1013, 1013a PROOF OF SERVICE BY REGULAR MAIL December 22, 2010DEFENDANT NIROULA PRO SE:
Kaushal Niroula [Booking # 200910575]
Indio Jail Facility
46057 Oasis Street
Indio, CA 92201-5906

DEFENDANT LUM PR0 SE:
Winston Lum [inmate [D# 00662778]

San Francisco County Jail #3, Hall of Justice
850 Bryant Street, 6" Floor

San Francisco, CA 94103-4613

ATTORNEYS FOR DEFENDANT AFRAIME:
Frederick D. Williams
Attorney at Law

5515 Wedekind Road

Sparks, NV 89431-1147

TEL (775) 358-1958

FAX (775) 358-3035

EMAIL rickerwill@sbeglobal.net

CRIMINAL ATTORNEYS FOR DEFENDANT SHAH:
Dek Ketchum, Jenny D. Smith
Attorneys at Law

900 Veterans Blvd., Suite 600
Redwood City, CA 94063-1744

TEL (650) 368-2588

FAX (650) 369-7183

EMAIL dekket@aol.com

EMAIL jdsmithjd@comcast.net

DEFENDANT EMERICH PRO SE AND ATTORNEY FOR
CORPORATE DEFENDANT MARTINI & CHNOOGLE:

Melvin Lee Emerich [Inmate ID# 00666674]
San Francisco County Jail #5
1 Moreland Drive

P.O. Box 67

San Bruno, CA 94066-0067

DEFENDANT LANGUBAN PRO SE:
Grachelle Languban [Inmate ID# 00673422]
San Francisco County Jail #2

425 7" Street

San Francisco, CA 94103-4500

ATTORNEY FOR DEFENDANT LUM:
Michael M. L. Ching
Cannata, Ching & O’Toole LLP
100 Pine Street, Suite 1775

San Francisco, CA 94111-5127
TEL (415) 409-8900

FAX (415) 409-8904

EMAIL mehiny@eccolaw.com

DEFENDANT AFRAIME:
Morad A fraimi

912 Edge Cliff Drive
Reno, NV 89523-9410

I declare under penalty of perjury under the laws of the State 9) ria that the foregoing

is true and correct.

Dated: December 22, 2010

Craig J. Bi ailing Declarant

CCP §§ 1013, 1013a PROOF OF SERVICE BY REGULAR MAIL December 22, 2010