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

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                MIO

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

Document Scanning Lead Sheet
Dec-20-2010 2:31 pm

Case Number: CGC-10-503332
Filing Date: Dec-20-2010 2:30
Juke Box: 001 Image: 03068513
ANSWER

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

001003068513

Instructions:
Please place this sheet on top of the document to be scanned.CANNATA, CHING & O'TOOLE LLP

ATTORNEYS AT LAW
400 Ping Street, Sulta 1775

San Francisc 0, CA 94111
TEL: (415)409-8900 » Fax: (415)408-8904

0 me YW A MH BF YN HK

Re
Nn - Oo

THERESE Y. CANNATA (SBN 88032)
MICHAEL M. CHING (SBN 209426)
JUNA KIM (SBN 230100)
CANNATA, CHING & O°TOOLE LLP
100 Pine Street, Suite 1775 Superior ¢ 4
San Francisco, CA 94111 ‘ourt of California
Telephone: (415) 409-8900 County ef an Prenat
Facsimile: (415) 409-8904 DEC 90 29 10
Attorneys for Defendant OLEH 4 .
WINSTON LUM By. UAT
Deputy Clerk”
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
COMMONWEALTH LAND TITLE CASE NO. CGC-10-503332
INSURANCE COMPANY,
DEFENDANT WINSTON LUM’S
Plaintiff, ANSWER TO PLAINTIFF’S UNVERIFIED
COMPLAINT
vs. /

FEDEX OFFICE AND PRINT SERVICES,
INC.; WINSTON LUM; BRUNO
AESCHBACHER; STEPHEN
FELLMANN; KAUSHAL NIROULA; JAY
CHANDRAKANT SHAH; ELVIA
PALIMINO; MORAD AFRAIMI; MELVIN
LEE EMERICH; MARTINI &
CHNOOGLE; GRACHELLE LANGUBAN,
and DOES 1-25,

BY FAX

Defendants.

Defendant Winston Lum (“Lum” or “defendant”), individually, answers the unverified
Complaint ("Complaint") of Commonwealth Land Title Insurance Company (“Plaintiff”) as
follows:

GENERAL DENIAL

Lum denies, generally and specifically, all and singularly, each and every allegation
contained in the Complaint as they apply to this answering defendant, and each applicable cause
of action therein, and specifically denies that Lum is liable to Plaintiff under the theories or in the
manner set forth in the Complaint. Lum further denies that Plaintiff had been damaged or injured

1 53010,umanswer 10 complaint wpd
DEFENDANT WINSTON LUM’S ANSWER TO UNVERIFIED COMPLAINTCANNATA, CHING & O'TOOLE LLP

ATTORNEYS AT LAW
100 Pine Street, Suite 1775

San Francisc 0, CA941114
TEL: (415)409-8900 © Fax: (415}409-8904

-_
Ne!

1 |) as alleged or in any sum or sums as a result of any conduct of these defendants, or by reason of
any act or omission by Lum.
AFFIRMATIVE DEFENSES
1. AS A FIRST SEPARATE AND AFFIRMATIVE DEFENSE, Lum alleges that the

2
3
4
5 | Complaint, and each and every cause of action set forth therein, fails to state a claim upon which
6 | xelief may be granted.

7 2. AS A SECOND SEPARATE AND AFFIRMATIVE DEFENSE, Lum alleges that
8 | Plaintiff has suffered no damages as an actual or proximate result of any acts or omissions

g | attributable to Lum.

10 3. AS A THIRD SEPARATE AND AFFIRMATIVE DEFENSE, Lum alleges that
11] Plaintiff is barred from any recovery on any alleged cause of action in the Complaint by reason of
12) their own negligence and other superseding conduct relating to the matters set forth in the

13 1 Complaint. Said acts or omissions by Plaintiff contributed substantially or completely to any

44] harm they may have suffered, and Lum is entitled to have any liability which may be found

15 | against him offset by the comparative, contributory and/or superseding fault of Plaintiff.

16 4, AS A FOURTH SEPARATE AND AFFIRMATIVE DEFENSE, Lum alleges that
17) if Plaintiff sustained any of the loss or damages alleged in the Complaint, such loss or damages
1g | were caused, entirely or in part, by the acts and/or omissions of third persons or entities, other

19} than Lum, over whom Lum had or has no direction or control. Any such loss or damages

20 || sustained by Plaintiff should therefore be apportioned among thase responsible parties, according
21 | to each party’s comparative and proportionate fault or liability.

22 3. AS A FIFTH SEPARATE AND AFFIRMATIVE DEFENSE, Lum alleges that

23 | Plaintiff has failed to timely take action to assert their rights, if any, with resulting substantial

24 prejudice to Lum, and therefore Plaintiff's claims are barred by the doctrine of laches.

25 6. AS A SIXTH SEPARATE AND AFFIRMATIVE DEFENSE, Lum alleges that

26 || Plaintiff is estopped by law or by conduct from maintaining the action filed in this case.

27 7. AS A SEVENTH SEPARATE AND AFFIRMATIVE DEFENSE, Lum alleges

28 | that Plaintiff waived their right to maintain the action filed in this case.

22+ 530410.Juanswer to complain.wpd
DEFENDANT WINSTON LUM’S ANSWER TO UNVERIFIED COMPLAINTCANNATA, CHING & O'TOOLE LLP

ATTORNEYS AT LAW
100 Pine Street, Suite 1775

San Francisc 0, CA94111
TeL: (415)40B-8900 » Fax: (415)409-8904

8. AS AN EIGHTH SEPARATE AND AFFIRMATIVE DEFENSE, Lum alleges that
Plaintiff, by their own acts and conduct, have acted with unclean hands and are estopped from
recovering any sum whatsoever from Lum.

9 AS A NINTH SEPARATE AND AFFIRMATIVE DEFENSE, Lum alleges that
Plaintiff's Complaint and the claims alleged therein are barred by the applicable statutes of
limitations, including but not limited to Code of Civil Procedure sections 337, 338, 339, 340, 343
and 335.1.

10. AS A TENTH SEPARATE AND AFFIRMATIVE DEFENSE, Lum alleges that

eo wm NUN An uM Bw HN

Plaintiff's purported damages are vague, uncertain and speculative, and as a result not

recoverable.

PrP ob
- O&O

11. AS AN ELEVENTH SEPARATE AND AFFIRMATIVE DEFENSE, Lum alleges

N

that by failing to exercise reasonable care to mitigate and minimize the alleged damages, Plaintiff

e
a

unnecessarily compounded the alleged damages and prejudiced Lum, and Plaintiff s alleged

~
z

damages, if any, are reduced and/or abated to the extent Plaintiff have failed to mitigate said

be
tr

alleged damages.

RP
an

12. AS A TWELFTH SEPARATE AND AFFIRMATIVE DEFENSE, Lum alleges

e
a

that Plaintiff made independent and informed decisions concerning the matters alleged in the

-
oo

Complaint which caused or were the substantial cause of Plaintiff's purported damages.

R
wo

13. AS A THIRTEENTH SEPARATE AND AFFIRMATIVE DEFENSE, Lum alleges

Ny
Oo

that Plaintiff assumed the risk of all or part of the matters alleged in the Complaint, including the

w
a

risk of the alleged damages set forth in the Complaint.

8

14. AS A FOURTEENTH SEPARATE AND AFFIRMATIVE DEFENSE, Lum

23 | alleges that Plaintiff lack standing and/or capacity to raise each and every cause of action in the
24 || Complaint.

25 15. AS A FIFTEENTH SEPARATE AND AFFIRMATIVE DEFENSE, Lum alleges
26 | that Plaintiff failed to state their claim with sufficient particularily to enable or permit him to raise
27|| all appropriate defenses. Lum thus reserve the right to amend their answer to assert additional

2g || defenses as the discovery of facts sufficient to support such defenses become known.

-3- $30410.lum.answer to complaint.wpd
DEFENDANT WINSTON LUM’S ANSWER TO UNVERIFIED COMPLAINTCANNATA, CHING & O'TOOLE LLP

ATTORNEYS AT LAW
100 Pine Street, Sulte 1775

San Francisc 0, CA 94111
TEL: (415)408-B900 = Fax: (415)409-8904

27
28

a,

ot

WHEREFORE, Winston Lum prays for judgment as follows:

1.
2.
3.
4,

Dated: December 20, 2010

That Plaintiff take nothing by reason of the Complaint;

For dismissal of the Complaint with prejudice;

For attorneys fees and costs of suit in this action; and

For such other and further relief that this court deems just and proper.

~
Cc. ATA, CHING & O°TOOLE LLP

‘orneys for Defendant Winston Lum

530410.Jum.answer 10 camplaing wpe

cae
DEFENDANT WINSTON LUM’S ANSWER TO UNVERIFIED COMPLAINTo.
a 3
- a
“ogg

ro
oO hr?
Go ugi
Fgrar
a §5e2
OFaox
Borge
ozug:
Stata
rsoe3
Eevee

wee
Oxzig
¢ &z2
x og2
a P78
z .
Zz i
< é
oO

oe em IND HW RF YW N

Poe eB Be Be Be oe oe HR om oe
8S 6a 32 aw RBH SF GS

22

27
28

PROOF OF SERVICE

I declare that I am employed in the County of San Francisco, State of California. I am
over the age of eighteen (18) years and not a party to the within entitled cause, and my business
address is Cannata, Ching & O’Toole LLP, 100 Pine Street, Suite 1775, San Francisco, CA
94111.

On December 20, 2010, I served the following documents in the manner(s) selected:

1, DEFENDANT WINSTON LUM'S ANSWER TO PLAINTIFF'S
UNVERIFIED COMPLAINT

[X] (U.S. MAIL) placing true and correct copies thereof enclosed in a sealed envelope(s),
mailed in the United States mail with first class postage fully prepaid, at San Francisco,
California, addressed as set forth below:

Via U.S. Mail
Edward A. Kunnes David A. Clinton
Fidelity National Law Group Clinton & Clinton
100 N. Wiget Lane, Suite 150 100 Oceangate, 14th Floor
Walnut Creek, CA 94598 Long Beach, CA 90802
Attorney for Plaintiff Attorney for Defendant FedEx Office and

Print Services, Inc.

I declare that the foregoing is true and correct and that this declaration was executed in

San Francisco, California, on December 20, 2010.

Jessica Yoscano