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MARK RENNIE. CSB #62499
LAW OFFICES OF MARK RENNIE ELECTRONICALLY
870 Market Street, Suite 1260 FILED
San Francisco, CA 94102 Superior Court of Catifornia,
Tel: (415) 981-4500 County of San Francisco
Fax: (415) 981-3334 02/21/2019
Clerk of the Court
BY: DAVID YUEN
Attorney for Defendant Deputy Clerk
ZEN COMPOUND, LLC dba
TEMPLE SF NIGHT CLUB
SUPERIOR COURT OF THE STATE OF CALIFORNIA,
CITY AND COUNTY OF SAN FRANCISCO
UNLIMITED CIVIL JURISDICTION
JUSTIN PHAM, ) Case No. : CGC-18-564727
)
Plaintiff, ) ANSWER TO PLAINTIFF’S.
) AMENDED COMPLAINT BY
) DEFENDANT ZEN COMPOUND, LLC
) dba TEMPLE SF NIGHT CLUB
)
ZEN COMPOUND, LLC dba TEMPLE )
SF NIGHT CLUB, SECURITY )
INTELLIGENCE SPECIALIST )
CORPORATION and DOES | through 50)
)
Defendant )
)
GENERAL DENIAL
COMES NOW, Defendant ZEN COMPOUND, LLC, dba TEMPLE SF NIGHT CLUB, a
California limited liability company, and in answer to the unverified First Amended Complaint,
(“Amended Complaint”) admits, denies, and alleges as follows:
1, Under the provisions of Section 431.30 of the Code of Civil Procedure of the State
of California, Defendant denies each and every, all and singular, generally and specifically, the
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DEFENDANT ZEN COMPOUND LLC’S ANSWER TO AMENDED COMPLAINTnN
we
allegations of said Amended Complaint, and specifically deny that Plaintiff has been damaged ini
any sum or sums, or at all, as alleged herein.
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
2 Answering Defendant alleges that the Amended Complaint fails to constitute a
cause of action against Defendant upon which relief may be granted.
SECOND AFFIRMATIVE DEFENSE
3. Answering Defendant alleges that Plaintiff is barred because Plaintiff is estopped b:
his own conduct to claim any right to damages, or any other relief against Defendant.
THIRD AFFIRMATIVE DEFENSE
4, Answering Defendant alleges that Plaintiff was and is under a duty to minimize the
damages and loss complained of, if any there were; Plaintiff has failed, neglected and refused to so
minimize such damages and injuries, and by reason of such failure, neglect and refusal ha
increased his damages and injuries, and is not entitled to recover therefore.
FOURTH AFFIRMATIVE DEFENSE
5. Answering Defendant alleges that the Plaintiff has acquiesced in the matters related
to the claims in the Amended Complaint, and Plaintiff is thereby estopped from asserting o1
maintaining his claims.
FIFTH AFFIRMATIVE DEFENSE
6. Answering Defendant alleges, as to the Amended Complaint on file herein and to
each cause of action contained therein, Plaintiff was negligent and careless in and about the
matters complained of in the Amended Complaint, and that said carelessness and negligence on the
Plaintiff's own part directly and proximately contributed to and caused the loss and damages, if any,
complained of by Plaintiff.
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DEFENDANT ZEN COMPOUND LLC'S ANSWER TO AMENDED COMPLAINTSIXTH AFFIRMATIVE DEFENSE
7. Answering Defendant alleges, as to the Amended Complaint on file herein and to
each cause of action contained therein, the damages and loss complained of by Plaintiff, if any
there were, were caused by acts and omissions of others.
SEVENTH AFFIRMATIVE DEFENSE
8. Answering Defendant alleges that Plaintiff Justin Pham, was fully aware, or in the
exercise of ordinary care, should have known of the facts of the matter, circumstances and
conditions involved in the subject matter of this action but nevertheless and with full knowledge of
such conditions did fully and voluntarily consent to assume the risks of damage, if any.
EIGHTH AFFIRMATIVE DEFENSE
a Answering Defendant alleges that Plaintiff is barred from recovering any damages
by virtue of his failure to exhaust reasonable diligence to mitigate his alleges damages.
NINTH AFFIRMATIVE DEFENSE
10. Answering Defendant alleges that events, injuries, losses and damages complained!
of in Plaintiffs Amended Complaint, if any there were, were the result of an unavoidable
accident insofar as these answering Defendant are concerned, and occurred without any
negligence, want of care, fault or other breach of duty complained of on the part of this
answering Defendant.
TENTH AFFIRMATIVE DEFENSE
11. Answering Defendant assert that Plaintiff is seeking to recover more than Plaintiff
is entitled to recover in this case, and the award of the judgment sought by the Plaintiff would
unjustly enrich the Plaintiff.
ELEVENTH AFFIRMATIVE DEFENSE
12. Answering Defendant allege that Plaintiff/ and or other persons were negligent or
legally responsible for the damages alleged the Amended Complaint. Answering Defendant further
alleges that Plaintiff or other parties were comparatively at fault in the manner and style set forth in
the case of Liv. Yellow Cab Co.. (1975)13Cal. 3d 804 and Answering Defendant pray that any and
all damages sustained by Plaintiff or others be reduced by a percentage of the Plaintiff's negligence.
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DEFENDANT ZEN COMPOUND LLC’S ANSWER TO AMENDED COMPLAINTTWELVTH AFFIRMATIVE DEFENSE
13. Answering Defendant allege that this action is barred by the appropriate Statute of
Limitations.
THIRTEENTH AFFIRMATIVE DEFENSE
14. Answering Defendant allege that the claims asserted in the Amended Complaint,
and each of them, are barred by the equitable doctrines of laches and collateral estoppels.
FOURTEENTH AFFIRMATIVE DEFENSE
15. Answering Defendant allege that the claims asserted in the Amended Complaint,
and each of them are barred by the doctrine of waivers.
FIFTEENTH AFFIRMATIVE DEFENSE
16. Answering Defendant allege that the claims asserted in the Amended Complaint,
and each of them are barred because Plaintiff has unclean hands and by the principal of in pari
delicto.
SIXTEENTH AFFIRMATIVE DEFENSE
17, Answering Defendant allege that there has been a defect or misjoinder of parties,
pursuant to California Code of Civil Procedure §430.10(d).
SEVENTEENTH AFFIRMATIVE DEFENSE
18. Answering Defendant allege that any injury, damage or loss suffered by Plaintiff, i
any, Were proximately caused by Plaintiff’s failure to use reasonable means to prevent
aggravation to his condition and to use reasonable means to mitigate damages to himself.
EIGHTEENTH AFFIRMATIVE DEFENSE
19. Answering Defendant allege that it acted reasonably in preventing injuries to its
patrons entering the premises and that Defendant's actions were reasonable and prudent under
the circumstances that existed at the time and place of the incident and injuries referred to in
Plaintiffs Amended Complaint, if any there were.
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DEFENDANT ZEN COMPOUND LLC’S ANSWER TO AMENDED COMPLAINTNINTEENTH AFFIRMATIVE DEFENSE
20. Answering Defendant allege that Plaintiff JUSTIN PHAM was careless and
negligent in and about the matters alleged in the Amended Complaint; that said carelessness and
negligence of said Plaintiff was active and primary in character and was the proximate cause of
the injuries and damages complained of, if any there were; and further, that the fault of this
answering Defendant. if any, was passive or secondary in nature, and that the primary negligence
resulting in the injuries and/or damages complained of in the herein action, if any there were, was|
that of the Plaintiff and not that of the answering Defendant.
TWENTIETH AFFIRMATIVE DEFENSE
21. Answering Defendant allege that prior to and at the time of the incident in
Plaintiffs Amended Complaint, Plaintiff was negligent in that said Plaintiff failed to use his
natural faculties and in that said Plaintiff then and there failed to use and exercise for said
Plaintiff's own safety and protection that degree of care and caution which a reasonably prudent
person would have used under the same or similar circumstances; that said negligence of the
Plaintiff proximately caused or contributed to the happening of the incident and to the damages,
if any there were, sustained by said Plaintiffs as a result thereof and bars or diminishes said
Plaintiffs recovery herein.
TWENTY-FIRST AFFIRMATIVE DEFENSE
22. Answering Defendant allege that if it is determined that these answering Defendant}
are found to be negligent, which negligence is denied and stated merely for the purpose of this
affirmative defense, these answering Defendant contend that their liability, if any, for non-
economic damages shall be several pursuant to the Fair Responsibility Act of 1986, Section 1431
of the California Civil Code, so that these answering Defendant shall be liable only for the
amount of non-economic damages allocated to these Defendant in direct proportion to these
Defendant’ percentage of fault, if any. Moreover, these answering Defendant’ liability, if any,
shall be set forth in a separate judgment against these Defendant for that amount of non-
economic damages that is in direct proportion to these answering Defendant’s percentage of
fault.
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DEFENDANT ZEN COMPOUND LLC'S ANSWER TO AMENDED COMPLAINTTWENTY-SECOND AFFIRMATIVE DEFENSE
23. Answering Defendant alleges that Defendant acted as a reasonable entity in
preventing injuries to persons who visit the premises, That Plaintiffs injuries if any there were,
were not as a result of Defendant’ negligence and, in fact, Defendant did not have actual or
constructive notice of any dangerous condition on or about the floor of the premises, nor was
there any such dangerous condition at the time of this incident.
TWENTY-THIRD AFFIRMATIVE DEFENSE
24. Answering Defendant alleges that there has been no breach of any alleged duty
owed by Defendant to plaintiff.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
25, Answering Defendant alleges that it is not responsible for Plaintiff's injury or
damages because Defendant’s employees were acting in self-defense and used only the amount of
force that was reasonable necessary to protect themselves and other third parties.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
26. Answering Defendant state that they reserve the right to assert additional defenses
in the event that new evidence or information, if any comes to light during discovery and such
evidence or information forms the basis for such additional defenses.
PRAYER
WHEREFORE, Defendant prays:
1, That Plaintiff takes nothing by reason of his Amended Complaint;
2. For Defendant’ costs of suit herein:
wo
For reasonable attorney’s fees according to proof;
4, For such other and further relief as the Court may deem just and proper.
[Signature follows on next page]
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DEFENDANT ZEN COMPOUND LLC’S ANSWER TO AMENDED COMPLAINTI anuary 16, 2
2
AW OFFICES E.R E
Hip NS
mn Defend O
MPLE SF NIGHT CLUB
2
DE Al OMPLAINT
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MARK RENNIE. CSB #62499 LAW OFFICES OF MARK RENNIE ELECTRONICALLY 870 Market Street, Suite 1260 FILED San Francisco, CA 94102 Superior Court of Catifornia, Tel: (415) 981-4500 County of San Francisco Fax: (415) 981-3334 02/21/2019 Clerk of the Court BY: DAVID YUEN Attorney for Defendant Deputy Clerk ZEN COMPOUND, LLC dba TEMPLE SF NIGHT CLUB SUPERIOR COURT OF THE STATE OF CALIFORNIA, CITY AND COUNTY OF SAN FRANCISCO UNLIMITED CIVIL JURISDICTION JUSTIN PHAM, ) Case No. : CGC-18-564727 ) Plaintiff, ) ANSWER TO PLAINTIFF’S. ) AMENDED COMPLAINT BY ) DEFENDANT ZEN COMPOUND, LLC ) dba TEMPLE SF NIGHT CLUB ) ZEN COMPOUND, LLC dba TEMPLE ) SF NIGHT CLUB, SECURITY ) INTELLIGENCE SPECIALIST ) CORPORATION and DOES | through 50) ) Defendant ) ) GENERAL DENIAL COMES NOW, Defendant ZEN COMPOUND, LLC, dba TEMPLE SF NIGHT CLUB, a California limited liability company, and in answer to the unverified First Amended Complaint, (“Amended Complaint”) admits, denies, and alleges as follows: 1, Under the provisions of Section 431.30 of the Code of Civil Procedure of the State of California, Defendant denies each and every, all and singular, generally and specifically, the 1 DEFENDANT ZEN COMPOUND LLC’S ANSWER TO AMENDED COMPLAINTnN we allegations of said Amended Complaint, and specifically deny that Plaintiff has been damaged ini any sum or sums, or at all, as alleged herein. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE 2 Answering Defendant alleges that the Amended Complaint fails to constitute a cause of action against Defendant upon which relief may be granted. SECOND AFFIRMATIVE DEFENSE 3. Answering Defendant alleges that Plaintiff is barred because Plaintiff is estopped b: his own conduct to claim any right to damages, or any other relief against Defendant. THIRD AFFIRMATIVE DEFENSE 4, Answering Defendant alleges that Plaintiff was and is under a duty to minimize the damages and loss complained of, if any there were; Plaintiff has failed, neglected and refused to so minimize such damages and injuries, and by reason of such failure, neglect and refusal ha increased his damages and injuries, and is not entitled to recover therefore. FOURTH AFFIRMATIVE DEFENSE 5. Answering Defendant alleges that the Plaintiff has acquiesced in the matters related to the claims in the Amended Complaint, and Plaintiff is thereby estopped from asserting o1 maintaining his claims. FIFTH AFFIRMATIVE DEFENSE 6. Answering Defendant alleges, as to the Amended Complaint on file herein and to each cause of action contained therein, Plaintiff was negligent and careless in and about the matters complained of in the Amended Complaint, and that said carelessness and negligence on the Plaintiff's own part directly and proximately contributed to and caused the loss and damages, if any, complained of by Plaintiff. i II 2 DEFENDANT ZEN COMPOUND LLC'S ANSWER TO AMENDED COMPLAINTSIXTH AFFIRMATIVE DEFENSE 7. Answering Defendant alleges, as to the Amended Complaint on file herein and to each cause of action contained therein, the damages and loss complained of by Plaintiff, if any there were, were caused by acts and omissions of others. SEVENTH AFFIRMATIVE DEFENSE 8. Answering Defendant alleges that Plaintiff Justin Pham, was fully aware, or in the exercise of ordinary care, should have known of the facts of the matter, circumstances and conditions involved in the subject matter of this action but nevertheless and with full knowledge of such conditions did fully and voluntarily consent to assume the risks of damage, if any. EIGHTH AFFIRMATIVE DEFENSE a Answering Defendant alleges that Plaintiff is barred from recovering any damages by virtue of his failure to exhaust reasonable diligence to mitigate his alleges damages. NINTH AFFIRMATIVE DEFENSE 10. Answering Defendant alleges that events, injuries, losses and damages complained! of in Plaintiffs Amended Complaint, if any there were, were the result of an unavoidable accident insofar as these answering Defendant are concerned, and occurred without any negligence, want of care, fault or other breach of duty complained of on the part of this answering Defendant. TENTH AFFIRMATIVE DEFENSE 11. Answering Defendant assert that Plaintiff is seeking to recover more than Plaintiff is entitled to recover in this case, and the award of the judgment sought by the Plaintiff would unjustly enrich the Plaintiff. ELEVENTH AFFIRMATIVE DEFENSE 12. Answering Defendant allege that Plaintiff/ and or other persons were negligent or legally responsible for the damages alleged the Amended Complaint. Answering Defendant further alleges that Plaintiff or other parties were comparatively at fault in the manner and style set forth in the case of Liv. Yellow Cab Co.. (1975)13Cal. 3d 804 and Answering Defendant pray that any and all damages sustained by Plaintiff or others be reduced by a percentage of the Plaintiff's negligence. 3 DEFENDANT ZEN COMPOUND LLC’S ANSWER TO AMENDED COMPLAINTTWELVTH AFFIRMATIVE DEFENSE 13. Answering Defendant allege that this action is barred by the appropriate Statute of Limitations. THIRTEENTH AFFIRMATIVE DEFENSE 14. Answering Defendant allege that the claims asserted in the Amended Complaint, and each of them, are barred by the equitable doctrines of laches and collateral estoppels. FOURTEENTH AFFIRMATIVE DEFENSE 15. Answering Defendant allege that the claims asserted in the Amended Complaint, and each of them are barred by the doctrine of waivers. FIFTEENTH AFFIRMATIVE DEFENSE 16. Answering Defendant allege that the claims asserted in the Amended Complaint, and each of them are barred because Plaintiff has unclean hands and by the principal of in pari delicto. SIXTEENTH AFFIRMATIVE DEFENSE 17, Answering Defendant allege that there has been a defect or misjoinder of parties, pursuant to California Code of Civil Procedure §430.10(d). SEVENTEENTH AFFIRMATIVE DEFENSE 18. Answering Defendant allege that any injury, damage or loss suffered by Plaintiff, i any, Were proximately caused by Plaintiff’s failure to use reasonable means to prevent aggravation to his condition and to use reasonable means to mitigate damages to himself. EIGHTEENTH AFFIRMATIVE DEFENSE 19. Answering Defendant allege that it acted reasonably in preventing injuries to its patrons entering the premises and that Defendant's actions were reasonable and prudent under the circumstances that existed at the time and place of the incident and injuries referred to in Plaintiffs Amended Complaint, if any there were. it i if 4 DEFENDANT ZEN COMPOUND LLC’S ANSWER TO AMENDED COMPLAINTNINTEENTH AFFIRMATIVE DEFENSE 20. Answering Defendant allege that Plaintiff JUSTIN PHAM was careless and negligent in and about the matters alleged in the Amended Complaint; that said carelessness and negligence of said Plaintiff was active and primary in character and was the proximate cause of the injuries and damages complained of, if any there were; and further, that the fault of this answering Defendant. if any, was passive or secondary in nature, and that the primary negligence resulting in the injuries and/or damages complained of in the herein action, if any there were, was| that of the Plaintiff and not that of the answering Defendant. TWENTIETH AFFIRMATIVE DEFENSE 21. Answering Defendant allege that prior to and at the time of the incident in Plaintiffs Amended Complaint, Plaintiff was negligent in that said Plaintiff failed to use his natural faculties and in that said Plaintiff then and there failed to use and exercise for said Plaintiff's own safety and protection that degree of care and caution which a reasonably prudent person would have used under the same or similar circumstances; that said negligence of the Plaintiff proximately caused or contributed to the happening of the incident and to the damages, if any there were, sustained by said Plaintiffs as a result thereof and bars or diminishes said Plaintiffs recovery herein. TWENTY-FIRST AFFIRMATIVE DEFENSE 22. Answering Defendant allege that if it is determined that these answering Defendant} are found to be negligent, which negligence is denied and stated merely for the purpose of this affirmative defense, these answering Defendant contend that their liability, if any, for non- economic damages shall be several pursuant to the Fair Responsibility Act of 1986, Section 1431 of the California Civil Code, so that these answering Defendant shall be liable only for the amount of non-economic damages allocated to these Defendant in direct proportion to these Defendant’ percentage of fault, if any. Moreover, these answering Defendant’ liability, if any, shall be set forth in a separate judgment against these Defendant for that amount of non- economic damages that is in direct proportion to these answering Defendant’s percentage of fault. 3 DEFENDANT ZEN COMPOUND LLC'S ANSWER TO AMENDED COMPLAINTTWENTY-SECOND AFFIRMATIVE DEFENSE 23. Answering Defendant alleges that Defendant acted as a reasonable entity in preventing injuries to persons who visit the premises, That Plaintiffs injuries if any there were, were not as a result of Defendant’ negligence and, in fact, Defendant did not have actual or constructive notice of any dangerous condition on or about the floor of the premises, nor was there any such dangerous condition at the time of this incident. TWENTY-THIRD AFFIRMATIVE DEFENSE 24. Answering Defendant alleges that there has been no breach of any alleged duty owed by Defendant to plaintiff. TWENTY-FOURTH AFFIRMATIVE DEFENSE 25, Answering Defendant alleges that it is not responsible for Plaintiff's injury or damages because Defendant’s employees were acting in self-defense and used only the amount of force that was reasonable necessary to protect themselves and other third parties. TWENTY-FIFTH AFFIRMATIVE DEFENSE 26. Answering Defendant state that they reserve the right to assert additional defenses in the event that new evidence or information, if any comes to light during discovery and such evidence or information forms the basis for such additional defenses. PRAYER WHEREFORE, Defendant prays: 1, That Plaintiff takes nothing by reason of his Amended Complaint; 2. For Defendant’ costs of suit herein: wo For reasonable attorney’s fees according to proof; 4, For such other and further relief as the Court may deem just and proper. [Signature follows on next page] 6 DEFENDANT ZEN COMPOUND LLC’S ANSWER TO AMENDED COMPLAINTI anuary 16, 2 2 AW OFFICES E.R E Hip NS mn Defend O MPLE SF NIGHT CLUB 2 DE Al OMPLAINT