Preview
1 Brandon L. Winchel, Bar No. 344719
bwinchel@jonesday.com
2 JONES DAY
3161 Michelson Drive, Suite 800
3 Irvine, California 92612.4408
Telephone: +1.949.851.3939
4 Facsimile: +1.949.553.7539
5 Attorneys for Defendant
EXPERIAN INFORMATION SOLUTIONS, INC.
6
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF KERN
10
11 ELENA KOKHANOVSKI, Case No. BCV-24-100951
12 Plaintiff, UNLIMITED JURISDICTION
13 v. DEFENDANT EXPERIAN
INFORMATION SOLUTIONS, INC.’S
14 CITIBANK N.A.; EXPERIAN ANSWER AND GENERAL DENIAL TO
INFORMATION SOLUTIONS, INC; PLAINTIFF’S COMPLAINT
15 DOES 1-10 INCLUSIVE;
Complaint filed: March 18, 2024
16 Defendants.
17
18 COMES NOW Defendant Experian Information Solutions, Inc. (“Experian”), by and
19 through its undersigned counsel, and answers Plaintiff Elena Kokhanovski’s (“Plaintiff”)
20 Complaint (the “Complaint”) as follows:
21 GENERAL DENIAL
22 Pursuant to section 431.30(d) of the California Code of Civil Procedure, Experian denies,
23 generally and specifically, each and every allegation of the Complaint. Experian further denies
24 that Plaintiff has suffered, or will suffer, any injury, detriment, damage or loss, or is entitled to
25 costs, expenses or attorneys’ fees in any matter or sum whatsoever, by reason of any act or
26 omission of Experian, its agents, employees and/or anyone acting on Experian’s behalf. Experian
27 further denies that Plaintiff is entitled to the relief sought, or to any relief whatsoever.
28
ANSWER TO UNVERIFIED COMPLAINT
1 RESPONSE TO PRAYER FOR RELIEF
2 Experian denies that Plaintiff is entitled to any damages against Experian as set forth in
3 their prayer for relief.
4 RESPONSE TO DEMAND FOR JURY TRIAL
5 Experian admits that Plaintiff has demanded trial by jury on all issues triable.
6 AFFIRMATIVE DEFENSES
7 In further response to Plaintiff’s Complaint, Experian hereby asserts the following
8 affirmative defenses, without conceding that it bears the burden of persuasion as to any of them.
9 FIRST AFFIRMATIVE DEFENSE
10 (ARBITRATION)
11 Experian is informed and believes and thereon alleges that Plaintiff is a member of
12 Experian CreditWorks, a credit monitoring membership with Experian’s affiliate,
13 ConsumerInfo.com, Inc. (which does business as Experian Consumer Services (“ECS”)).
14 Plaintiff’s membership in Experian CreditWorks predates the filing of this lawsuit. When
15 Plaintiff enrolled in CreditWorks, she agreed to the Terms of Use governing that service—a
16 contract containing an Arbitration Agreement. The Arbitration Agreement defined “ECS” to
17 include its “affiliates,” which includes the defendant in this case, Experian Information Solutions,
18 Inc. The Arbitration Agreement provides that Plaintiff and ECS (which is defined under the
19 contract to include its affiliate, EIS) agreed to arbitrate “all disputes and claims between us” that
20 arise out of, or relate to, her CreditWorks membership. As such, Experian alleges that Plaintiff’s
21 claims are subject to arbitration between Plaintiff and Experian. Experian reserves the right to
22 compel arbitration.
23 SECOND AFFIRMATIVE DEFENSE
24 (STATUTE OF LIMITATIONS)
25 Experian alleges that Plaintiff’s claims are barred, in whole or in part, by the applicable
26 statute of limitations. See Cal. Civ. Code §§ 1785.33, 1786.52. The Complaint does not state
27 when Plaintiff first became aware of the alleged inaccurate information which Plaintiff argues
28 gave rise to the current allegations against Experian. At the point in time that Plaintiff became
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ANSWER TO UNVERIFIED COMPLAINT
1 aware of the alleged inaccurate information, Plaintiff was obligated to investigate and bring
2 claims forward against all potentially liable parties.
3 THIRD AFFIRMATIVE DEFENSE
4 (INDEMNIFICATION)
5 Experian is informed and believes and thereon alleges that any purported damages
6 allegedly suffered by Plaintiff were the result of the acts or omissions of third persons over whom
7 Experian had neither control nor responsibility.
8 FOURTH AFFIRMATIVE DEFENSE
9 (FAILURE TO MITIGATE DAMAGES)
10 To the extent that Plaintiff has sufficiently pled that she suffered any actual damages,
11 Experian is informed and believes and thereon alleges that Plaintiff has failed to mitigate her
12 damages, if any damages exist. Experian also denies that it proximately caused any actual
13 damages alleged by Plaintiff because Experian is informed and believes and thereon alleges that
14 all information appearing on Plaintiff’s consumer credit report is accurate. Experian is further
15 informed and believes and thereon alleges that any alleged damages sustained by Plaintiff were,
16 at least in part, caused by the actions of Plaintiff herself.
17 Further, while Plaintiff claims she “contacted EXPERIAN by sending dispute letters,” the
18 Complaint does not state when Plaintiff became aware of the alleged inaccurate information
19 which gave rise to her current allegations against Experian. At the point in time that Plaintiff
20 became aware of the alleged inaccurate information, Plaintiff was obligated to bring her
21 allegations forward against all potential liable parties.
22 FIFTH AFFIRMATIVE DEFENSE
23 (LACHES)
24 Experian is informed and believes and thereon alleges that Plaintiff’s claims are barred, in
25 whole or in part, by the doctrine of laches. While Plaintiff claims she “contacted EXPERIAN by
26 sending dispute letters,” the Complaint does not state when Plaintiff became aware of the alleged
27 inaccurate information which gave rise to her current allegations against Experian. At the point
28
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ANSWER TO UNVERIFIED COMPLAINT
1 in time that Plaintiff became aware of the alleged inaccurate information, Plaintiff was obligated
2 to bring her allegations forward against all potential liable parties.
3 SIXTH AFFIRMATIVE DEFENSE
4 (CONTRIBUTORY/COMPARATIVE FAULT)
5 Experian is informed and believes and thereon alleges that any alleged damages sustained
6 by Plaintiff were, at least in part, caused by the actions of Plaintiff herself and/or third parties and
7 resulted from Plaintiff’s own negligence which equaled or exceeded any alleged negligence or
8 wrongdoing by Experian. Experian further alleges upon information and belief that any
9 inaccurate information which is allegedly contained in Plaintiff’s consumer credit report is the
10 result of, or at least in part, caused by the negligence of the underlying furnisher(s) of the credit
11 information. Said furnisher(s) have a direct relationship with Plaintiff and are obligated under the
12 California Consumer Credit Reporting Agencies Act to report complete and accurate information
13 on a specific transaction or experience to consumer credit reporting agencies like Experian.
14 Experian reports the information creditors and furnishers provide to Experian. It does not make
15 independent loan or debt decisions.
16 SEVENTH AFFIRMATIVE DEFENSE
17 (ESTOPPEL)
18 Any damages which Plaintiff may have suffered, which Experian continues to deny, were
19 the direct and proximate result of the conduct of Plaintiff. Therefore, Plaintiff is estopped and
20 barred from recovery of any damages.
21 EIGHTH AFFIRMATIVE DEFENSE
22 (INDEPENDENT INTERVENING CAUSE)
23 Experian alleges upon information and belief that any inaccurate information allegedly
24 contained in Plaintiff’s consumer credit report is the result of the independent intervening actions
25 of third parties, namely the furnishers of the unspecified credit information that Plaintiff alleges is
26 inaccurate. Experian reports the information creditors and furnishers provide to Experian.
27 Therefore, Experian alleges upon information and belief that if Plaintiff sustained any of the
28 injuries or damages alleged in the Complaint, there was an intervening cause and/or causes
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ANSWER TO UNVERIFIED COMPLAINT
1 leading to such injuries and, as such, any action on the part of Experian was not a proximate
2 cause of the alleged.
3 NINTH AFFIRMATIVE DEFENSE
4 (WAIVER)
5 Experian alleges that Plaintiff’s claims are barred, in whole or in part, by the doctrine of
6 waiver.
7 TENTH AFFIRMATIVE DEFENSE
8 (UNCLEAN HANDS)
9 The Complaint and each claim for relief therein that seeks equitable relief are barred by
10 the doctrine of unclean hands. Here, Plaintiff alleges that they disputed the accuracy and
11 completeness of reported on their consumer report. It is unclear what information is inaccurate.
12 If Plaintiff owes the debt(s) that they cannot repay, the fact that the debt(s) is being reported does
13 not alone make Experian liable for inaccurate reporting.
14 RESERVATION OF RIGHTS
15 Experian reserves the right to assert additional affirmative defenses at such time and to
16 such extent as warranted by discovery and the factual developments in this case.
17 PRAYER FOR RELIEF
18 WHEREFORE, Defendant Experian Information Solutions, Inc. prays as follows:
19 (1) That Plaintiff take nothing by virtue of the Complaint herein and that this action be
20 dismissed in its entirety;
21 (2) For costs of suit and attorneys’ fees herein incurred; and
22 (3) For such other and further relief as the Court may deem just and proper.
23 Dated: April 24, 2024 JONES DAY
24
25 By: /s/ Brandon L. Winchel
Brandon L. Winchel
26
Attorneys for Defendant
27 EXPERIAN INFORMATION SOLUTIONS,
INC.
28
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ANSWER TO UNVERIFIED COMPLAINT
1 PROOF OF SERVICE
2 I, Patricia A. Wade, declare:
3 I am a citizen of the United States and employed in Orange County, California. I am over
4 the age of eighteen years and not a party to the within-entitled action. My business address is
5 3161 Michelson Drive, Suite 800, Irvine, California 92612.4408. On April 24, 2024, I served a
6 copy of the within document(s):
7 DEFENDANT EXPERIAN INFORMATION SOLUTIONS, INC.’S
ANSWER AND GENERAL DENIAL TO PLAINTIFF’S COMPLAINT
8
9 by placing the document(s) listed above in a sealed envelope with postage thereon
fully prepaid, the United States mail at Irvine, California addressed as set forth
10 below.
11 by transmitting via e-mail or electronic transmission the document(s) listed above
to the person(s) at the e-mail address(es) set forth below.
12
13 Whitney D. Ackerman, Esq.
WDA, LLP
14 17326 Tiara Street
Encino, CA 91316
15 T: (818) 426-9591
F: (866) 610-6540
16 Email: WDA@waslaw.org
Attorneys for Plaintiff
17
18 I am readily familiar with the firm's practice of collection and processing correspondence
19 for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same
20 day with postage thereon fully prepaid in the ordinary course of business. I am aware that on
21 motion of the party served, service is presumed invalid if postal cancellation date or postage
22 meter date is more than one day after date of deposit for mailing in affidavit.
23 I declare under penalty of perjury under the laws of the State of California that the above
24 is true and correct.
25 Executed on April 24, 2024, at Irvine, California.
26
/s/ Patricia A. Wade
27 Patricia A. Wade
28
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ANSWER TO UNVERIFIED COMPLAINT
Preview
1 Brandon L. Winchel, Bar No. 344719 bwinchel@jonesday.com 2 JONES DAY 3161 Michelson Drive, Suite 800 3 Irvine, California 92612.4408 Telephone: +1.949.851.3939 4 Facsimile: +1.949.553.7539 5 Attorneys for Defendant EXPERIAN INFORMATION SOLUTIONS, INC. 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF KERN 10 11 ELENA KOKHANOVSKI, Case No. BCV-24-100951 12 Plaintiff, UNLIMITED JURISDICTION 13 v. DEFENDANT EXPERIAN INFORMATION SOLUTIONS, INC.’S 14 CITIBANK N.A.; EXPERIAN ANSWER AND GENERAL DENIAL TO INFORMATION SOLUTIONS, INC; PLAINTIFF’S COMPLAINT 15 DOES 1-10 INCLUSIVE; Complaint filed: March 18, 2024 16 Defendants. 17 18 COMES NOW Defendant Experian Information Solutions, Inc. (“Experian”), by and 19 through its undersigned counsel, and answers Plaintiff Elena Kokhanovski’s (“Plaintiff”) 20 Complaint (the “Complaint”) as follows: 21 GENERAL DENIAL 22 Pursuant to section 431.30(d) of the California Code of Civil Procedure, Experian denies, 23 generally and specifically, each and every allegation of the Complaint. Experian further denies 24 that Plaintiff has suffered, or will suffer, any injury, detriment, damage or loss, or is entitled to 25 costs, expenses or attorneys’ fees in any matter or sum whatsoever, by reason of any act or 26 omission of Experian, its agents, employees and/or anyone acting on Experian’s behalf. Experian 27 further denies that Plaintiff is entitled to the relief sought, or to any relief whatsoever. 28 ANSWER TO UNVERIFIED COMPLAINT 1 RESPONSE TO PRAYER FOR RELIEF 2 Experian denies that Plaintiff is entitled to any damages against Experian as set forth in 3 their prayer for relief. 4 RESPONSE TO DEMAND FOR JURY TRIAL 5 Experian admits that Plaintiff has demanded trial by jury on all issues triable. 6 AFFIRMATIVE DEFENSES 7 In further response to Plaintiff’s Complaint, Experian hereby asserts the following 8 affirmative defenses, without conceding that it bears the burden of persuasion as to any of them. 9 FIRST AFFIRMATIVE DEFENSE 10 (ARBITRATION) 11 Experian is informed and believes and thereon alleges that Plaintiff is a member of 12 Experian CreditWorks, a credit monitoring membership with Experian’s affiliate, 13 ConsumerInfo.com, Inc. (which does business as Experian Consumer Services (“ECS”)). 14 Plaintiff’s membership in Experian CreditWorks predates the filing of this lawsuit. When 15 Plaintiff enrolled in CreditWorks, she agreed to the Terms of Use governing that service—a 16 contract containing an Arbitration Agreement. The Arbitration Agreement defined “ECS” to 17 include its “affiliates,” which includes the defendant in this case, Experian Information Solutions, 18 Inc. The Arbitration Agreement provides that Plaintiff and ECS (which is defined under the 19 contract to include its affiliate, EIS) agreed to arbitrate “all disputes and claims between us” that 20 arise out of, or relate to, her CreditWorks membership. As such, Experian alleges that Plaintiff’s 21 claims are subject to arbitration between Plaintiff and Experian. Experian reserves the right to 22 compel arbitration. 23 SECOND AFFIRMATIVE DEFENSE 24 (STATUTE OF LIMITATIONS) 25 Experian alleges that Plaintiff’s claims are barred, in whole or in part, by the applicable 26 statute of limitations. See Cal. Civ. Code §§ 1785.33, 1786.52. The Complaint does not state 27 when Plaintiff first became aware of the alleged inaccurate information which Plaintiff argues 28 gave rise to the current allegations against Experian. At the point in time that Plaintiff became -2- ANSWER TO UNVERIFIED COMPLAINT 1 aware of the alleged inaccurate information, Plaintiff was obligated to investigate and bring 2 claims forward against all potentially liable parties. 3 THIRD AFFIRMATIVE DEFENSE 4 (INDEMNIFICATION) 5 Experian is informed and believes and thereon alleges that any purported damages 6 allegedly suffered by Plaintiff were the result of the acts or omissions of third persons over whom 7 Experian had neither control nor responsibility. 8 FOURTH AFFIRMATIVE DEFENSE 9 (FAILURE TO MITIGATE DAMAGES) 10 To the extent that Plaintiff has sufficiently pled that she suffered any actual damages, 11 Experian is informed and believes and thereon alleges that Plaintiff has failed to mitigate her 12 damages, if any damages exist. Experian also denies that it proximately caused any actual 13 damages alleged by Plaintiff because Experian is informed and believes and thereon alleges that 14 all information appearing on Plaintiff’s consumer credit report is accurate. Experian is further 15 informed and believes and thereon alleges that any alleged damages sustained by Plaintiff were, 16 at least in part, caused by the actions of Plaintiff herself. 17 Further, while Plaintiff claims she “contacted EXPERIAN by sending dispute letters,” the 18 Complaint does not state when Plaintiff became aware of the alleged inaccurate information 19 which gave rise to her current allegations against Experian. At the point in time that Plaintiff 20 became aware of the alleged inaccurate information, Plaintiff was obligated to bring her 21 allegations forward against all potential liable parties. 22 FIFTH AFFIRMATIVE DEFENSE 23 (LACHES) 24 Experian is informed and believes and thereon alleges that Plaintiff’s claims are barred, in 25 whole or in part, by the doctrine of laches. While Plaintiff claims she “contacted EXPERIAN by 26 sending dispute letters,” the Complaint does not state when Plaintiff became aware of the alleged 27 inaccurate information which gave rise to her current allegations against Experian. At the point 28 -3- ANSWER TO UNVERIFIED COMPLAINT 1 in time that Plaintiff became aware of the alleged inaccurate information, Plaintiff was obligated 2 to bring her allegations forward against all potential liable parties. 3 SIXTH AFFIRMATIVE DEFENSE 4 (CONTRIBUTORY/COMPARATIVE FAULT) 5 Experian is informed and believes and thereon alleges that any alleged damages sustained 6 by Plaintiff were, at least in part, caused by the actions of Plaintiff herself and/or third parties and 7 resulted from Plaintiff’s own negligence which equaled or exceeded any alleged negligence or 8 wrongdoing by Experian. Experian further alleges upon information and belief that any 9 inaccurate information which is allegedly contained in Plaintiff’s consumer credit report is the 10 result of, or at least in part, caused by the negligence of the underlying furnisher(s) of the credit 11 information. Said furnisher(s) have a direct relationship with Plaintiff and are obligated under the 12 California Consumer Credit Reporting Agencies Act to report complete and accurate information 13 on a specific transaction or experience to consumer credit reporting agencies like Experian. 14 Experian reports the information creditors and furnishers provide to Experian. It does not make 15 independent loan or debt decisions. 16 SEVENTH AFFIRMATIVE DEFENSE 17 (ESTOPPEL) 18 Any damages which Plaintiff may have suffered, which Experian continues to deny, were 19 the direct and proximate result of the conduct of Plaintiff. Therefore, Plaintiff is estopped and 20 barred from recovery of any damages. 21 EIGHTH AFFIRMATIVE DEFENSE 22 (INDEPENDENT INTERVENING CAUSE) 23 Experian alleges upon information and belief that any inaccurate information allegedly 24 contained in Plaintiff’s consumer credit report is the result of the independent intervening actions 25 of third parties, namely the furnishers of the unspecified credit information that Plaintiff alleges is 26 inaccurate. Experian reports the information creditors and furnishers provide to Experian. 27 Therefore, Experian alleges upon information and belief that if Plaintiff sustained any of the 28 injuries or damages alleged in the Complaint, there was an intervening cause and/or causes -4- ANSWER TO UNVERIFIED COMPLAINT 1 leading to such injuries and, as such, any action on the part of Experian was not a proximate 2 cause of the alleged. 3 NINTH AFFIRMATIVE DEFENSE 4 (WAIVER) 5 Experian alleges that Plaintiff’s claims are barred, in whole or in part, by the doctrine of 6 waiver. 7 TENTH AFFIRMATIVE DEFENSE 8 (UNCLEAN HANDS) 9 The Complaint and each claim for relief therein that seeks equitable relief are barred by 10 the doctrine of unclean hands. Here, Plaintiff alleges that they disputed the accuracy and 11 completeness of reported on their consumer report. It is unclear what information is inaccurate. 12 If Plaintiff owes the debt(s) that they cannot repay, the fact that the debt(s) is being reported does 13 not alone make Experian liable for inaccurate reporting. 14 RESERVATION OF RIGHTS 15 Experian reserves the right to assert additional affirmative defenses at such time and to 16 such extent as warranted by discovery and the factual developments in this case. 17 PRAYER FOR RELIEF 18 WHEREFORE, Defendant Experian Information Solutions, Inc. prays as follows: 19 (1) That Plaintiff take nothing by virtue of the Complaint herein and that this action be 20 dismissed in its entirety; 21 (2) For costs of suit and attorneys’ fees herein incurred; and 22 (3) For such other and further relief as the Court may deem just and proper. 23 Dated: April 24, 2024 JONES DAY 24 25 By: /s/ Brandon L. Winchel Brandon L. Winchel 26 Attorneys for Defendant 27 EXPERIAN INFORMATION SOLUTIONS, INC. 28 -5- ANSWER TO UNVERIFIED COMPLAINT 1 PROOF OF SERVICE 2 I, Patricia A. Wade, declare: 3 I am a citizen of the United States and employed in Orange County, California. I am over 4 the age of eighteen years and not a party to the within-entitled action. My business address is 5 3161 Michelson Drive, Suite 800, Irvine, California 92612.4408. On April 24, 2024, I served a 6 copy of the within document(s): 7 DEFENDANT EXPERIAN INFORMATION SOLUTIONS, INC.’S ANSWER AND GENERAL DENIAL TO PLAINTIFF’S COMPLAINT 8 9 by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, the United States mail at Irvine, California addressed as set forth 10 below. 11 by transmitting via e-mail or electronic transmission the document(s) listed above to the person(s) at the e-mail address(es) set forth below. 12 13 Whitney D. Ackerman, Esq. WDA, LLP 14 17326 Tiara Street Encino, CA 91316 15 T: (818) 426-9591 F: (866) 610-6540 16 Email: WDA@waslaw.org Attorneys for Plaintiff 17 18 I am readily familiar with the firm's practice of collection and processing correspondence 19 for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same 20 day with postage thereon fully prepaid in the ordinary course of business. I am aware that on 21 motion of the party served, service is presumed invalid if postal cancellation date or postage 22 meter date is more than one day after date of deposit for mailing in affidavit. 23 I declare under penalty of perjury under the laws of the State of California that the above 24 is true and correct. 25 Executed on April 24, 2024, at Irvine, California. 26 /s/ Patricia A. Wade 27 Patricia A. Wade 28 -6- ANSWER TO UNVERIFIED COMPLAINT