Preview
Darius T. Chan (SBN: 236609) ELECTRONICALLY
Andrew H. Dai (SBN: 284821)
LAW OFFICES OF DARIUS T. CHAN, PC = F a a 7
500 Sutter Street, Suite 922 County of San Frencisco
San Francisco, California 94102
Telephone: (415) 398-8308 96/09 eae
Facsimile: (415) 236-6063 BY:KIMBERLY CLAUSSEN
Deputy Clerk
Attorneys for Defendants
JOANNA BANKS and BINGOWAH, LLC
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
HRD COFFEE SHOP INC. AND DAVID Case No.: CGC-15-544434
YEUNG,
DEFENDANTS JOANNA BANKS AND
Plaintiffs, BINGOWAH, LLC’S ANSWER TO
PLAINTIFFS’ COMPLAINT
vs.
RICHARD TOM, JOANNA BANKS,
BINGOWAH, LLC, AND DOES 1-100,
INCLUSIVE,
Defendants.
Defendants JOANNA BANKS and BINGOWAH, LLC (hereinafter collectively
“Defendants”) hereby answer the unverified Complaint of Plaintiffs HRD COFFEE SHOP INC.
and DAVID YEUNG (hereinafter collectively “Plaintiffs”) as follows:
GENERAL DENIAL
Pursuant to the provisions of California Code of Civil Procedure Section 431.30,
Defendants deny generally and specifically each, every, and all of the allegations contained in
Plaintiffs’ Complaint and specifically deny that they did or failed to do anything which in any
way caused or contributed to Plaintiffs’ alleged damages, either as alleged, otherwise or at all;
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DEFENDANTS JOANNA BANKS AND BINGOWAH, LLC’S ANSWER TO COMPLAINTCe ND HW BF WY
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and further specifically deny Plaintiffs have been or will be damaged in the sum or sums, either
as alleged, otherwise or at all.
AFFIRMATIVE DEFENSES
Defendants hereby assert the following and distinct, affirmative defenses:
FIRST AFFIRMATIVE DEFENSE
(Failure to State a Claim)
The allegations of the Complaint, and each and every purported cause of action therein,
fail to state facts sufficient to constitute a cause of action against answering Defendants.
SECOND AFFIRMATIVE DEFENSE
(Statute of Limitations)
The Complaint is barred by the applicable statute of limitations, including but not
limited to Sections 337(1) of the California Code of Civil Procedure.
THIRD AFFIRMATIVE DEFENSE
(Uncertain, Ambiguous, and Unintelligible)
The Complaint, and each and every purported cause of action therein, is insufficient
because the pleading is uncertain, ambiguous, and unintelligible.
FOURTH AFFIRMATIVE DEFENSE
(Assumption of Risk)
Plaintiffs voluntarily and knowingly and/or impliedly assumed the risk or risks attendant
to the matters complained about in the Complaint, therefore completely bar, or proportionately
reduce Plaintiffs’ right of recovery herein, if any.
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DEFENDANTS JOANNA BANKS AND BINGOWAH, LLC’S ANSWER TO COMPLAINTCeO IND HW FF WN
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FIFTH AFFIRMATIVE DEFENSE
(Failure to Mitigate Damages)
Plaintiffs, though under a duty to do so, have failed and refused to mitigate the alleged
damages, if any damages exist, and any recovery by Plaintiffs must be diminished or barred by
reason thereof.
SIXTH AFFIRMATIVE DEFENSE
(Waiver and Estoppel)
Plaintiffs waived and are estopped from asserting any claim against Defendants by
Plaintiffs’ own actions and omissions with respect to the events cited in the Complaint and
Plaintiffs’ failure to adequately protect their own interests.
SEVENTH AFFIRMATIVE DEFENSE
(Laches)
The Complaint unreasonably delayed in bringing this action to the prejudice of
Defendants, and is therefore barred from bringing this action by the doctrine of laches.
EIGHTH AFFIRMATIVE DEFENSE
(Negligence or Willful Misconduct)
The alleged injuries or damages suffered by Plaintiffs, if any, were the sole and
proximate result of the carelessness, negligence, or willful misconduct of the parties other than
answering Defendants, and said negligence or willful misconduct comparatively reduces the
liability, if any, of answering Defendants.
NINTH AFFIRMATIVE DEFENSE
(Unclean Hands)
The Complaint, and each and every cause of action therein, is barred under the doctrine
of unclear hands, by Plaintiffs’ own acts or omissions in causing the damages alleged.
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DEFENDANTS JOANNA BANKS AND BINGOWAH, LLC’S ANSWER TO COMPLAINTco Oe IN AH BF YW NY |
NY oN RN KY NY NK KR NY ee Bee Se ee ew eH
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TENTH AFFIRMATIVE DEFENSE
(Substantial Compliance)
Plaintiffs are barred from recovery against answering Defendants because Defendants
had complied with most of the contract, except for the immaterial parts.
ELEVENTH AFFIRMATIVE DEFENSE
(Release)
Plaintiffs are barred from recovery against answering Defendants because Defendants
were released of their obligations.
TWELFTH AFFIRMATIVE DEFENSE
(Performance, Satisfaction, Discharge)
Prior to the commencement of the present action, answering Defendants duly performed,
satisfied, and discharged all duties and obligations that they may have owed to Plaintiffs arising
out of any and all matters that are the subject of the Complaint, and therefore, the Complaint is
barred.
THIRTEENTH AFFIRMATIVE DEFENSE
(Accord and Satisfaction)
Defendants allege that there was an accord and satisfaction, and therefore, Plaintiffs
should be denied any recovery.
FOURTEENTH AFFIRMATIVE DEFENSE
(Comparative Negligence)
Any finding of negligence against these answering Defendants should be compared to
the negligence of all parties to this action, including all Plaintiffs and all Defendants herein.
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DEFENDANTS JOANNA BANKS AND BINGOWAH, LLC’S ANSWER TO COMPLAINT0 Oe NDR HOD Oe
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FIFTEENTH AFFIRMATIVE DEFENSE
(Lack of Notice)
Plaintiffs failed to provide timely and attentive notice in reference to the claims of
breaches of any agreement.
SIXTEENTH AFFIRMATIVE DEFENSE
(intervening Superseding Causes)
The injuries and damages of which the Plaintiffs alleged were proximately caused by or
contributed by the acts of other parties, persons, entities, or unavoidable incidents or conditions,
and that said acts were an intervening and superseding cause of said injuries and damages, if
any.
SEVENTEENTH AFFIRMATIVE DEFENSE
(Unjust Enrichment)
If the injuries and damages of which the Plaintiffs alleged were rewarded, Plaintiffs
would receive more money than they deserve.
EIGHTEENTH AFFIRMATIVE DEFENSE
(Consent)
Plaintiffs agreed to, and participated in, those actions and statements which Plaintiffs
claim to have caused damage, and therefore, such agreement, statement, and participation were
consents given knowingly and voluntarily; thus Plaintiffs’ claims are invalid.
NINETEENTH AFFIRMATIVE DEFENSE
(Majority Approval)
The acts, omissions, and conducts of Defendants alleged by Plaintiffs in the Complaint
were authorized by the majority approval of the members, directors, and/or shareholders of the
companies.
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DEFENDANTS JOANNA BANKS AND BINGOWAH, LLC’S ANSWER TO COMPLAINTTWENTIETH AFFIRMATIVE DEFENSE
(Apportionment of Fault)
The defendants other than these Defendants caused or contributed to the damages
Plaintiffs claim to have suffered. Therefore any award made in favor of Plaintiffs in this case
must be divided among the defendants so that each pays only his, her or its fair share in
relationship to his, her or its amount of fault.
TWENTY-FIRST AFFIRMATIVE DEFENSE
(No Duty)
The Complaint is barred, in whole or in part, because Defendants did not owe Plaintiffs
a duty, including a fiduciary duty. If Defendants did owe Plaintiffs a duty, Defendants did not
breach their duty to Plaintiffs.
TWENTY-SECOND AFFIRMATIVE DEFENSE
(No Proximate Cause)
Plaintiffs’ causes of action are barred, in whole or in part, because any alleged acts or
omissions to act by Defendants were not the proximate cause of any damages suffered by
Plaintiffs.
TWENTY-THIRD AFFIRMATIVE DEFENSE
(Intentional Acts of Others)
Defendants contend that the sole and/or proximate cause of the damages claimed by
Plaintiffs was and is due to the willful and intentional acts of persons and/or entities other than
answering Defendants.
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DEFENDANTS JOANNA BANKS AND BINGOWAH, LLC’S ANSWER TO COMPLAINTTWENTY-FOURTH AFFIRMATIVE DEFENSE
(Nonjoinder of Parties)
Plaintiffs failed to join all indispensable parties; as a result of this failure to join,
complete relief cannot be accorded to those already parties to the action and will result in
prejudice to the parties in any possible future litigation.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
(No Attorneys’ Fees)
The Complaint, and each purported cause of action contained in the Complaint, fails to
allege facts sufficient to allow recovery of attorneys’ fees from Defendant.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
(Failure to Plead Fraud/Misrepresentations with Particularity)
Plaintiffs failed to plead with particularity the circumstances constituting the alleged
causes of action including, but not limited to, fraud/misrepresentations.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
(Good Faith)
Plaintiffs’ claims are barred, in whole or in part, because Defendants at all times acted in
good faith and did not directly or indirectly perform any act whatsoever that would constitute a
violation of any right of Plaintiffs’ or any duty owed to Plaintiffs.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
(Failure of Consideration)
The allegations of the Complaint, and each and every purported cause of action therein,
is abated by failure and/or lack of consideration and Plaintiffs cannot assert a cause of action
thereunder.
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DEFENDANTS JOANNA BANKS AND BINGOWAH, LLC’S ANSWER TO COMPLAINToe ND HW BF WN
TWENTY-NINTH AFFIRMATIVE DEFENSE
(Indemnity)
If answering Defendants were negligent, said negligence was secondary and passive, as
contrasted with the active and primary negligence of other parties to this lawsuit, and therefore,
Plaintiffs are not, as a matter of law, entitled to recovery from answering Defendants on any
theory of indemnity.
THIRTIETH AFFIRMATIVE DEFENSE
(Indemnification)
If any liability exists on the part of Defendants to Plaintiffs, such liability is to be
completely indemnified by other parties to this action, including but not limited to all other
defendants in this action.
THIRTY-FIRST AFFIRMATIVE DEFENSE
(Equitable Remedy)
As between Plaintiffs and answering Defendants, the equities do not preponderate in
favor of Plaintiffs, so as to allow recovery for equitable remedy.
THIRTY-SECOND AFFIRMATIVE DEFENSE
(Privileged and Authorized)
The acts, omissions, and conducts of the Defendants alleged by the Plaintiff in the
Complaint were privileged and/or authorized.
THIRTY-THIRD AFFIRMATIVE DEFENSE
(Business Judgment Rule)
Defendants acted in good faith and in the best interests of the companies that are the
subject matter of the Complaint.
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DEFENDANTS JOANNA BANKS AND BINGOWAH, LLC’S ANSWER TO COMPLAINTCoe YW DH BF BW NY
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THIRTY-FOURTH AFFIRMATIVE DEFENSE
(Failure to Exercise Due Diligence)
Plaintiffs’ claims are barred, in whole or in part, because Plaintiffs’ failed to exercise
due diligence to the matters complained about in the Complaint completely barring, or
proportionately reducing Plaintiffs’ right of recovery herein, if any.
THIRTY-FIFTH AFFIRMATIVE DEFENSE
(Good Motive)
All statements and comments allegedly made by Defendants were made in good motive
and were fair comments in exercising of free speech and no provably false assertions of fact.
THIRTY-SIXTH AFFIRMATIVE DEFENSE
(Substantial Truth)
Plaintiffs’ claims are barred, in whole or in part, under the substantial truth doctrine.
THIRTY-SEVENTH AFFIRMATIVE DEFENSE
(Reservation of Right to Amend Answer)
Defendants aver that they have not yet completed thorough investigation and/or
complete discovery of all of the facts and circumstances of the subject matter of the Complaint,
and accordingly, reserve the right to amend, modify, revise, or supplement their answer, and to
plead such further defenses and take such further action at they may deem proper and necessary
in their defense upon the completion of said investigation and study.
PRAYER
WHEREFORE, Defendants pray for judgment against Plaintiffs as follows:
1. The Complaint for Damages be dismissed with prejudice against Defendants;
2. That the relief prayed for in the Complaint for Damages on file herein be denied;
3. That Plaintiffs take nothing by way of the Complaint for Damages on file herein;
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DEFENDANTS JOANNA BANKS AND BINGOWAH, LLC’S ANSWER TO COMPLAINTCom NY DH RB WN
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BRREREBBRHRESVEPeWTABDEBALSY
4. Costs of suit, including, without limitation reasonable attorneys’ fees, if
applicable; and
5. Any other further relief the Court deems just and proper.
LAW OFFICES OF DARIUS T. CHAN, P.C.
Dated: June 5, 2015
Andrew H. Dai
Attorney for Defendants
JOANNA BANKS and BINGOWAH, LLC
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DEFENDANTS JOANNA BANKS AND BINGOWAH, LLC’S ANSWER TO COMPLAINTCo Om IN DH HW BF BW N
b= 6S
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PROOF OF SERVICE
California Code of Civil Procedure Sections 1013a(3) and 2015.5
I declare that I am employed in the County of San Francisco, California. I am over the
age of eighteen years and am not a party to the within cause. My business address is 500 Sutter
Street, Suite 922, San Francisco, California 94102.
On the date last written below, I caused to be served the within
DEFENDANTS JOANNA BANKS AND BINGOWAH, LLC’S ANSWER TO
COMPLAINT
as follows: SEE ATTACHED SERVICE LIST.
Xx] BY MAIL: I placed each such sealed envelope, for collection
and mailing at San Francisco, California, following
ordinary business practices. I am readily familiar
with the practices for the processing of said mail,
which is deposited in the United States Postal
Service the same day as it is placed for processing.
EC] BY PERSONAL I caused each such envelope to be delivered by hand
SERVICE: to the addressee(s) noted in this Proof of Service.
OVERNIGHT I caused each such envelope to be delivered by
SERVICE: Overnight/Express Mail Delivery to the addressee(s)
noted in this Proof of Service.
BY FACSIMILE: I caused said document to be transmitted by
oe facsimile machine to the number indicated after the
address noted or the addressee on the facsimile cover
sheet.
Xx] BY E-FILING: By electronically transmitting a true and correct
copy through the court designated e-filing vendor,
File&ServeXpress, pursuant to Code of Civil
Procedure §1010.
BY E-MAIL: By electronically mailing a true and correct copy
through The Law Offices of Darius T, Chan P.C.’s
electronic mail system to the email address(s) set
forth herein per agreement pursuant to Code of Civil
Procedure § 1010.6(a).
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DEFENDANTS JOANNA BANKS AND BINGOWAH, LLC’S ANSWER TO COMPLAINToem IND HW
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct. Executed on Jeane g > 2015, at San Francisco,
California.
hit
SERVICE LIST
For Plaintiffs HRD COFFEE SHOP
For Defendant RICHARD TOM
INC. AND DAVID YEUNG
Joel Gumbiner, Esq.
Williams & Gumbiner LLP
100 Drakes Landing Road, Suite 260
Greenbrae, California 94904
Tel: 415.755.1880
Fax: 415.419.5469
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Pamela B. Bumatay, Esq.
Clapp Moroney et al.
1111 Bayhill Drive, #300
San Bruno, California 94066
Tel: 650.989.5400
Fax: 650.989.5499
DEFENDANTS JOANNA BANKS AND BINGOWAH, LLC’S ANSWER TO COMPLAINT
Preview
Darius T. Chan (SBN: 236609) ELECTRONICALLY Andrew H. Dai (SBN: 284821) LAW OFFICES OF DARIUS T. CHAN, PC = F a a 7 500 Sutter Street, Suite 922 County of San Frencisco San Francisco, California 94102 Telephone: (415) 398-8308 96/09 eae Facsimile: (415) 236-6063 BY:KIMBERLY CLAUSSEN Deputy Clerk Attorneys for Defendants JOANNA BANKS and BINGOWAH, LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO HRD COFFEE SHOP INC. AND DAVID Case No.: CGC-15-544434 YEUNG, DEFENDANTS JOANNA BANKS AND Plaintiffs, BINGOWAH, LLC’S ANSWER TO PLAINTIFFS’ COMPLAINT vs. RICHARD TOM, JOANNA BANKS, BINGOWAH, LLC, AND DOES 1-100, INCLUSIVE, Defendants. Defendants JOANNA BANKS and BINGOWAH, LLC (hereinafter collectively “Defendants”) hereby answer the unverified Complaint of Plaintiffs HRD COFFEE SHOP INC. and DAVID YEUNG (hereinafter collectively “Plaintiffs”) as follows: GENERAL DENIAL Pursuant to the provisions of California Code of Civil Procedure Section 431.30, Defendants deny generally and specifically each, every, and all of the allegations contained in Plaintiffs’ Complaint and specifically deny that they did or failed to do anything which in any way caused or contributed to Plaintiffs’ alleged damages, either as alleged, otherwise or at all; -1- DEFENDANTS JOANNA BANKS AND BINGOWAH, LLC’S ANSWER TO COMPLAINTCe ND HW BF WY RY RN KR NR YN KR RK Ne Be we ewe we ee ewe He eo QI AA FH YH = SC we HAA RF BwNH FE SS and further specifically deny Plaintiffs have been or will be damaged in the sum or sums, either as alleged, otherwise or at all. AFFIRMATIVE DEFENSES Defendants hereby assert the following and distinct, affirmative defenses: FIRST AFFIRMATIVE DEFENSE (Failure to State a Claim) The allegations of the Complaint, and each and every purported cause of action therein, fail to state facts sufficient to constitute a cause of action against answering Defendants. SECOND AFFIRMATIVE DEFENSE (Statute of Limitations) The Complaint is barred by the applicable statute of limitations, including but not limited to Sections 337(1) of the California Code of Civil Procedure. THIRD AFFIRMATIVE DEFENSE (Uncertain, Ambiguous, and Unintelligible) The Complaint, and each and every purported cause of action therein, is insufficient because the pleading is uncertain, ambiguous, and unintelligible. FOURTH AFFIRMATIVE DEFENSE (Assumption of Risk) Plaintiffs voluntarily and knowingly and/or impliedly assumed the risk or risks attendant to the matters complained about in the Complaint, therefore completely bar, or proportionately reduce Plaintiffs’ right of recovery herein, if any. MI Ml M/ -2- DEFENDANTS JOANNA BANKS AND BINGOWAH, LLC’S ANSWER TO COMPLAINTCeO IND HW FF WN NN YN Y NY N NY NY Be Be Be ewe Be ew Be Be ee ed AA BF Oo YH SF SF Cem AA AR DH FS FIFTH AFFIRMATIVE DEFENSE (Failure to Mitigate Damages) Plaintiffs, though under a duty to do so, have failed and refused to mitigate the alleged damages, if any damages exist, and any recovery by Plaintiffs must be diminished or barred by reason thereof. SIXTH AFFIRMATIVE DEFENSE (Waiver and Estoppel) Plaintiffs waived and are estopped from asserting any claim against Defendants by Plaintiffs’ own actions and omissions with respect to the events cited in the Complaint and Plaintiffs’ failure to adequately protect their own interests. SEVENTH AFFIRMATIVE DEFENSE (Laches) The Complaint unreasonably delayed in bringing this action to the prejudice of Defendants, and is therefore barred from bringing this action by the doctrine of laches. EIGHTH AFFIRMATIVE DEFENSE (Negligence or Willful Misconduct) The alleged injuries or damages suffered by Plaintiffs, if any, were the sole and proximate result of the carelessness, negligence, or willful misconduct of the parties other than answering Defendants, and said negligence or willful misconduct comparatively reduces the liability, if any, of answering Defendants. NINTH AFFIRMATIVE DEFENSE (Unclean Hands) The Complaint, and each and every cause of action therein, is barred under the doctrine of unclear hands, by Plaintiffs’ own acts or omissions in causing the damages alleged. -3- DEFENDANTS JOANNA BANKS AND BINGOWAH, LLC’S ANSWER TO COMPLAINTco Oe IN AH BF YW NY | NY oN RN KY NY NK KR NY ee Bee Se ee ew eH cI DAA FO NH FF SF Ce RA A RF wYWwNH KF TS TENTH AFFIRMATIVE DEFENSE (Substantial Compliance) Plaintiffs are barred from recovery against answering Defendants because Defendants had complied with most of the contract, except for the immaterial parts. ELEVENTH AFFIRMATIVE DEFENSE (Release) Plaintiffs are barred from recovery against answering Defendants because Defendants were released of their obligations. TWELFTH AFFIRMATIVE DEFENSE (Performance, Satisfaction, Discharge) Prior to the commencement of the present action, answering Defendants duly performed, satisfied, and discharged all duties and obligations that they may have owed to Plaintiffs arising out of any and all matters that are the subject of the Complaint, and therefore, the Complaint is barred. THIRTEENTH AFFIRMATIVE DEFENSE (Accord and Satisfaction) Defendants allege that there was an accord and satisfaction, and therefore, Plaintiffs should be denied any recovery. FOURTEENTH AFFIRMATIVE DEFENSE (Comparative Negligence) Any finding of negligence against these answering Defendants should be compared to the negligence of all parties to this action, including all Plaintiffs and all Defendants herein. Mt Mi -4- DEFENDANTS JOANNA BANKS AND BINGOWAH, LLC’S ANSWER TO COMPLAINT0 Oe NDR HOD Oe oS FS 14 FIFTEENTH AFFIRMATIVE DEFENSE (Lack of Notice) Plaintiffs failed to provide timely and attentive notice in reference to the claims of breaches of any agreement. SIXTEENTH AFFIRMATIVE DEFENSE (intervening Superseding Causes) The injuries and damages of which the Plaintiffs alleged were proximately caused by or contributed by the acts of other parties, persons, entities, or unavoidable incidents or conditions, and that said acts were an intervening and superseding cause of said injuries and damages, if any. SEVENTEENTH AFFIRMATIVE DEFENSE (Unjust Enrichment) If the injuries and damages of which the Plaintiffs alleged were rewarded, Plaintiffs would receive more money than they deserve. EIGHTEENTH AFFIRMATIVE DEFENSE (Consent) Plaintiffs agreed to, and participated in, those actions and statements which Plaintiffs claim to have caused damage, and therefore, such agreement, statement, and participation were consents given knowingly and voluntarily; thus Plaintiffs’ claims are invalid. NINETEENTH AFFIRMATIVE DEFENSE (Majority Approval) The acts, omissions, and conducts of Defendants alleged by Plaintiffs in the Complaint were authorized by the majority approval of the members, directors, and/or shareholders of the companies. -5- DEFENDANTS JOANNA BANKS AND BINGOWAH, LLC’S ANSWER TO COMPLAINTTWENTIETH AFFIRMATIVE DEFENSE (Apportionment of Fault) The defendants other than these Defendants caused or contributed to the damages Plaintiffs claim to have suffered. Therefore any award made in favor of Plaintiffs in this case must be divided among the defendants so that each pays only his, her or its fair share in relationship to his, her or its amount of fault. TWENTY-FIRST AFFIRMATIVE DEFENSE (No Duty) The Complaint is barred, in whole or in part, because Defendants did not owe Plaintiffs a duty, including a fiduciary duty. If Defendants did owe Plaintiffs a duty, Defendants did not breach their duty to Plaintiffs. TWENTY-SECOND AFFIRMATIVE DEFENSE (No Proximate Cause) Plaintiffs’ causes of action are barred, in whole or in part, because any alleged acts or omissions to act by Defendants were not the proximate cause of any damages suffered by Plaintiffs. TWENTY-THIRD AFFIRMATIVE DEFENSE (Intentional Acts of Others) Defendants contend that the sole and/or proximate cause of the damages claimed by Plaintiffs was and is due to the willful and intentional acts of persons and/or entities other than answering Defendants. Ml Mt -6- DEFENDANTS JOANNA BANKS AND BINGOWAH, LLC’S ANSWER TO COMPLAINTTWENTY-FOURTH AFFIRMATIVE DEFENSE (Nonjoinder of Parties) Plaintiffs failed to join all indispensable parties; as a result of this failure to join, complete relief cannot be accorded to those already parties to the action and will result in prejudice to the parties in any possible future litigation. TWENTY-FIFTH AFFIRMATIVE DEFENSE (No Attorneys’ Fees) The Complaint, and each purported cause of action contained in the Complaint, fails to allege facts sufficient to allow recovery of attorneys’ fees from Defendant. TWENTY-SIXTH AFFIRMATIVE DEFENSE (Failure to Plead Fraud/Misrepresentations with Particularity) Plaintiffs failed to plead with particularity the circumstances constituting the alleged causes of action including, but not limited to, fraud/misrepresentations. TWENTY-SEVENTH AFFIRMATIVE DEFENSE (Good Faith) Plaintiffs’ claims are barred, in whole or in part, because Defendants at all times acted in good faith and did not directly or indirectly perform any act whatsoever that would constitute a violation of any right of Plaintiffs’ or any duty owed to Plaintiffs. TWENTY-EIGHTH AFFIRMATIVE DEFENSE (Failure of Consideration) The allegations of the Complaint, and each and every purported cause of action therein, is abated by failure and/or lack of consideration and Plaintiffs cannot assert a cause of action thereunder. Ml -7- DEFENDANTS JOANNA BANKS AND BINGOWAH, LLC’S ANSWER TO COMPLAINToe ND HW BF WN TWENTY-NINTH AFFIRMATIVE DEFENSE (Indemnity) If answering Defendants were negligent, said negligence was secondary and passive, as contrasted with the active and primary negligence of other parties to this lawsuit, and therefore, Plaintiffs are not, as a matter of law, entitled to recovery from answering Defendants on any theory of indemnity. THIRTIETH AFFIRMATIVE DEFENSE (Indemnification) If any liability exists on the part of Defendants to Plaintiffs, such liability is to be completely indemnified by other parties to this action, including but not limited to all other defendants in this action. THIRTY-FIRST AFFIRMATIVE DEFENSE (Equitable Remedy) As between Plaintiffs and answering Defendants, the equities do not preponderate in favor of Plaintiffs, so as to allow recovery for equitable remedy. THIRTY-SECOND AFFIRMATIVE DEFENSE (Privileged and Authorized) The acts, omissions, and conducts of the Defendants alleged by the Plaintiff in the Complaint were privileged and/or authorized. THIRTY-THIRD AFFIRMATIVE DEFENSE (Business Judgment Rule) Defendants acted in good faith and in the best interests of the companies that are the subject matter of the Complaint. Ml -8- DEFENDANTS JOANNA BANKS AND BINGOWAH, LLC’S ANSWER TO COMPLAINTCoe YW DH BF BW NY RNR NY NY KY NY NR NN YB Se Be Se ewe Be Be Be eo QW AA FF BH = SSC eA ADA A Bw NH SB S THIRTY-FOURTH AFFIRMATIVE DEFENSE (Failure to Exercise Due Diligence) Plaintiffs’ claims are barred, in whole or in part, because Plaintiffs’ failed to exercise due diligence to the matters complained about in the Complaint completely barring, or proportionately reducing Plaintiffs’ right of recovery herein, if any. THIRTY-FIFTH AFFIRMATIVE DEFENSE (Good Motive) All statements and comments allegedly made by Defendants were made in good motive and were fair comments in exercising of free speech and no provably false assertions of fact. THIRTY-SIXTH AFFIRMATIVE DEFENSE (Substantial Truth) Plaintiffs’ claims are barred, in whole or in part, under the substantial truth doctrine. THIRTY-SEVENTH AFFIRMATIVE DEFENSE (Reservation of Right to Amend Answer) Defendants aver that they have not yet completed thorough investigation and/or complete discovery of all of the facts and circumstances of the subject matter of the Complaint, and accordingly, reserve the right to amend, modify, revise, or supplement their answer, and to plead such further defenses and take such further action at they may deem proper and necessary in their defense upon the completion of said investigation and study. PRAYER WHEREFORE, Defendants pray for judgment against Plaintiffs as follows: 1. The Complaint for Damages be dismissed with prejudice against Defendants; 2. That the relief prayed for in the Complaint for Damages on file herein be denied; 3. That Plaintiffs take nothing by way of the Complaint for Damages on file herein; -9- DEFENDANTS JOANNA BANKS AND BINGOWAH, LLC’S ANSWER TO COMPLAINTCom NY DH RB WN N RMN NR NY YR Se Be ee we ee we ew BRREREBBRHRESVEPeWTABDEBALSY 4. Costs of suit, including, without limitation reasonable attorneys’ fees, if applicable; and 5. Any other further relief the Court deems just and proper. LAW OFFICES OF DARIUS T. CHAN, P.C. Dated: June 5, 2015 Andrew H. Dai Attorney for Defendants JOANNA BANKS and BINGOWAH, LLC -10- DEFENDANTS JOANNA BANKS AND BINGOWAH, LLC’S ANSWER TO COMPLAINTCo Om IN DH HW BF BW N b= 6S 16 17 PROOF OF SERVICE California Code of Civil Procedure Sections 1013a(3) and 2015.5 I declare that I am employed in the County of San Francisco, California. I am over the age of eighteen years and am not a party to the within cause. My business address is 500 Sutter Street, Suite 922, San Francisco, California 94102. On the date last written below, I caused to be served the within DEFENDANTS JOANNA BANKS AND BINGOWAH, LLC’S ANSWER TO COMPLAINT as follows: SEE ATTACHED SERVICE LIST. Xx] BY MAIL: I placed each such sealed envelope, for collection and mailing at San Francisco, California, following ordinary business practices. I am readily familiar with the practices for the processing of said mail, which is deposited in the United States Postal Service the same day as it is placed for processing. EC] BY PERSONAL I caused each such envelope to be delivered by hand SERVICE: to the addressee(s) noted in this Proof of Service. OVERNIGHT I caused each such envelope to be delivered by SERVICE: Overnight/Express Mail Delivery to the addressee(s) noted in this Proof of Service. BY FACSIMILE: I caused said document to be transmitted by oe facsimile machine to the number indicated after the address noted or the addressee on the facsimile cover sheet. Xx] BY E-FILING: By electronically transmitting a true and correct copy through the court designated e-filing vendor, File&ServeXpress, pursuant to Code of Civil Procedure §1010. BY E-MAIL: By electronically mailing a true and correct copy through The Law Offices of Darius T, Chan P.C.’s electronic mail system to the email address(s) set forth herein per agreement pursuant to Code of Civil Procedure § 1010.6(a). -11- DEFENDANTS JOANNA BANKS AND BINGOWAH, LLC’S ANSWER TO COMPLAINToem IND HW I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on Jeane g > 2015, at San Francisco, California. hit SERVICE LIST For Plaintiffs HRD COFFEE SHOP For Defendant RICHARD TOM INC. AND DAVID YEUNG Joel Gumbiner, Esq. Williams & Gumbiner LLP 100 Drakes Landing Road, Suite 260 Greenbrae, California 94904 Tel: 415.755.1880 Fax: 415.419.5469 -12- Pamela B. Bumatay, Esq. Clapp Moroney et al. 1111 Bayhill Drive, #300 San Bruno, California 94066 Tel: 650.989.5400 Fax: 650.989.5499 DEFENDANTS JOANNA BANKS AND BINGOWAH, LLC’S ANSWER TO COMPLAINT