Preview
18CV337737
Santa Clara — Civil
MATTHEW A. CROSBY, CSB #070524 Electronically Filed
MICHAEL C. CROSBY, CSB #277849 by Superior Court of CA,
AMANDA R. VAN HOESEN, CSB #288486 County of Santa Clara,
CROSBY & CROSBY, 5/12/2020 11:20 AM
A PROFESSIONAL LAW CORPORATION ee
q Reviewed By: Y. Chavez
1570 The Alameda, Suite 200
San Jose, CA 95126 Case #18CV337737
e-mail: matt@crosbyple.com Envelope: 4329818
e-mail: mike@crosbyple.com
Telephone: 408-370-7500
Facsimile: 408-984-5063
Attorneys for Plaintiffs and Cross-Defendants
IZABELLA KIPNIS, ALEXANDRA F. KIPNIS,
and SVETLANA KIPNIS
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SANTA CLARA
CASE NO. 18CV337737
[consolidated with 19CV344363]
IZABELLA F. KIPNIS, an individual; and
ALEXANDRA F. KIPNIS, an individual,
Plaintiffs,
vs.
Y. Chavez
ANSWER OF SVETLANA KIPNIS TO
HELGAH V. YEFF’S UNVERIFIED
HELGAH V. YEFF, an individual;
NEW YORK LIFE INSURANCE COMPANY,
a New York corporation; and DOES 1 though
20, inclusive,
CROSS-COMPLAINT FOR
DEFAMATION; INTENTIONAL
INFLICTION OF EMOTIONAL
DISTRESS; NEGLIGENT
INFLICTION OF EMOTIONAL
INTERFERENCE WITH
PROSPECTIVE ECONOMIC
ADVANTAGE; NEGLIGENT
INTERFERENCE WITH
PROSPECTIVE ECONOMIC
ADVANTAGE
AND RELATED CROSS-COMPLAINTS
)
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)
)
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)
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Defendants. ) DISTRESS; INTENTIONAL
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2
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2)
}
) DEMAND FOR JURY TRIAL
) :
Complaint Filed: 03-12-2019
) Cross-Complaint Filed: 05-01-2019
Cross-Defendant, SVETLANA KIPNIS (“SVETLANA” and/or “said Cross-
Defendant”), hereby answers Helgah V. YeffCross-Complaint Against Izabella F. Kipnis, Alexandra
F. Kipnis, And Svetlana Kipnis For: Defamation; Intentional Infliction Of Emotional Distress;
Negligent Infliction Of Emotional Distress; Intentional Interference With Prospective Economic
Advantage; Negligent Interference With Prospective Economic Advantage filed on May 1, 2019 (the
ANSWER OF SVETLANA KIPNIS TO YEFF’S CROSS-COMPLAINT PAGE 1“Cross-Complaint”) by cross-complainant, HELGAH V. YEFF (“YEFF” and “Cross-Complainant”).
SVETLANA answers the Cross-Complaint for herself and herself alone. SVETLANA answers the
allegations and causes of action therein as follows:
GENERAL DENIAL
Pursuant to California Code of Civil Procedure §431.30(d), cross-defendant
SVETLANA KIPNIS generally denies each and every allegation of the Cross-Complaint, the whole
thereof, including each and every alleged cause of action contained therein, and further deny that
Cross-Complainant YEFF is entitled to the relief requested or any relief at all, that Cross-
Complainant sustained or will sustain damages in the sum or sums alleged, in any other sum, or at
all, or is entitled to attorney’s fees or punitive or exemplary damages in the sum or sums alleged, or
any other sum or sums, or at all, or such other relief as is requested in the Cross-Complaint.
STATEMENT OF THE CASE
This is an action by IZABELLA KIPNIS and ALEXANDRA KIPNIS, who are the
surviving adult children of SVETLANA and Gary Kipnis, who died on September 26, 2018
(“Decedent”). This action is with respect to IZABELLA KIPNIS’ and ALEXANDRA KIPNIS’ right
to at least nine (9) financial accounts of Decedent. The Cross-Complaint by YEFF is her misguided,
meritless, and malicious response to, as YEFF puts it, the “demand[] that Yeff not collect any funds
from Decedent’s estate”. See the Cross-Complaint at 4:16-17.
FIRST AFFIRMATIVE DEFENSE
[Failure to State a Cause of Action]
ie As a first, a separate, and affirmative defense to the Cross-Complaint, and to
each and every cause of action therein, SVETLANA alleges that the Cross-Complaint and each of
the purported causes of action therein fails to set forth facts sufficient to constitute a cause of action
against SVETLANA.
SECOND AFFIRMATIVE DEFENSE
Cross-Complainant’s Unreasonable Conduct]
2. As a further affirmative defense to the Cross-Complaint, and to each cause
of action therein, SVETLANA alleges that Cross-Complainant should be denied recovery because
ANSWER OF SVETLANA KIPNIS TO YEFF’S CROSS-COMPLAINT PAGE 2wn
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Cross-Complainant’s conduct, in light of her own intelligence and information, was manifestly
unreasonable, preposterous, and irrational.
THIRD AFFIRMATIVE DEFENSE
(Unclean Hands]
3. Asa further affirmative defense to the Cross-Complainant, and to each cause
of action therein, alleges that Cross-Complainant, by virtue of having been the sole or major
contributing factor to the alleged losses of which she now complains, based upon her own fault or
misconduct, is guilty of unclean hands and therefore is barred from seeking relief sought by that
principle, as well as by the principle of in pari delicto.
FOURTH AFFIRMATIVE DEFENSE
[Waiver]
4. As a further affirmative defense to the Cross-Complaint, and to each cause
of action therein, SVETLANA alleges that if Cross-Complainant sustained damages, which
SVETLANA denies, then Cross-Complainant is barred by the doctrine of waiver from recovering
those damages from SVETLANA.
FIFTH AFFIRMATIVE DEFENSE
Estoppel]
5. As a further affirmative defense to the Cross-Complaint, and to each cause
of action therein, SVETLANA alleges that if Cross-Complainant sustained damages, which
SVETLANA denies, Cross-Complainant is barred by the doctrine of estoppel from recovering those
damages from SVETLANA. In addition, Cross-Complainant has intentionally relinquished and
waived any rights she may have to institute an action for the alleged wrongdoings complained of in
that Cross-Complainant was a major contributing factor to the alleged losses of which she now
complains. Cross-Complainant, by virtue of her participation in causing the alleged damages of
which she now complains, is estopped from asserting any claim based on the consequences that flow
from SVETLANA’s alleged wrongdoing.
Mit
Mit
ANSWER OF SVETLANA KIPNIS TO YEFF’S CROSS-COMPLAINT _ PAGE 3SIXTH AFFIRMATIVE DEFENSE
[Lack of Proximate Cause]
6. Asa further affirmative defense to the Cross-Complainant, and to each cause
of action therein, SVETLANA alleges that SVETLANA’s conduct was not the cause in fact or the
proximate cause of any of the losses alleged by Cross-Complainant.
SEVENTH AFFIRMATIVE DEFENSE
[Failure to Mitigate Damages]
ve As a further affirmative defense to the Cross-Complainant, and to each cause
of action therein, SVETLANA alleges that Cross-Complainant should be denied recovery because
Cross-Complainant failed to exercise reasonable care and diligence to mitigate the alleged damages,
if any, which Cross-Complainant claims to have sustained, and Cross-Complainant’s recovery
should be barred or diminished accordingly.
EIGHTH AFFIRMATIVE DEFENSE
[Responsibility of Third Parties]
8. As a further affirmative defense to the Cross-Complaint, and to each cause
of action therein, SVETLANA alleges that any injuries or damages to Cross-Complainant were a
result of the intentional, negligent, or otherwise wrongful acts of third parties, and any claims against
this answering Cross-Defendant should be reduced in proportion to the fault of those third parties.
NINTH AFFIRMATIVE DEFENSE
[Failure to State a Claim for Exemplary Damages]
9. As a further affirmative defense to the Cross-Complaint, and to each cause
of action therein, SVETLANA alleges that the Cross-Complaint, and each cause of action therein,
fails to state facts sufficient to constitute a cause of action for recovery of punitive or exemplary
damages.
TENTH AFFIRMATIVE DEFENSE
[Procedural Due Process]
10. Asa further affirmative defense to the Cross-Complaint, and to each cause
of action therein, SVETLANA alleges that to the extent the Cross-Complaint seeks punitive or
ANSWER OF SVETLANA KIPNIS TO YEFF’S CROSS-COMPLAINT PAGE 4exemplary damages, it violates the rights of the this answering Cross-Defendant to procedural due
process under the Fourteenth Amendment to the United States Constitution, and under the
Constitution of the State of California, and therefore fails to state facts sufficient to constitute a cause
of action upon which punitive or exemplary damages may be awarded.
ELEVENTH AFFIRMATIVE DEFENSE
[Uncertainty]
11. Asa further affirmative defense to the Cross-Complaint, and to each cause
of action therein, SVETLANA alleges that the Cross-Complaint does not describe the claims against
this Cross-Defendant with sufficient particularity and certainty to enable this Cross-Defendant to
determine what defenses may exist. This Cross-Defendant reserves the right to assert all defenses
that may be pertinent to or arise from Cross-Complainant’s claims against this Cross-Defendant
when the precise nature of those claims has been ascertained.
TWELFTH AFFIRMATIVE DEFENSE |
[Laches]
12. Asa further affirmative defense to the Cross-Complaint, and to each cause
of action therein, SVETLANA alleges that Cross-Complainant has inexcusably and unreasonably
delayed the commencement of an action on the claims set forth in the Cross-Complaint, to the
prejudice of this Cross-Defendant, in that Cross-Complainant has significantly delayed bringing her
claims until the transactions complained of have become obscured by time, the principal participants
are no longer available, and the evidence has been lost, and thus no determination of the true facts
can be made, and any conclusion to which the court can arrive must, at best, be conjectural.
THIRTEENTH AFFIRMATIVE DEFENSE
Statute of Limitations
13. Asa further affirmative defense to the Cross-Complaint, and each cause of
action therein, this Cross-Defendant alleges that the claims set forth therein are barred by the
applicable statute of limitations including, but not limited to, those provided in California Code of
Civil Procedure §§312 through 349.4, and specifically barred by the 2-year statute of limitations set
forth in CCP §335.1 [actions for injury to individual caused by wrongful act or neglect (infliction
ANSWER OF SVETLANA KIPNIS TO YEFF’S CROSS-COMPLAINT PAGE 5Sco 0m ND HW
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of emotional distress and violation of right to privacy)]; the 3-year statute of limitations set forth in
CCP §338(c) [an action for taking, detaining, or injuring goods or chattels, including an action for
the specific recovery of personal property (conversion)]; and the 1-year statute of limitations set forth
in CCP §340(c) [an action for libel and slander].
FOURTEENTH AFFIRMATIVE DEFENSE
{Comparative Negligence of Cross-Complainant]
14. Fora further affirmative defense to the Cross-Complaint, and each cause of
action therein, and especially all causes of action for negligence, this Cross-Defendant alleges that
Cross-Complainant failed to exercise reasonable and ordinary care, caution, or prudence for her own
safety. The resulting injuries and damages, if any, sustained by Cross-Complainant were
proximately caused and contributed to by the negligence of the Cross-Complainant.
FIFTEENTH AFFIRMATIVE DEFENSE
[Contributory Negligence]
15. As a further affirmative defense to the Cross-Complainant, and each cause of
action therein, SVETLANA alleges that all the injuries and damages complained of by Cross-
Complainant, if any there were, were either wholly or in part proximately caused by the negligence
or other wrongful acts or omissions of persons or entities other than this Cross-Defendant, and that
said negligence or wrongful acts or omissions either are imputed to Cross-Complainant by reason
of her relationship with said persons or entities, or comparatively reduce the proportion of negligence
and corresponding liability of this Cross-Defendant, if any, which liability is specifically denied.
SIXTEENTH AFFIRMATIVE DEFENSE
[Apportionment of Non-Economic Damages]
16. Asa further affirmative defense to the Cross-Complainant, and each cause of
action therein, SVETLANA contends that if liability is assessed against this Cross-Defendant,
pursuant to California Civil Code §1431 et seq., this Cross-Defendant shall be liable only for the
amount of non-economic damages allocated to the cross-defendant in direct proportion to the
percentage of fault assessed against the cross-defendant by the trier of fact, and requests that a
separate judgment be rendered against each cross-defendant for that amount, but that Cross-
ANSWER OF SVETLANA KIPNIS TO YEFF’S CROSS-COMPLAINT PAGE 6Defendant in setting forth affirmative defenses makes no admission that this Cross-Defendant is
liable to Cross-Complainant in any amount or in any proportion; and this Cross-Defendant, in setting
forth this affirmative defense, makes no admission that Cross-Complainant has been damaged in any
sum or sums at all.
SEVENTEENTH AFFIRMATIVE
[Active-Passive Negligence Defense]
17. As a further affirmative defense to the Cross-Complainant, and each cause of
action therein, SVETLANA contends that if this answering Cross-Defendant is found responsible
in damages to Cross-Complainant or some other party, whether as alleged or otherwise, this Cross-
Defendant is informed and believe, and on that basis alleges, that the liability will be predicated upon
the active conduct of Cross-Complainant, whether by negligence, breach of warranty, strict liability
in tort or otherwise, which unlawful conduct proximately caused the alleged incident and that Cross-
Complainant’s action against this Cross-Defendant is barred by that active and affirmative conduct.
EIGHTEENTH AFFIRMATIVE DEFENSE
[Intervening and Superseding Actions]
18. Asa further affirmative defense to the Cross-Complaint, and each cause of
action therein, SVETLANA alleges that the intervening and superseding actions or omissions by
persons or parties other than this Cross-Defendant proximately caused the injuries alleged by Cross-
Complainant such that this Cross-Defendant has no liability.
NINETEENTH AFFIRMATIVE DEFENSE
[Third-Party Conduct as Superseding Cause]
19. Asa further affirmative defense to the Cross-Complaint, and each cause of
action therein, SVETLANA alleges that said Cross-Defendant is not responsible for Cross-
Complainant’s harm because of the later misconduct of a third party. The third party’s conduct
occurred after the conduct of said Cross-Defendant. A reasonable person would consider the third
party’s conduct as a highly unusual or an extraordinary response to the situation. Said Cross-
Defendant did not know and had no reason to expect that the third party would act in a negligent
and/or wrongful manner. The kind of harm resulting from the third party’s conduct was different
ANSWER OF SVETLANA KIPNIS TO YEFF’S CROSS-COMPLAINT PAGE 7wn
from the kind of harm that could have been reasonably expected from the conduct of said Cross-
Defendant.
TWENTIETH AFFIRMATIVE DEFENSE
[No Negligence]
20% As a further affirmative defense to the Cross-Complaint, and each cause of
action therein, and especially the Third Cause of Action for Negligent Infliction of Emotional
Distress and the Fifth Cause of Action for Negligent Interference with Prospective Economic
Advantage, SVETLANA alleges that Cross-Complainant should be denied recovery because
() SVETLANA was not negligent; (ii) Cross-Complainant was not harmed; and (iii) SVETLANA’s
acts and omissions were not a substantial factor in causing harm to Cross-Complainant. Moreover,
Cross-Complainant should be denied recovery under the doctrines of: (a) comparative fault of Cross-
Complainant; (b) apportionment of responsibility; (c) assumption of risk; (d) third-party conduct as
a superseding cause; and (e) intentional tort / criminal act as a superseding cause.
TWENTY-FIRST AFFIRMATIVE DEFENSE
[Unavoidable Accident]
21. As a further affirmative defense to the Cross-Complaint, and each cause of
action therein, SVETLANA is informed and believes, and on that basis alleges, that any and all
injuries, losses, or damages, if any, were the direct and proximate result of an unavoidable accident,
incident, or condition and, as such, were an act of God without fault or liability on the part of this
Cross-Defendant.
TWENTY-SECOND AFFIRMATIVE DEFENSE
[No Damages]
22. Asa further affirmative defense to the Cross-Complaint, and each cause of
action therein, SVETLANA alleges that Cross-Complainant should be denied recovery because
Cross-Complainant sustained no pecuniary damage or injury as a result of the alleged acts or
omissions of this Cross-Defendant.
Mf
Ml
ANSWER OF SVETLANA KIPNIS TO YEFF’S CROSS-COMPLAINT PAGE 8TWENTY-THIRD AFFIRMATIVE DEFENSE
[Assumption of Risk]
23. Asa further affirmative defense to the Cross-Complaint, and to each cause
of action therein, SVETLANA alleges that Cross-Complainant assumed the risk of the acts and
omissions of this Cross-Defendant. Therefore, Cross-Complainant is completely barred from
recovery.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
Lawful Actions]
24. As a further affirmative defense to the Cross-Complaint, and each cause of
action therein, SVETLANA alleges that the alleged actions of this Cross-Defendant, which are the
subject of this action, were lawful.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
[Justified Actions]
25. Asa further affirmative defense to the Cross-Complaint, and each cause of
action therein, SVETLANA alleges that the alleged actions of this Cross-Defendant, which are the
subject of this action, were justified.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
Moot
26. Asa further affirmative defense to the Cross-Complaint, and to each cause
ofaction therein, SVETLANA alleges that Cross-Complainant’s causes of action have been rendered.
moot.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
[Lack of Standing - CCP §367]
27. Asa further affirmative defense to the Cross-Complaint, and to each cause
of action therein, SVETLANA alleges that Cross-Complainant lacks standing to sue this Cross-
Defendant.
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ANSWER OF SVETLANA KIPNIS TO YEFF’S CROSS-COMPLAINT PAGE 9an
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TWENTY-EIGHTH AFFIRMATIVE DEFENSE
Due Care]
28. Asa further affirmative defense to the Cross-Complaint, and to each cause
of action therein, SVETLANA alleges that each cause of action therein is barred because at all times
this Cross-Defendant exercised due care with regard to her duties (if any) and obligations (if any)
owed to Cross-Complainant. Notwithstanding the foregoing, this Cross-Defendant denies that she
owed any duty to Cross-Complainant and denies that she had any obligations to Cross-Complainant.
TWENTY-NINTH AFFIRMATIVE DEFENSE
[No Emotional Distress]
29. Asa further affirmative defense to the Cross-Complaint, and especially the
Second Cause of Action for Intentional Infliction of Emotional Distress and the Third Cause of
Action for Negligent Infliction of Emotional Distress, SVETLANA alleges as follows:
(i) SVETLANA’s conduct was not outrageous conduct, i.e., it was not so extreme that it went
beyond all possible bounds of decency; (ii) SVETLANA’s conduct, if any, was nothing more than
trivialities such as indignities, annoyances, hurt feelings, or bad manners that a reasonable person
is expected to endure; (iii) SVETLANA did not intend to cause emotional distress and did not act
with reckless disregard of the probability that Cross-Complainant would suffer emotional distress;
(iv) SVETLANA was not negligent; (v) Cross-Complainant did not suffer severe emotional distress,
e., so substantial or long lasting that no reasonable person in a civilized society should be expected
to bear it; and (vi) SVETLANA’s conduct was not a substantial factor in causing Cross-
Complainant’s alleged severe emotional distress (if any).
THIRTIETH AFFIRMATIVE DEFENSE
{Words Alone]
30. Asa further affirmative defense to the Cross-Complaint, and especially the
Second Cause of Action for Intentional Infliction of Emotional Distress and the Third Cause of
Action for Negligent Infliction of Emotional Distress, SVETLANA alleges as follows: Mere words
are not actionable. Profanity, obscenity, abuse, insult, indignity, or threats are considered to amount
to nothing more than mere annoyance, because such conduct is not sufficiently “outrageous”. See
ANSWER OF SVETLANA KIPNIS TO YEFF’S CROSS-COMPLAINT PAGE 10Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1128-1129.
THIRTY-FIRST AFFIRMATIVE DEFENSE
[Privilege — Assertion of Legal Right],
31. Asa further affirmative defense to the Cross-Complaint, and especially the
Second Cause of Action for Intentional Infliction of Emotional Distress and the Third Cause of
Action for Negligent Infliction of Emotional Distress, SVETLANA alleges as follows: At all times
mentioned in the Cross-Complaint, this answering Cross-Defendant was asserting her legal right to
collect the subject death benefit proceeds, which were assigned to her daughter — with a good faith
belief in the existence of those rights.
THIRTY-SECOND AFFIRMATIVE DEFENSE
[Privilege — Statement Made in Official Proceeding (Civil Code §47(b)]
32. Asa further affirmative defense to the Cross-Complaint, and especially the
First Cause of Action for Defamation, the Second Cause of Action for Intentional Infliction of
Emotional Distress, and the Third Cause of Action for Negligent Infliction of Emotional Distress,
SVETLANA alleges as follows: The statements (if any) complained of by Cross-Complainant were
made in the course of an official proceeding authorized by law, to wit: an autopsy, an interment,
statements made to police regarding potential criminal activity, and court filings.
THIRTY-THIRD AFFIRMATIVE DEFENSE
Privileged Conduct]
33. Asa further affirmative defense to the Cross-Complaint, and especially the
First Cause of Action for Defamation, the Second Cause of Action for Intentional Infliction of
Emotional Distress, and the Third Cause of Action for Negligent Infliction of Emotional Distress,
SVETLANA alleges that this answering Cross-Defendant is not responsible for Cross-Complainant’s
harm, if any, because the conduct of this answering Cross-Defendant was permissible. Moreover,
(i) Cross-Defendant was exercising her right to protect her economic interests; (ii) the conduct of this
answering Cross-Defendant was lawful and consistent with community standards; and (iii) this
answering Cross-Defendant had a good faith belief that she had a legal right to engage in the
conduct.
ANSWER OF SVETLANA KIPNIS TO YEFF’S CROSS-COMPLAINT PAGE 11THIRTY-FOURTH AFFIRMATIVE DEFENSE
[No Interference with Prospective Economic Advantage]
34. Asa further affirmative defense to the Cross-Complaint, and especially the
Fourth Cause of Action for Intentional Interference with Prospective Economic Advantage and the
Fifth Cause of Action for Negligent Interference with Prospective Economic Advantage,
SVETLANA alleges that this answering Cross-Defendant is not responsible for Cross-Complainant’s
harm, if any, because she did not wrongfully exercise control over Decedent’s laptop computer and
cell phone (or any of Cross-Complainant’s private financial information). In addition,
SVETLANA’s actions as alleged herein were privileged. Moreover, (i) there were no economic
relationships between Cross-Complainant and any third parties that would have resulted in economic
benefit to Cross-Complainant; (ii) SVETLANA did not disrupt any such economic relationships;
(iii) SVETLANA did not engage in any conduct, intentional or otherwise, to disrupt any such
economic relationships; (iv) Cross-Complainant was not harmed thereby; and (v) SVETLANA’s
alleged conduct was not a substantial factor in causing any alleged harm to Cross-Complainant.
THIRTY-FIFTH AFFIRMATIVE DEFENSE
[Good Faith Belief That Property Was Part of Decedent’s Estate - Probate Code §9651]
35. Asa further affirmative defense to the Cross-Complaint, and all causes of
action therein, SVETLANA alleges that she reasonably believed, and still believes, that Decedent’s
laptop computer and cell phone are part of Decedent’s estate. This answering Cross-Defendant never
took possession of Decedent’s laptop computer and cell phone.
THIRTY-SIXTH AFFIRMATIVE DEFENSE
[Taking Possession of Personal Property in Defense of Own Interests]
36. Asa further affirmative defense to the Cross-Complaint, and each cause of
action therein, SVETLANA alleges that she never took possession of Decedent’s laptop computer
and cell phone.
THIRTY-SEVENTH AFFIRMATIVE DEFENSE
No Invasion of Privacy]
37. _ Asa further affirmative defense to the Cross-Complaint, SVETLANA alleges
ANSWER OF SVETLANA KIPNIS TO YEFF’S CROSS-COMPLAINT PAGE 12oN DH HW
that this answering Cross-Defendant did not violate Cross-Complainant’s right to privacy.
Moreover, (i) Cross-Complainant did not have a reasonable expectation of privacy in Decedent’s
laptop computer and/or cell phone; (ii) this answering Cross-Defendant did not intentionally intrude
in any of Cross-Complainant’s private and/or financial information; (iii) the alleged intrusion by this
answering Cross-Defendant was not highly offensive to areasonable person; (iv) Cross-Complainant
was not harmed by the alleged intrusion; and (v) the conduct of this answering Cross-Defendant was
not a substantial factor in causing Cross-Complainant’s harm, if any.
THIRTY-EIGHTH AFFIRMATIVE DEFENSE
J
[First Amendment Outweighs the Cross-Complainant’s Right of Privacy]
38. Asa further affirmative defense to the Cross-Complaint, SVETLANA alleges
that this answering Cross-Defendant’s First Amendment right to freedom of expression protects
SVETLANA’s rights to free speech and petitioning activity, and outweighs Cross-Complainant’s
right to privacy.
THIRTY-NINTH AFFIRMATIVE DEFENSE
[Invasion of Privacy Justified]
39. Asa further affirmative defense to the Cross-Complaint, SVETLANA alleges
that the conduct of this answering Cross-Defendant was justified. The alleged invasion of privacy
(which is denied) was justified because it substantially furthered one or more legitimate or
compelling countervailing interests.
FORTIETH AFFIRMATIVE DEFENSE
(No Defamation]
40. _ Asa further affirmative defense to the Cross-Complaint, and especially the
First Cause of Action for Defamation, SVETLANA alleges that this answering Cross-Defendant did
not defame or slander Cross-Complainant. Moreover, (i) this answering Cross-Defendant did not
make defamatory statements about Cross-Complainant to persons other than Cross-Complainant;
(ii) whatever statements were made by this answering Cross-Defendant were true; (iii) this answering
Cross-Defendant used reasonable care to determine the truth or falsity of the alleged statements;
(iv) Cross-Complainant has no actual damages; and (v) the statements were made within the course
ANSWER OF SVETLANA KIPNIS TO YEFF’S CROSS-COMPLAINT PAGE 13of an official proceeding.
FORTY-FIRST AFFIRMATIVE DEFENSE
[Opinion
41. Asa further affirmative defense to the Cross-Complaint, and especially the
First Cause of Action for Defamation, SVETLANA alleges that statements (if any) made by this
answering Cross-Defendant concerning Cross-Complainant were not statements of fact, but
statements of opinion. Statements of opinion are constitutionally protected. In addition, “rhetorical
hyperbole”, “vigorous epithets”, “lusty and imaginative expressions of .. . contempt” and language
used “in a loose, figurative sense” are accorded constitutional protection.
FORTY-SECOND AFFIRMATIVE DEFENSE
[Truth]
42. Asa further affirmative defense to the Cross-Complaint, and especially the
First Cause of Action for Defamation, SVETLANA alleges that the statements (if any) made by this
answering Cross-Defendant concerning the Cross-Complainant were true. Such statements (if any)
need not be true in every detail, so long as the statements (if any) were substantially true.
FORTY-THIRD AFFIRMATIVE DEFENSE
[Consent]
43. Asa further affirmative defense to the Cross-Complaint, and especially the
First Cause of Action for Defamation, SVETLANA alleges that Cross-Complainant consented, by
words or conduct, to this answering Cross-Defendant’s communication of the statements (if any) to
others.
FORTY-FOURTH AFFIRMATIVE DEFENSE
[Common Interest Privilege - Malice (Civil Code §47(c)]
44. Asa further affirmative defense to the Cross-Complaint, and especially the
First Cause of Action for Defamation, SVETLANA alleges that the statements (if any) made by this
answering Cross-Defendant are subject to the “common interest” privilege of Civil Code §47(c).
Moreover, the statements (if any) were not made with hatred or ill will toward Cross-Complainant;
this answering Cross-Defendant had no willingness to vex, annoy, or injure Cross-Complainant; and
ANSWER OF SVETLANA KIPNIS TO YEFF’S CROSS-COMPLAINT PAGE 14ot Dw
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this answering Cross-Defendant had reasonable grounds for believing the truth of the statements (if
any).
FORTY-FIFTH AFFIRMATIVE DEFENSE
[Incorporation by Reference of Affirmative Defenses of Co-Cross-Defendants]
45. Asa further affirmative defense to the Cross-Complaint, and to each cause
of action therein, this answering Cross-Defendant hereby incorporates by this reference, as if set
forth in full herein, all of the affirmative defenses of each and every cross-defendant in this action
including, but not limited to, Izabella Kipnis and Alexandra Kipnis.
FORTY-SIXTH AFFIRMATIVE DEFENSE
[Reservation of Right to Assert Additional Defenses]
46. Asa further affirmative defense to the Cross-Complaint, and to each cause
of action therein, this answering Cross-Defendant alleges that she presently has insufficient
knowledge or information on which to form a belief as to whether she may have additional, as yet
unstated, defenses available. This answering Cross-Defendant reserves the right to assert additional
defenses in the event discovery indicates that it would be appropriate.
WHEREFORE, having fully answered the allegations contained in the Cross-
Complaint, this answering Cross-Defendant prays for relief as follows:
ie That Cross-Complainant take nothing by her Cross-Complaint;
2. That Cross-Complainant’s action and each purported cause of action therein
be dismissed with prejudice without leave to amend;
3. That judgment be entered in favor of this answering Cross-Defendant;
4. That this answering Cross-Defendant be awarded her costs of suit and
attorney’s fees pursuant to any applicable agreement, statute, or case law; and
5. For such other and further relief as the court deems just and proper.
DEMAND FOR JURY TRIAL
Cross-Defendant, SVETLANA KIPNIS, hereby demands a trial by jury as to all issues
so triable in this action.
Mf
ANSWER OF SVETLANA KIPNIS TO YEFF’S CROSS-COMPLAINT PAGE 15Dated: May 12, 2020
AnswerOfSvetlanaKipnisToCross-Complaint.wpd
By:
CROSBY & CROSBY,
A PROFESSIONAL LAW CORPORATION
Za
MICHAEL C. CROSBY,
Attorney for P|
aintiffs and Cross-Defendants
IZABELLA k
PNIS, ALEXANDRA KIPNIS,
and SVETLANA KIPNIS
ANSWER OF SVETLANA KIPNIS TO YEFF’S CROSS-COMPLAINT
PAGE 16PROOF OF SERVICE BY U.S. MAIL
SHAUNA PEPITONE declares:
Iam over the age of 18 years and not a party to this action. My business address is Crosby
& Crosby, APLC, 1570 The Alameda, Suite 200, San Jose, CA 95126. On May 12, 2020,1 served
the following document(s) in Santa Clara County Superior Court Case No. 18CV337737
(consolidated with Santa Clara County Superior Court Case No. 19CV344363):
1.
ANSWER OF SVETLANA KIPNIS TO HELGAH V. YEFF’S UNVERIFIED CROSS-
COMPLAINT TO CROSS-COMPLAINT OF IZABELLA F. KIPNIS AND
ALEXANDRA F. KIPNIS AGAINST HELGAH V. YEFF FOR CREDIBLE
IMPERSONATION OF ACTUAL PERSON ON AN INTERNET WEBSITE;
INVASION OF PRIVACY - APPROPRIATION OF A PERSON’S JAME OR
LIKENESS; AND CONVERSION OF A DIGITAL ASSET — FOR: DEFAMATION;
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS; NEGLIGENT
INFLICTION OF EMOTIONAL DISTRESS (dated May 12, 2020); and
ANSWER OF SVETLANA KIPNIS TO HELGAH V. YEFF’S UNVERIFIED CROSS-
COMPLAINT FOR DEFAMATION; INTENTIONAL INFLICTION OF
EMOTIONAL DISTRESS; NEGLIGENT INFLICTION OF EMOTIONAL
DISTRESS; INTENTIONAL INTERFERENCE WITH PROSPECTIVE ECONOMIC
ADVANTAGE; NEGLIGENT INTERFERENCE WITH PROSPECTIVE
ECONOMIC ADVANTAGE (dated May 12, 2020).
on all other parties and/or their attorney(s) of record in this action by placing a true copy thereof in
a sealed envelope addressed as follows:
James M. Barrett, Esq. David S. Henshaw, Esq.
Law Office of James M. Barrett, PLC Henshaw & Henry, PC
5150 El Camino Real, Suite D-22 1871 The Alameda, Suite 333
Los Altos, CA 94022 San Jose, CA 95126
{and via e-mail to jo@jamesbarrettlaw.com] [and via e-mail to david@henshawlaw.com]
(Attorney for Defendant, Cross-Complainant, & (Attorney for Cross-Defendants Alex Minkovichand
Cross-Defendant Helgah V. Yeff) Kiril Minkovich)
Izabella F. Kipnis
Alexandra F. Kipnis
Svetlana Kipnis
[via e-mail only]
(Plaintiffs, Cross-Defendants/Cross-Complainants
represented by Crosby & Crosby, APLC)
BY MAIL. _ I served the documents by enclosing them in a sealed envelope or package
addressed to the persons at the addresses set forth above, and deposited the sealed envelope
with the United States Postal Service, with the postage fully prepaid. I am employed in the
county where the mailing occurred. The envelope or package was placed in the mail at San
Jose, California.
I declare under penalty of perjury under the laws of the State of California that the foregoing
is true and correct. Executed on May 12, 2020, at San Jose, California.
Ss dug PEPITONE
ProofOfServiceByMail-SP-051220.wpd
PROOF OF SERVICE
Preview
18CV337737 Santa Clara — Civil MATTHEW A. CROSBY, CSB #070524 Electronically Filed MICHAEL C. CROSBY, CSB #277849 by Superior Court of CA, AMANDA R. VAN HOESEN, CSB #288486 County of Santa Clara, CROSBY & CROSBY, 5/12/2020 11:20 AM A PROFESSIONAL LAW CORPORATION ee q Reviewed By: Y. Chavez 1570 The Alameda, Suite 200 San Jose, CA 95126 Case #18CV337737 e-mail: matt@crosbyple.com Envelope: 4329818 e-mail: mike@crosbyple.com Telephone: 408-370-7500 Facsimile: 408-984-5063 Attorneys for Plaintiffs and Cross-Defendants IZABELLA KIPNIS, ALEXANDRA F. KIPNIS, and SVETLANA KIPNIS IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA CASE NO. 18CV337737 [consolidated with 19CV344363] IZABELLA F. KIPNIS, an individual; and ALEXANDRA F. KIPNIS, an individual, Plaintiffs, vs. Y. Chavez ANSWER OF SVETLANA KIPNIS TO HELGAH V. YEFF’S UNVERIFIED HELGAH V. YEFF, an individual; NEW YORK LIFE INSURANCE COMPANY, a New York corporation; and DOES 1 though 20, inclusive, CROSS-COMPLAINT FOR DEFAMATION; INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS; NEGLIGENT INFLICTION OF EMOTIONAL INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE; NEGLIGENT INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE AND RELATED CROSS-COMPLAINTS ) ) ) ) ) ) ) ) ) ) Defendants. ) DISTRESS; INTENTIONAL ) 2 ) ) ) ) 2) } ) DEMAND FOR JURY TRIAL ) : Complaint Filed: 03-12-2019 ) Cross-Complaint Filed: 05-01-2019 Cross-Defendant, SVETLANA KIPNIS (“SVETLANA” and/or “said Cross- Defendant”), hereby answers Helgah V. YeffCross-Complaint Against Izabella F. Kipnis, Alexandra F. Kipnis, And Svetlana Kipnis For: Defamation; Intentional Infliction Of Emotional Distress; Negligent Infliction Of Emotional Distress; Intentional Interference With Prospective Economic Advantage; Negligent Interference With Prospective Economic Advantage filed on May 1, 2019 (the ANSWER OF SVETLANA KIPNIS TO YEFF’S CROSS-COMPLAINT PAGE 1“Cross-Complaint”) by cross-complainant, HELGAH V. YEFF (“YEFF” and “Cross-Complainant”). SVETLANA answers the Cross-Complaint for herself and herself alone. SVETLANA answers the allegations and causes of action therein as follows: GENERAL DENIAL Pursuant to California Code of Civil Procedure §431.30(d), cross-defendant SVETLANA KIPNIS generally denies each and every allegation of the Cross-Complaint, the whole thereof, including each and every alleged cause of action contained therein, and further deny that Cross-Complainant YEFF is entitled to the relief requested or any relief at all, that Cross- Complainant sustained or will sustain damages in the sum or sums alleged, in any other sum, or at all, or is entitled to attorney’s fees or punitive or exemplary damages in the sum or sums alleged, or any other sum or sums, or at all, or such other relief as is requested in the Cross-Complaint. STATEMENT OF THE CASE This is an action by IZABELLA KIPNIS and ALEXANDRA KIPNIS, who are the surviving adult children of SVETLANA and Gary Kipnis, who died on September 26, 2018 (“Decedent”). This action is with respect to IZABELLA KIPNIS’ and ALEXANDRA KIPNIS’ right to at least nine (9) financial accounts of Decedent. The Cross-Complaint by YEFF is her misguided, meritless, and malicious response to, as YEFF puts it, the “demand[] that Yeff not collect any funds from Decedent’s estate”. See the Cross-Complaint at 4:16-17. FIRST AFFIRMATIVE DEFENSE [Failure to State a Cause of Action] ie As a first, a separate, and affirmative defense to the Cross-Complaint, and to each and every cause of action therein, SVETLANA alleges that the Cross-Complaint and each of the purported causes of action therein fails to set forth facts sufficient to constitute a cause of action against SVETLANA. SECOND AFFIRMATIVE DEFENSE Cross-Complainant’s Unreasonable Conduct] 2. As a further affirmative defense to the Cross-Complaint, and to each cause of action therein, SVETLANA alleges that Cross-Complainant should be denied recovery because ANSWER OF SVETLANA KIPNIS TO YEFF’S CROSS-COMPLAINT PAGE 2wn oo Cross-Complainant’s conduct, in light of her own intelligence and information, was manifestly unreasonable, preposterous, and irrational. THIRD AFFIRMATIVE DEFENSE (Unclean Hands] 3. Asa further affirmative defense to the Cross-Complainant, and to each cause of action therein, alleges that Cross-Complainant, by virtue of having been the sole or major contributing factor to the alleged losses of which she now complains, based upon her own fault or misconduct, is guilty of unclean hands and therefore is barred from seeking relief sought by that principle, as well as by the principle of in pari delicto. FOURTH AFFIRMATIVE DEFENSE [Waiver] 4. As a further affirmative defense to the Cross-Complaint, and to each cause of action therein, SVETLANA alleges that if Cross-Complainant sustained damages, which SVETLANA denies, then Cross-Complainant is barred by the doctrine of waiver from recovering those damages from SVETLANA. FIFTH AFFIRMATIVE DEFENSE Estoppel] 5. As a further affirmative defense to the Cross-Complaint, and to each cause of action therein, SVETLANA alleges that if Cross-Complainant sustained damages, which SVETLANA denies, Cross-Complainant is barred by the doctrine of estoppel from recovering those damages from SVETLANA. In addition, Cross-Complainant has intentionally relinquished and waived any rights she may have to institute an action for the alleged wrongdoings complained of in that Cross-Complainant was a major contributing factor to the alleged losses of which she now complains. Cross-Complainant, by virtue of her participation in causing the alleged damages of which she now complains, is estopped from asserting any claim based on the consequences that flow from SVETLANA’s alleged wrongdoing. Mit Mit ANSWER OF SVETLANA KIPNIS TO YEFF’S CROSS-COMPLAINT _ PAGE 3SIXTH AFFIRMATIVE DEFENSE [Lack of Proximate Cause] 6. Asa further affirmative defense to the Cross-Complainant, and to each cause of action therein, SVETLANA alleges that SVETLANA’s conduct was not the cause in fact or the proximate cause of any of the losses alleged by Cross-Complainant. SEVENTH AFFIRMATIVE DEFENSE [Failure to Mitigate Damages] ve As a further affirmative defense to the Cross-Complainant, and to each cause of action therein, SVETLANA alleges that Cross-Complainant should be denied recovery because Cross-Complainant failed to exercise reasonable care and diligence to mitigate the alleged damages, if any, which Cross-Complainant claims to have sustained, and Cross-Complainant’s recovery should be barred or diminished accordingly. EIGHTH AFFIRMATIVE DEFENSE [Responsibility of Third Parties] 8. As a further affirmative defense to the Cross-Complaint, and to each cause of action therein, SVETLANA alleges that any injuries or damages to Cross-Complainant were a result of the intentional, negligent, or otherwise wrongful acts of third parties, and any claims against this answering Cross-Defendant should be reduced in proportion to the fault of those third parties. NINTH AFFIRMATIVE DEFENSE [Failure to State a Claim for Exemplary Damages] 9. As a further affirmative defense to the Cross-Complaint, and to each cause of action therein, SVETLANA alleges that the Cross-Complaint, and each cause of action therein, fails to state facts sufficient to constitute a cause of action for recovery of punitive or exemplary damages. TENTH AFFIRMATIVE DEFENSE [Procedural Due Process] 10. Asa further affirmative defense to the Cross-Complaint, and to each cause of action therein, SVETLANA alleges that to the extent the Cross-Complaint seeks punitive or ANSWER OF SVETLANA KIPNIS TO YEFF’S CROSS-COMPLAINT PAGE 4exemplary damages, it violates the rights of the this answering Cross-Defendant to procedural due process under the Fourteenth Amendment to the United States Constitution, and under the Constitution of the State of California, and therefore fails to state facts sufficient to constitute a cause of action upon which punitive or exemplary damages may be awarded. ELEVENTH AFFIRMATIVE DEFENSE [Uncertainty] 11. Asa further affirmative defense to the Cross-Complaint, and to each cause of action therein, SVETLANA alleges that the Cross-Complaint does not describe the claims against this Cross-Defendant with sufficient particularity and certainty to enable this Cross-Defendant to determine what defenses may exist. This Cross-Defendant reserves the right to assert all defenses that may be pertinent to or arise from Cross-Complainant’s claims against this Cross-Defendant when the precise nature of those claims has been ascertained. TWELFTH AFFIRMATIVE DEFENSE | [Laches] 12. Asa further affirmative defense to the Cross-Complaint, and to each cause of action therein, SVETLANA alleges that Cross-Complainant has inexcusably and unreasonably delayed the commencement of an action on the claims set forth in the Cross-Complaint, to the prejudice of this Cross-Defendant, in that Cross-Complainant has significantly delayed bringing her claims until the transactions complained of have become obscured by time, the principal participants are no longer available, and the evidence has been lost, and thus no determination of the true facts can be made, and any conclusion to which the court can arrive must, at best, be conjectural. THIRTEENTH AFFIRMATIVE DEFENSE Statute of Limitations 13. Asa further affirmative defense to the Cross-Complaint, and each cause of action therein, this Cross-Defendant alleges that the claims set forth therein are barred by the applicable statute of limitations including, but not limited to, those provided in California Code of Civil Procedure §§312 through 349.4, and specifically barred by the 2-year statute of limitations set forth in CCP §335.1 [actions for injury to individual caused by wrongful act or neglect (infliction ANSWER OF SVETLANA KIPNIS TO YEFF’S CROSS-COMPLAINT PAGE 5Sco 0m ND HW Come XN DH BF WN bw Nw YN YW NY NN WY eda aA FF GoBH FS of emotional distress and violation of right to privacy)]; the 3-year statute of limitations set forth in CCP §338(c) [an action for taking, detaining, or injuring goods or chattels, including an action for the specific recovery of personal property (conversion)]; and the 1-year statute of limitations set forth in CCP §340(c) [an action for libel and slander]. FOURTEENTH AFFIRMATIVE DEFENSE {Comparative Negligence of Cross-Complainant] 14. Fora further affirmative defense to the Cross-Complaint, and each cause of action therein, and especially all causes of action for negligence, this Cross-Defendant alleges that Cross-Complainant failed to exercise reasonable and ordinary care, caution, or prudence for her own safety. The resulting injuries and damages, if any, sustained by Cross-Complainant were proximately caused and contributed to by the negligence of the Cross-Complainant. FIFTEENTH AFFIRMATIVE DEFENSE [Contributory Negligence] 15. As a further affirmative defense to the Cross-Complainant, and each cause of action therein, SVETLANA alleges that all the injuries and damages complained of by Cross- Complainant, if any there were, were either wholly or in part proximately caused by the negligence or other wrongful acts or omissions of persons or entities other than this Cross-Defendant, and that said negligence or wrongful acts or omissions either are imputed to Cross-Complainant by reason of her relationship with said persons or entities, or comparatively reduce the proportion of negligence and corresponding liability of this Cross-Defendant, if any, which liability is specifically denied. SIXTEENTH AFFIRMATIVE DEFENSE [Apportionment of Non-Economic Damages] 16. Asa further affirmative defense to the Cross-Complainant, and each cause of action therein, SVETLANA contends that if liability is assessed against this Cross-Defendant, pursuant to California Civil Code §1431 et seq., this Cross-Defendant shall be liable only for the amount of non-economic damages allocated to the cross-defendant in direct proportion to the percentage of fault assessed against the cross-defendant by the trier of fact, and requests that a separate judgment be rendered against each cross-defendant for that amount, but that Cross- ANSWER OF SVETLANA KIPNIS TO YEFF’S CROSS-COMPLAINT PAGE 6Defendant in setting forth affirmative defenses makes no admission that this Cross-Defendant is liable to Cross-Complainant in any amount or in any proportion; and this Cross-Defendant, in setting forth this affirmative defense, makes no admission that Cross-Complainant has been damaged in any sum or sums at all. SEVENTEENTH AFFIRMATIVE [Active-Passive Negligence Defense] 17. As a further affirmative defense to the Cross-Complainant, and each cause of action therein, SVETLANA contends that if this answering Cross-Defendant is found responsible in damages to Cross-Complainant or some other party, whether as alleged or otherwise, this Cross- Defendant is informed and believe, and on that basis alleges, that the liability will be predicated upon the active conduct of Cross-Complainant, whether by negligence, breach of warranty, strict liability in tort or otherwise, which unlawful conduct proximately caused the alleged incident and that Cross- Complainant’s action against this Cross-Defendant is barred by that active and affirmative conduct. EIGHTEENTH AFFIRMATIVE DEFENSE [Intervening and Superseding Actions] 18. Asa further affirmative defense to the Cross-Complaint, and each cause of action therein, SVETLANA alleges that the intervening and superseding actions or omissions by persons or parties other than this Cross-Defendant proximately caused the injuries alleged by Cross- Complainant such that this Cross-Defendant has no liability. NINETEENTH AFFIRMATIVE DEFENSE [Third-Party Conduct as Superseding Cause] 19. Asa further affirmative defense to the Cross-Complaint, and each cause of action therein, SVETLANA alleges that said Cross-Defendant is not responsible for Cross- Complainant’s harm because of the later misconduct of a third party. The third party’s conduct occurred after the conduct of said Cross-Defendant. A reasonable person would consider the third party’s conduct as a highly unusual or an extraordinary response to the situation. Said Cross- Defendant did not know and had no reason to expect that the third party would act in a negligent and/or wrongful manner. The kind of harm resulting from the third party’s conduct was different ANSWER OF SVETLANA KIPNIS TO YEFF’S CROSS-COMPLAINT PAGE 7wn from the kind of harm that could have been reasonably expected from the conduct of said Cross- Defendant. TWENTIETH AFFIRMATIVE DEFENSE [No Negligence] 20% As a further affirmative defense to the Cross-Complaint, and each cause of action therein, and especially the Third Cause of Action for Negligent Infliction of Emotional Distress and the Fifth Cause of Action for Negligent Interference with Prospective Economic Advantage, SVETLANA alleges that Cross-Complainant should be denied recovery because () SVETLANA was not negligent; (ii) Cross-Complainant was not harmed; and (iii) SVETLANA’s acts and omissions were not a substantial factor in causing harm to Cross-Complainant. Moreover, Cross-Complainant should be denied recovery under the doctrines of: (a) comparative fault of Cross- Complainant; (b) apportionment of responsibility; (c) assumption of risk; (d) third-party conduct as a superseding cause; and (e) intentional tort / criminal act as a superseding cause. TWENTY-FIRST AFFIRMATIVE DEFENSE [Unavoidable Accident] 21. As a further affirmative defense to the Cross-Complaint, and each cause of action therein, SVETLANA is informed and believes, and on that basis alleges, that any and all injuries, losses, or damages, if any, were the direct and proximate result of an unavoidable accident, incident, or condition and, as such, were an act of God without fault or liability on the part of this Cross-Defendant. TWENTY-SECOND AFFIRMATIVE DEFENSE [No Damages] 22. Asa further affirmative defense to the Cross-Complaint, and each cause of action therein, SVETLANA alleges that Cross-Complainant should be denied recovery because Cross-Complainant sustained no pecuniary damage or injury as a result of the alleged acts or omissions of this Cross-Defendant. Mf Ml ANSWER OF SVETLANA KIPNIS TO YEFF’S CROSS-COMPLAINT PAGE 8TWENTY-THIRD AFFIRMATIVE DEFENSE [Assumption of Risk] 23. Asa further affirmative defense to the Cross-Complaint, and to each cause of action therein, SVETLANA alleges that Cross-Complainant assumed the risk of the acts and omissions of this Cross-Defendant. Therefore, Cross-Complainant is completely barred from recovery. TWENTY-FOURTH AFFIRMATIVE DEFENSE Lawful Actions] 24. As a further affirmative defense to the Cross-Complaint, and each cause of action therein, SVETLANA alleges that the alleged actions of this Cross-Defendant, which are the subject of this action, were lawful. TWENTY-FIFTH AFFIRMATIVE DEFENSE [Justified Actions] 25. Asa further affirmative defense to the Cross-Complaint, and each cause of action therein, SVETLANA alleges that the alleged actions of this Cross-Defendant, which are the subject of this action, were justified. TWENTY-SIXTH AFFIRMATIVE DEFENSE Moot 26. Asa further affirmative defense to the Cross-Complaint, and to each cause ofaction therein, SVETLANA alleges that Cross-Complainant’s causes of action have been rendered. moot. TWENTY-SEVENTH AFFIRMATIVE DEFENSE [Lack of Standing - CCP §367] 27. Asa further affirmative defense to the Cross-Complaint, and to each cause of action therein, SVETLANA alleges that Cross-Complainant lacks standing to sue this Cross- Defendant. Ml Mt ANSWER OF SVETLANA KIPNIS TO YEFF’S CROSS-COMPLAINT PAGE 9an oo oo TWENTY-EIGHTH AFFIRMATIVE DEFENSE Due Care] 28. Asa further affirmative defense to the Cross-Complaint, and to each cause of action therein, SVETLANA alleges that each cause of action therein is barred because at all times this Cross-Defendant exercised due care with regard to her duties (if any) and obligations (if any) owed to Cross-Complainant. Notwithstanding the foregoing, this Cross-Defendant denies that she owed any duty to Cross-Complainant and denies that she had any obligations to Cross-Complainant. TWENTY-NINTH AFFIRMATIVE DEFENSE [No Emotional Distress] 29. Asa further affirmative defense to the Cross-Complaint, and especially the Second Cause of Action for Intentional Infliction of Emotional Distress and the Third Cause of Action for Negligent Infliction of Emotional Distress, SVETLANA alleges as follows: (i) SVETLANA’s conduct was not outrageous conduct, i.e., it was not so extreme that it went beyond all possible bounds of decency; (ii) SVETLANA’s conduct, if any, was nothing more than trivialities such as indignities, annoyances, hurt feelings, or bad manners that a reasonable person is expected to endure; (iii) SVETLANA did not intend to cause emotional distress and did not act with reckless disregard of the probability that Cross-Complainant would suffer emotional distress; (iv) SVETLANA was not negligent; (v) Cross-Complainant did not suffer severe emotional distress, e., so substantial or long lasting that no reasonable person in a civilized society should be expected to bear it; and (vi) SVETLANA’s conduct was not a substantial factor in causing Cross- Complainant’s alleged severe emotional distress (if any). THIRTIETH AFFIRMATIVE DEFENSE {Words Alone] 30. Asa further affirmative defense to the Cross-Complaint, and especially the Second Cause of Action for Intentional Infliction of Emotional Distress and the Third Cause of Action for Negligent Infliction of Emotional Distress, SVETLANA alleges as follows: Mere words are not actionable. Profanity, obscenity, abuse, insult, indignity, or threats are considered to amount to nothing more than mere annoyance, because such conduct is not sufficiently “outrageous”. See ANSWER OF SVETLANA KIPNIS TO YEFF’S CROSS-COMPLAINT PAGE 10Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1128-1129. THIRTY-FIRST AFFIRMATIVE DEFENSE [Privilege — Assertion of Legal Right], 31. Asa further affirmative defense to the Cross-Complaint, and especially the Second Cause of Action for Intentional Infliction of Emotional Distress and the Third Cause of Action for Negligent Infliction of Emotional Distress, SVETLANA alleges as follows: At all times mentioned in the Cross-Complaint, this answering Cross-Defendant was asserting her legal right to collect the subject death benefit proceeds, which were assigned to her daughter — with a good faith belief in the existence of those rights. THIRTY-SECOND AFFIRMATIVE DEFENSE [Privilege — Statement Made in Official Proceeding (Civil Code §47(b)] 32. Asa further affirmative defense to the Cross-Complaint, and especially the First Cause of Action for Defamation, the Second Cause of Action for Intentional Infliction of Emotional Distress, and the Third Cause of Action for Negligent Infliction of Emotional Distress, SVETLANA alleges as follows: The statements (if any) complained of by Cross-Complainant were made in the course of an official proceeding authorized by law, to wit: an autopsy, an interment, statements made to police regarding potential criminal activity, and court filings. THIRTY-THIRD AFFIRMATIVE DEFENSE Privileged Conduct] 33. Asa further affirmative defense to the Cross-Complaint, and especially the First Cause of Action for Defamation, the Second Cause of Action for Intentional Infliction of Emotional Distress, and the Third Cause of Action for Negligent Infliction of Emotional Distress, SVETLANA alleges that this answering Cross-Defendant is not responsible for Cross-Complainant’s harm, if any, because the conduct of this answering Cross-Defendant was permissible. Moreover, (i) Cross-Defendant was exercising her right to protect her economic interests; (ii) the conduct of this answering Cross-Defendant was lawful and consistent with community standards; and (iii) this answering Cross-Defendant had a good faith belief that she had a legal right to engage in the conduct. ANSWER OF SVETLANA KIPNIS TO YEFF’S CROSS-COMPLAINT PAGE 11THIRTY-FOURTH AFFIRMATIVE DEFENSE [No Interference with Prospective Economic Advantage] 34. Asa further affirmative defense to the Cross-Complaint, and especially the Fourth Cause of Action for Intentional Interference with Prospective Economic Advantage and the Fifth Cause of Action for Negligent Interference with Prospective Economic Advantage, SVETLANA alleges that this answering Cross-Defendant is not responsible for Cross-Complainant’s harm, if any, because she did not wrongfully exercise control over Decedent’s laptop computer and cell phone (or any of Cross-Complainant’s private financial information). In addition, SVETLANA’s actions as alleged herein were privileged. Moreover, (i) there were no economic relationships between Cross-Complainant and any third parties that would have resulted in economic benefit to Cross-Complainant; (ii) SVETLANA did not disrupt any such economic relationships; (iii) SVETLANA did not engage in any conduct, intentional or otherwise, to disrupt any such economic relationships; (iv) Cross-Complainant was not harmed thereby; and (v) SVETLANA’s alleged conduct was not a substantial factor in causing any alleged harm to Cross-Complainant. THIRTY-FIFTH AFFIRMATIVE DEFENSE [Good Faith Belief That Property Was Part of Decedent’s Estate - Probate Code §9651] 35. Asa further affirmative defense to the Cross-Complaint, and all causes of action therein, SVETLANA alleges that she reasonably believed, and still believes, that Decedent’s laptop computer and cell phone are part of Decedent’s estate. This answering Cross-Defendant never took possession of Decedent’s laptop computer and cell phone. THIRTY-SIXTH AFFIRMATIVE DEFENSE [Taking Possession of Personal Property in Defense of Own Interests] 36. Asa further affirmative defense to the Cross-Complaint, and each cause of action therein, SVETLANA alleges that she never took possession of Decedent’s laptop computer and cell phone. THIRTY-SEVENTH AFFIRMATIVE DEFENSE No Invasion of Privacy] 37. _ Asa further affirmative defense to the Cross-Complaint, SVETLANA alleges ANSWER OF SVETLANA KIPNIS TO YEFF’S CROSS-COMPLAINT PAGE 12oN DH HW that this answering Cross-Defendant did not violate Cross-Complainant’s right to privacy. Moreover, (i) Cross-Complainant did not have a reasonable expectation of privacy in Decedent’s laptop computer and/or cell phone; (ii) this answering Cross-Defendant did not intentionally intrude in any of Cross-Complainant’s private and/or financial information; (iii) the alleged intrusion by this answering Cross-Defendant was not highly offensive to areasonable person; (iv) Cross-Complainant was not harmed by the alleged intrusion; and (v) the conduct of this answering Cross-Defendant was not a substantial factor in causing Cross-Complainant’s harm, if any. THIRTY-EIGHTH AFFIRMATIVE DEFENSE J [First Amendment Outweighs the Cross-Complainant’s Right of Privacy] 38. Asa further affirmative defense to the Cross-Complaint, SVETLANA alleges that this answering Cross-Defendant’s First Amendment right to freedom of expression protects SVETLANA’s rights to free speech and petitioning activity, and outweighs Cross-Complainant’s right to privacy. THIRTY-NINTH AFFIRMATIVE DEFENSE [Invasion of Privacy Justified] 39. Asa further affirmative defense to the Cross-Complaint, SVETLANA alleges that the conduct of this answering Cross-Defendant was justified. The alleged invasion of privacy (which is denied) was justified because it substantially furthered one or more legitimate or compelling countervailing interests. FORTIETH AFFIRMATIVE DEFENSE (No Defamation] 40. _ Asa further affirmative defense to the Cross-Complaint, and especially the First Cause of Action for Defamation, SVETLANA alleges that this answering Cross-Defendant did not defame or slander Cross-Complainant. Moreover, (i) this answering Cross-Defendant did not make defamatory statements about Cross-Complainant to persons other than Cross-Complainant; (ii) whatever statements were made by this answering Cross-Defendant were true; (iii) this answering Cross-Defendant used reasonable care to determine the truth or falsity of the alleged statements; (iv) Cross-Complainant has no actual damages; and (v) the statements were made within the course ANSWER OF SVETLANA KIPNIS TO YEFF’S CROSS-COMPLAINT PAGE 13of an official proceeding. FORTY-FIRST AFFIRMATIVE DEFENSE [Opinion 41. Asa further affirmative defense to the Cross-Complaint, and especially the First Cause of Action for Defamation, SVETLANA alleges that statements (if any) made by this answering Cross-Defendant concerning Cross-Complainant were not statements of fact, but statements of opinion. Statements of opinion are constitutionally protected. In addition, “rhetorical hyperbole”, “vigorous epithets”, “lusty and imaginative expressions of .. . contempt” and language used “in a loose, figurative sense” are accorded constitutional protection. FORTY-SECOND AFFIRMATIVE DEFENSE [Truth] 42. Asa further affirmative defense to the Cross-Complaint, and especially the First Cause of Action for Defamation, SVETLANA alleges that the statements (if any) made by this answering Cross-Defendant concerning the Cross-Complainant were true. Such statements (if any) need not be true in every detail, so long as the statements (if any) were substantially true. FORTY-THIRD AFFIRMATIVE DEFENSE [Consent] 43. Asa further affirmative defense to the Cross-Complaint, and especially the First Cause of Action for Defamation, SVETLANA alleges that Cross-Complainant consented, by words or conduct, to this answering Cross-Defendant’s communication of the statements (if any) to others. FORTY-FOURTH AFFIRMATIVE DEFENSE [Common Interest Privilege - Malice (Civil Code §47(c)] 44. Asa further affirmative defense to the Cross-Complaint, and especially the First Cause of Action for Defamation, SVETLANA alleges that the statements (if any) made by this answering Cross-Defendant are subject to the “common interest” privilege of Civil Code §47(c). Moreover, the statements (if any) were not made with hatred or ill will toward Cross-Complainant; this answering Cross-Defendant had no willingness to vex, annoy, or injure Cross-Complainant; and ANSWER OF SVETLANA KIPNIS TO YEFF’S CROSS-COMPLAINT PAGE 14ot Dw Rw N ya this answering Cross-Defendant had reasonable grounds for believing the truth of the statements (if any). FORTY-FIFTH AFFIRMATIVE DEFENSE [Incorporation by Reference of Affirmative Defenses of Co-Cross-Defendants] 45. Asa further affirmative defense to the Cross-Complaint, and to each cause of action therein, this answering Cross-Defendant hereby incorporates by this reference, as if set forth in full herein, all of the affirmative defenses of each and every cross-defendant in this action including, but not limited to, Izabella Kipnis and Alexandra Kipnis. FORTY-SIXTH AFFIRMATIVE DEFENSE [Reservation of Right to Assert Additional Defenses] 46. Asa further affirmative defense to the Cross-Complaint, and to each cause of action therein, this answering Cross-Defendant alleges that she presently has insufficient knowledge or information on which to form a belief as to whether she may have additional, as yet unstated, defenses available. This answering Cross-Defendant reserves the right to assert additional defenses in the event discovery indicates that it would be appropriate. WHEREFORE, having fully answered the allegations contained in the Cross- Complaint, this answering Cross-Defendant prays for relief as follows: ie That Cross-Complainant take nothing by her Cross-Complaint; 2. That Cross-Complainant’s action and each purported cause of action therein be dismissed with prejudice without leave to amend; 3. That judgment be entered in favor of this answering Cross-Defendant; 4. That this answering Cross-Defendant be awarded her costs of suit and attorney’s fees pursuant to any applicable agreement, statute, or case law; and 5. For such other and further relief as the court deems just and proper. DEMAND FOR JURY TRIAL Cross-Defendant, SVETLANA KIPNIS, hereby demands a trial by jury as to all issues so triable in this action. Mf ANSWER OF SVETLANA KIPNIS TO YEFF’S CROSS-COMPLAINT PAGE 15Dated: May 12, 2020 AnswerOfSvetlanaKipnisToCross-Complaint.wpd By: CROSBY & CROSBY, A PROFESSIONAL LAW CORPORATION Za MICHAEL C. CROSBY, Attorney for P| aintiffs and Cross-Defendants IZABELLA k PNIS, ALEXANDRA KIPNIS, and SVETLANA KIPNIS ANSWER OF SVETLANA KIPNIS TO YEFF’S CROSS-COMPLAINT PAGE 16PROOF OF SERVICE BY U.S. MAIL SHAUNA PEPITONE declares: Iam over the age of 18 years and not a party to this action. My business address is Crosby & Crosby, APLC, 1570 The Alameda, Suite 200, San Jose, CA 95126. On May 12, 2020,1 served the following document(s) in Santa Clara County Superior Court Case No. 18CV337737 (consolidated with Santa Clara County Superior Court Case No. 19CV344363): 1. ANSWER OF SVETLANA KIPNIS TO HELGAH V. YEFF’S UNVERIFIED CROSS- COMPLAINT TO CROSS-COMPLAINT OF IZABELLA F. KIPNIS AND ALEXANDRA F. KIPNIS AGAINST HELGAH V. YEFF FOR CREDIBLE IMPERSONATION OF ACTUAL PERSON ON AN INTERNET WEBSITE; INVASION OF PRIVACY - APPROPRIATION OF A PERSON’S JAME OR LIKENESS; AND CONVERSION OF A DIGITAL ASSET — FOR: DEFAMATION; INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS; NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (dated May 12, 2020); and ANSWER OF SVETLANA KIPNIS TO HELGAH V. YEFF’S UNVERIFIED CROSS- COMPLAINT FOR DEFAMATION; INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS; NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS; INTENTIONAL INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE; NEGLIGENT INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE (dated May 12, 2020). on all other parties and/or their attorney(s) of record in this action by placing a true copy thereof in a sealed envelope addressed as follows: James M. Barrett, Esq. David S. Henshaw, Esq. Law Office of James M. Barrett, PLC Henshaw & Henry, PC 5150 El Camino Real, Suite D-22 1871 The Alameda, Suite 333 Los Altos, CA 94022 San Jose, CA 95126 {and via e-mail to jo@jamesbarrettlaw.com] [and via e-mail to david@henshawlaw.com] (Attorney for Defendant, Cross-Complainant, & (Attorney for Cross-Defendants Alex Minkovichand Cross-Defendant Helgah V. Yeff) Kiril Minkovich) Izabella F. Kipnis Alexandra F. Kipnis Svetlana Kipnis [via e-mail only] (Plaintiffs, Cross-Defendants/Cross-Complainants represented by Crosby & Crosby, APLC) BY MAIL. _ I served the documents by enclosing them in a sealed envelope or package addressed to the persons at the addresses set forth above, and deposited the sealed envelope with the United States Postal Service, with the postage fully prepaid. I am employed in the county where the mailing occurred. The envelope or package was placed in the mail at San Jose, California. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on May 12, 2020, at San Jose, California. Ss dug PEPITONE ProofOfServiceByMail-SP-051220.wpd PROOF OF SERVICE