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KuwepInsT PC
801 K Street, Surte 2800
SACRAMENTO, CALIFORNIA 95814
Natalie P. Vance, Bar No. 206708
J, Scott Miller, Bar No. 256476
KLINEDINST PC
801 K Street, Suite 2800
Sacramento, California 95814 FILED ~
(916) 444-7573/FAX (916) 444-7544 Hee
ne upertor Court of Califor!
nvance@klinedinstlaw.com County br aan pee
Attomeys for Defendants o2 f (a. 2/2016
xxxxxxxxxx xxxxx GROUP APC; Waownee
xxxxxxxxxx xxxxx GROUP LLP; xxxx Deputy Clerk
xxxxx xxxxxxx; G. ARTHUR MENESES;
MONICA BALDERRAMA; JOSEPH S. LIU;
and DOES 1 through 50, inclusive
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO
TERRI MAXON as successor in interest CaseNo. CGC-12-523966
to DAVID MARK MAXON, individually
and on behalf of all others similarly DEFENDANTS’ ANSWER TO COMPLAINT
situated,
Plaintiff,
v.
xxxxxxxxxx xxxxx GROUP APC, Complaint Filed: 9/5/2012
xxxxxxxxxx xxxxx GROUP LLP, Trial Date: None set
xxxx xxxxx xxxxxxx (A/K/A/ xxxx
xxxxx), G. ARTHUR MENESES,
MONICA BALDERRAMA, JOSEPH S.
LIU, and DOES 1 through 50, inclusive,
Defendants.
COME NOW Defendants xxxxxxxxxx xxxxx GROUP APC, xxxxxxxxxx xxxxx
GROUP LLP, xxxx xxxxx xxxxxxx, G. ARTHUR MENESES, MONICA
BALDERRAMA, JOSEPH S. LIU (“Defendants”) and hereby answer the Complaint of TERRI
MAXON as successor in interest to DAVID MARK MAXON (“Plaintiff”) as follows:
GENERAL DENIAL
Under the provisions of section 431.30 of the California Code of Civil Procedure,
Defendants deny each, every and all of the allegations of Complaint, and each cause of action
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SACRAMENTO, CALIFORNIA 95814
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therein, and the whole thereof; and further answering said Complaint and each cause of action
therein, Defendants deny that Plaintiff was damaged or injured in the sums alleged, or in any
other sums, or at all, by reason of any act or omission on the part of Defendants.
FIRST AFFIRMATIVE DEFENSE
(Failure to State Cause of Action)
As a separate affirmative defense, Defendants allege that the Complaint, and each and
every cause of action or purported cause of action contained therein, fails to state facts sufficient
to constitute a cause of action against Defendants.
SECOND AFFIRMATIVE DEFENSE
(Estoppel)
As a separate affirmative defense, Defendants allege that Plaintiff, by his own acts and/or
omissions, is estopped from recovering at all against Defendants.
THIRD AFFIRMATIVE DEFENSE
(Failure to Exercise Ordinary Care)
As a separate affirmative defense, Defendants allege that, at all times and places alleged
in the Complaint, Plaintiff failed to exercise ordinary and reasonable care on his own behalf, and
such negligence and carelessness was a proximate cause of some portion, up to and including the
whole of, his own alleged injuries and damages, if any, and Plaintiff's recovery therefore should
be barred or reduced according to law, up to and including the whole thereof.
FOURTH AFFIRMATIVE DEFENSE
(Waiver)
As a separate affirmative defense, Defendants allege that Plaintiff, by his own acts or
omissions, has waived his rights, if any, to recover against Defendants.
FIFTH AFFIRMATIVE DEFENSE
(Failure to Mitigate Damages)
As a separate affirmative defense, Defendants allege that Plaintiff has failed to mitigate
his damages, if any, in connection with the matters referred to in the Complaint, and that such
failure to mitigate bars or diminishes the Plaintiff's recovery, if any, against Defendants.
ANSWERKLINEDINST PC
801 K Street, Surte 2800
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SIXTH AFFIRMATIVE DEFENSE
(Uncertainty)
As a separate affirmative defense, Defendants allege that the causes of action in the
Complaint, and each of them, are uncertain and ambiguous as to Plaintiff's claim for damages
against Defendants.
SEVENTH AFFIRMATIVE DEFENSE
(Laches)
Asa separate affirmative defense, Defendants allege that the causes of action contained
in the Complaint, and each of them, are barred by the doctrine of laches, in that the Plaintiff has
unreasonably delayed in bringing these claims, and said delays have prejudiced Defendants.
EIGHTH AFFIRMATIVE DEFENSE
(Failure of Others to Exercise Reasonable Care)
As a separate affirmative defense, Defendants allege that if Defendants are subjected to
any liability herein, it will be due in whole, or in part, to the acts and/or omissions of another
defendant or other parties unknown at this time, and any recovery obtained by Plaintiff should be
barred or reduced according to law, up to and including the whole thereof.
NINTH AFFIRMATIVE DEFENSE
(Statute of Limitations)
Asa separate affirmative defense, Defendants allege that the Complaint, and each and
every cause of action or purported cause of action contained in it, is barred by all applicable
statutes of limitation, including, but not limited to, Code of Civil Procedure section 340.6.
TENTH AFFIRMATIVE DEFENSE
(Defendants Exercised Reasonable Care)
Asa separate affirmative defense, Defendants allege that, at all times relevant herein,
Defendants exercised reasonable care.
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ELEVENTH AFFIRMATIVE DEFENSE
(No Assignability of Claims against Attorney)
As a separate affirmative defense, Defendants allege that one or more of Plaintiff's
causes of action or claims is barred because claims against an attorney are personal to the client
and not assignable.
TWELFTH AFFIRMATIVE DEFENSE
(Lack of Standing)
As a separate affirmative defense, Defendants allege that Plaintiff has no standing bring a
claim on behalf of anyone other than David Mark Maxon, and Mr, Maxon lacks standing to
object to a settlement in which he did not participate or to claim damages for attorney’s fees
which he never paid.
THIRTEENTH AFFIRMATIVE DEFENSE
(Assumption of Risk)
As a separate affirmative defense, Defendants allege that at all times herein mentioned,
David Maxon, with full knowledge of all risks attendant thereto, voluntarily and knowingly
assumed any and all risks attendant upon his conduct, including any purported damages alleged
to be related thereto and proximately caused thereby.
FOURTEENTH AFFIRMATIVE DEFENSE
(Exclusive Concurrent Jurisdiction)
As a separate affirmative defense, Defendants allege that this action is barred by another
pending lawsuit, which seeks the same damages and makes the same claims against Defendants.
FIFTEENTH AFFIRMATIVE DEFENSE
(Abatement)
Asa separate affirmative defense, Defendants allege that this action is barred by another
pending lawsuit, which seeks the same damages and makes the same claims against Defendants
and thus should be abated.
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ANSWERKurnepinst PC
801 K Street, Surte 2800
SACRAMENTO, CALIFORNIA 95814
SIXTEENTH AFFIRMATIVE DEFENSE
(Lack of Notice)
Asa separate affirmative defense, Defendants allege that they did not have either actual
or constructive notice of the conditions, if any, which existed at the time and places mentioned in
the Complaint, which conditions may have caused or contributed to the damages as alleged
herein. Said lack of notice prevented Defendants from undertaking any measures to protect
against and/or warn of said conditions.
SEVENTEENTH AFFIRMATIVE DEFENSE
(Unclean Hands)
Asa separate affirmative defense, Defendants allege that by reason of his conduct,
Plaintiff is barred by the Doctrine of Unclean Hands from taking any relief sought in the
Complaint.
ELJGHTEENTH AFFIRMATIVE DEFENSE
(Fault of Others/Comparative Fault)
Asa separate affirmative defense, Defendants allege that all or a proportionate share of
damages suffered by Plaintiff, if any, are the result of the acts or omissions of third parties, such
that Plaintiff's damages should be reduced or eliminated.
NINETEENTH AFFIRMATIVE DEFENSE
(Attorneys’ Fees Inappropriate)
Asa separate affirmative defense, Defendants allege that the Complaint, and each and
every cause of action listed therein, fails to state facts sufficient to support an award of damages
for attorneys’ fees and expenses as against Defendants.
TWENTIETH AFFIRMATIVE DEFENSE
(Offset)
As a separate affirmative defense, Defendants are entitled to an offset for amounts
received by Plaintiff for his alleged damages, including, but not limited to, amounts received
from Wells Fargo, settlements received from third parties, any payments received in Lofion v.
Wells Fargo Home Mortgage Co., or any fees disgorged by any court.
ANSWERKUNEDINST PC
801 K Street, Surre 2800
SACRAMENTO, CALIFORNIA 95814
TWENTY-FIRST AFFIRMATIVE DEFENSE
(Prior Release)
As a separate affirmative defense, the Complaint, and cach and every purported cause of
action contained therein, is barred by reason of the fact that many of the putative class action
plaintiffs have previously released claims against Defendants.
TWENTY-SECOND AFFIRMATIVE DEFENSE
{Indispensable Parties)
Asa separate affirmative defense, Defendants allege that this action cannot proceed
because Plaintiff failed to join one or more indispensable parties.
TWENTY-THIRD AFFIRMATIVE DEFENSE
(Speculation)
As a separate affirmative defense, Defendants allege that the damages and theories of
causation alleged in the Complaint are speculative and not subject to determination by a finder of
fact.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
(No Causation)
As a separate affirmative defense, Defendants allege that Plaintiff has not suffered any
damage or injury that was actually or proximately caused by any act or omission of any
Defendants, Plaintiff cannot prove that a more favorable result would have been obtained had
Defendants acted differently.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
(No Duty)
As a separate affirmative defense, Defendants allege that the law does not impose upon
them any duty of care with respect to the injuries and/or events alleged in the Complaint.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
(No Breach)
Asa separate affirmative defense, Defendants allege that to the extent any duty may have
existed, fiduciary or otherwise, Defendants did not breach any duties to Plaintiff.
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TWENTY-SEVENTH AFFIRMATIVE DEFENSE
(Action Barred by Attorney’s Inability to Defend)
As a separate affirmative defense, Defendants allege that Plaintiff is barred from bringing
this action because Defendants cannot defend themselves without revealing confidential
communications or documents.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
(In Pari Delicto)
As a separate affirmative defense, Defendants allege that by reason of his conduct,
Plaintiff is barred by the Doctrine of In Pari Delicto from taking any relief sought in the
Complaint.
TWENTY-NINTH AFFIRMATIVE DEFENSE
(No Reliance)
As a separate affirmative defense, Defendants allege that Plaintiff did not rely on any act
or omission of Defendants such that Defendants are not liable for injury alleged in the
Complaint.
THIRTIETH AFFIRMATIVE DEFENSE
(Judicial Estoppel)
As a separate affirmative defense, Defendants allege that some or all of Plaintiff's claims
are barred by the doctrine of judicial estoppel.
THIRTY-FIRST AFFIRMATIVE DEFENSE
(Arbitration)
Asa separate affirmative defense, Defendants allege that the claims are subject to a valid
arbitration agreement which agreement mandates the arbitration of this lawsuit.
THIRTY-SECOND AFFIRMATIVE DEFENSE
(Mediation Confidentiality)
Asa separate affirmative defense, Defendants allege that some or all of Plaintiff's causes
of action are barred by mediation confidentiality, which prohibits discovery and admission of
communications in mediation.
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ANSWERKunepinst PC
801 K Street, Surre 2800
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THIRTY-THIRD AFFIRMATIVE DEFENSE
(Punitive Damages Unconstitutional)
As a separate affirmative defense, Defendants allege that an award of punitive damages
in this case would be unconstitutional.
THIRTY-FOURTH AFFIRMATIVE DEFENSE
(Punitive Damages Inappropriate)
As a separate affirmative defense, Defendants allege that the Complaint, and each and
every cause of action listed therein, fails to state facts sufficient to support an award of punitive
damages against Defendants.
THIRTY-FIFTH AFFIRMATIVE DEFENSE
(Intervening Acts of Others)
As a separate affirmative defense, Defendants allege that the injuries and damages
sustained by Plaintiff, if any, were proximately caused by the intervening and superseding
actions of others, including Plaintiff's concurrent and/or successor counsel, which intervening
and superseding actions bar or diminish Plaintiff's recovery, if any, against Defendants.
THIRTY-SIXTH AFFIRMATIVE DEFENSE
(Judgmental Immunity)
As a separate affirmative defense, Defendants made decisions in the course of the
representation which they believed to be correct based on the then-current state of the law.
Defendants are entitled to the defense of judgmental immunity regarding those decisions which
Plaintiff now claims constitute breach of a fiduciary duty.
THIRTY-SEVENTH AFFIRMATIVE DEFENSE
{Alleged Duties Outside Scope)
As a separate affirmative defense, Defendants allege that Plaintiff alleges breaches of
duty that were beyond the scope of the representation and/or contract between the parties for
which there is no basis for liability.
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ANSWERKunepinst PC
801 K Street, Suive 2800
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THIRTY-EIGHTH AFFIRMATIVE DEFENSE
(No Restitution/Disgorgement)
As a separate affirmative defense, Defendants allege that Plaintiff has no right to
restitution or disgorgement of fees as Plaintiff has no ownership interest in the fees claimed.
THIRTY-NINTH AFFIRMATIVE DEFENSE
(Res Judicata/Collateral Estoppel)
Asa separate affirmative defense, Defendants allege that Plaintiffs Complaint is barred
by the doctrines of res judicata and/or collateral estoppel.
FORTIETH AFFIRMATIVE DEFENSE
(Lack of Injury)
As a separate affirmative defense, Defendants allege that Plaintiff was not injured by any
act of omission of Defendants.
FORTY-FIRST AFFIRMATIVE DEFENSE
(No Damages)
Asa separate affirmative defense, Defendants allege that Plaintiff has not suffered any
compensable damages.
FORTY-SECOND AFFIRMATIVE DEFENSE
(Consent)
As a separate affirmative defense, Defendants allege that Plaintiff's Complaint is barred
by consent to the alleged acts and/or omissions of Defendants.
FORTY-THIRD AFFIRMATIVE DEFENSE
(Misrepresentation of Plaintiff)
As a separate affirmative defense, Defendants allege that Plaintiffs Complaint is barred
by Plaintiffs misrepresentations.
FORTY-FOURTH AFFIRMATIVE DEFENSE
(nadequacy of Class Representative)
As a separate affirmative defense, Defendants allege that Plaintiff is an inadequate class
representative for the alleged class action claims.
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801 K STREET, SUITE 2800
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FORTY-FIFTH AFFIRMATIVE DEFENSE
(Non-Certifiable Class)
As a separate affirmative defense, Defendants allege that the alleged class fails to meet
the requirements for class certification.
FORTY-SIXTH AFFIRMATIVE DEFENSE
(No Common Question of Law or Fact)
As a separate affirmative defense, Defendants allege that there are no common questions
of law or fact as required for the class action claims raised in the Complaint.
FORTY-SEVENTH AFFIRMATIVE DEFENSE
(Putative Class Members Not Similarly Situated)
Asa separate affirmative defense, Defendants allege that the putative class members are
not similarly situated as required for the class action claims raised in the Compliant.
FORTY-EIGHTH AFFIRMATIVE DEFENSE
(Failure to Exhaust Administrative Remedies)
Asa separate affirmative defense, Defendants allege that the complaint is barred by
Plaintiff's failure to exhaust administrative remedies prior to filing the action.
FORTY-NINTH AFFIRMATIVE DEFENSE
(Quantum Meruit)
Asa separate affirmative defense, Defendants allege that the law firm retains a right to a
portion or all of the attorneys’ fees it received on a quantum meruit basis.
FIFTIETH AFFIRMATIVE DEFENSE
(Mootness)
AS a separate affirmative defense, Defendants allege that the lawsuit is moot.
FIFTY-FIRST AFFIRMATIVE DEFENSE
(Additional Defenses)
As a separate affirmative defense, Defendants allege that they may have additional
defenses that cannot be articulated due to Plaintiff's failure to particularize his claims, due to the
fact that Defendants do not have copies of certain documents bearing on Plaintiff's claims and
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ANSWERKLINEDINST PC
801 K Street, Surre 2800
SACRAMENTO, CALIFORNIA 95814
COD Om IN
due to Plaintiff's failure to provide more specific information concerning the nature of the
damage claims and claims for certain costs for which Defendants allege that Plaintiff may share
some responsibility. Defendants therefore reserve the right to assert additional defenses upon
further particularization of Plaintiff's claims, upon examination of the documents provided, upon
discovery of further information concerning the alleged damage claims and claims for costs, and
upon the development of other pertinent information.
FIFTY-SECOND AFFIRMATIVE DEFENSE
(Right to Amend Answer)
Asa separate affirmative defense, Defendants reserve the right to amend their answer,
including the addition of affirmative defenses after pleading and discovery in preparation for
trial.
WHEREFORE, Defendants pray for judgment against Plaintiff as follows:
1. That Plaintiff take nothing by way of his action;
2. That Defendants be awarded costs of suit incurred herein; and
3. For such other and further relief as the Court deems just and proper.
Klinedinst PC
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DATED: February 2, 2016 By: Haze ooo
Natalie P. Vance
Attorneys for Defendants
xxxxxxxxxx xxxxx GROUP APC;
xxxxxxxxxx xxxxx GROUP LLP; xxxx
xxxxx xxxxxxx; G. ARTHUR MENESES;
MONICA BALDERRAMA: JOSEPH S, LIU
4266008v1
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ANSWER