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  • TERRI MAXON, AS SUCCESSOR IN INTEREST TO DAVID MARK MAXON, PLAINTIFF VS. xxxxxxxxxx xxxxx GROUP APC et al BUSINESS TORT document preview
  • TERRI MAXON, AS SUCCESSOR IN INTEREST TO DAVID MARK MAXON, PLAINTIFF VS. xxxxxxxxxx xxxxx GROUP APC et al BUSINESS TORT document preview
  • TERRI MAXON, AS SUCCESSOR IN INTEREST TO DAVID MARK MAXON, PLAINTIFF VS. xxxxxxxxxx xxxxx GROUP APC et al BUSINESS TORT document preview
  • TERRI MAXON, AS SUCCESSOR IN INTEREST TO DAVID MARK MAXON, PLAINTIFF VS. xxxxxxxxxx xxxxx GROUP APC et al BUSINESS TORT document preview
  • TERRI MAXON, AS SUCCESSOR IN INTEREST TO DAVID MARK MAXON, PLAINTIFF VS. xxxxxxxxxx xxxxx GROUP APC et al BUSINESS TORT document preview
  • TERRI MAXON, AS SUCCESSOR IN INTEREST TO DAVID MARK MAXON, PLAINTIFF VS. xxxxxxxxxx xxxxx GROUP APC et al BUSINESS TORT document preview
  • TERRI MAXON, AS SUCCESSOR IN INTEREST TO DAVID MARK MAXON, PLAINTIFF VS. xxxxxxxxxx xxxxx GROUP APC et al BUSINESS TORT document preview
  • TERRI MAXON, AS SUCCESSOR IN INTEREST TO DAVID MARK MAXON, PLAINTIFF VS. xxxxxxxxxx xxxxx GROUP APC et al BUSINESS TORT document preview
						
                                

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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 1 ANSWERKunepinst PC 801 K Street, Surte 2800 SACRAMENTO, CALIFORNIA 95814 Co eB YN DH BW HY YN NY RY NY N BY DKD Ne Be ew ewe we ee eB es oI Aa F& B&B YH =F SGC we AAA RR BN ES 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 SACRAMENTO, CALIFORNIA 95814 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. Wt tf Mt ANSWERKunepinst PC 801 K Street, Sure 2800 SACRAMENTO, CALIFORNIA 95814 Co oe NY A HW BF WN 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. Mt Ml 4 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. 6 ANSWERKunepinst PC 801 K Street, Surte 2800 SACRAMENTO, CALIFORNIA 95814 Oo Oe YN DAH BF WN 2 11 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. 1 ANSWERKunepinst PC 801 K Street, Surre 2800 SACRAMENTO, CALIFORNIA 95814 ya nau 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. MW Ml 8 ANSWERKunepinst PC 801 K Street, Suive 2800 SACRAMENTO, CALIFORNIA 95814. Co Oo YN DH BF Ww NY RB NM NY N NY RR ND Ne ee oe SB Re ond ann & BS & SO we NY DA FB wWN KF Ss 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. 9 ANSWERKUINEDINST PC 801 K STREET, SUITE 2800 SACRAMENTO, CALIFORNIA 95814 XY DW PF WN 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 10 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 “ey 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 u ANSWER