Preview
NM
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Jun-21-2011 11:19 am
Case Number: CGC-10-506805
Filing Date: Jun-21-2011 11:16
Juke Box: 001 Image: 03247481
ANSWER
IDA PIPKINS VS. KINDRED HEALTHCARE, INC. et al
001003247481
Instructions:
Please place this sheet on top of the document to be scanned.
4XVA Ad
SUPPLE AND CANVEL LLP
2320 Marinship Way, Suite 301
Sausalito, CA 94965
FILLED
‘ounty of San Francisco
RICK CANVEL (SBN: 144798)
rcanvel@supplecanvel.com JUN 2 1 2011
JODIE FEUSNER (SBN: 226650)
jfeusnerl@supplecanvel.com
SUPPLE AND CANVEL LLP ote OF THE COURT
2320 MARINSHIP WAY, SUITE 301 .
SAUSALITO, CA 94965 Deputy Clerk
TELEPHONE: (415) 366-5533
FACSIMILE: (415) 480-6301
Attorneys for Defendant
KINDRED NURSING CENTERS WEST LLC dba LAWTON HEALTHCARE
CENTER (erroneously sued and served as Lawton Healthcare Center and Kindred Nursing
Centers West LLC)
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO
IDA PIPKINS, by and through her Guardian ad | CASE NO. CGC-10-506805
Litem, RITA PIPKINS,
DEFENDANT KINDRED NURSING
Plaintiff CENTERS WEST LLC dba LAWTON
> HEALTHCARE CENTER
v. (ERRONEOUSLY SUED AND SERVED
AS LAWTON HEALTHCARE CENTER
KINDRED HEALTHCARE, INC., a AND KINDRED NURSING CENTERS
corporation, KINDRED HEALTHCARE WEST LLC’S) ANSWER TO
OPERATING, INC., a corporation; KINDRED | PLAINTIFF'S COMPLAINT FOR
NURSING CENTERS WEST, LLC; DAMAGES
CALIFORNIA NURSING CENTERS, LLC, a
corporation, individually and doing business as
LAWTON HEALTHCARE CENTER; and
DOES 1-100, inclusive,
Defendants.
COMES NOW DEFENDANT KINDRED NURSING CENTERS WEST LLC dba
LAWTON HEALTHCARE CENTER (erroneously sued and served as Lawton Healthcare
Center and Kindred Nursing Centers West LLC) (“DEFENDANT”) and for itself alone, answers
plaintiff IDA PIPKINS, by and through her Guardian ad Litem, RITA PIPKINS (hereinafter
“plaintiff’)’s Complaint on file herein, and for no other DEFENDANT, admits, denies, and
allege as follows:
Pursuant to the provisions of section 431.30 of the Code of Civil Procedure of the State
of California, this answering DEFENDANT denies both generally and specifically each, every
ole
DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT FOR DAMAGESSUPPLE AND CANVEL LLP
2320 Marinship Way, Suite 301
Sausalito, CA 94965
and all of the allegations in said unverified complaint, and the whole thereof, including each and
every purported cause of action contained therein, and denies that plaintiff has been damaged in
the sum or sums alleged, or in any other amount, or at all.
Further answering the Complaint on file herein, and the whole thereof, this answering
DEFENDANT denies that plaintiff has sustained any injury, damage or loss, if any, by reason of
any act, error, omission or beach of duty on the part of this answering DEFENDANT, or any
agents, servants or employees of this answering DEFENDANT.
DEFENDANT has not completed a thorough investigation or completed discovery of all
facts and circumstances relative to the subject matter of the Complaint, and accordingly, reserves
the right to modify, revise, or supplement this Answer and to plead such further defenses and
take such further actions as DEFENDANT may deem appropriate and necessary in the defense
of this matter, upon completion of such investigation, discovery, and study.
This answering DEFENDANT alleges:
FIRST AFFIRMATIVE DEFENSE
As and for a(n) First, separate, distinct and affirmative defense, this answering
DEFENDANT alleges:
That throughout the Complaint herein, plaintiff has failed to state facts sufficient to
constitute a cause of action, or causes of action, or a claim for punitive damages against this
answering DEFENDANT.
SECOND AFFIRMATIVE DEFENSE
As and for a(n) Second, separate, distinct and affirmative defense, this answering
DEFENDANT alleges:
That plaintiff Jacks standing to prosecute this action in whole or in part.
THIRD AFFIRMATIVE DEFENSE
As and for a(n) Third, separate, distinct and affirmative defense, this answering
DEFENDANT alleges:
That plaintiff has failed to join persons whose identities are presently unknown to this
answering DEFENDANT who may claim an interest relating to the subject of plaintiff's action,
“2+
DEFENDANT’S ANSWER TO PLAINTIFF'S COMPLAINT FOR DAMAGESSUPPLE AND CANVEL LLP
2320 Marinship Way, Suite 301
Sausalito, CA 94965
awn wH
who are so situated that the disposition of this action and the absence of these persons may leave
this answering DEFENDANT subject to a substantial risk of incurring double, multiple, or
otherwise inconsistent obligations by reason of these non-named parties’ claimed interest.
FOURTH AFFIRMATIVE DEFENSE
As and for a(n) Fourth, separate, distinct and affirmative defense, this answering
DEFENDANT alleges:
That plaintiff's action is barred by the provision of applicable statutes of limitations,
including but not limited to Code of Civil Procedure sections 335.1, 340.5, 343, and 364, and in
accordance with the provisions of Code of Civil Procedure section 597.5 this answering
DEFENDANT requests a separate trial of this affirmative defense of the statutes of limitations
before the trial of any other issue.
FIFTH AFFIRMATIVE DEFENSE
As and for a(n) Fifth, separate, distinct and affirmative defense, this answering
DEFENDANT alleges:
That, if plaintiff was injured as alleged in the Complaint, said injury was caused by the
failure of plaintiff to exercise reasonable care of their own safety and that such failure was the
proximate cause of said injuries.
SIXTH AFFIRMATIVE DEFENSE
As and for a(n) Sixth, separate, distinct and affirmative defense, this answering
DEFENDANT alleges:
This answering DEFENDANT specifically denies that any negligence on
DEFENDANT’s part contributed to or was a proximate cause of any injuries or damages
sustained by plaintiff, but in the event it is found that this answering DEFENDANT is negligent
in any manner or to any degree, this answering DEFENDANT alleges upon information and
belief that there may be persons or parties not named to this action who may have contributed to
a certain degree to the injuries alleged to have been sustained by plaintiff; whereby, this
answering DEFENDANT contends that in the event there is found to be fault on the part of this
answering DEFENDANT which in any manner or degree contributed to the injuries of plaintiff
3-
DEFENDANT’S ANSWER TO PLAINTIFF’S COMPLAINT FOR DAMAGEStoning and fixing the comparative fault of any or all parties
. Jon or otherwise.
+20! SPH AFFIRMATIVE DEFENSE
“5, separate, distinct and affirmative defense, this answering
<, as alleged in plaintiff's Complaint, plaintiff was
‘intiff’s negligence grossly exceeds any negligence on the
sReANT.
10'S H_ARFIRMATIVE DEFENSE
Vislah, separate, distinct and affirmative defense, this answering
cy ai was not a substantial factor in bringing about the alleged
sot a contributing cause, but was superseded by the negligence of a
- as an independent, intervening, sole and proximate cause of any
iges suffered.
NINTH AFFIRMATIVE DEFENSE
ot a(n) Ninth, separate, distinct and affirmative defense, this answering
SES ANT alleges:
iff was injured as alleged in the Complaint, any injuries or damage suffered
vere caused by risk of which plaintiff was well aware ané to which plaintiff
..ted and voluntarily assumed unto herself.
TENTH AFFIRMATIVE DEFENSE
id for a(n) Tenth, separate, distinct and affirmative defense, this answering
.OANT alleges:
. plaintiff herein are barred from any recovery herein on the basis that plaintiff's own
ce and/or inequitable conduct was the sole and proximate cause of the injuries sustained
. but in the event a finding is made that negligence exists on the part of
‘7 which proximately contributed to plaintiff's injuries and/or damages, if any,
4.
DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT FOR DAMAGESSUPPLE AND CANVEL LLP
2320 Marinship Way, Suite 301
Sausalito, CA 94965.
plaintiff's amount of recovery, if any, shall be reduced on the basis of comparative negligence
which contributed to the incident herein and the injuries and/or damages and claims upon which
plaintiff is seeking recovery against this answering DEFENDANT.
ELEVENTH AFFIRMATIVE DEFENSE
As and for a(n) Eleventh, separate, distinct and affirmative defense, this answering
DEFENDANT alleges:
‘That even if plaintiff sustained damages by reason of any act or omission of this
DEFENDANT (which supposition is made for purposes of this affirmative defense alone without
admitting the same be true), plaintiff herein is barred from any relief by reason of their own
inequitable conduct.
TWELFTH AFFIRMATIVE DEFENSE
As and for a(n) Twelfth, separate, distinct and affirmative defense, this answering
DEFENDANT alleges:
That, if plaintiff has been damaged or injured in any amount, as alleged in the Complaint,
this answering DEFENDANT may elect to limit and diminish plaintiff's alleged damages
pursuant to Civil Code sections 3333.1 and 3333.2.
THIRTEENTH AFFIRMATIVE DEFENSE
Asand for a(n) Thirteenth, separate, distinct and affirmative defense, this answering
DEFENDANT alleges:
That each claim alleged in the operative First Amended Complaint is barred by the
doctrine of waiver.
FOURTEENTH AFFIRMATIVE DEFENSE
As and for a(n) Fourteenth, separate, distinct and affirmative defense, this
answering DEFENDANT alleges:
That each claim alleged in the operative Complaint is barred by the doctrine of estoppel.
FIFTEENTH AFFIRMATIVE DEFENSE
As and for a(n) Fifteenth, separate, distinct and affirmative defense, this answering
DEFENDANT alleges:
5-
DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT FOR DAMAGESSUPPLE AND CANVEL LLP
2320 Marinship Way, Suite 301
Sausalito, CA 94965
That each claim alleged in the operative Complaint is barred by the doctrine of laches.
SIXTEENTH AFFIRMATIVE DEFENSE
As and for a(n) Sixteenth, separate, distinct and affirmative defense, this answering
DEFENDANT alleges:
That if there is a judgment in favor of plaintiff, and against this answering
DEFENDANT, and if such recovery exceeds $50,000, that such damages be paid by periodic
payments pursuant to Code of Civil Procedure section 667.7.
SEVENTEENTH AFFIRMATIVE DEFENSE
As and for a(n) Seventeenth, separate, distinct and affirmative defense, this
answering DEFENDANT alleges:
That any claim for punitive damages as against a health care provider is barred pursuant
to the requirements set forth in Code of Civil Procedure section 425.13.
EIGHTEENTH AFFIRMATIVE DEFENSE
As and for a(n) Eighteenth, separate, distinct and affirmative defense, this
answering DEFENDANT alleges:
That any claim for punitive damages is barred since it violates the requirements for duc
process of law as set forth in the California Constitution and the Constitution of the United
States.
NINETEENTH AFFIRMATIVE DEFENSE
As and for a(n) Nineteenth, separate, distinct and affirmative defense, this
answering DEFENDANT alleges:
‘That any claim for punitive damages is barred since it violates the Eighth and Fourteenth
Amendments of the Constitution of the United States.
TWENTIETH AFFIRMATIVE DEFENSE
As and for a(n) Twentieth, separate, distinct and affirmative defense, this answering
DEFENDANT alleges:
‘That any claim for punitive damages is barred in that plaintiff has failed to properly plead
sufficient facts to support an allegation of oppression, fraud or malice as required by Civil Code
6-
DEFENDANT'S ANSWER TO PLAINTIFF’S COMPLAINT FOR DAMAGESSUPPLE AND CANVEL LLP
2320 Marinship Way, Suite 301
Sausalito, CA 94965
ec NUN A
section 3294, or that DEFENDANT committed, authorized or ratified any such conduct.
TWENTY-FIRST AFFIRMATIVE DEFENSE
As and for a(n) Twenty-first, separate, distinct and affirmative defense, this
answering DEFENDANT alleges:
That the claims and damages sought in this proceeding are illegal and unconstitutional
and in violation of the public policy of the State of California.
TWENTY-SECOND AFFIRMATIVE DEFENSE
As and for a(n) Twenty-second, separate, distinct and affirmative defense, this
answering DEFENDANT alleges:
‘That plaintiff has failed to comply with the notice requirement set forth in Code of Civil
Procedure section 364.
TWENTY-THIRD AFFIRMATIVE DEFENSE
As and for a(n) Twenty-third, separate, distinct and affirmative defense, this
answering DEFENDANT alleges:
That this answering DEFENDANT is entitled to a set-off against any judgment or
recovery plaintiff may recover in the amount of any sum that has been or will be paid to plaintiff
as compensation for the same damages sought against this answering DEFENDANT.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
As and for a(n) Twenty-fourth, separate, distinct and affirmative defense, this
answering DEFENDANT alleges:
That this answering DEFENDANT is entitled to the full benefits and protections
provided under Civil Code section 1431.1 et seq. otherwise entitled the Fair Responsibility Act
of 1986.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
As and for a(n) Twenty-fifth, separate, distinct and affirmative defense, this
answering DEFENDANT alleges:
That this answering DEFENDANT is entitied to the full benefits, protections and
immunities contained in the Health & Safety Codes and the Business & Professions Codes.
-1-
DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT FOR DAMAGESbh YW ON
SUPPLE AND CANVEL LLP
2320 Marinship Way, Suite 301
Sausalito, CA 94965
TWENTY-SIXTH AFFIRMATIVE DEFENSE
As and for a(n) Twenty-sixth, separate, distinct and affirmative defense, this
answering DEFENDANT alleges:
That plaintiff failed to mitigate, minimize or avoid damages allegedly caused by
DEFENDANT and DEFENDANT is therefore entitled to have any sum to which plaintiffis
entitled reduced by such sums as would have been mitigated, minimized or avoided.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
As and for a(n) Twenty-seventh, separate, distinct and affirmative defense, this
answering DEFENDANT alleges:
That plaintiff herein executed an Arbitration Agreement, which was in full force and
effect at the time of all treatment rendered by this answering DEFENDANT and this answering
DEFENDANT asserts the right and entitlement to have this matter arbitrated pursuant to said
agreement.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
As and for a(n) Twenty-cighth, separate, distinct and affirmative defense, this
answering DEFENDANT alleges:
That plaintiff’s action is barred by Civil Code section 1714.8.
WHEREFORE, this answering DEFENDANT prays that plaintiff take nothing by way of
the Complaint on file herein.
Dated: JuneZO » 2011 SUPPLE-AND CANVEL LLP
ay
JOBIE C’FEUSNER
ttorneys for Defendant
KINDRED NURSING CENTERS WEST
LLC, dba LAWTON HEALTHCARE
CENTER (erroneously sued and served as
Lawton Healthcare Center and Kindred
Nursing Centers West LLC)
-8-
DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT FOR DAMAGESSupple & Canvel LLP
2320 Marinship Way, Suite 301
Sausalito, CA 94965
Re: Ida Pipkins v. Kindred Healthcare, Inc., et al.
San Francisco County Superior Court Case No. CGC- 10-506805
PROOF OF SERVICE
1 am a resident of the State of California, over the age of eighteen
years, and not a party to the within action. My business address is Supple and
Canvel LLP, 2320 Marinship Way, Suite 301, Sausalito, CA 94965. the
below date, I served the within document:
DEFENDANT KINDRED NURSING CENTERS WEST LLC DBA
LAWTON HEALTHCARE CENTER (erroneously sued and served as
Lawton Healthcare Center and Kindred Nursing Centers West LLC’S)
ANSWER TO COMPLAINT FOR DAMAGES
by transmitting via facsimile the document(s) listed above to the fax number(s)
set forth below on this date before 5:00 p.m.
by personally delivering the document(s) listed above to the person(s) at the
address(es) set forth below.
by placing the document(s) listed above in a sealed envelope with postage
thereon fully prepaid, in United States mail in the State of California at
Sausalito, addressed as set forth below.
Mary E. Alexander, Esq.
Jennifer L. Fiore, Esq.
Sophia M. Aslami, Esq.
Mary Alexander & Associates, P.C.
44 Montgomery Street, Suite 1303
San Francisco CA 94104
Tel: (415) 433-4440
Fax: (415) 433-5440
lam readily familiar with the firm’s practice of collection and
processing correspondence for mailing. Under that practice it would be
deposited with the U.S. Postal Service on that same day with postage thereon
ily prepaid in the ordinary course of business. I am aware that on motion of
the party served, service is presumed invalid if postal cancellation date or
posta se meter date is more than one day after the date of deposit for mailing
in affidavit.
I declare under penalty of perjury under the laws of the State of
California that the above is true and correct.
Executed on June Al, 2011 at Sausalito, California.
“
AK
Linda Stewart
PROOF OF SERVICE
Preview
NM SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Jun-21-2011 11:19 am Case Number: CGC-10-506805 Filing Date: Jun-21-2011 11:16 Juke Box: 001 Image: 03247481 ANSWER IDA PIPKINS VS. KINDRED HEALTHCARE, INC. et al 001003247481 Instructions: Please place this sheet on top of the document to be scanned. 4XVA Ad SUPPLE AND CANVEL LLP 2320 Marinship Way, Suite 301 Sausalito, CA 94965 FILLED ‘ounty of San Francisco RICK CANVEL (SBN: 144798) rcanvel@supplecanvel.com JUN 2 1 2011 JODIE FEUSNER (SBN: 226650) jfeusnerl@supplecanvel.com SUPPLE AND CANVEL LLP ote OF THE COURT 2320 MARINSHIP WAY, SUITE 301 . SAUSALITO, CA 94965 Deputy Clerk TELEPHONE: (415) 366-5533 FACSIMILE: (415) 480-6301 Attorneys for Defendant KINDRED NURSING CENTERS WEST LLC dba LAWTON HEALTHCARE CENTER (erroneously sued and served as Lawton Healthcare Center and Kindred Nursing Centers West LLC) SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO IDA PIPKINS, by and through her Guardian ad | CASE NO. CGC-10-506805 Litem, RITA PIPKINS, DEFENDANT KINDRED NURSING Plaintiff CENTERS WEST LLC dba LAWTON > HEALTHCARE CENTER v. (ERRONEOUSLY SUED AND SERVED AS LAWTON HEALTHCARE CENTER KINDRED HEALTHCARE, INC., a AND KINDRED NURSING CENTERS corporation, KINDRED HEALTHCARE WEST LLC’S) ANSWER TO OPERATING, INC., a corporation; KINDRED | PLAINTIFF'S COMPLAINT FOR NURSING CENTERS WEST, LLC; DAMAGES CALIFORNIA NURSING CENTERS, LLC, a corporation, individually and doing business as LAWTON HEALTHCARE CENTER; and DOES 1-100, inclusive, Defendants. COMES NOW DEFENDANT KINDRED NURSING CENTERS WEST LLC dba LAWTON HEALTHCARE CENTER (erroneously sued and served as Lawton Healthcare Center and Kindred Nursing Centers West LLC) (“DEFENDANT”) and for itself alone, answers plaintiff IDA PIPKINS, by and through her Guardian ad Litem, RITA PIPKINS (hereinafter “plaintiff’)’s Complaint on file herein, and for no other DEFENDANT, admits, denies, and allege as follows: Pursuant to the provisions of section 431.30 of the Code of Civil Procedure of the State of California, this answering DEFENDANT denies both generally and specifically each, every ole DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT FOR DAMAGESSUPPLE AND CANVEL LLP 2320 Marinship Way, Suite 301 Sausalito, CA 94965 and all of the allegations in said unverified complaint, and the whole thereof, including each and every purported cause of action contained therein, and denies that plaintiff has been damaged in the sum or sums alleged, or in any other amount, or at all. Further answering the Complaint on file herein, and the whole thereof, this answering DEFENDANT denies that plaintiff has sustained any injury, damage or loss, if any, by reason of any act, error, omission or beach of duty on the part of this answering DEFENDANT, or any agents, servants or employees of this answering DEFENDANT. DEFENDANT has not completed a thorough investigation or completed discovery of all facts and circumstances relative to the subject matter of the Complaint, and accordingly, reserves the right to modify, revise, or supplement this Answer and to plead such further defenses and take such further actions as DEFENDANT may deem appropriate and necessary in the defense of this matter, upon completion of such investigation, discovery, and study. This answering DEFENDANT alleges: FIRST AFFIRMATIVE DEFENSE As and for a(n) First, separate, distinct and affirmative defense, this answering DEFENDANT alleges: That throughout the Complaint herein, plaintiff has failed to state facts sufficient to constitute a cause of action, or causes of action, or a claim for punitive damages against this answering DEFENDANT. SECOND AFFIRMATIVE DEFENSE As and for a(n) Second, separate, distinct and affirmative defense, this answering DEFENDANT alleges: That plaintiff Jacks standing to prosecute this action in whole or in part. THIRD AFFIRMATIVE DEFENSE As and for a(n) Third, separate, distinct and affirmative defense, this answering DEFENDANT alleges: That plaintiff has failed to join persons whose identities are presently unknown to this answering DEFENDANT who may claim an interest relating to the subject of plaintiff's action, “2+ DEFENDANT’S ANSWER TO PLAINTIFF'S COMPLAINT FOR DAMAGESSUPPLE AND CANVEL LLP 2320 Marinship Way, Suite 301 Sausalito, CA 94965 awn wH who are so situated that the disposition of this action and the absence of these persons may leave this answering DEFENDANT subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of these non-named parties’ claimed interest. FOURTH AFFIRMATIVE DEFENSE As and for a(n) Fourth, separate, distinct and affirmative defense, this answering DEFENDANT alleges: That plaintiff's action is barred by the provision of applicable statutes of limitations, including but not limited to Code of Civil Procedure sections 335.1, 340.5, 343, and 364, and in accordance with the provisions of Code of Civil Procedure section 597.5 this answering DEFENDANT requests a separate trial of this affirmative defense of the statutes of limitations before the trial of any other issue. FIFTH AFFIRMATIVE DEFENSE As and for a(n) Fifth, separate, distinct and affirmative defense, this answering DEFENDANT alleges: That, if plaintiff was injured as alleged in the Complaint, said injury was caused by the failure of plaintiff to exercise reasonable care of their own safety and that such failure was the proximate cause of said injuries. SIXTH AFFIRMATIVE DEFENSE As and for a(n) Sixth, separate, distinct and affirmative defense, this answering DEFENDANT alleges: This answering DEFENDANT specifically denies that any negligence on DEFENDANT’s part contributed to or was a proximate cause of any injuries or damages sustained by plaintiff, but in the event it is found that this answering DEFENDANT is negligent in any manner or to any degree, this answering DEFENDANT alleges upon information and belief that there may be persons or parties not named to this action who may have contributed to a certain degree to the injuries alleged to have been sustained by plaintiff; whereby, this answering DEFENDANT contends that in the event there is found to be fault on the part of this answering DEFENDANT which in any manner or degree contributed to the injuries of plaintiff 3- DEFENDANT’S ANSWER TO PLAINTIFF’S COMPLAINT FOR DAMAGEStoning and fixing the comparative fault of any or all parties . Jon or otherwise. +20! SPH AFFIRMATIVE DEFENSE “5, separate, distinct and affirmative defense, this answering <, as alleged in plaintiff's Complaint, plaintiff was ‘intiff’s negligence grossly exceeds any negligence on the sReANT. 10'S H_ARFIRMATIVE DEFENSE Vislah, separate, distinct and affirmative defense, this answering cy ai was not a substantial factor in bringing about the alleged sot a contributing cause, but was superseded by the negligence of a - as an independent, intervening, sole and proximate cause of any iges suffered. NINTH AFFIRMATIVE DEFENSE ot a(n) Ninth, separate, distinct and affirmative defense, this answering SES ANT alleges: iff was injured as alleged in the Complaint, any injuries or damage suffered vere caused by risk of which plaintiff was well aware ané to which plaintiff ..ted and voluntarily assumed unto herself. TENTH AFFIRMATIVE DEFENSE id for a(n) Tenth, separate, distinct and affirmative defense, this answering .OANT alleges: . plaintiff herein are barred from any recovery herein on the basis that plaintiff's own ce and/or inequitable conduct was the sole and proximate cause of the injuries sustained . but in the event a finding is made that negligence exists on the part of ‘7 which proximately contributed to plaintiff's injuries and/or damages, if any, 4. DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT FOR DAMAGESSUPPLE AND CANVEL LLP 2320 Marinship Way, Suite 301 Sausalito, CA 94965. plaintiff's amount of recovery, if any, shall be reduced on the basis of comparative negligence which contributed to the incident herein and the injuries and/or damages and claims upon which plaintiff is seeking recovery against this answering DEFENDANT. ELEVENTH AFFIRMATIVE DEFENSE As and for a(n) Eleventh, separate, distinct and affirmative defense, this answering DEFENDANT alleges: ‘That even if plaintiff sustained damages by reason of any act or omission of this DEFENDANT (which supposition is made for purposes of this affirmative defense alone without admitting the same be true), plaintiff herein is barred from any relief by reason of their own inequitable conduct. TWELFTH AFFIRMATIVE DEFENSE As and for a(n) Twelfth, separate, distinct and affirmative defense, this answering DEFENDANT alleges: That, if plaintiff has been damaged or injured in any amount, as alleged in the Complaint, this answering DEFENDANT may elect to limit and diminish plaintiff's alleged damages pursuant to Civil Code sections 3333.1 and 3333.2. THIRTEENTH AFFIRMATIVE DEFENSE Asand for a(n) Thirteenth, separate, distinct and affirmative defense, this answering DEFENDANT alleges: That each claim alleged in the operative First Amended Complaint is barred by the doctrine of waiver. FOURTEENTH AFFIRMATIVE DEFENSE As and for a(n) Fourteenth, separate, distinct and affirmative defense, this answering DEFENDANT alleges: That each claim alleged in the operative Complaint is barred by the doctrine of estoppel. FIFTEENTH AFFIRMATIVE DEFENSE As and for a(n) Fifteenth, separate, distinct and affirmative defense, this answering DEFENDANT alleges: 5- DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT FOR DAMAGESSUPPLE AND CANVEL LLP 2320 Marinship Way, Suite 301 Sausalito, CA 94965 That each claim alleged in the operative Complaint is barred by the doctrine of laches. SIXTEENTH AFFIRMATIVE DEFENSE As and for a(n) Sixteenth, separate, distinct and affirmative defense, this answering DEFENDANT alleges: That if there is a judgment in favor of plaintiff, and against this answering DEFENDANT, and if such recovery exceeds $50,000, that such damages be paid by periodic payments pursuant to Code of Civil Procedure section 667.7. SEVENTEENTH AFFIRMATIVE DEFENSE As and for a(n) Seventeenth, separate, distinct and affirmative defense, this answering DEFENDANT alleges: That any claim for punitive damages as against a health care provider is barred pursuant to the requirements set forth in Code of Civil Procedure section 425.13. EIGHTEENTH AFFIRMATIVE DEFENSE As and for a(n) Eighteenth, separate, distinct and affirmative defense, this answering DEFENDANT alleges: That any claim for punitive damages is barred since it violates the requirements for duc process of law as set forth in the California Constitution and the Constitution of the United States. NINETEENTH AFFIRMATIVE DEFENSE As and for a(n) Nineteenth, separate, distinct and affirmative defense, this answering DEFENDANT alleges: ‘That any claim for punitive damages is barred since it violates the Eighth and Fourteenth Amendments of the Constitution of the United States. TWENTIETH AFFIRMATIVE DEFENSE As and for a(n) Twentieth, separate, distinct and affirmative defense, this answering DEFENDANT alleges: ‘That any claim for punitive damages is barred in that plaintiff has failed to properly plead sufficient facts to support an allegation of oppression, fraud or malice as required by Civil Code 6- DEFENDANT'S ANSWER TO PLAINTIFF’S COMPLAINT FOR DAMAGESSUPPLE AND CANVEL LLP 2320 Marinship Way, Suite 301 Sausalito, CA 94965 ec NUN A section 3294, or that DEFENDANT committed, authorized or ratified any such conduct. TWENTY-FIRST AFFIRMATIVE DEFENSE As and for a(n) Twenty-first, separate, distinct and affirmative defense, this answering DEFENDANT alleges: That the claims and damages sought in this proceeding are illegal and unconstitutional and in violation of the public policy of the State of California. TWENTY-SECOND AFFIRMATIVE DEFENSE As and for a(n) Twenty-second, separate, distinct and affirmative defense, this answering DEFENDANT alleges: ‘That plaintiff has failed to comply with the notice requirement set forth in Code of Civil Procedure section 364. TWENTY-THIRD AFFIRMATIVE DEFENSE As and for a(n) Twenty-third, separate, distinct and affirmative defense, this answering DEFENDANT alleges: That this answering DEFENDANT is entitled to a set-off against any judgment or recovery plaintiff may recover in the amount of any sum that has been or will be paid to plaintiff as compensation for the same damages sought against this answering DEFENDANT. TWENTY-FOURTH AFFIRMATIVE DEFENSE As and for a(n) Twenty-fourth, separate, distinct and affirmative defense, this answering DEFENDANT alleges: That this answering DEFENDANT is entitled to the full benefits and protections provided under Civil Code section 1431.1 et seq. otherwise entitled the Fair Responsibility Act of 1986. TWENTY-FIFTH AFFIRMATIVE DEFENSE As and for a(n) Twenty-fifth, separate, distinct and affirmative defense, this answering DEFENDANT alleges: That this answering DEFENDANT is entitied to the full benefits, protections and immunities contained in the Health & Safety Codes and the Business & Professions Codes. -1- DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT FOR DAMAGESbh YW ON SUPPLE AND CANVEL LLP 2320 Marinship Way, Suite 301 Sausalito, CA 94965 TWENTY-SIXTH AFFIRMATIVE DEFENSE As and for a(n) Twenty-sixth, separate, distinct and affirmative defense, this answering DEFENDANT alleges: That plaintiff failed to mitigate, minimize or avoid damages allegedly caused by DEFENDANT and DEFENDANT is therefore entitled to have any sum to which plaintiffis entitled reduced by such sums as would have been mitigated, minimized or avoided. TWENTY-SEVENTH AFFIRMATIVE DEFENSE As and for a(n) Twenty-seventh, separate, distinct and affirmative defense, this answering DEFENDANT alleges: That plaintiff herein executed an Arbitration Agreement, which was in full force and effect at the time of all treatment rendered by this answering DEFENDANT and this answering DEFENDANT asserts the right and entitlement to have this matter arbitrated pursuant to said agreement. TWENTY-EIGHTH AFFIRMATIVE DEFENSE As and for a(n) Twenty-cighth, separate, distinct and affirmative defense, this answering DEFENDANT alleges: That plaintiff’s action is barred by Civil Code section 1714.8. WHEREFORE, this answering DEFENDANT prays that plaintiff take nothing by way of the Complaint on file herein. Dated: JuneZO » 2011 SUPPLE-AND CANVEL LLP ay JOBIE C’FEUSNER ttorneys for Defendant KINDRED NURSING CENTERS WEST LLC, dba LAWTON HEALTHCARE CENTER (erroneously sued and served as Lawton Healthcare Center and Kindred Nursing Centers West LLC) -8- DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT FOR DAMAGESSupple & Canvel LLP 2320 Marinship Way, Suite 301 Sausalito, CA 94965 Re: Ida Pipkins v. Kindred Healthcare, Inc., et al. San Francisco County Superior Court Case No. CGC- 10-506805 PROOF OF SERVICE 1 am a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is Supple and Canvel LLP, 2320 Marinship Way, Suite 301, Sausalito, CA 94965. the below date, I served the within document: DEFENDANT KINDRED NURSING CENTERS WEST LLC DBA LAWTON HEALTHCARE CENTER (erroneously sued and served as Lawton Healthcare Center and Kindred Nursing Centers West LLC’S) ANSWER TO COMPLAINT FOR DAMAGES by transmitting via facsimile the document(s) listed above to the fax number(s) set forth below on this date before 5:00 p.m. by personally delivering the document(s) listed above to the person(s) at the address(es) set forth below. by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in United States mail in the State of California at Sausalito, addressed as set forth below. Mary E. Alexander, Esq. Jennifer L. Fiore, Esq. Sophia M. Aslami, Esq. Mary Alexander & Associates, P.C. 44 Montgomery Street, Suite 1303 San Francisco CA 94104 Tel: (415) 433-4440 Fax: (415) 433-5440 lam readily familiar with the firm’s practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon ily prepaid in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or posta se meter date is more than one day after the date of deposit for mailing in affidavit. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on June Al, 2011 at Sausalito, California. “ AK Linda Stewart PROOF OF SERVICE