Preview
1 Julie E. Hayashida (SBN 260278)
jhayashida@bhcl.law
2 BHC LAW GROUP LLP 1/21/2021
5900 Hollis Street, Suite O
3 Emeryville, CA 94608
Telephone: (510) 658-3600
4 Facsimile: (510) 658-1151
5 Attorneys for Defendant
FIRE INSURANCE EXCHANGE
6
7 SUPERIOR COURT OF CALIFORNIA
8 COUNTY OF BUTTE, UNLIMITED JURISDICTION
9
10 CHERYL ROBBINS, an individual, CASE NO. 20CV01703
11 Plaintiff, Assigned for All Purposes to
Judge Tamara L. Mosbarger
12
vs. DEFENDANT FIRE INSURANCE
13 EXCHANGE’S ANSWER TO
FIRE INSURANCE EXCHANGE, a corporation, PLAINTIFF’S COMPLAINT
14 and DOES 1-10, inclusive,
15
Defendants. Action Filed: August 27, 2020
16 Trial Date: None Set
17
Defendant FIRE INSURANCE EXCHANGE, an interinsurance exchange, (“Defendant”)
18
answers Plaintiff’s Complaint (“Complaint”), as follows:
19
GENERAL DENIAL
20
Pursuant to California Code of Civil Procedure §431.30, Defendant generally and
21
specifically denies each and every allegation contained in Plaintiff’s Complaint, and further
22
denies that Plaintiff has sustained, or will sustain, damages in any sums by reason of any act or
23
BHC omission on the part of this answering Defendant.
LAW 24
GROUP LLP AFFIRMATIVE DEFENSES
________ 25
5900 Hollis Street, FIRST AFFIRMATIVE DEFENSE
Suite O
26
Emeryville, CA 94608
510-658-3600
1. Plaintiff’s Complaint fails to state a claim or cause of action upon which relief
27
T: 510-658-3600
F: 510-658-1151
may be granted.
28
-1-
DEFENDANT FIRE INSURANCE EXCHANGE’S ANSWER TO PLAINTIFF’S COMPLAINT
1 SECOND AFFIRMATIVE DEFENSE
2 2. To the extent Plaintiff failed to mitigate, minimize or avoid any damages she
3 allegedly sustained, any recovery against this answering Defendant must be reduced by the
4 amount attributable to that failure.
5 THIRD AFFIRMATIVE DEFENSE
6 3. Plaintiff was careless and negligent in and about the matters alleged in the
7 Complaint, and that carelessness and negligence on the part of Plaintiff and/or her agents
8 proximately contributed to Plaintiff’s alleged injuries, loss, and/or damage, if any.
9 FOURTH AFFIRMATIVE DEFENSE
10 4. Third parties were careless and negligent in and about the matters alleged in
11 Plaintiff’s Complaint, and said carelessness and negligence on the part of those third parties
12 proximately contributed to Plaintiff’s alleged injuries, loss, and/or damage, if any. Therefore, any
13 damages awarded to Plaintiff shall be diminished in proportion to the amount of fault attributed to
14 such third parties.
15 FIFTH AFFIRMATIVE DEFENSE
16 5. Third parties were careless and negligent in and about the matters alleged in
17 Plaintiff’s Complaint, and said carelessness and negligence on the part of those third parties
18 proximately contributed to Plaintiff’s alleged injuries, loss, and/or damage, if any. Therefore, any
19 damages awarded to Plaintiff shall be diminished in proportion to the amount of fault attributed to
20 such third parties.
21 SIXTH AFFIRMATIVE DEFENSE
22 6. Plaintiff’s Complaint is barred because this answering Defendant was wholly
23 justified and privileged in all of its actions.
BHC
LAW 24 SEVENTH AFFIRMATIVE DEFENSE
GROUP LLP
________ 25 7. Defendant alleges that its coverage interpretations and claims handling was and is
5900 Hollis Street,
Suite O
26
Emeryville, CA 94608 reasonable as a matter of law.
510-658-3600
27
T: 510-658-3600
F: 510-658-1151
EIGHTH AFFIRMATIVE DEFENSE
28 8. Defendant and its representatives acted reasonably and in good faith at all times
-2-
DEFENDANT FIRE INSURANCE EXCHANGE’S ANSWER TO PLAINTIFF’S COMPLAINT
1 material herein, based on all relevant facts and circumstances known by them at the time they so
2 acted. Accordingly, Plaintiff is barred from any recovery in this action.
3 NINTH AFFIRMATIVE DEFENSE
4 9. Plaintiff acknowledged, ratified, consented to and acquiesced in the alleged acts or
5 omissions, if any, of Defendant, thus barring Plaintiff’s recovery.
6 TENTH AFFIRMATIVE DEFENSE
7 10. The claims asserted in Plaintiff’s Complaint, and each and every purported cause
8 of action therein, are barred by virtue of Plaintiff’s failure to comply with the terms and
9 conditions contained in the policy which is the subject of the Complaint.
10 ELEVENTH AFFIRMATIVE DEFENSE
11 11. Plaintiff’s claims, and each of them, are barred by the equitable doctrine of laches.
12 TWELFTH AFFIRMATIVE DEFENSE
13 12. Plaintiff’s rights and claims, if any, are barred by the statutes of limitations
14 codified in Code of Civil Procedure sections 335.1, 337, 338, 339, 340, and 343 and all other
15 applicable statutes of limitations, including any applicable contractual statute of limitations.
16 THIRTEENTH AFFIRMATIVE DEFENSE
17 13. Plaintiff has waived and are estopped and barred from alleging the matters set
18 forth in the Complaint.
19 FOURTEENTH AFFIRMATIVE DEFENSE
20 14. Plaintiff’s claim for breach of the implied covenant of good faith and fair dealing
21 is barred because a genuine dispute existed as to coverage under the policy described in the
22 Complaint.
23 FIFTEENTH AFFIRMATIVE DEFENSE
BHC
LAW 24 15. Plaintiff’s claims are barred because there is a misjoinder of parties and a failure to
GROUP LLP
________ 25 join indispensable parties.
5900 Hollis Street,
Suite O
26
Emeryville, CA 94608 SIXTEENTH AFFIRMATIVE DEFENSE
510-658-3600
27
T: 510-658-3600
F: 510-658-1151
16. Plaintiff is not entitled to claim punitive damages because Plaintiff’s punitive
28 damage claim is unconstitutional pursuant to both the United States and California Constitutions.
-3-
DEFENDANT FIRE INSURANCE EXCHANGE’S ANSWER TO PLAINTIFF’S COMPLAINT
1 SEVENTEENTH AFFIRMATIVE DEFENSE
2 17. The Complaint fails to state facts sufficient to warrant an award of punitive or
3 exemplary damages, and Plaintiff has failed to plead malice, fraud, or oppression with the
4 specificity required under California Civil Code § 3294.
5 EIGHTEENTH AFFIRMATIVE DEFENSE
6 18. Plaintiff’s claims are barred because Plaintiff’s Complaint failed to state facts to
7 support an award of attorneys’ fees.
8 NINETEENTH AFFIRMATIVE DEFENSE
9 19. The Complaint fails to state facts sufficient to warrant treble damages pursuant to
10 California Civil Code § 3345.
11 WHEREFORE, this answering Defendant prays for judgment as follows:
12 1. That Plaintiff take nothing by reason of her Complaint herein and that this
13 answering Defendant be awarded judgment in its favor;
14 2. For costs of suit incurred herein;
15 3. For attorneys’ fees; and,
16 4. For such other and further relief as the Court deems proper.
17
18
Dated: January 21, 2021 BHC LAW GROUP LLP
19
20
21 By: Julie E. Hayashida
Attorneys for Defendant
22
FIRE INSURANCE EXCHANGE
23
BHC
LAW 24
GROUP LLP
________ 25
5900 Hollis Street,
Suite O
26
Emeryville, CA 94608
510-658-3600
27
T: 510-658-3600
F: 510-658-1151
28
-4-
DEFENDANT FIRE INSURANCE EXCHANGE’S ANSWER TO PLAINTIFF’S COMPLAINT
1 PROOF OF SERVICE
Cheryl Robbins v. Fire Insurance Exchange, a corporation
2 Butte County Superior Court Case No. 20CV01703
3
I, Kristina Kalkhorst, declare that I am, and was at the time of service of the documents
4 herein referred to, over the age of 18 years, and not a party to the action; and I am employed by
BHC Law Group LLP which is located in the County of Alameda, State of California. My law
5 firm’s address is 5900 Hollis St. Suite O, Emeryville, CA, 94608. My electronic service address
is kkalkhorst@bhc.law.
6
On January 21, 2021, I caused to be served the foregoing:
7
8 DEFENDANT FIRE INSURANCE EXCHANGE’S ANSWER TO PLAINTIFFS’
COMPLAINT
9
In said action by placing a true copy thereof enclosed in a sealed envelope and served in the
10 manner and/or manners described below to each of the parties herein and addressed as follows:
11 Attorneys for Plaintiffs J. Edward Kerley
Sue and Christopher Selfridge Dylan L. Schaffer
12 KERLEY SCHAFFER LLP
1939 Harrison Street, #500
13
Oakland, CA 94612
14 Telephone: 510.379.5801
Facsimile: 510.228.0350
15 Email: service@kslaw.us
16 (By Electronic Service) Based on the Executive Department of the State of California
Executive Order N-38-20 dated March 27, 2020 and California Rules of Court Appendix
17
I, Emergency Rule 12, I caused the above listed documents to be sent to the person as
18 listed above and directed to the email address as noted above.
19
I declare under penalty of perjury under the laws of the State of California that the
20 foregoing is true and correct.
21 Executed on January 21, 2021, at Thornton, Colorado.
22
23
BHC
LAW
24
GROUP
LLP 25
________
5900 Hollis
26
Street, Suite O.
Emeryville, CA
94608
510-658-3600 27
28
1
PROOF OF SERVICE
Preview
1 Julie E. Hayashida (SBN 260278) jhayashida@bhcl.law 2 BHC LAW GROUP LLP 1/21/2021 5900 Hollis Street, Suite O 3 Emeryville, CA 94608 Telephone: (510) 658-3600 4 Facsimile: (510) 658-1151 5 Attorneys for Defendant FIRE INSURANCE EXCHANGE 6 7 SUPERIOR COURT OF CALIFORNIA 8 COUNTY OF BUTTE, UNLIMITED JURISDICTION 9 10 CHERYL ROBBINS, an individual, CASE NO. 20CV01703 11 Plaintiff, Assigned for All Purposes to Judge Tamara L. Mosbarger 12 vs. DEFENDANT FIRE INSURANCE 13 EXCHANGE’S ANSWER TO FIRE INSURANCE EXCHANGE, a corporation, PLAINTIFF’S COMPLAINT 14 and DOES 1-10, inclusive, 15 Defendants. Action Filed: August 27, 2020 16 Trial Date: None Set 17 Defendant FIRE INSURANCE EXCHANGE, an interinsurance exchange, (“Defendant”) 18 answers Plaintiff’s Complaint (“Complaint”), as follows: 19 GENERAL DENIAL 20 Pursuant to California Code of Civil Procedure §431.30, Defendant generally and 21 specifically denies each and every allegation contained in Plaintiff’s Complaint, and further 22 denies that Plaintiff has sustained, or will sustain, damages in any sums by reason of any act or 23 BHC omission on the part of this answering Defendant. LAW 24 GROUP LLP AFFIRMATIVE DEFENSES ________ 25 5900 Hollis Street, FIRST AFFIRMATIVE DEFENSE Suite O 26 Emeryville, CA 94608 510-658-3600 1. Plaintiff’s Complaint fails to state a claim or cause of action upon which relief 27 T: 510-658-3600 F: 510-658-1151 may be granted. 28 -1- DEFENDANT FIRE INSURANCE EXCHANGE’S ANSWER TO PLAINTIFF’S COMPLAINT 1 SECOND AFFIRMATIVE DEFENSE 2 2. To the extent Plaintiff failed to mitigate, minimize or avoid any damages she 3 allegedly sustained, any recovery against this answering Defendant must be reduced by the 4 amount attributable to that failure. 5 THIRD AFFIRMATIVE DEFENSE 6 3. Plaintiff was careless and negligent in and about the matters alleged in the 7 Complaint, and that carelessness and negligence on the part of Plaintiff and/or her agents 8 proximately contributed to Plaintiff’s alleged injuries, loss, and/or damage, if any. 9 FOURTH AFFIRMATIVE DEFENSE 10 4. Third parties were careless and negligent in and about the matters alleged in 11 Plaintiff’s Complaint, and said carelessness and negligence on the part of those third parties 12 proximately contributed to Plaintiff’s alleged injuries, loss, and/or damage, if any. Therefore, any 13 damages awarded to Plaintiff shall be diminished in proportion to the amount of fault attributed to 14 such third parties. 15 FIFTH AFFIRMATIVE DEFENSE 16 5. Third parties were careless and negligent in and about the matters alleged in 17 Plaintiff’s Complaint, and said carelessness and negligence on the part of those third parties 18 proximately contributed to Plaintiff’s alleged injuries, loss, and/or damage, if any. Therefore, any 19 damages awarded to Plaintiff shall be diminished in proportion to the amount of fault attributed to 20 such third parties. 21 SIXTH AFFIRMATIVE DEFENSE 22 6. Plaintiff’s Complaint is barred because this answering Defendant was wholly 23 justified and privileged in all of its actions. BHC LAW 24 SEVENTH AFFIRMATIVE DEFENSE GROUP LLP ________ 25 7. Defendant alleges that its coverage interpretations and claims handling was and is 5900 Hollis Street, Suite O 26 Emeryville, CA 94608 reasonable as a matter of law. 510-658-3600 27 T: 510-658-3600 F: 510-658-1151 EIGHTH AFFIRMATIVE DEFENSE 28 8. Defendant and its representatives acted reasonably and in good faith at all times -2- DEFENDANT FIRE INSURANCE EXCHANGE’S ANSWER TO PLAINTIFF’S COMPLAINT 1 material herein, based on all relevant facts and circumstances known by them at the time they so 2 acted. Accordingly, Plaintiff is barred from any recovery in this action. 3 NINTH AFFIRMATIVE DEFENSE 4 9. Plaintiff acknowledged, ratified, consented to and acquiesced in the alleged acts or 5 omissions, if any, of Defendant, thus barring Plaintiff’s recovery. 6 TENTH AFFIRMATIVE DEFENSE 7 10. The claims asserted in Plaintiff’s Complaint, and each and every purported cause 8 of action therein, are barred by virtue of Plaintiff’s failure to comply with the terms and 9 conditions contained in the policy which is the subject of the Complaint. 10 ELEVENTH AFFIRMATIVE DEFENSE 11 11. Plaintiff’s claims, and each of them, are barred by the equitable doctrine of laches. 12 TWELFTH AFFIRMATIVE DEFENSE 13 12. Plaintiff’s rights and claims, if any, are barred by the statutes of limitations 14 codified in Code of Civil Procedure sections 335.1, 337, 338, 339, 340, and 343 and all other 15 applicable statutes of limitations, including any applicable contractual statute of limitations. 16 THIRTEENTH AFFIRMATIVE DEFENSE 17 13. Plaintiff has waived and are estopped and barred from alleging the matters set 18 forth in the Complaint. 19 FOURTEENTH AFFIRMATIVE DEFENSE 20 14. Plaintiff’s claim for breach of the implied covenant of good faith and fair dealing 21 is barred because a genuine dispute existed as to coverage under the policy described in the 22 Complaint. 23 FIFTEENTH AFFIRMATIVE DEFENSE BHC LAW 24 15. Plaintiff’s claims are barred because there is a misjoinder of parties and a failure to GROUP LLP ________ 25 join indispensable parties. 5900 Hollis Street, Suite O 26 Emeryville, CA 94608 SIXTEENTH AFFIRMATIVE DEFENSE 510-658-3600 27 T: 510-658-3600 F: 510-658-1151 16. Plaintiff is not entitled to claim punitive damages because Plaintiff’s punitive 28 damage claim is unconstitutional pursuant to both the United States and California Constitutions. -3- DEFENDANT FIRE INSURANCE EXCHANGE’S ANSWER TO PLAINTIFF’S COMPLAINT 1 SEVENTEENTH AFFIRMATIVE DEFENSE 2 17. The Complaint fails to state facts sufficient to warrant an award of punitive or 3 exemplary damages, and Plaintiff has failed to plead malice, fraud, or oppression with the 4 specificity required under California Civil Code § 3294. 5 EIGHTEENTH AFFIRMATIVE DEFENSE 6 18. Plaintiff’s claims are barred because Plaintiff’s Complaint failed to state facts to 7 support an award of attorneys’ fees. 8 NINETEENTH AFFIRMATIVE DEFENSE 9 19. The Complaint fails to state facts sufficient to warrant treble damages pursuant to 10 California Civil Code § 3345. 11 WHEREFORE, this answering Defendant prays for judgment as follows: 12 1. That Plaintiff take nothing by reason of her Complaint herein and that this 13 answering Defendant be awarded judgment in its favor; 14 2. For costs of suit incurred herein; 15 3. For attorneys’ fees; and, 16 4. For such other and further relief as the Court deems proper. 17 18 Dated: January 21, 2021 BHC LAW GROUP LLP 19 20 21 By: Julie E. Hayashida Attorneys for Defendant 22 FIRE INSURANCE EXCHANGE 23 BHC LAW 24 GROUP LLP ________ 25 5900 Hollis Street, Suite O 26 Emeryville, CA 94608 510-658-3600 27 T: 510-658-3600 F: 510-658-1151 28 -4- DEFENDANT FIRE INSURANCE EXCHANGE’S ANSWER TO PLAINTIFF’S COMPLAINT 1 PROOF OF SERVICE Cheryl Robbins v. Fire Insurance Exchange, a corporation 2 Butte County Superior Court Case No. 20CV01703 3 I, Kristina Kalkhorst, declare that I am, and was at the time of service of the documents 4 herein referred to, over the age of 18 years, and not a party to the action; and I am employed by BHC Law Group LLP which is located in the County of Alameda, State of California. My law 5 firm’s address is 5900 Hollis St. Suite O, Emeryville, CA, 94608. My electronic service address is kkalkhorst@bhc.law. 6 On January 21, 2021, I caused to be served the foregoing: 7 8 DEFENDANT FIRE INSURANCE EXCHANGE’S ANSWER TO PLAINTIFFS’ COMPLAINT 9 In said action by placing a true copy thereof enclosed in a sealed envelope and served in the 10 manner and/or manners described below to each of the parties herein and addressed as follows: 11 Attorneys for Plaintiffs J. Edward Kerley Sue and Christopher Selfridge Dylan L. Schaffer 12 KERLEY SCHAFFER LLP 1939 Harrison Street, #500 13 Oakland, CA 94612 14 Telephone: 510.379.5801 Facsimile: 510.228.0350 15 Email: service@kslaw.us 16 (By Electronic Service) Based on the Executive Department of the State of California Executive Order N-38-20 dated March 27, 2020 and California Rules of Court Appendix 17 I, Emergency Rule 12, I caused the above listed documents to be sent to the person as 18 listed above and directed to the email address as noted above. 19 I declare under penalty of perjury under the laws of the State of California that the 20 foregoing is true and correct. 21 Executed on January 21, 2021, at Thornton, Colorado. 22 23 BHC LAW 24 GROUP LLP 25 ________ 5900 Hollis 26 Street, Suite O. Emeryville, CA 94608 510-658-3600 27 28 1 PROOF OF SERVICE