Koper V Davert - Answer

Case 8:12-cv-00160-DOC-RNB Document 14
Filed 03/02/12 Page 1 of 14 Page ID #:62
1 JONATHAN B. COLE (70460) 2 NEMECEK & COLE
CLAUDIA STONE (110739) A Professional Corporation jcole@nemecek-cole.com
3 15260 Ventura Boulevard, Suite 920
4 (818)788-9500 Tel. / (818)501-0328 Fax 5 cstone@nemecek-cole.com 6 Attorneys for Defendants
Sherman Oaks, California 91403-5399
7 DAVID C. LOE; and BENJAMIN N. FLINT III 8 9

15260 VENTURA BOULEVARD, SUITE 920, SHERMAN OAKS, CALIFORNIA 91403-5344 TELEPHONE (818) 788-9500 FACSIMILE (818) 501-0328
DAVERT & LOE, LAWYERS; DOUGLASS S. DAVERT; UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIASOUTHERN DIVISION
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1
BRITTANY B. KOPER, an individual, ) ) Plaintiff, ) ) ) -vs) ) DAVERT & LOE, LAWYERS, a ) partnership; DOUGLASS S. DAVERT, ) an individual; DAVID C. LOE, an ) individual; and BENJAMIN N. FLINT ) III, an individual ) ) Defendants. ) _______________________________ )
NEMECEK & COLE
A PROFESSIONAL CORPORATION
Case No.: SACV12-00160 DOC (RNBx) ANSWER TO COMPLAINT BY DAVERT & LOE, LAWYERS; DOUGLASS S. DAVERT; DAVID C. LOE; and BENJAMIN N. FLINT III
650603P.3
ANSWER TO COMPLAINT
1 2
PRELIMINARY STATEMENT Defendants DAVERT & LOE, LAWYERS, DOUGLASS S. DAVERT, DAVID
3 C. LOE, and BENJAMIN N. FLINT III (Defendants) respond to and answer the 4 complaint (Complaint) of plaintiff BRITTANY B KOPER (Plaintiff or Ms 5 Koper) filed on January 23, 2012. To the extent the Complaint asserts factual 6 allegations in its headings, Defendants deny them. To the extent that any matters 7 alleged in the Complaint are not expressly admitted, they are denied 8 9
JURISDICTION & VENUE 1. Answering paragraph 1, Defendants admit that they are citizens of
10 California. Defendants are without sufficient information to for a belief as to the 11 citizenship of Plaintiff and, therefore, deny those allegations. Although the remaining 12 allegations in paragraph 1 purport to state legal conclusions to which no response is 13 required, Defendants deny these allegations to the extent that a response is required. 14
NEMECEK & COLE
2.
Answering paragraph 2, Defendants admit they reside in California.
15 Although the remaining allegations in paragraph 2 purport to state legal conclusions to 16 which no response is required, Defendants deny these allegations to the extent that a 17 response is required. 18
3.
Answering paragraph 3, Defendants admit that Plaintiff was a citizen of
19 California. Defendants are without sufficient information to for a belief as to the truth 20 of the remaining allegations of paragraph 3 and on that basis deny them. 21
4.
Answering paragraph 4, Defendants admit that defendant Davert & Loe,
22 Lawyers (D&L Firm) was and is a citizen of the State of California and a partnership 23 engaged in the practice of law and organized under the State of California. Defendants 24 also admit that defendants Douglass S. Davert (Mr. Davert) and David C. Loe (Mr. 25 Loe) are partners of the D&L Firm. Defendants deny that the principal place of 26 business of the D&L Firm is in Orange County, California. Defendants are without 27 sufficient information to form a belief as to the truth of the remaining allegations of 28 paragraph 4 and on that basis deny them. 2
650603P.3
ANSWER TO COMPLAINT
5. 6. 7. 8.
Answering paragraph 5, Defendants admit the allegations of that Answering paragraph 6, Defendants admit the allegations of that Answering paragraph 7, Defendants admit the allegations of that Answering paragraph 8, Defendants admit that Mr Davert and Mr. Loe
2 paragraph. 3
4 paragraph. 5
6 paragraph. 7
8 were and are partners of the D&L Firm and that Benjamin N. Flint III (Mr Flint) was 9 and is an associate of the D&L Firm. Although the remaining allegations in paragraph
10 8 purport to state legal conclusions to which no response is required, Defendants deny 11 these allegations to the extent that a response is required. 12
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9.
Answering paragraph 9, Defendants admit that the D&L Firm represented
13 Ms. Koper as an employee of Trinity Christian Center of Santa Ana, Inc. doing 14 business as Trinity Broadcasting Network, a California religious non-profit corporation 15 (TBN) in a case entitled Rivera v. TBN filed in 2008 and ordered to arbitration and in 16 a case entitled Brandt vs. TBN filed in 2011. Except as expressly admitted, Defendants 17 deny the allegations in that paragraph. 18 19
GENERAL ALLEGATIONS 10. 11. 12. 13. Answering paragraph 10, Defendants deny that Mr. Loe engaged in the Answering paragraph 1l, Defendants deny that Mr. Loe engaged in the Answering paragraph 12, Defendants deny that Mr. Loe engaged in the Answering paragraph 13, Defendants deny that Mr. Loe engaged in the
20 alleged conduct and deny the allegations in that paragraph. 21
26 alleged conduct and deny the allegations in that paragraph. 27 28 3

650603P.3
ANSWER TO COMPLAINT
14. 15. 16. 17.
Answering paragraph 14, Defendants deny that Mr. Loe engaged in the Answering paragraph 15, Defendants deny that Mr. Loe engaged in the Answering paragraph 16, Defendants deny that Mr. Loe engaged in the Answering paragraph 17, Defendants are without sufficient information to
8 form a belief as to the truth of the allegations in that paragraph and on that basis deny 9 them.
10
18.
Answering paragraph 18, Defendants are without sufficient information to
11 form a belief as to the truth of the allegations in that paragraph and on that basis deny 12 them. 13
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19.
20. 21. 22. 23.
Answering paragraph 20, Defendants deny the allegations in that Answering paragraph 21, Defendants deny the allegations in that Answering paragraph 22, Defendants deny the allegations in that Answering paragraph 23, Defendants are without sufficient information to
17 paragraph. 18
19 paragraph. 20
21 paragraph. 22
24. 25.
Answering paragraph 24, Defendants deny the allegations in that Answering paragraph 25, Defendants deny the allegations in that
26 paragraph. 27
28 paragraph. 4
650603P.3
ANSWER TO COMPLAINT
26. 27.
Answering paragraph 26, Defendants deny the allegations in that Answering paragraph 27, Defendants are without sufficient information to
2 paragraph. 3
28.
Answering paragraph 28, Defendants admit that they represented Trinity
7 Broadcasting Network, Inc., Trinity Christian Center of Santa Ana Inc., and Plaintiff, 8 as an employee of TBN, in litigation filed by Horst Brandt, an individual, and 9 Dataworks of Orange County, Inc. filed as Case No. 30-2011 00488263 in the Superior
10 Court of the State of California, County of Orange (Brandt Litigation). Except as 11 expressly admitted, Defendants deny the allegations of paragraph 28. 12
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29.
Answering paragraph 29, the allegation regarding potential conflicts of
13 interest is a legal conclusion to which no response is required; however, Defendants 14 deny these allegations to the extent that a response is required and deny the remaining 15 allegations of this paragraph. 16
30. 31. 32.
Answering paragraph 30, Defendants deny the allegations in that Answering paragraph 31, Defendants deny the allegations in that Answering paragraph 32, Defendants admit that Plaintiff retained other
17 paragraph. 18
19 paragraph. 20
21 counsel to represent her in the Brandt Litigation. Defendants are without sufficient 22 information to form a belief as to the truth of the allegations in that paragraph 23 regarding the dismissal of Plaintiff in the Brandt Litigation and on that basis deny such 24 allegations. Except as expressly admitted, Defendants deny the remaining allegations 25 in that paragraph. 26
33.
Answering paragraph 33, Defendants deny the allegations in that
27 paragraph. 28 5
650603P.3
ANSWER TO COMPLAINT
34. 35. 36.
Answering paragraph 34, Defendants deny the allegations in that Answering paragraph 35, Defendants deny the allegations in that Answering paragraph 36, Defendants admit that they represented Plaintiff
2 paragraph. 3
4 paragraph. 5
6 in the Brandt Litigation as an employee of TBN until January 10, 2012. Except as 7 expressly admitted, Defendants deny the allegations in that paragraph. 8
37. 38. 39. 40. 41. 42. 43. 44. 45.
Answering paragraph 37, Defendants deny the allegations in that Answering paragraph 38, Defendants deny the allegations in that Answering paragraph 39, Defendants deny the allegations in that Answering paragraph 40, Defendants deny the allegations in that Answering paragraph 41, Defendants deny the allegations in that Answering paragraph 42, Defendants deny the allegations in that Answering paragraph 43, Defendants deny the allegations in that Answering paragraph 44, Defendants deny the allegations in that Answering paragraph 45, Defendants are without sufficient information to
9 paragraph. 10
11 paragraph. 12
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13 paragraph. 14
15 paragraph. 16
17 paragraph. 18
19 paragraph. 20
21 paragraph. 22
23 paragraph. 24
25 form a belief as to the truth of the allegations in that paragraph regarding 26 communications between John Casoria and Plaintiff and on that basis deny such 27 allegations. Defendants deny the remaining allegations in that paragraph. 28 6
650603P.3
ANSWER TO COMPLAINT
46.
Answering paragraph 46, Defendants admit Plaintiff returned cash and
2 property to TBN. Except as expressly admitted, Defendants are without sufficient 3 information to form a belief as to the truth of the allegations in that paragraph and on 4 that basis deny them. 5
47.
6 form a belief as to the truth of the allegations of that paragraph regarding the letters of 7 Christian contrition and on that basis deny them. Defendants deny the remaining 8 allegations of that paragraph. 9
48.
Answering paragraph 48, Defendants admit that they formed Redemption
10 Strategies, Inc., a California corporation, (Redemption Strategies) on October 17, 11 2011. Except as expressly admitted, Defendants deny the allegations of that paragraph. 12
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49.
Answering paragraph 49, Defendants admit that they filed the case
13 entitled Redemption Strategies, Inc. v. Michael Koper, etc. et. al. as Case No. 30-2011 14 00516179 in the Superior Court of the State of California for the County of Orange 15 (the Redemption Strategies Litigation) on October 18, 2011. Except as expressly 16 admitted, Defendants deny the allegations of that paragraph. 17
50. 51.
Answering paragraph 50, Defendants admit the allegations of that Answering paragraph 51, Defendants admit that individuals identifying
18 paragraph. 19
20 themselves as Plaintiff and Michael Koper were served with the summons issued in the 21 Redemption Strategies litigation by a licensed New York process server. Except as 22 expressly admitted, Defendants deny the allegations of that paragraph. 23
52.
Answering paragraph 52, Defendants admit that they served deposition
24 subpoenas for production of business records with notices to consumer in the 25 Redemption Strategies litigation. Except as expressly admitted, Defendants deny the 26 allegations of that paragraph. 27 28 7
650603P.3
ANSWER TO COMPLAINT
53.
Answering paragraph 53, Defendants admit the allegations of that
2 paragraph except for the allegation that they advised Plaintiff in the Christian 3 contrition matter which is denied. 4
54.
Answering paragraph 54, the allegations that Defendants acted with
5 conflicts of interest is a legal conclusion to which no response is required; however, 6 Defendants deny these allegations to the extent that a response is required and deny the 7 other allegations of that paragraph. 8
55.
Answering paragraph 55, Defendants admit that they filed the first
9 amended complaint in the Redemption Strategies Litigation naming Plaintiff as a 10 defendant on December 1, 2011 and that they remained Plaintiffs counsel of record in 11 the Brandt Litigation until January 10, 2012. Except as expressly admitted, Defendants 12 deny the allegations in this paragraph. 13
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56. 57. 58. 59.
Answering paragraph 56, Defendants deny the allegations in this Answering paragraph 57, Defendants deny the allegations in this Answering paragraph 58, Defendants deny the allegations in this Answering paragraph 59, the allegations that Defendants acted with
14 paragraph. 15
16 paragraph. 17
18 paragraph. 19
20 conflicts of interest is a legal conclusion to which no response is required; however, 21 Defendants deny these allegations to the extent that a response is required and deny the 22 remaining allegations of this paragraph. 23
60.
Answering paragraph 60, the allegations that Defendants acted with a
24 conflict of interest is a legal conclusion to which no response is required; however, 25 Defendants deny these allegations to the extent that a response is required and deny the 26 remaining allegations of this paragraph. 27
61.
Answering paragraph 61, Defendants deny the allegations in ths
28 paragraph. 8
650603P.3
ANSWER TO COMPLAINT
62. 63. 64. 65.
Answering paragraph 62, Defendants deny the allegations in this Answering paragraph 63, Defendants deny the allegations in this Answering paragraph 64, Defendants deny the allegations in this Answering paragraph 65, Defendants deny the allegations in this FIRST CLAIM FOR BREACH OF FIDUCIARY DUTIES
2 paragraph. 3
4 paragraph. 5
6 paragraph. 7
8 paragraph. 9
10
66.
Answering paragraph 66, Defendants re-allege and incorporate by
11 reference paragraphs 1 through 65 and 74 through 83, inclusive, of this answer as 12 though fully set forth herein. 13
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67. 68. 69. 70. 71. 72. 73.
Answering paragraph 67, Defendants deny the allegations in this Answering paragraph 68, Defendants deny the allegations in this Answering paragraph 69, Defendants deny the allegations in this Answering paragraph 70, Defendants deny the allegations in this Answering paragraph 71, Defendants deny the allegations in this Answering paragraph 72, Defendants deny the allegations in this Answering paragraph 73, Defendants deny the allegations in this
14 paragraph. 15
16 paragraph. 17
18 paragraph. 19
20 paragraph. 21
22 paragraph. 23
24 paragraph. 25
26 paragraph. 27 / / / 28 / / / 9
650603P.3
ANSWER TO COMPLAINT
1 2 3
SECOND CLAIM FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 74. Answering paragraph 74, Defendants re-allege and incorporate by
4 reference paragraphs 1 through 73, inclusive, of this answer as though fully set forth 5 herein. 6
75. 76. 77. 78. 79. 80. 81. 82. 83.
Answering paragraph 75, Defendants deny the allegations of this Answering paragraph 76, Defendants deny the allegations of this Answering paragraph 77, Defendants deny the allegations of this Answering paragraph 78, Defendants deny the allegations of this Answering paragraph 79, Defendants deny the allegations of this Answering paragraph 80, Defendants deny the allegations of this Answering paragraph 81, Defendants deny the allegations of this Answering paragraph 82, Defendants deny the allegations of this Answering paragraph 83, Defendants deny the allegations of this THIRD CLAIM FOR PROFESSIONAL NEGLIGENCE
7 paragraph. 8
9 paragraph. 10
11 paragraph. 12
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13 paragraph. 14
15 paragraph. 16
17 paragraph. 18
19 paragraph. 20
21 paragraph. 22
23 paragraph. 24 25
84.
Answering paragraph 84, Defendants re-allege and incorporate by
26 reference paragraphs 1 through 65 of this answer, inclusive, as though fully set forth 27 herein. 28 10
650603P.3
ANSWER TO COMPLAINT
85. 86. 87. 88. 89. 90.
Answering paragraph 85, Defendants deny the allegations of this Answering paragraph 86, Defendants deny the allegations of this Answering paragraph 87, Defendants deny the allegations of this Answering paragraph 88, Defendants deny the allegations of this Answering paragraph 89, Defendants deny the allegations of this Answering paragraph 90, Defendants deny the allegations of this PRAYER FOR RELIEF
2 paragraph. 3
4 paragraph. 5
6 paragraph. 7
8 paragraph. 9
10 paragraph. 11
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12 paragraph. 13 14
91.
Answering paragraphs 1 though 6 of the Prayer for Relief, Defendants
15 deny all of the allegations in those paragraphs and deny that Plaintiff is entitled to any 16 relief or that they are liable to Plaintiff for any damages. 17 18
DEMAND FOR JURY TRIAL 92. Answering Plaintiffs demand for a trial by jury, Defendants deny that AFFIRMATIVE DEFENSES 93. Without admitting any of the allegations of the Complaint and without
19 Plaintiff is entitled to a jury trial on the purported claims alleged against Defendants. 20 21
22 admitting or acknowledging that Defendants have any burden to prove any of the 23 following allegations, Defendants allege the following as separate and independent 24 affirmative defenses. 25 26 27
FIRST AFFIRMATIVE DEFENSE (Failure to State a Claim for Relief) 94. The Complaint and each cause of action alleged in the Complaint fail to
28 state facts sufficient to constitute a claim against each of the Defendants. 11

650603P.3
ANSWER TO COMPLAINT
1 2 3
SECOND AFFIRMATIVE DEFENSE (Comparative Fault) 95. Any damages incurred by Plaintiff are due solely and totally to the
4 carelessness, negligence and fault of Plaintiff that proximately caused the incident, 5 injury, loss or damage alleged in the Complaint. Such comparative fault bars or 6 proportionately reduces any recovery by Plaintiff against Defendants. 7 8 9
THIRD AFFIRMATIVE DEFENSE (Third Party Fault) 96. If Plaintiff suffered any damage as alleged in the Complaint, which
10 Defendants deny, Defendants contend that persons and/or entities other than 11 Defendants were responsible for such damages. Defendants also contend that if any 12 damages are awarded to the Plaintiff, these damages must be apportioned between 13 these other persons and/or entities pursuant to their percentage of liability and that 14 Plaintiffs right of recovery against Defendants, if any, must be reduced in that amount. 15 16 17
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FOURTH AFFIRMATIVE DEFENSE (Statute of Limitations) 97. The Complaint and each claim for relief alleged in the Complaint are
18 barred in whole or in part by Code of Civil Procedure 340.6 and/or any other 19 applicable statutes of limitations. 20 21 22
FIFTH AFFIRMATIVE DEFENSE (Laches) 98. Plaintiffs claims for relief are barred in whole or in part by the equitable SIXTH AFFIRMATIVE DEFENSE (Estoppel) 99. Plaintiffs causes of action and/or claims are barred in whole or in part by SEVENTH AFFIRMATIVE DEFENSE
12
23 doctrine of laches. 24 25 26
27 the equitable doctrine of estoppel. 28
650603P.3
ANSWER TO COMPLAINT
1 2 3 4 5
(Waiver) 100. Plaintiff waived her right to claim damages in this action. EIGHTH AFFIRMATIVE DEFENSE (Unclean Hands) 101. Plaintiffs claims for relief are barred in whole or in part by the doctrine of NINTH AFFIRMATIVE DEFENSE (Unjust Enrichment) 102. Plaintiffs claims for relief are barred in whole or in part by the doctrine of TENTH AFFIRMATIVE DEFENSE (Failure to Mitigate Damages) 103. Plaintiff failed to mitigate her alleged damages and, therefore, cannot ELEVENTH AFFIRMATIVE DEFENSE (Litigation Privilege) 104. Plaintiffs causes of action and/or claims are barred in whole or in part by TWELFTH AFFIRMATIVE DEFENSE (Indemnification and Contribution) 105. If it is established that Defendants are legally responsible in any manner
6 unclean hands. 7 8 9
10 unjust enrichment. 11 12 13
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14 recover any alleged damages that could have been reasonably avoided. 15 16 17
18 the absolute litigation privilege pursuant to California Civil Code 47(b). 19 20 21
22 for the damages claimed by Plaintiff in her Complaint, Defendants are informed and 23 believe that such damages were proximately caused by other persons or entities not yet 24 parties in this action. As a result, Defendants are entitled to comparative contribution 25 and/or indemnification from these persons or entities for any damages claimed by 26 Plaintiff in her Complaint. 27 28 13
650603P.3
ANSWER TO COMPLAINT
1 2
RESERVATION OF OTHER DEFENSES 106. Defendants presently have insufficient knowledge upon which to form a
3 belief as to whether any additional, as yet unstated, affirmative defenses to the 4 Complaint are applicable. Defendants reserve the right to assert additional affirmative 5 defenses where appropriate. 6 7 8 9
PRAYER FOR RELIEF WHEREFORE, DEFENDANTS pray for judgment as follows: 1. 2. That Plaintiff take nothing by virtue of her Complaint. That judgment be entered in favor of Defendants. NEMECEK & COLE By: /S/ JONATHAN B. COLE JONATHAN B. COLE CLAUDIA STONE Attorneys for Defendants DAVERT & LOE, LAWYERS, DOUGLASS S. DAVERT, DAVID C. LOE, and BENJAMIN N. FLINT III
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14
DATED: March 2, 2012
NEMECEK & COLE
650603P.3
ANSWER TO COMPLAINT

Koper V Davert - Answer

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Case 8:12-cv-00160-DOC-RNB Document 14

Filed 03/02/12 Page 1 of 14 Page ID #:62

1 JONATHAN B. COLE (70460) 2 NEMECEK & COLE

CLAUDIA STONE (110739) A Professional Corporation jcole@nemecek-cole.com

3 15260 Ventura Boulevard, Suite 920

4 (818)788-9500 Tel. / (818)501-0328 Fax 5 cstone@nemecek-cole.com 6 Attorneys for Defendants

Sherman Oaks, California 91403-5399

7 DAVID C. LOE; and BENJAMIN N. FLINT III 8 9

NEMECEK & COLE

Case 8:12-cv-00160-DOC-RNB Document 14

Filed 03/02/12 Page 2 of 14 Page ID #:63

NEMECEK & COLE

Answering paragraph 2, Defendants admit they reside in California.

Answering paragraph 3, Defendants admit that Plaintiff was a citizen of

Answering paragraph 4, Defendants admit that defendant Davert & Loe,

Case 8:12-cv-00160-DOC-RNB Document 14

Filed 03/02/12 Page 3 of 14 Page ID #:64

NEMECEK & COLE

Answering paragraph 9, Defendants admit that the D&L Firm represented

20 alleged conduct and deny the allegations in that paragraph. 21

22 alleged conduct and deny the allegations in that paragraph. 23

24 alleged conduct and deny the allegations in that paragraph. 25

26 alleged conduct and deny the allegations in that paragraph. 27 28 3

Case 8:12-cv-00160-DOC-RNB Document 14

Filed 03/02/12 Page 4 of 14 Page ID #:65

14. 15. 16. 17.

2 alleged conduct and deny the allegations in that paragraph. 3

4 alleged conduct and deny the allegations in that paragraph. 5

6 alleged conduct and deny the allegations in that paragraph. 7

Answering paragraph 18, Defendants are without sufficient information to

NEMECEK & COLE

Answering paragraph 19, Defendants are without sufficient information to

20. 21. 22. 23.

Case 8:12-cv-00160-DOC-RNB Document 14

Filed 03/02/12 Page 5 of 14 Page ID #:66

Answering paragraph 28, Defendants admit that they represented Trinity

NEMECEK & COLE

Answering paragraph 29, the allegation regarding potential conflicts of

30. 31. 32.

Answering paragraph 33, Defendants deny the allegations in that

Case 8:12-cv-00160-DOC-RNB Document 14

Filed 03/02/12 Page 6 of 14 Page ID #:67

34. 35. 36.

37. 38. 39. 40. 41. 42. 43. 44. 45.

NEMECEK & COLE

Case 8:12-cv-00160-DOC-RNB Document 14

Filed 03/02/12 Page 7 of 14 Page ID #:68

Answering paragraph 46, Defendants admit Plaintiff returned cash and

Answering paragraph 47, Defendants are without sufficient information to

Answering paragraph 48, Defendants admit that they formed Redemption

NEMECEK & COLE

Answering paragraph 52, Defendants admit that they served deposition

Case 8:12-cv-00160-DOC-RNB Document 14

Filed 03/02/12 Page 8 of 14 Page ID #:69

Answering paragraph 53, Defendants admit the allegations of that

Answering paragraph 54, the allegations that Defendants acted with

NEMECEK & COLE

56. 57. 58. 59.

Answering paragraph 60, the allegations that Defendants acted with a

Answering paragraph 61, Defendants deny the allegations in ths

Case 8:12-cv-00160-DOC-RNB Document 14

Filed 03/02/12 Page 9 of 14 Page ID #:70

62. 63. 64. 65.