BRISBOIS SSMIMUP eer am em wDn 10 u 12 13 14 15 16 18 19 20 21 22 26 27 28 LEWIS BRISBOIS BISGAARD & SMITH LLP JULIE M. AZEVEDO, SB# 151618 Email: Julie Azevedo@lewisbrisbois.com DAVID E. RUSSO, SB# 112023 Email: David Russo@Jewisbrisbois.com 333 Bush Street, Suite 1100 San Francisco, California 94104-2872 Telephone: 415.362.2580 Facsimile: 415.434.0882 ‘Attomeys for Defendant AUBERGE RESORTS, LLC (sued herein as AUBERGE RESORTS LLC) SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF MARIN JANE DOE, an individual, CASE NO. CIV-14-03990 [Assigned for All Purposes to The Hon. Roy O. Plaintiff, Chernus, Courtroom B] - vs. DEFENDANT AUBERGE RESORTS, LLC’S ANSWER TO PLAINTIFF'S AUBERGE RESORTS LLC, a Delaware COMPLAINT limited liability company; and ROES 1 through 50 inclusive, Action Filed: October 30, 2017 Defendants. Trial Date: ‘None Set Pursuant to California Code of Civil Procedure section 431.30, Defendant AUBERGE. RESORTS, LLC (sued herein as AUBERGE RESORTS LLC) ( hereinafter “Defendant”, hereby submits its Answer and affirmative defenses in the above-captioned matter. NERAL DENIAL Pursuant to California Code of Civil Procedure Section 431.30, Defendant denies each and every, all and singular, generally and specifically, the allegations of the Complaint filed by JANE DOE (hereinafter “Plaintiff"), and each cause of action therein. Defendant further denies that Plaintiff has been injured or damaged in any way or in any sum, or at all, as a result of any act or omission of Defendant, and that therefore Plaintiff is not entitled to any relief in any form whatsoever by reason of any alleged act or omission of Defendant, 4520.6520.029.1 1 DEFENDANT AUBERGE RESORTS, LLC'S ANSWER TO PLAINTIFF'S COMPLAINTwads SMIMUP ee a aw awn 10 ul 12 13 14 15 16 17 18 19 20 2 2 23 26 27 28 AFFIRMATIVE DEFENSES Pursuant to California Code of Civil Procedure section 431.30(b)(2), Defendant hereby pleads as new matter the following affirmative defenses: FIRST AFFIRMATIVE DEFENSE TO ALL CAUSES OF ACTION 1. Asa first, separate and distinct affirmative defense to the Complaint, and each and every cause of action purported to be stated therein, Defendant alleges that Plaintiff fails to state facts sufficient to constitute a cause of action against Defendant or that an actual controversy exists, SECOND AFFIRMATIVE DEFENSE TO ALL CAUSES OF ACTION 2. Asa second, separate and distinct affirmative defense to the Complaint, and each and every cause of action purported to be state therein, Defendant alleges that Plaintiff is barred by the applicable Statute of Limitations including, but not limited to, Code of Civil Procedure sections 335.1, 336, 337, 338, 339, 340, and 343 THIRD AFFIRMATIVE DEFENSE TO ALL CAUSES OF ACTION 3. Asa third, separate and distinct affirmative defense to the Complaint, and each and every cause of action purported to be stated therein, Defendant alleges that Plaintiff is guilty of inequitable conduct with reference to the matters in the Complaint, and such inequitable conduct therefore absolutely bars Plaintiff's recovery herein under the equitable Doctrine of Unclean Hands. FOURTH AFFIRMATIVE DEFENSE TO ALL CAUSES OF ACTION 4. Asa fourth, separate and distinct affirmative defense to the Complaint and each and ‘every cause of action purported to be stated therein, Defendant alleges that Plaintiff is barred from asserting the claims alleged in the Complaint by the Doctrine of Laches. EIFTH AFFIRMATIVE DEFENSE TO ALL CAUSES OF ACTION 5. Asa fifth, separate and distinct affirmative defense to the Complaint, and each and every cause of action purported to be sated therein, Defendant is informed and believes, and upon such information and belief alleges, that Defendant's conduct was not the cause in fact nor the proximate cause of any damages alleged, which damages this answering Defendant denies, barring 4820-6520.3029.1 DEFENDANT AUBERGE RESORTS, LLC'S ANSWER TO PLAINTIFF'S COMPLAINT.bese Po ee a aw ea wn 10 rT 2 13 14 15 16 7 18 19 20 2 2 23 26 27 any recovery against this answering Defendant on the pleading and each alleged cause of action. SIXTH AFFIRMATIVE DEFENSE TO ALL CAUSES OF ACTION 6. Asassixth, separate and distinct affirmative defense to the Complaint, and each and every cause of action purported to be stated thein, Defendant alleges that Plaintiff, by reason of her knowledge, statements, and conduct has waived any rights which she may have for any acts or omissions of Defendant and any further obligations or liabilities Defendant may have owed to Plaintiff thereby barring the Complaint and each cause of action contained therein, SEVENTH AFFIRMATIVE DEFENSE TO ALL CAUSES OF ACTION 7. As seventh, separate and distinct affirmative defense to the Complaint, and each and every cause of action purported to be stated therein, Defendant alleges that Plaintiff failed to take such steps, or took such steps, such that Plaintiff's damages, if any, were not mitigated or were increased as a result of Plaintiff's conduct and by reason thereof Plaintiff is barred, in whole or in part, from recovery from Defendant. EIGHTH AFFIRMATIVE DEFENSE TO ALL CAUSES OF ACTION 8. Asa cighth, separate and distinct affirmative defense to the Complaint, and each and every cause of action purported to be stated therein, Defendant is informed and believes, and ‘upon such information and belief alleges that Plaintiff voluntarily and knowingly assumed all of the risks instant to said conduct at the time and place mentioned in said Complaint. NINTH AFFIRMATIVE DEFENSE TO ALL CAUSES OF ACTION 9. Asaninth, separate and distinct affirmative defense to the Complaint, and each and every cause of action purported to be stated therein, Defendant is informed and believes, and upon such information and belief alleges, that if Plaintiff suffered any of the damages described in her Complaint, which Defendant denies, then such damages were causes solely or in part by the breaches, acts or omissions of Plaintiff, and not by any breach, act or omission for which Defendant may be held legally or equitably responsible such that Plaintiff is barred from seeking recovery from Defendant, and Defendant may not be held legally or equitably responsible. mW We 4204520.3029.1 el DEFENDANT AUBERGE RESORTS, LLC'S ANSWER TO PLAINTIFF'S COMPLAINTwe aan awn 10 u 12 13 14 15, 16 17 18 19 2 2 23 a 27 TENTH AFFIRMATIVE DEFENSE TO ALL CAUSES OF ACTION 10. Asa tenth, separate and distinct affirmative defense to the Complaint, and each and every cause of action purported to be stated therein, Defendant alleges that Plaintiff has failed to state a claim upon which attorney's fees may be awarded. ELEVENTH AFFIRMATIVE DEFENSE TO ALL CAUSES OF ACTION 11. Asan eleventh, separate and distinct affirmative defense to the Complaint, and each and every cause of action purported to be stated therein, Defendant alleges that discovery has not been completed, that further discovery may reveal the existence of additional affirmative defenses, ‘and Defendant therefore reserves the right to amend this Answer to assert such additional defenses. TWELFTH AFFIRMATIVE DEFENSE TO ALL CAUSES OF ACTION 12. Asa twelfth, separate and distinct affirmative defense to the Complaint, and each and every cause of action purported to be stated therein, Defendant is informed and believes, and upon such information and belief alleges, that any equitable relief sought herein is barred because Plaintiff has an adequate remedy at law. THIRTEENTH AFFIRMATIVE DEFENSE TO ALL CAUSES OF ACTION 13. Asa thirteenth, separate and distinct affirmative defense to the Complaint and each ‘and every cause of action purported to be stated therein, Defendant alleges that Plaintiff, by and through her conduct, acts and deeds, caused Defendant to change its position and to act to its detriment and prejudice, and that Plaintiff’s Complaint, and each cause of action therein, are absolutely barred by the equitable Doctrine of Estoppel. FOURTEENTH AFFIRMATIVE DEFENSE TO ALL CAUSES OF ACTION 14, Asa fourteenth, separate and distinct affirmative defense to the Complaint and each and every cause of action purported to be stated therein, Defendant is informed and believes, and ‘upon such information and belief alleges, that if Plaintiff suffered any of the injuries, losses or damages described in their Complaint, which Defendant denies, then such injuries, losses or damages were caused solely or in part by the breaches, actionable conduct or primary negligence of persons other than Defendant, and not by any breach, act or omission for which Defendant may 4800.4520.3029.1 4 DEFENDANT AUBERGE RESORTS, LLC'S ANSWER TO PLAINTIFF'S COMPLAINT.LEWIS BRISBOIS ‘QSMMUP ee wan eaon 10 n 12 13, 14 15 16 17 18 19 20 a 2 RR 27 be held legally or equitably responsible, such that Defendant is entitled to total and/or partial ‘equitable and/or implied comparative indemnity and contribution from said persons, and Defendant is entitled to recovery of its incurred attorneys’ fees and costs FIFTEENTH AFFIRMATIVE DEFENSE TO ALL CAUSES OF ACTION 15. Asa fifteenth, separate and distinct affirmative defense to the Complaint and each and every cause of action purported to be state therein, Defendant is informed and believes, and upon such information and belief alleges, that if Plaintiff suffered any of the injuries, losses or ‘damages described in their Complaint, which Defendant denies, then such injuries, losses or damages were caused solely or in part by the breaches, actionable conduct, comparative negligence, contributory negligence or primary negligence of Plaintiff, and not by any breach, act or omission for which Defendant may be held legally or equitably responsible, such that Plaintiff is barred from seeking recovery for injuries, losses or damages from Defendant. SIXTEENTH AFFIRMATIVE DEFENSE TO ALL CAUSES OF ACTION 16. Asa sixteenth, separate and distinct affirmative defense to the Complaint and each and every cause of action purported to be stated therein, Defendant is informed and believes, and upon such information and belief alleges that the damages alleged in the pleading and each alleged cause of action, which damages this Defendant denies, were sustained as a result of an intervening or superseding cause, barring any recovery against Defendant. SEVENTEENTH AFFIRMATIVE DEFENSE TO ALL CAUSES OF ACTION 17, Asaseventeenth, separate and distinct affirmative defense to the Complaint and each and every cause of action purported to be stated therein, Defendant is informed and believes, and upon such information and belief alleges that some or all of the non-economic damages alleged, if any there were, are unavailable for recovery from the Defendant. EIGHTEENTH AFFIRMATIVE DEFENSE TO ALL CAUSES OF ACTION 18, Asa eighteenth separate and distinct affirmative defense to the Complaint and every cause of action purported to be stated therein, Defendant is informed and believes, and upon such information and belief alleges that the actions of Defendant were reasonable. 4820-6520-3029.1 5 DEFENDANT AUBERGE RESORTS, LLC'S ANSWER TO PLAINTIFF'S COMPLAINTLEWIS BRISBOIS SSMIHUP ee yaw awn 10 ul 12 13 14 15 16 17 18 19 20 2 22 NINETEENTH AFFIRMATIVE DEFENSE TO ALL CAUSES OF ACTION 19. As anineteenth separate and distinct affirmative defense to the Complaint and each and every cause of action purported to be stated therein, Defendant is informed and believes, and ‘upon such information and belief alleges that its conduct as alleged in the Complaint was consistent with the standards of care in the hospitality industry. TWENTIETH AFFIRMATIVE DEFENSE TO ALL CAUSES OF ACTION 20. Asa twentieth, separate and distinct affirmative defense to the Complaint and each and every cause of action purported to be stated therein, Defendant alleges that it acted in good faith with respect to the conduct alleged in the Complaint. TWENTY-FIRST AFFIRMATIVE DEFENSE TO ALL CAUSES OF ACTION 21. Asa twenty-first separate and distinct affirmative defense, Defendant denies any and all liability to the Plaintiff, but if Defendant is found liable, the responsibility of itis small in proportion to the alleged liability and responsibility of other persons and parties, and Plaintiff should be limited to seek and recover from Defendant only that proportion of alleged injuries and ‘damages for which it is liable and responsible under any applicable theory. ‘TWENTY-SECOND AFFIRMATIVE DEFENSE TO ALL CAUSES OF ACTION 22. Asa twenty-second separate and distinct affirmative defense, Defendant contends that the above-entitled court is not a convenient forum and that the courts in Cabo San Lucas, Mexico are the proper courts for venue of this action. TWENTY-THIRD AFFIRMATIVE DEFENSE TO ALL CAUSES OF ACTION 23. Asa twenty-third separate and distinct affirmative defense, Defendant contends that it owed no duty alleged in the Complaint, but that any such duties were owed by others. WENTY-FOURTH AFFIRMATIVE DEFENSE TO ALL CAUSES OF ACTION 24. Asa twenty-fourth separate and distinct affirmative defense, Defendant contends that the Complaint fails to join indispensable parties. RELIEF REQUESTED WHEREFORE, Defendant prays for judgment against Plaintiff Jane Doe as follows: 1. That Plaintiff take nothing by reason of her Complaint; 4820.6520.3029.1 6 DEFENDANT AUBERGE RESORTS, LLC'S ANSWER TO PLAINTIFF'S COMPLAINTLEWIS BRISBO'S aS wea awawn 10 nl 12 13 14 15 16 7 18 19 20 2 2 23 24 25 26 27 28 2. That the relief prayed for in the Complaint be denied as to Defendant; 3. That Defendant be awarded judgment in its favor in this action; 4, That no order of any nature whatsoever issue out of this Court in favor of Plaintiff and against Defendant; 5. That Defendant has judgment for its costs of suit incurred herein; 6. That Defendant has judgment for its reasonable attomeys? fees incurred herein as allowable; and 7. For such other and further relief as this Court deems just and proper. DATED: December 7, 2017 LEWIS BRISBOIS BISGAARD & SMITH LP By: David E. Russo ‘Attomeys for Defendant AUBERGE RESORTS, LLC (sued herein as AUBERGE RESORTS LLC) sm6sm030091 DEFENDANT AUBERGE RESORTS, LLC'S ANSWER TO PLAINTIFF'S COMPLAINTee wan aan 10 at 12 13 14 15 16 17 18 19 20 2 2 Ro 27 28 PROOF OF SERVICE Jane Dorn tuborge Res Resorts, LLG, et al. Marin County Superior Court, Case No. CIV-17-03990 STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO At the time of service, I was over 18 years of age and not a party to the action. My business address is 333 Bush Street, Suite 1100, San Francisco, CA 94104-2872. ‘On December 7, 2017, I served the following document: DEFENDANT AUBERGE RESORTS, LLC’S ANSWER TO PLAINTIFF’S COMPLAINT I served the document on the following persons at the following addresses (including fax numbers and email addresses, if applicable): Paul T. Llewellyn, Esq. Mare R. Lewis, Esq. Rebecca F. Furman, Esq. Lewis & Llewellyn, LLP 505 Montgomery Street, Suite 1300 San Francisco, CA 94111 Tel: (415) 800-0590 Fax: (415) 390-2127 Email: pllewellyn@lewisllewellyn.com mlewis@lewisllewellyn.com bfurman@lewisllewellyn.com | Attorneys for Plaintiff JANE DOE ‘The document was served by the following means: BH _(BY US. MAIL) I enclosed the document in a sealed envelope or package addressed to the persons at the addresses listed above and placed the envelope or package for collection and mailing, following our ordinary business practies. 1am readily fanniiar with the firm's practice for collection and processing correspondence for mailing. Under that practice, on the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the U.S. Postal Service, in a sealed envelope or package with the postage fully prepaid. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on December 7, 2017, at San Francisco, California, Rose Cl | 4820-6520-029.1 8 ‘PROOF OF SERVICE