Estrada v. Narconon: Answer

Attorneys for Defendant, NARCONON FRESH- SHART DIB/A SUNSHINE SUMMIT LODGE

UNITED STA1ES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

CHRISTY ESTRADA, a New Mexico Citizen; and BRANDED CHAVEZ, a New Mexico Citizen,

Plaintiffs,

vs.

NARCONON FRESH START d/b/a SUNSHINE SUMMIT LODGE; ASSOCIATION FOR BETTER LIVING AND EDUCATION INTERNATIONAL; NARCONON INTERNATIONAL and DOES 1-100, ROE Corporations I-X, inclusive,

Defendants.

CASE NO. 3:14-CV-00586-LAB-KSC

ANSWER TO THIRD AMENDED COMPLAINT; DEMAND FOR JURY TRIAL

The Hon. Larry Alan Burns, Courtroom 14A

COMES NOW, defendant NARCONON FRESH START, DBA SUNSHINE

SUMMIT LODGE (hereinafter "Fresh Start"), and answering plaintiffs' complaint

on file herein for itself alone, and for no other defendant, admits, denies and alleges

as follows:

LEWIS BRISBOIS BISGAARD & SMITH LLP GEORGE E. NOWOTNY 8B# 150481

JUDITH M. E-Mail: g.eoTge.nowotnytillewisbrisbois.com

TISHICOFF, # 138375 E-Mail: [email protected]

221 North Figueroa Street, Suite 1200 Los Angeles, California 90012 Telephone: 213.250,1800 Facsimile: 213.250.7900

THE PARTIES

1. Answering paragraph 1 of plaintiffs' complaint, Fresh Start lacks

sufficient knowledge or information to admit or deny said allegations, and on that

basis denies them.

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Case 3:14-cv-00586-LAB-KSC Document 15 Filed 06/30/14 Page 1 of 20

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2. Answering paragraph 2 of plaintiffs' complaint, Fresh Start admits the

allegations contained therein.


sufficient knowledge or information to either admit or deny said allegations and on

that basis denies them.

4. Answering paragraph 4 of plaintiffs' complaint, Fresh Start denies the

allegations contained therein.





sufficient knowledge or information to either admit or deny the allegations

pertaining to the business relationship between Narconon International and ABLE,

and on that basis denies them. Fresh Start denies the remaining allegations in this

paragraph.





sufficient knowledge or information to either admit or deny the allegations

pertaining to the business relationship between Narconon International and ABLE,

and on that basis denies them. Fresh Start denies the remaining allegations in this

paragraph.


sufficient knowledge or information as to where ABLE may be served with process

or whether ABLE conducts business in California through Narconon International,

and on that basis denies those allegations. Fresh Start denies the remaining

allegations in the paragraph.

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LEWIS BRISBOIS 131$GAARD &SAM LLP AtTaW1L'a AS LAW

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14. Answering paragraph 14 of plaintiffs' complaint, Fresh Start admits

that Christy discussed sending her son Branden to Fresh Start for treatment. Fresh

Start denies the remaining allegations in the paragraph.








that plaintiffs were charged $33,000 for the program. With respect to the remaining

allegations of the paragraph, Fresh Start lacks sufficient knowledge or information

to either admit or deny said allegations and on that basis denies them.


that the website at the time described a 76% success rate. As to the remaining

allegations of this paragraph, Fresh Start lacks sufficient knowledge or information

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LEWIS BRISBOIS BCGAARD

SiVEH LIP ATICAZNVeS ATIAW

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to either admit or deny said allegations and on that basis denies them.





allegations set forth therein.


that it is a secular program. Fresh Start lacks sufficient knowledge or information to

either deny or admit the remaining allegations of the paragraph and on that basis

denies them.







24. Answering paragraph 24of plaintiffs' complaint, Fresh Start lacks










that it sent Christy Estrada the Responsible Party Payment Agreement that is

attached as a part of Exhibit "A." Fresh Start lacks sufficient knowledge or

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information to either admit or deny the remaining allegations of the paragraph and

on that basis denies them.










allegations set forth therein








35 Answering paragraph 35 of plaintiffs' complaint, Fresh Start denies the









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that it denies that the program is intended to be the first step to converting people to

Scientology. Fresh Start lacks sufficient knowledge or information to either admit

or deny the remaining allegations and on that basis denies them.










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SMIN UP ATionqm AT LAN

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ALTER EGO LIABILITY

59. Answering paragraph 59 of plaintiffs' complaint, Fresh Start repeats,

re-alleges and incorporates by reference its response to paragraphs 1 through 58 as

though fully set forth herein.











FIRST CAUSE OF ACTION

(Breach of Contract)





that it contracted with Christy Estrada to provide a residential drug and alcohol

treatment program and that the program is secular. Fresh denies the remaining

allegations.





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SECOND CAUSE OF ACTION

(Fraud)








72. Answering paragraph 72 of plaintiffs' complaint, Fresh Start denies

that it made false statements to Christy. Fresh Start is without knowledge or

information to either admit or deny said allegations and on that basis denies them.



THIRD CAUSE OF ACTION

(Negligence)










FOURTH CAUSE OF ACTION

(Intentional Infliction of Emotional Distress)


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FIFTH CAUSE OF ACTION

(Negligent Misrepresentation (in the alternative))








84. Answering paragraph 84of plaintiffs' complaint, Fresh Start denies the






SIXTH CAUSE OF ACTION

(Unfair Competition Law Claims Based on Fraudulent Business Practices, Cal.

Bus. & Prof. Code §17200 et. seq.)





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91 Answering paragraph 91 of plaintiffs' complaint, Fresh Start denies the


SEVENTH CAUSE OF ACTION

(Civil RICO for Mail and Wire Fraud, 18 U.S.C. §1964(c)


re-alleges and incorporates by reference its response to paragraphs I through 91 as

















the allegations set forth therein.

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EIGHTH CAUSE OF ACTION

(Breach of implied Covenant of good Faith and Fair Dealing)










AFFIRMATIVE DEFENSES

FIRST AFFIRMATIVE DEFENSE

(Concluding Answer to all Allegations of the Complaint)

105. All allegations not specifically addressed above due to the nature of the

language and construction of the allegations, or for any other reason, are specifically

denied.

SECOND AFFIRMATIVE DEFENSE

(Failure to State a Claim)

106. The complaint, in whole or in part, fails to allege facts sufficient to

constitute a claim upon which relief may be granted as to Fresh Start.

THIRD AFFIRMATIVE DEFENSE

(Plaintiffs' Comparative Negligence)

107. At the time of the incidents referred to in plaintiffs' complaint,

plaintiffs, and each of them, were negligent or at fault and failed to use that degree

of care and caution which a reasonably prudent person would have used under the

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same or similar circumstances.

FOURTH AFFIRMATIVE DEFENSE

(Actions of Third Parties)

108. The damages sustained by plaintiff, if any, were proximately caused by

the acts, omissions, negligence, fraud and/or breach of obligations directed toward

plaintiff and/or their representatives by persons other than Fresh Start and beyond

Fresh Start's supervision or control

FIFTH AFFIRMATIVE DEFENSE

(Statute of Limitations)

109. The plaintiffs' action is barred in whole or in part by the applicable

statute of limitations.

SIXTH AFFIRMATIVE DEFENSE

(Civil Code, Section 1714.8)

110. Fresh Start is entitled to the benefits of the statutory immunities

provided by Civil Code, Section 1714.8, because the damages and losses incurred

by plaintiffs were the result of and/or caused by the natural course of a disease or

condition and/or was the natural or expected result of reasonable treatment rendered

for that disease or condition.

SEVENTH AFFIRMATIVE DEFENSE

(Proposition 51)

111. The liability, if any, of Fresh Start is further limited by the provisions

of Proposition 51, as set forth in California Civil Code sections 1431, 1431.1,

1431.2, 1431.3, 1431.4, and 1431.5.

EIGHTH AFFIMATIVE DEFENSE

(Plaintiff's Consent)

112. That all care and services rendered to plaintiffs by Fresh Start was with

the express and implied consent of plaintiffs and/or plaintiffs' representatives.

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LEWIS 28 BR ISBOIS BISGAARD &SiMilli Lip AtIORNEYSAT LAW


NINTH AFFIRMATIVE DEFENSE

(Assumption of the Risk)

113. That plaintiffs had knowledge of the risks and hazards involved in the

activity at the time and place of the alleged incident and in voluntarily engaging

therein, thereby assumed the risks and hazards thereof

TENTH AFFIRMATIVE DEFENSE

(Superseding Cause)

114. Any injury, loss, or damage allegedly sustained by plaintiffs was the

result of superseding and/or intervening cause by persons or entities other than Fresh

Start over whom Fresh Start had neither control nor right of control.

ELEVENTH AFFIRMATIVE DEFENSE

(Failure to Mitigate)

115. Plaintiffs failed to exercise reasonable diligence to mitigate any alleged

damages and said conduct was the legal cause of any injuries or damages.

TWELFTH AFFIRMATIVE DEFENSE

(Substantial Factor)

116. The complaint and each cause of action contained therein must fail as

Fresh Start's conduct was not a substantial factor in causing plaintiff s alleged

injuries.

THIRTEENTH AFFIRMATIVE DEFENSE

(Plaintiffs Susceptibility to Emotional Distress)

117. At all times pertinent to plaintiffs' complaint, Fresh Start did not have

any knowledge of any peculiar susceptibility of plaintiffs to damage or injury for

emotional distress. Any claims for damages for injuries for emotional distress are

those which a reasonable person, would and/or should have been able to adequately

cope.

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FOURTEENTH AFFIRMATIVE DEFENSE

(Lack of Standing to Sue)

118. Plaintiffs lack standing to bring the claims contained their complaint

against Fresh Start.

FIFTEENTH AFFIRMATIVE DEFENSE

(Not Part of a Conspiracy or Common Purpose)

119. Plaintiffs' claims against Fresh Start are barred in whole or in part

because Fresh Start was not a part of the alleged conspiracy or common purpose,

nor do they exist.

SIXTEENTH AFFIRMATIVE DEFENSE

(Absence of Indispensable Parties)

120. Plaintiffs' claims against Fresh Start are barred in whole or in part due

to the absence of parties necessary for full and adequate relief.

SEVENTEENTH AFFIRMATIVE DEFENSE

(Good Faith)

121. At all times herein mentioned Fresh Start acted in good faith, without

malice, at all times and in all actions or omissions which are the subject of this

litigation.

EIGHTEENTH AFFIRMATIVE DEFENSE

(No Punitive Damages)

122. The complaint and each cause of action contained therein fails to state

facts sufficient to warrant the imposition of punitive, treble and/or exemplary

damages and/or injunctive relief against. Fresh Start or to show that Fresh Start was

guilty of any malice, oppression or fraud.

NINETEENTH AFFIRMATIVE DEFENSE

(No Unlawful or Fraudulent Representations)

123. Fresh Start did not engage in any unlawful, unfair or fraudulent

representations to plaintiff and/or their representatives in connection with the

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admission of plaintiff and/or the care and treatment plaintiff would receive.

TWENTIETH AFFIRMATIVE DEFENSE

(No Ratification or Authorization)

124. Fresh Start did not ratify or authorize any type of wrongful conduct

toward plaintiff by anyone employed by it in any capacity.

TWENTY-FIRST AFFIMATIVE DEFENSE

(Unconstitutional Punitive Damage Claim)

125. The claim for punitive damages is barred because any award of

punitive damages in this case would violate Fresh Start's constitutional rights under

provisions of the United States Constitution and applicable state constitutions.

TWENTY-SECOND AFFIRMATIVE DEFENSE

(Unclean Hands)

126. Plaintiffs' claims are barred in whole or in part by plaintiffs' unclean

hands and inequitable conduct.

TWENTY-THIRD AFFIRMATIVE DEFENSE

(Waiver)

127. Plaintiffs' claims are barred in whole or in part by the doctrine of

waiver.

TWENTY-FOURTH AFFIRMATIVE DEFENSE

(Estoppel)


estoppel.

TWENTY-FIFTH AFFIRMATIVE DEFENSE

(Ladies)


laches.

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TWENTY-SIXTH AFFIRMATIVE DEFENSE

(No Equitable Relief)

130. Plaintiffs are not entitled to recovery of equitable relief including any

relief requested pursuant to Business and Professions Code section 17200 because

of the existence of an adequate remedy at law.

TWENTY-SEVENTH AFFIRMATIVE DEFENSE

(Fair Business Activities)

131. Plaintiffs' claims are barred in whole and in part, because each of Fresh

Start's activities was privileged or otherwise justified, as such activities were proper,

fair legitimate business activities and/or due to business-related reasons which were

neither arbitrary, capricious nor unlawful.

TWENTY-EIGHTH AFFIRMATIVE DEFENSE

(Plaintiffs' Acceptance)

132. Plaintiffs, with full knowledge of all the facts connected with, or

relating to, the transaction alleged in the complaint, ratified and confirmed in all

respects the acts of Fresh Start by accepting the benefits to plaintiffs accruing from

such acts.

TWENTY-NINTH AFFIRMATIVE DEFENSE

(Indemnity)

133. Fresh Start is informed and believes, and therefore alleges, that it is

entitled to a right of indemnification by apportionment against all other parties and

persons whose negligence contributed proximately to the happening of the claimed

incident or the alleged injuries.

THIRTIETH AFFIRMATIVE DEFENSE

(Contribution)

134. Fresh Start is informed and believes, and therefore alleges, that it is

entitled to a right of contribution from others or any person whose negligence

proximately contributed to the happening of the claimed incident or alleged injuries

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if plaintiff should receive a verdict against it.

THIRTY-FIRST AFFIMRATIVE DEFENSE

(Plaintiffs' Fraud)

135. The contract under which plaintiffs claim recovery is made invalid by

the fraud of plaintiffs.

THIRTY-SECOND AFFIRMATIVE DEFENSE

(Reservation of Right to Assert Additional Defenses)

136. Fresh Start cannot fully anticipate all affirmative defenses that may be

applicable to this action based upon the conclusory, general and uncertain terms

used in the complaint. Accordingly, Fresh Start expressly reserves the right to assert

additional defenses as applicable.

DEMAND FOR JURY TRIAL

137. Fresh Start herby demands a trial by jury in the above entitled action.

WHEREFORE, Fresh Start prays:

1. That plaintiffs take nothing by the Complaint herein;

2. Dismissal of Fresh Start from this action.

3. For reasonable attorneys fees and costs of suit herein;

4. For such other and further relief as this Court may deem just and

proper.

DATED: June 30, 2014

GEORGE E. NOWOTNY JUDITH M. TISHKOFF LEWIS BRISBOIS BISGAARD & SMITH LLP

By: Is! Judith M. Tishkoff Judith M. Tishkoff Attorneys for Defendant, NARCONON FRESH SHART D/I3/A SUNSHINE SUMMIT LODGE

LEWIS BRISBOIS B1SGAARD &SNIHUP ATICRNEYS Al LAW

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FEDERAL COURT PROOF OF SERVICE

Estrada v. Narconon Fresh Start, etc., et al. - File No. 6234.10205

STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

At the time of service, I was over 18 years of age and not a party to the action.

My business address is 221 North Figueroa Street, Suite 1200, Los Angeles, CA

90012. I am employed in the office of a member of the bar of this Court at whose

direction the service was made.

On June 30, 2014, I served the following document(s): ANSWER TO

THIRD AMENDED COMPLAINT

I served the documents on the following persons at the following addresses

(including fax numbers and e-mail addresses, if applicable):

SEE ATTACHED SERVICE LIST

The documents were served by the following means:

El (BY COURT'S CM/ECF SYSTEM) Pursuant to Local Rule, I electronically filed the documents with the Clerk of the Court using the CM/ECF system, which sent notification of that filing to the persons listed above.

I declare under penalty of perjury under the laws of the United States of

America and the State of California that the foregoing is true and correct.

Executed on June 30, 2014, at Los Angeles, California.

Is! Debbie Stephenson Debbie Stephenson

LEWIS BR1SBOIS BISGAARD &SMITH OF ATTampa AT LAN

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Attorneys for Plaintiffs, Christy Estrada and Branden Chavez

3:14-CV-00586-LAI3-KSC

SERVICE LIST Estrada, et al. v. Narconon Fresh Start, etc., et al.

3:14-CV-00586-LAB-KSC

Ryan A. Hamilton, Esq. HAMILTON LAW 5125 S. Durango Drive, Suite C Las Vegas, NV 89113 (702) 818-1818/FAX (702) 974-1139 rvanahamiltonlawlasveaas.com

Arthur W. Curley, Esq. Kevin M. Smith, Esq. BRADLY, CURLEY, ASIANO, BARRABEE, ABEL

& KOWALSKI, P.C. 1100 Larkspure Landing Circle, Ste. 200 Larkspur, California 94939 (415) 464-8888/FAX (415) 464-8887

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Documents

Estrada v. Narconon: Answer