Cas4 2:07-cv-03134-GAF-JC Document 30 Filed 02/27/08 Page 1 of 21 Page ID #:346

Cas4 2:07-cv-03134-GAF-JC Document 30 Filed 02/27/08 Page 1 of 21 Page ID #:346 O I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Samuel A. Wyman (SBN 163030) sawyman(&,wolfewyman.com Iric 'F. Lamhofer (SBN 115865) etlamhofer(kwolfewyman.com WOLFE & WYMAN LLP 5 Park Plaza, Suite 1100 Irvine, California 92614-5979 Telephone: (949) 475-9200 Facsimile: (949) 475-9203 Attorneys for Defendant TOM McIVER AL SECKEL, v. TOM McIVER, UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Plaintiff, Defendant. Case No. CV07-3134 GAF (JCx) DEFENDANT TOM McIVER'S ANSWER TO FIRST AMENDED COMPLAINT Magistrate Judge: Jacqueline Chooljian Trial: Pre Trial Conf: Discovery Cutoff: Motion Cutoff: July 24, 2008 June 25, 2008 May 11, 2008 May 21, 2008 DEMAND FOR JURY TRIAL Defendant Tom McIver hereby responds to the First Amended Complaint (hereinafter "FAC") of Al Seckel as follows: 1. Answering paragraph 1 of the FAC, Defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every allegation contained therein. 2. Answering paragraph 2 of the FAC, Defendant admits all allegations contained therein. 3. Answering paragraph 3 of the FAC, Defendant admits all allegations contained therein. 1 DEFENDANT'S ANSWER TO FIRST AMENDED COMPLAINT CV07-3134 GAF (JCx) EFTA00724884 Cast 2:07-cv-03134-GAF-JC Document 30 Filed 02/27/08 Page 2 of 21 Page ID #:347 I 1 4. Answering paragraph 4 of the FAC, Defendant denies all allegations 2 contained therein. 3 5. Answering paragraph 5 of the FAC, Defendant admits that this court has 4 personal jurisdiction over him and that certain unsolicited correspondence was sent 5 to various persons about Plaintiff. Defendant specifically denies that any 6 correspondence or communication regarding Plaintiff that he sent to anyone was 7 defamatory. Defendant denies all other allegations contained in paragraph 5 of the 8 FAC. 9 6. Answering paragraph 6 of the FAC, Defendant admits all allegations 10 contained therein. 11 7. Answering paragraph 7 of the FAC, Defendant is without sufficient 12 knowledge or information to form a belief as to the truth of the allegations contained 13 in said paragraph, and on that basis denies each and every allegation contained 14 therein. 15 8. Answering paragraph 8 of the FAC, Defendant is without sufficient 16 knowledge or information to form a belief as to the truth of the allegations contained 17 in sub-paragraph, and on that basis denies each and every allegation contained 18 therein. 19 9. Answering paragraph 9 of the FAC, Defendant denies each and every 20 allegation contained therein, other than that Plaintiff may have been an acquaintance 21 of those persons listed. 22 10. Answering paragraph 10 of the FAC, Defendant is without sufficient 23 knowledge or information to form a belief as to the truth of the allegations contained 24 in that paragraph, and on that basis denies each and every allegation contained 25 therein. 26 11. Answering paragraph 11 of the FAC, Defendant denies each and every 27 allegation contained therein, other than that Plaintiff apparently had some association 28 with the referenced laboratories. 2 DEFENDANT'S ANSWER TO FIRST AMENDED COMPLAINT CV07-3134 GAF (JCx) EFTA00724885 Cas 2:07-cv-03134-GAF-JC Document 30 Filed 02/27/08 Page 3 of 21 Page ID #:348 yQ 1 12. Answering paragraph 12 of the FAC, Defendant denies each and every 2 allegation contained therein. 3 13. Answering paragraph 13 of the FAC, Defendant denies each and every 4 allegation contained therein. 5 14. Answering paragraph 14 of the FAC, Defendant denies each and every 6 allegation contained therein. 7 15. Answering paragraph 15 of the FAC, Defendant denies each and every 8 allegation contained therein. 9 16. Answering paragraph 16 of the FAC, Defendant denies that any of the 10 matter which he posted on Wikipedia was defamatory in any sense. Wikipedia 11 editors (administrators) removed remarks by both Plaintiff and Defendant, marking 12 said deletions with: "Removed personal attack, unverifiable original research, and/or 13 possible libel". These deletions included numerous libelous statements and overt 14 legal threats made by Plaintiff. Defendant has copies of the versions both before and 15 after the deletions, although Plaintiff attempted to get his libelous published remarks 16 permanently deleted. Defendant's deleted remarks were true, and were removed 17 primarily because they were what Wikipedia calls "unverifiable original research" 18 containing negative [i.e., unflattering even if true] information. 19 17. Answering paragraph 17 of the FAC, Defendant admits all allegations 20 contained therein. 21 18. Answering paragraph 18 of the FAC, Defendant denies each and every 22 allegation contained therein. All quotes contained in paragraph 18 are from Eric 23 Krieg's website posted several years ago by Krieg and not altered or edited since. 24 The statements referred to in paragraph 18 are true or substantially true or protected 25 opinion and were not made within the last year. Additionally, some of the 26 statements are quoted out of context, and Defendant clearly stated that some of the 27 phrases alleged to be defamatory were as reported to him by others. Defendant used 28 the term "looted" as being substantially if not literally true, and as metaphorically 3 DEFENDANT'S ANSWER TO FIRST AMENDED COMPLAINT CV07-3134 GAF (JCx) EFTA00724886 Cast 2:07-cv-03134-GAF-JC Document 30 Filed 02/27/08 Page 4 of 21 Page ID #:349 5 -a 1 1 true (hyperbole and informal usage). 2 19. Answering paragraph 19 of the FAC, Defendant admits sending an 3 unsolicited e-mail to Daniel B. Meier containing the quoted statements. Defendant 4 denies that said e-mail was sent within the last 12 months. Defendant is without 5 sufficient knowledge or information to form a belief as to the truth of the other 6 allegations contained in paragraph 19 and on that basis denies each and every such 7 allegation contained therein. 8 20. Answering paragraph 20 of the FAC, Defendant admits sending 9 unsolicited e-mails to Shin Shimojo and Christof Koch. Defendant denies the 10 remaining allegations contained in paragraph 20 of the FAC. 11 21. Answering paragraph 21 of the FAC, Defendant admits reporting that 12 others had accused Plaintiff of having embezzled and pocketed money from the 13 Southern California Skeptics. The remaining portion of this paragraph involves a 14 legal conclusion. 15 22. Answering paragraph 22 of the FAC, Defendant admits all allegations 16 contained therein, other than that the subject communication was "confidential", 17 which is denied. 18 23. Answering paragraph 23 of the FAC, Defendant admits sending the 19 referenced communication, but denies that it was sent "secretly". 20 24. Answering paragraph 24 of the FAC, Defendant admits sending the 21 referenced communication to John Siegenthaler, Sr., but denies sending it to John 22 Siegenthaler, Jr. Defendant denies that the referenced e-mail was "confidential". 23 25. Answering paragraph 25 of the FAC, Defendant admits all allegations 24 contained therein. 25 26. Answering paragraph 26 of the FAC, Defendant admits sending the 26 referenced June 3, 2006 e-mail to Douglas Hofstadter. Defendant further admits 27 pasting into the Hofstadter e-mail an e-mail from Pat Linse containing the language 28 referenced in paragraph 26. Defendant denies that the pasted matter was defamatory. 4 DEFENDANT'S ANSWER TO FIRST AMENDED COMPLAINT CV07-3134 GAF (JCx) EFTA00724887 Cast 2:07-cv-03134-GAF-JC Document 30 Filed 02/27/08 Page 5 of 21 Page ID #:350 O I 1 Defendant further denies that the communication was "confidential". 2 27. Answering paragraph 27 of the FAC, Defendant admits sending the 3 referenced e-mail, but contests the description of it as "secret," since such term is 4 vague and ambiguous. 5 28. Answering paragraph 28 of the FAC, Defendant admits all allegations 6 contained therein. 7 29. Answering paragraph 29 of the FAC, Defendant denies each and every 8 allegation contained therein. 9 30. Answering paragraph 30 of the FAC, Defendant denies each and every 10 allegation contained therein. 11 31. Answering paragraph 31 of the FAC, Defendant admits receiving the 12 referenced June 12, 2006 e-mail from Beth White. Defendant denies that said 13 communication is attached as Exhibit E to the FAC served on Defendant. 14 32. Answering paragraph 32 of the FAC, Defendant admits all allegations 15 contained therein. 16 33. Answering paragraph 33 of the FAC, Defendant admits all allegations 17 contained therein. 18 34. Answering paragraph 34 of the FAC, Defendant denies all allegation 19 contained therein other than that he sent an unsolicited letter to Steve Allen in the 20 early 1990s which includes the quoted language. 21 35. Answering paragraph 35 of the FAC, Defendant admits that Steve Allen 22 sent Defendant the referenced letter which contains the quoted language, a copy of 23 which is attached as Exhibit G to the FAC. Defendant is without sufficient 24 knowledge or information to form a belief as to the truth of the remaining allegations 25 contained in paragraph 35 of the FAC and on that basis denies each and every such 26 allegation contained there. 27 36. Answering paragraph 36 of the FAC, Defendant denies each and every 28 allegation contained therein. 5 DEFENDANT'S ANSWER TO FIRST AMENDED COMPLAINT CV07-3134 GAF (JCx) EFTA00724888 Cas 2:07-cv-03134-GAF-JC Document 30 Filed 02/27/08 Page 6 of 21 Page ID #:351 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 37. Answering paragraph 37 of the FAC, Defendant admits all allegations contained therein with the exception of the August 21, 2006 e-mail being attached as Exhibit F to the FAC. 38. Answering paragraph 38 of the FAC, Defendant admits all allegations contained therein. 39. Answering paragraph 39 of the FAC, Defendant admits sending an unsolicited e-mail to Larry Wilson on or about June 2, 2007 containing the quoted statement. Defendant denies that said e-mail is attached as Exhibit I to the FAC. 40. Answering paragraph 40 of the FAC, Defendant denies that the referenced e-mail was sent to Suzanne Paul and denies that it was sent on June 2, 2005. Defendant did sent an e-mail to Paul Nelson containing the quoted language on June 2, 2006, which Paul Nelson responded to and which is attached as Exhibit J to the FAC. Paul Nelson is the husband of Suzanne Paul. 41. Answering paragraph 41 of the FAC, Defendant admits all allegations contained therein. 42. Answering paragraph 42 of the FAC, Defendant denies each and every allegation contained therein. 43. Answering paragraph 43 of the FAC, Defendant admits sending the June 1, 2006 e-mail to Susan Martinez-Conde containing the quoted language. Defendant denies that said e-mail is attached as Exhibit J to the FAC. Defendant further admits that he had no prior contact with Martinez-Conde and no scholarly interest in optical illusions, although he does have a casual interest in such illusions. In Wikipedia Plaintiff claimed he was "sponsoring" the contest. Martinez-Conde confirmed that he was a judge one year and had donated prize money during the previous year. Defendant is without sufficient knowledge or information to form a belief as to the truth of the other allegations contained in paragraph 43, and on that basis denies each and every such allegation contained therein. /// 6 DEFENDANT'S ANSWER TO FIRST AMENDED COMPLAINT CV07-3134 GAF (JCx) EFTA00724889 Cased 2:07-cv-03134-GAF-JC Document 30 Filed 02/27/08 Page 7 of 21 Page ID #:352 1 44. Answering paragraph 44 of the FAC, Defendant denies all allegation 2 contained therein, with the exception that Defendant admits that he has never 3 communicated with Plaintiff regarding his business and scholarly activities relating 4 to optical illusions and has had no direct contact with Plaintiff in approximately 20 5 years. Defendant particularly denies that the referenced e-mail was "particularly 6 reprehensible", as Martinez-Conde's response thereto indicates that she was grateful 7 for Defendant's warning about Plaintiff and that Defendant was not the first to warn 8 her about "potential problems with [Plaintiff]" and that because of these concerns, 9 she and her organization were keeping an "arms-length relationship with [Plaintiff]". 10 Defendant wrote to Martinez-Conde specifically to check Plaintiff's claim about 11 "sponsorship" of the contest. 12 45. Answering paragraph 45 of the FAC, Defendant admits all allegations 13 contained therein, although Defendant denies that he believed Eric Krieg would 14 disseminate the referenced e-mail further. 15 46. Answering paragraph 46 of the FAC, Defendant denies each and every 16 allegation contained therein. 17 47. Answering paragraph 47 of the FAC, Defendant denies each and every 18 allegation contained therein. 19 48. Answering paragraph 48 of the FAC, Defendant denies each and every 20 allegation contained therein. 21 49. Answering paragraph 49 of the FAC, Defendant admits all allegations 22 contained therein. 23 50. Answering paragraph 50 of the FAC, Defendant denies each and every 24 allegation contained therein. 25 51. Answering paragraph 51 of the FAC, Defendant admits all allegations 26 contained therein. 27 52. Answering paragraph 52 of the FAC, Defendant admits all allegations 28 contained therein. 7 DEFENDANT'S ANSWER TO FIRST AMENDED COMPLAINT CV07-3134 GAF (JCx) EFTA00724890 Cas 2:07-cv-03134-GAF-JC Document 30 Filed 02/27/08 Page 8 of 21 Page ID #:353 I I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 53. Answering paragraph 53 of the FAC, Defendant admits all allegations contained therein. 54. Answering paragraph 54 of the FAC, Defendant admits all allegations contained therein. 55. Answering paragraph 55 of the FAC, Defendant admits all allegations contained therein. 56. Answering paragraph 56 of the FAC, Defendant admits all allegations contained therein. 57. Answering paragraph 57 of the FAC, Defendant admits sending the referenced e-mail but denies that it was directed to Joyce Nakamura specifically. 58. Answering paragraph 58 of the FAC, Defendant admits all allegations contained therein. 59. Answering paragraph 59 of the FAC, Defendant admits all allegations contained therein. 60. Answering paragraph 60 of the FAC, Defendant admits sending the referenced e-mail to Beth White. Defendant denies all other allegations contained in paragraph 60 of the FAC. 61. Answering paragraph 61 of the FAC, Defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every allegation contained therein. 62. Answering paragraph 62 of the FAC, Defendant admits all allegations contained therein. 63. Answering paragraph 63 of the FAC, Defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every allegation contained therein. 64. Answering paragraph 64 of the FAC, Defendant denies each and every 8 DEFENDANT'S ANSWER TO FIRST AMENDED COMPLAINT CV07-3134 GAF (JCx) EFTA00724891 Cas 2:07-cv-03134-GAF-JC Document 30 Filed 02/27/08 Page 9 of 21 Page ID #:354 1 allegation contained therein. 2 65. Answering paragraph 65 of the FAC, Defendant denies each and every 3 allegation contained therein. 4 66. Answering paragraph 66 of the FAC, Defendant denies each and every 5 allegation contained therein. 6 67. Answering paragraph 67 of the FAC, Defendant denies each and every 7 allegation contained therein. 8 68. Answering paragraph 68 of the FAC, Defendant denies each and every 9 allegation contained therein. 10 69. Answering paragraph 69 of the FAC, Defendant denies each and every 11 allegation contained therein. 12 70. Answering paragraph 70 of the FAC, Defendant denies each and every 13 allegation contained therein. 14 71. Answering paragraph 71 of the FAC, Defendant admits all allegations 15 contained therein. 16 72. Answering paragraph 72 of the FAC, Defendant admits all allegations 17 contained therein. 18 73. Answering paragraph 73 of the FAC, Defendant denies all allegation 19 contained therein with the exception that he did send a letter to Steve Allen in the 20 1990s and had had no prior contact with Allen. Defendant denies that said letter was 21 defamatory. 22 74. Answering paragraph 74 of the FAC, Defendant admits that Allen 23 responded with the referenced language and that this is the only letter Defendant 24 received from Allen. Defendant is without sufficient knowledge or information to 25 form a belief as to the truth of the other allegations contained in paragraph 74 and on 26 that basis denies each and every such other allegation. 27 75. Answering paragraph 75 of the FAC, Defendant denies each and every 28 allegation contained therein. 9 DEFENDANT'S ANSWER TO FIRST AMENDED COMPLAINT CV07-3134 GAF (JCx) EFTA00724892 Cas 2:07-cv-03134-GAF-JC Document 30 Filed 02/27/08 Page 10 of 21 Page ID #:355 3 I I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 76. Answering paragraph 76 of the FAC, Defendant denies each and every allegation contained therein. 77. Answering paragraph 77 of the FAC, Defendant admits that the statements contained in the first sentence of said paragraph. Defendant denies all other allegations contained in paragraph 77. 78. Answering paragraph 78 of the FAC, Defendant denies each and every allegation contained therein. 79. Answering paragraph 79 of the FAC, Defendant denies each and every allegation contained therein. 80. Answering paragraph 80 of the FAC, Defendant denies each and every allegation contained therein. 81. Answering paragraph 81 of the FAC, Defendant admits all allegations contained therein. 82. Answering paragraph 82 of the FAC, Defendant admits all allegations contained therein. 83. Answering paragraph 83 of the FAC, Defendant admits that the scientist referred to was Beth White. Defendant denies all remaining allegations in paragraph 83 of the FAC. 84. Answering paragraph 84 of the FAC, Defendant denies each and every allegation contained therein. 85. Answering paragraph 85 of the FAC, Defendant denies each and every allegation contained therein. 86. Answering paragraph 86 of the FAC, Defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in said paragraph, and on that basis denies each and every allegation contained therein. 87. Answering paragraph 87 of the FAC, "Defendant admits that, after investigating the matter, he learned that the assault with a deadly weapon charge was 10 DEFENDANT'S ANSWER TO FIRST AMENDED COMPLAINT CV07-3134 GAF (JCx) EFTA00724893 Cas 2:07-cv-03134-GAF-JC Document 30 Filed 02/27/08 Page 11 of 21 Page ID #:356 O 1 ultimately dismissed due to credibility problems involving the former spouse. As 2 evidenced by defendant's communications on this issue, defendant never stated or 3 implied to the contrary." 4 88. Answering paragraph 88 of the FAC, Defendant denies each and every 5 allegation contained therein. 6 89. Answering paragraph 89 of the FAC, Defendant denies each and every 7 allegation contained therein. 8 90. Answering paragraph 90 of the FAC, Defendant denies each and every 9 allegation contained therein. 10 91. Answering paragraph 91 of the FAC, Defendant denies each and every 11 allegation contained therein. 12 92. Answering paragraph 92 of the FAC, Defendant admits all allegations 13 contained therein. I 14 93. Answering paragraph 93 of the FAC, Defendant denies each and every 15 allegation contained therein. 16 94. Answering paragraph 94 of the FAC, Defendant denies each and every 17 allegation contained therein. 18 95. Answering paragraph 95 of the FAC, Defendant denies each and every 19 allegation contained therein. 20 96. Answering paragraph 96 of the FAC, Defendant admits that Beth White 21 sent him a link to some photos of Plaintiff's home that she obtained off the internet. 22 Defendant found other publicly available photos off the internet. Defendant further 23 admits that Beth White sent to him a guest list for a social gathering at Plaintiff's 24 home which Plaintiff had sent to her. Defendant denies the remaining allegations in 25 this paragraph. 26 97. Answering paragraph 97 of the FAC, Defendant denies each and every 27 allegation contained therein. 28 98. Answering paragraph 98 of the FAC, Defendant denies each and every 11 DEFENDANT'S ANSWER TO FIRST AMENDED COMPLAINT CV07-3134 GAF (JCx) EFTA00724894 Cas 2:07-cv-03134-GAF-JC Document 30 Filed 02/27/08 Page 12 of 21 Page ID #:357 -a O 1 allegation contained therein. 2 99. Answering paragraph 99 of the FAC, Defendant denies each and every 3 allegation contained therein. 4 100. Answering paragraph 100 of the FAC, Defendant denies each and every 5 allegation contained therein. 6 101. Answering paragraph 101 of the FAC, Defendant denies each and every 7 allegation contained therein. 8 102. Answering paragraph 102 of the FAC, Defendant denies each and every 9 allegation contained therein. 10 103. Answering paragraph 103 of the FAC, Defendant denies each and every 11 allegation contained therein. 12 104. Answering paragraph 104 of the FAC, Defendant admits all allegations 13 contained therein. 14 105. Answering paragraph 105 of the FAC, Defendant denies each and every 15 allegation contained therein. 16 106. Answering paragraph 106 of the FAC, Defendant denies each and every 17 allegation contained therein. 18 107. Answering paragraph 107 of the FAC, Defendant denies each and every 19 allegation contained therein. 20 108. Answering paragraph 08 of the FAC, Defendant denies each and every 21 allegation contained therein. 22 109. Answering paragraph 109 of the FAC, Defendant denies each and every 23 allegation contained therein. 24 110. Answering paragraph 110 of the FAC, Defendant denies each and every 25 allegation contained therein. 26 111. Answering paragraph 111 of the FAC, Defendant denies each and every 27 allegation contained therein. 28 112. Answering paragraph 112 of the FAC, Defendant denies each and every 12 DEFENDANT'S ANSWER TO FIRST AMENDED COMPLAINT CV07-3134 GAF (JCx) EFTA00724895 Cas 2:07-cv-03134-GAF-JC Document 30 Filed 02/27/08 Page 13 of 21 Page ID #:358 ?-1 3 1 allegation contained therein. 2 113. Answering paragraph 113 of the FAC, Defendant denies each and every 3 allegation contained therein. 4 114. Answering paragraph 114 of the FAC, Defendant denies each and every 5 allegation contained therein. 6 115. Answering paragraph 115 of the FAC, Defendant admits all allegations 7 contained therein. 8 116. Answering paragraph 116 of the FAC, Defendant denies each and every 9 allegation contained therein. 10 117. Answering paragraph 117 of the FAC, Defendant denies each and every 11 allegation contained therein. 12 118. Answering paragraph 118 of the FAC, Defendant admits all allegations 13 contained therein. 14 119. Answering paragraph 119 of the FAC, Defendant denies each and every 4 15 allegation contained therein. 16 120. Answering paragraph 120 of the FAC, Defendant denies each and every 17 allegation contained therein. 18 121. Answering paragraph 121 of the FAC, Defendant denies each and every 19 allegation contained therein. 20 122. Answering paragraph 122 of the FAC, Defendant denies each and every 21 allegation contained therein. 22 AFFIRMATIVE DEFENSES 23 24 FIRST AFFIRMATIVE DEFENSE 25 (Truth) 26 123. As a first affirmative defense, Defendant contends that all of the 27 allegedly defamatory statements were true or substantially true and thus not in fact 28 defamatory. 13 DEFENDANT'S ANSWER TO FIRST AMENDED COMPLAINT CV07-3134 GAF (JCx) EFTA00724896 Cast 2:07-cv-03134-GAF-JC Document 30 Filed 02/27/08 Page 14 of 21 Page ID #:359 I I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SECOND AFFIRMATIVE DEFENSE (Statute of Llmitations) 124. As a second affirmative defense, Defendant asserts that all causes of action are barred by the applicable statute of limitations, including but not limited to Code of Civil Procedure §§ 340(c), 335.1 and 343. THIRD AFFIRMATIVE DEFENSE (Opinion) 125. As a third affirmative defense, Defendant asserts that some of the alleged defamatory statements were statements of opinion, rather than fact, and thus not actionable. FOURTH AFFIRMATIVE DEFENSE (Code of Civil Procedure § 425.16) 126. As a fourth affirmative defense, Defendant asserts that all causes of action alleged in the FAC are subject to a special motion to strike under Code of Civil Procedure § 425.16 in that they are designed to chill the valid exercise of Defendant's constitutional right of freedom of speech. FIFTH AFFIRMATIVE DEFENSE (Failure to State a Claim Upon Which Relief Can Be Granted) 127. As a fifth affirmative defense, Defendant asserts that all causes of action alleged in the FAC fail to state a claim upon which relief can be granted. SIXTH AFFIRMATIVE DEFENSE (Plaintiff's Public Figure Status) 128. As a sixth affirmative defense, Defendant asserts that Plaintiff is a public figure as to each of the alleged defamatory statements and thus must establish that said statements were not only defamatory but made with knowing falsity or reckless disregard for their truth. Defendant contends that none of the alleged defamatory statements were made with knowing falsity or reckless disregard for their truth. 14 DEFENDANT'S ANSWER TO FIRST AMENDED COMPLAINT CV07-3134 GAF (JCx) EFTA00724897 Cas 2:07-cv-03134-GAF-JC Document 30 Filed 02/27/08 Page 15 of 21 Page ID #:360 I 1 SEVENTH AFFIRMATIVE DEFENSE 2 (Unclean Hands) 3 129. As a seventh affirmative defense, Defendant asserts that Plaintiffs FAC 4 is barred by the equitable doctrine of unclean hands. 5 EIGHTH AFFIRMATIVE DEFENSE 6 (Laches) 7 130. As an eighth affirmative defense, Defendant asserts that Plaintiff's FAC 8 is barred by the equitable doctrine of !aches. 9 NINTH AFFIRMATIVE DEFENSE 10 (Adequate Legal Remedy) 11 131. As a ninth affirmative defense, Defendant asserts that Plaintiff's claim 12 for injunctive relief is improper because Plaintiff has an adequate legal remedy. 13 TENTH AFFIRMATIVE DEFENSE 14 (No Irreparable Injury) 15 132. As a tenth affirmative defense, Defendant asserts that Plaintiff's claim 16 for injunctive relief is without basis as Plaintiff has not and will not suffer any 17 irreparable injury as a result of any act or conduct of Defendant. 18 ELEVENTH AFFIRMATIVE DEFENSE 19 (Clear and Convincing Evidence Standard) 20 133. As an eleventh affirmative defense, Defendant asserts that the 21 constitutional requirement of actual malice in public figure defamation cases requires 22 "clear and convincing evidence" of knowledge of falsity or reckless disregard as to 23 truth. 24 TWELFTH AFFIRMATIVE DEFENSE 25 (Actual Malice Required for Punitive Damages) 26 134. As a twelfth affirmative defense, Defendant asserts that Plaintiff has no 27 entitlement to punitive damages in that the alleged defamatory statements were not 28 made with actual malice. 15 DEFENDANT'S ANSWER TO FIRST AMENDED COMPLAINT CV07-3134 CAF (J00 EFTA00724898 Cas 2:07-cv-03134-GAF-JC Document 30 Filed 02/27/08 Page 16 of 21 Page ID #:361 1 THIRTEENTH AFFIRMATIVE DEFENSE 2 (Unconstitutionality of Punitive Damages) 3 135. As a thirteenth affirmative defense, Defendant asserts that the 4 imposition of punitive damages against Defendant would violate the Due Process 5 clauses of the Fifth and Fourteenth Amendments to the United States Constitution 6 and would also be unconstitutional under the California Constitution's Due Process 7 Clause. 8 FOURTEENTH AFFIRMATIVE DEFENSE 9 (Litigation Privilege) 10 136. As a fourteenth affirmative defense, Defendant asserts that the acts 11 complained of in the FAC protected by the litigation privilege codified in California 3 12 Civil Code § 47. 13 FIFTEENTH AFFIRMATIVE DEFENSE 14 (Absolute Privilege) 15 137. As a fifteenth affirmative defense, Defendant asserts that the alleged 16 defamatory statements are subject to absolute privilege. 17 SIXTEENTH AFFIRMATIVE DEFENSE 18 (Failure to Mitigate Damages) 19 138. As a sixteenth affirmative defense, Defendant is informed and believes, 20 and thereupon alleges, that any recovery by Plaintiff is barred by his failure to 21 mitigate damages, or that any recovery must be reduced by those damages that 22 Plaintiff, by virtue of his own acts and/or the acts or omissions of others chargeable 23 to him, failed to mitigate. This defense is alleged in the alternative and does not 24 admit any of the allegations contained in the FAC. 25 SEVENTEENTH AFFIRMATIVE DEFENSE 26 (Uncertain, Ambiguous, and Unintelligible FAC) 27 139. As a seventeenth affirmative defense, Defendant is informed and 28 believes, and thereupon alleges, that the FAC is uncertain, ambiguous, and 16 DEFENDANT'S ANSWER TO FIRST AMENDED COMPLAINT CV07-3134 GAF (JCx) EFTA00724899 Cas 2:07-cv-03134-GAF-JC Document 30 Filed 02/27/08 Page 17 of 21 Page ID #:362 p 1 unintelligible in that Plaintiff, by virtue of his own acts and/or the acts or omissions 2 of others chargeable to him, did not consistently define the terms employed in the 3 FAC with respect to various parties and properties, and is otherwise unintelligible. 4 This defense is alleged in the alternative and does not admit any of the allegations 5 contained in the FAC. 6 EIGHTEENTH AFFIRMATIVE DEFENSE 7 (Lack of Leave to File FAC) 8 140. As a eighteenth affirmative defense, Defendant is informed and 9 believes, and thereupon alleges, that the FAC filed and served on Defendant is not 10 the FAC the Court granted leave to file, as it includes additional allegations and 11 causes of action than the proposed FAC. 12 NINETEENTH AFFIRMATIVE DEFENSE 13 (Right to Add Additional Affirmative Defenses) 14 141. As a nineteenth affirmative defense, Defendant is informed and 15 believes, and thereupon alleges, that because the FAC herein is couched in 16 conclusory terms, Defendant presently has insufficient knowledge or information on 17 which to form a belief as to whether it may have additional, as yet unstated, 18 affirmative defenses available and cannot fully anticipate all affirmative defenses 19 that may be applicable to the within Action. Accordingly, the right to assert 20 additional affirmative defenses, if and to the extent that such affirmative defenses are 21 applicable, is hereby reserved. This defense is alleged in the alternative and does not 22 admit any of the allegations contained in the FAC. 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 17 DEFENDANT'S ANSWER TO FIRST AMENDED COMPLAINT CV07-3134 GAF (JCx) EFTA00724900 Cas 2:07-cv-03134-GAF-JC Document 30 Filed 02/27/08 Page 18 of 21 Page ID #:363 1 WHEREFORE, Defendants prays as follows: 2 1. That judgment be entered in favor of Defendant and against Plaintiff. 3 2. That Plaintiff take nothing by his First Amended Complaint and that 4 said First Amended Complaint be dismissed in its entirety, with prejudice. 5 3. That Defendant be awarded costs of suit herein. 6 4. For any such other and further relief as the Court deems just and proper. 7 DATED: February 'a 7, 2008 WOLFE & WYMAN LLP 8 9 By:/s Eric T. Lamhofer 10 SAMUEL A. WYMAN ERIC T. LAMHOFER 11 Attorneys for Defendant 12 TOM McIVER 1 3 II HAMattas Ohio Casualty Group (1223)\031 (McIver)1Pleadings \ Answa to FAC.doc 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18 DEFENDANT'S ANSWER TO FIRST AMENDED COMPLAINT CV07-3134 GAF (JCx) EFTA00724901 Casi 2:07-cv-03134-GAF-JC Document 30 Filed 02/27/08 Page 19 of 21 Page ID #:364 1 WHEREFORE, Defendants prays as follows: I 2 1. That judgment be entered in favor of Defendant and against Plaintiff. 3 2. That Plaintiff take nothing by his First Amended Complaint and that 4 said First Amended Complaint be dismissed in its entirety, with prejudice. 5 3. That Defendant be awarded costs of suit herein. 6 4. For any such other and further relief as the Court deems just and proper. DATED: February 27 , 2008 WOLFE & N LLP 7 8 9 By: 10 SA A. WYM ERIC T. LAMHOF 11 Attorneys for Defendant 12 TOM McIVER 1 3 II ti:\Mattcrs1Ohio Casualty Group (1223). 031 (Molva)1PleadingstAnswer to FAC.doe 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18 DEFENDANT'S ANSWER TO FIRST AMENDED COMPLAINT CV07-3134 GAF (JCx) EFTA00724902 Cas 2:07-cv-03134-GAF-JC Document 30 Filed 02/27/08 Page 20 of 21 Page ID #:365 1 fl DEMAND FOR JURY TRIAL a. O I 2 3 Complaint. 4 5 DATED: February ,2 7, 2008 WOLFE & AN LLP 6 7 By "LA. 8 ERIC T. LAMHO Attorneys for Defendan 9 TOM McIVER 10 11 Defendant demands trial by jury as to all claims contained in the First Amened 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 liAMatterslOhio Casualty Group (I2.23)031 (McIver)TleadingslAnsvecr to FAC.doc 19 DEFENDANT'S ANSWER TO FIRST AMENDED COMPLAINT CV07-3134 GAF (JCx) EFTA00724903 Cas 2:07-cv-03134-GAF-JC Document 30 Filed 02/27/08 Page 21 of 21 Page ID #:366 5, 0 1 1 2 3 4 5 II DATED: February; 7, 2008 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEMAND FOR JURY TRIAL Defendant demands trial by jury as to all claims contained in the First Amened Complaint. WOLFE & WYMAN LLP By:/s Eric T. Lamhofer SAMUEL A. WYMAN ERIC T. LAMHOFER Attorneys for Defendant TOM McIVER HAMatterstOhio Casualty Group (I223)103i (Mclyer)Weadings \ Answer to FAC.doc 19 DEFENDANT'S ANSWER TO FIRST AMENDED COMPLAINT CV07-3134 GAF (JCx) EFTA00724904