WhiteWind Swan Fisher Answers Lawsuit

October 27, 1994
Scanned pages of answer

Note: WhiteWind seems to have told some members of Friends Landing that the plaintiff Lynn Sheffield was not her patient/client and that they did not have a professional therapy relationship. However, such a specific statement does not appear within her answer filed with the court below.

Susan K. Musumeci, MFCC 2604 Martin Luther King, Jr. Way Berkeley, California 94704 Tel: (510) 644-0476

F I L E D ALAMEDA COUNTY OCT 27 1994 Ronald G. Overholt, Exec. Off/Clerk

IN PROPRIA PERSONA

SUPERIOR COURT OF CALIFORNIA

COUNTY OF ALAMEDA

LYNN M. SHEFFIELD,

Plaintiff,

vs.

SUSAN KILBORNE MUSUMECI, MFCC;
FRIENDS' LANDING; and DOES 1-
100, inclusive,

Defendants.

Case No. 740821-6

ANSWER OF DEFENDANT
SUSAN KILBORNE MUSUMECI
TO UNVERIFIED COMPLAINT
FOR DAMAGES (MEDICAL
MALPRACTICE I -
NEGLIGENCE, MEDICAL
MALPRACTICE II - ABUSE OF
TRANSFERENCE, NEGLIGENT
INFLICTION OF EMOTIONAL
DISTRESS, INTENTIONAL
INFLICTION OF EMOTIONAL
DISTRESS, SEXUAL BATTERY,
BREACH OF FIDUCIARY DUTY,
CAUSE OF ACTION AGAINST
PSYCHOTHERAPIST FOR
SEXUAL CONTACT WITH
PATIENT, CCC §43.93,
FRAUD, CONSTRUCTIVE
FRAUD, and NEGLIGENT
MISREPRESENTATION)

GENERAL DENIAL

COMES NOW defendant SUSAN KILBORNE MUSUMECI, MFCC, and answers plaintiff's unverified complaint on file herein as follows:

This defendant denies each and every, all and singular, generally and specifically, the allegations contained in the complaint, and each and every part thereof, and in this connection this defendant denies that plaintiff has been injured or damaged in any sum, or otherwise, or at all.

AFFIRMATIVE DEFENSES

1. AS A FIRST SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT AND EACH CAUSE OF ACTION THEREOF, it is alleged that the Complaint does not state facts sufficient to constitute a cause of action against this defendant.

2. AS A SECOND SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT AND EACH CAUSE OF ACTION THEREOF, it is alleged that the plaintiff was careless and negligent with respect to the matters alleged in the Complaint and that such carelessness and negligence proximately contributed to the happening of the incident and to the injuries, loss and damages complained of, if any there were, and plaintiff's contributory negligence either bars or proportionally reduces any potential recovery.

3. AS A THIRD SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT AND EACH CAUSE OF ACTION THEREOF, it is alleged that another defendant or others were careless and negligent, and that this carelessness and negligence proximately contributed to the happening of the incident referred to in the Complaint, and this negligence either bars or proportionally reduces any potential recovery.

4. AS A FOURTH SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT AND EACH CAUSE OF ACTION THEREOF, it is alleged that the plaintiff failed to minimize and mitigate her alleged damages.

5. AS A FIFTH SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT AND EACH CAUSE OF ACTION THEREOF, it is alleged that plaintiff assumed the risk, if any there was, at the time and place of the incident referred to in this Complaint.

6. AS A SIXTH SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT AND EACH CAUSE OF ACTION THEREOF, this defendant alleges that this Complaint does not state facts sufficient to constitute a cause of action in that this Complaint is barred by the Statute of Limitations stated in part II, Title 2, Chapter 3, of the California Code of Civil Procedure, beginning with Section 335 and continuing through Section 349.4, and more particularly, but not limited to Section 340(3).

7. AS A SEVENTH SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT AND EACH CAUSE OF ACTION THEREOF, this defendant alleges that plaintiff has failed to comply with the notification provisions of C.C.P. §364 et seq. Such failure shall be grounds for investigatory action by the State Bar of California with appropriate intervention as the State Bar sees fit.

8. AS AN EIGHTH SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT AND EACH CAUSE OF ACTION THEREOF, this defendant alleges that plaintiff directed, ordered, approved and in all other respects, ratified the acts and performance of this defendant, by reason of which conduct plaintiff is barred from any relief and/or recovery of any damages under the doctrine of estoppel.

9. AS A NINTH SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT AND EACH CAUSE OF ACTION THEREOF, this defendant alleges that at all times mentioned plaintiff consented to all conduct of this defendant.

10. AS A TENTH SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT AND EACH CAUSE OF ACTION THEREOF, this defendant alleges that plaintiff unduly delayed in the presentation of its claims against this defendant, which such delay has created a prejudice to this defendant, and by reason of which conduct plaintiff is barred from any relief and/or the recovery of any damages under the doctrine of laches.

11. AS AN ELEVENTH SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT AND EACH CAUSE OF ACTION THEREOF, it is alleged that defendant is entitled to the benefits, defenses, rights, immunities and provisions that are enumerated and set forth within the provisions of Assembly Bill 1-XX of the State of California for the year 1975 and which is commonly known as the Medical Malpractice Compensation Reform Act; that said benefits, defenses, rights, immunities and provisions are set forth and contained within Section 6146 of the Business and Professions Code, Section 3333.1 and 3333.2 of the Civil Code and Section 364, 365 and 667.7 of the Code of Civil Procedure.

12. AS A TWELFTH SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT AND EACH CAUSE OF ACTION THEREOF, it is alleged that plaintiff's claim for punitive damages is improperly plead pursuant to the terms of Code of Civil Procedure §425.13 in that plaintiff has not established that there is a substantial probability that she will prevail on the claim pursuant to §3294 of the Civil Code.

13. AS A THIRTEENTH SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT AND EACH CAUSE OF ACTION THEREOF, this defendant reserves the right to allege other affirmative defenses as they may arise during the course of discovery.

WHEREFORE, it is prayed that nothing be taken by reason of the Complaint, that judgment be entered in favor of defendant, and that defendant be awarded costs, disbursements, attorneys' fees and other such relief as the court may deem proper.

DATED: October 27, 1994

SUSAN K. MUSUMECI, MFCC
IN PROPRIA PERSONA

PROOF OF SERVICE BY MAIL

I declare that:

I am a citizen of the United States, employed in the City of Berkeley, and County of Alameda, over the age of eighteen years. My business address is 2604 Martin Luther King, Jr. Way, Berkeley, California, 94704.

On October 27, 1994, I served the within:

ANSWER OF DEFENDANT SUSAN RILBORNE MUSUMECI TO
UNVERIFIED COMPLAINT FOR DAMAGES (MEDICAL MALPRACTICE
I - NEGLIGENCE, MEDICAL MALPRACTICE II - ABUSE OF
TRANSFERENCE, NEGLIGENT INFLICTION OF EMOTIONAL
DISTRESS, INTENTIONAL INFLICTION OF EMOTIONAL
DISTRESS, SEXUAL BATTERY, BREACH OF FIDUCIARY DUTY,
CAUSE OF ACTION AGAINST PSYCHOTHERAPIST FOR SEXUAL
CONTACT WITH PATIENT, CCC §43.93, FRAUD, CONSTRUCTIVE
FRAUD, and NEGLIGENT MISREPRESENTATION)

on the parties in said cause, by placing a true and correct copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the United States mail at San Francisco, California, addressed as follows:

Linda M. Scaparotti
LAW OFFICES OF LINDA M. SCAPAROTTI
50 California Street, Suite 3220
San Francisco, California 94111

I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on October 27, 1994, at Berkeley, California.

SUSAN K. MUSUMECI