QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP A. William Urquhart (Bar No. 140996) Christopher Tayback (Bar No. 145532) 2 Naomi J. Harlin (Bar No. 204740) 865 South Figueroa Street, 10th Floor 3 Los Angeles, California 90017-2543 Telephone: (213) 624-7707 4 Facsimile: (213) 624-0643 1 5 Attorneys for Defendant Union Bank of California, N.A. 6 7 8 9 10 11 JO ANNE CHRISTENSEN, individually 12 and on behalf of all others similarly situated, including Class Members 13 GEORGE HUDAK, LEE MINSHULL, CHARLES OHL, EDWARD TERINO, 14 DON WEVER and others yet to be named as members of the CLASS, 15 Plaintiffs, 16 v. 17 UNION BANK OF CALIFORNIA, N.A. 18 and DOES 1 through 200, inclusive, 19 20 21 22 23 24 25 26 27 28
04913/EF22194D-DBA6-48FF-96D9-7AAF360146BC.DOC
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION
Defendants.
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CASE NO. CV02-608-MMM (CWx) ANSWER AND AFFIRMATIVE DEFENSES OF UNION BANK OF CALIFORNIA, N.A. TO SECOND AMENDED COMPLAINT; DEMAND FOR JURY TRIAL
ANSWER AND AFFIRMATIVE DEFENSES OF UNION BANK TO COMPLAINT
1
Defendant Union Bank of California, N.A. ("Union Bank") states for its
2 Answer and Affirmative Defenses to the Second Amended SAC (the "SAC") of 3 plaintiffs Jo Anne Christensen, individually and on behalf of all others similarly 4 situated, including Class Members George Hudak, Lee Minshull, Charles Ohl, 5 Edward Terino, Don Wever and others yet to be named as members of the Class 6 (collectively "Plaintiffs") on file herein as follows: 7 8 9 10 11 1. I. INTRODUCTION Union Bank lacks knowledge or information sufficient to form a ANSWER
12 belief as to the truth or falsity of the allegations contained in paragraph 1 of the SAC 13 and on that basis denies all such allegations. 14 2. Union Bank lacks knowledge or information sufficient to form a
15 belief as to the truth or falsity of the allegations contained in paragraph 2 of the SAC 16 and on that basis denies all such allegations. 17 3. Admitted that the SEC filed a Complaint against Slatkin and that
18 Slatkin filed for Chapter 11 bankruptcy protection. Union Bank lacks knowledge or 19 information sufficient to form a belief as to the truth or falsity of the allegations 20 contained in paragraph 3 of the SAC and on that basis denies all such allegations. 21 4. Admitted that Plaintiffs are suing Union Bank. Except as
22 expressly admitted, Union Bank denies each and every allegation contained in 23 paragraph 4 of the SAC. 24 5. Admitted that Union Bank's predecessor-in-interest companies
25 are Imperial Trust Company and Pacific Inland Bank. Union Bank lacks knowledge 26 or information sufficient to form a belief as to the truth or falsity of the remaining 27 28
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ANSWER AND AFFIRMATIVE DEFENSES OF UNION BANK TO COMPLAINT
1 allegations. Union Bank denies the remaining allegations contained in paragraph 5 2 of the SAC. 3 6. Union Bank denies that it knowingly participated in the scheme
4 and denies that it, or its predecessor-in-interest companies, had a duty to investigate 5 and determine the value of the investment and provide true and accurate statements 6 to plaintiffs. Union Bank lacks knowledge or information sufficient to form a belief 7 as to the truth or falsity of the remaining allegations contained in paragraph 6 of the 8 SAC. 9 7. Union Bank denies each and every allegation in paragraph 7 of
10 the SAC and on that basis denies all such allegations. 11 8. Union Bank denies each and every allegation in paragraph 8 of
12 the SAC and on that basis denies all such allegations. 13 14 15 9. II. JURISDICTION AND VENUE Union Bank lacks knowledge or information sufficient to form a
16 belief as to the truth or falsity of the allegations contained in paragraph 9 of the SAC 17 and on that basis denies all such allegations. 18 19 20 21 22 A. III. THE PARTIES Class Representatives 11. Union Bank lacks knowledge or information sufficient to form a 10. Admitted.
23 belief as to the truth or falsity of the allegations contained in paragraph 11 of the 24 SAC and on that basis denies all such allegations. 25 12. Union Bank lacks knowledge or information sufficient to form a
26 belief as to the truth or falsity of the allegations contained in paragraph 12 of the 27 SAC and on that basis denies all such allegations. 28
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ANSWER AND AFFIRMATIVE DEFENSES OF UNION BANK TO COMPLAINT
1 2 3 B. Class Members 13. Union Bank lacks knowledge or information sufficient to form a
4 belief as to the truth or falsity of the allegations contained in paragraph 13 of the 5 SAC and on that basis denies all such allegations. 6 14. Union Bank lacks knowledge or information sufficient to form a
7 belief as to the truth or falsity of the allegations contained in paragraph 14 of the 8 SAC and on that basis denies all such allegations. 9 15. Union Bank lacks knowledge or information sufficient to form a
10 belief as to the truth or falsity of the allegations contained in paragraph 15 of the 11 SAC and on that basis denies all such allegations. 12 16. Union Bank lacks knowledge or information sufficient to form a
13 belief as to the truth or falsity of the allegations contained in paragraph 16 of the 14 SAC and on that basis denies all such allegations. 15 17. Union Bank lacks knowledge or information sufficient to form a
16 belief as to the truth or falsity of the allegations contained in paragraph 17 of the 17 SAC and on that basis denies all such allegations. 18 19 C. Defendants 18. Admitted except that the number of branch offices throughout
20 California and its relative size changes over time. 21 22 23 24 D. 19. 20. Admitted. Admitted.
Doe Defendants 21. Union Bank lacks knowledge or information sufficient to form a
25 belief as to the truth or falsity of the allegations contained in paragraph 21 of the 26 SAC and on that basis denies all such allegations. 27 28
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E.
Conspiracy/Agency/Aiding and Abetting
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ANSWER AND AFFIRMATIVE DEFENSES OF UNION BANK TO COMPLAINT
1
22.
To the extent that the allegations relate to Union Bank, denied.
2 To the extent that the allegations relate to defendants other than Union Bank, Union 3 Bank lacks knowledge or information sufficient to form a belief as to the truth or 4 falsity of the allegations contained in paragraph 22 of the SAC and on that basis 5 denies all such allegations. 6 23. To the extent that the allegations relate to Union Bank, denied.
7 To the extent that the allegations relate to defendants other than Union Bank, Union 8 Bank lacks knowledge or information sufficient to form a belief as to the truth or 9 falsity of the allegations contained in paragraph 23 of the SAC and on that basis 10 denies all such allegations. 11 12 13 IV. PLAINTIFF'S CLASS ACTION ALLEGATIONS 24. Union Bank lacks knowledge or information sufficient to form a
14 belief as to the truth or falsity of the allegations contained in paragraph 24 of the 15 SAC and on that basis denies all such allegations. 16 25. Union Bank lacks knowledge or information sufficient to form a
17 belief as to the truth or falsity of the allegations contained in paragraph 25 of the 18 SAC and on that basis denies all such allegations. 19 26. Union Bank lacks knowledge or information sufficient to form a
20 belief as to the truth or falsity of the allegations contained in paragraph 26 of the 21 SAC and on that basis denies all such allegations. 22 27. Union Bank lacks knowledge or information sufficient to form a
23 belief as to the truth or falsity of the allegations contained in paragraph 27 of the 24 SAC and on that basis denies all such allegations. 25 28.(a)-(e) To the extent that the allegations relate to Union Bank,
26 denied as to each and every allegation in paragraphs 28 and 28(a)-(e) of the SAC. 27 28
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ANSWER AND AFFIRMATIVE DEFENSES OF UNION BANK TO COMPLAINT
1 2 3 4 5 6 A. V. FACTUAL ALLEGATIONS The Ponzi Scheme 29. Union Bank lacks knowledge or information sufficient to form a
7 belief as to the truth or falsity of the allegations contained in paragraph 29 of the 8 SAC and on that basis denies all such allegations. 9 30. Union Bank lacks knowledge or information sufficient to form a
10 belief as to the truth or falsity of the allegations contained in paragraph 30 of the 11 SAC and on that basis denies all such allegations. 12 31. Union Bank lacks knowledge or information sufficient to form a
13 belief as to the truth or falsity of the allegations contained in paragraph 31 of the 14 SAC and on that basis denies all such allegations. 15 32. Union Bank lacks knowledge or information sufficient to form a
16 belief as to the truth or falsity of the allegations contained in paragraph 32 of the 17 SAC and on that basis denies all such allegations. 18 33. Union Bank lacks knowledge or information sufficient to form a
19 belief as to the truth or falsity of the allegations contained in paragraph 33 of the 20 SAC and on that basis denies all such allegations. 21 22 B. The Role of Defendant, Union Bank 34. Union Bank lacks knowledge or information sufficient to form a
23 belief as to the truth or falsity of the allegations contained in paragraph 34 of the 24 SAC and on that basis denies all such allegations. 25 35. Union Bank admits that it provided Slatkin with approximately
26 $4 million in unsecured credit. Union Bank denies each and every remaining 27 allegation in paragraph 35 of the SAC. 28
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ANSWER AND AFFIRMATIVE DEFENSES OF UNION BANK TO COMPLAINT
1 2 the SAC. 3
36.
Union Bank denies each and every allegation in paragraph 36 of
37.
Union Bank denies that it transmitted statements knowing they
4 were false and wrong and knowing that they were breaching their obligations and 5 duties pursuant to the custodial agreements. Union Bank lacks knowledge or 6 information sufficient to form a belief as to the truth or falsity of the remaining 7 allegations contained in paragraph 37 of the SAC and on that basis denies all such 8 allegations. 9 38. Union Bank lacks knowledge or information sufficient to form a
10 belief as to the truth or falsity of the allegations contained in paragraph 38 of the 11 SAC and on that basis denies all such allegations. 12 39. Union Bank denies that it had a duty to investigate the true value
13 of the investment and denies that it knew or should of known that the value of the 14 investment provided to the investors was false. Union Bank lacks knowledge or 15 information sufficient to form a belief as to the truth or falsity of the remaining 16 allegations contained in paragraph 39 of the SAC and on that basis denies all such 17 allegations. 18 40. Union Bank lacks knowledge or information sufficient to form a
19 belief as to the truth or falsity of the allegations contained in paragraph 40 of the 20 SAC and on that basis denies all such allegations. 21 41. Union Bank lacks knowledge or information sufficient to form a
22 belief as to the truth or falsity of the allegations contained in paragraph 41 of the 23 SAC and on that basis denies all such allegations. 24 25 the SAC. 26 27 28
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42.
Union Bank denies each and every allegation in paragraph 42 of
C.
Disclosure of the Ponzi Scheme
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ANSWER AND AFFIRMATIVE DEFENSES OF UNION BANK TO COMPLAINT
1
43.
Union Bank lacks knowledge or information sufficient to form a
2 belief as to the truth or falsity of the allegations contained in paragraph 43 of the 3 SAC and on that basis denies all such allegations. 4 44. Union Bank lacks knowledge or information sufficient to form a
5 belief as to the truth or falsity of the allegations contained in paragraph 44 of the 6 SAC and on that basis denies all such allegations. 7 8 the SAC. 9 10 D. Transactions with Plaintiff Jo Anne Christensen 46. Union Bank denies that it defrauded Plaintiff, Jo Anne 45. Union Bank denies each and every allegation in paragraph 45 of
11 Christensen, and denies that it knew the documents and statements provided to Jo 12 Anne Christensen from Union Bank were false. Union Bank lacks knowledge or 13 information sufficient to form a belief as to the truth or falsity of the remaining 14 allegations contained in paragraph 46 of the SAC and on that basis denies all such 15 allegations. 16 47. Union Bank lacks knowledge or information sufficient to form a
17 belief as to the truth or falsity of the allegations contained in paragraph 47 of the 18 SAC and on that basis denies all such allegations. 19 20 21 22 23 24 48. VI. FIRST CAUSE OF ACTION (Conspiracy to Commit Fraud-Concealment [Including Aiding and Abetting]) [Against all Defendants] Answering paragraph 48 of the SAC, Union Bank incorporates
25 by reference its responses to paragraphs 1 through 47 above, as if fully set forth 26 herein. 27 28
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ANSWER AND AFFIRMATIVE DEFENSES OF UNION BANK TO COMPLAINT
1
49.
Union Bank denies that it owed plaintiff and the members of the
2 class a duty to inform them of the proper value of their custodial accounts. Union 3 Bank lacks knowledge or information sufficient to form a belief as to the truth or 4 falsity of the remaining allegations contained in paragraph 49 of the SAC and on that 5 basis denies all such allegations. 6 7 the SAC. 8 9 the SAC. 10 11 the SAC. 12 13 the SAC. 14 15 the SAC. 16 55. Union Bank denies that was involved in any fraudulent 54. Union Bank denies each and every allegation in paragraph 54 of 53. Union Bank denies each and every allegation in paragraph 53 of 52. Union Bank denies each and every allegation in paragraph 52 of 51. Union Bank denies each and every allegation in paragraph 51 of 50. Union Bank denies each and every allegation in paragraph 50 of
17 concealment. Union Bank lacks knowledge or information sufficient to form a belief 18 as to the truth or falsity of the remaining allegations contained in paragraph 55 of the 19 SAC and on that basis denies all such allegations. 20 21 the SAC. 22 23 the SAC. 24 58. Union Bank lacks knowledge or information sufficient to form a 57. Union Bank denies each and every allegation in paragraph 57 of 56. Union Bank denies each and every allegation in paragraph 56 of
25 belief as to the truth or falsity of the allegations contained in paragraph 58 of the 26 SAC and on that basis denies all such allegations. 27 28
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ANSWER AND AFFIRMATIVE DEFENSES OF UNION BANK TO COMPLAINT
1
59.
Union Bank denies that the statements were known to be false by
2 it and denies that it knew or should of known that the values of the investments it 3 was providing to plaintiffs and the class in these account statements were false. 4 Union Bank lacks knowledge or information sufficient to form a belief as to the truth 5 or falsity of the remaining allegations contained in paragraph 59 of the SAC and on 6 that basis denies all such allegations. 7 8 the SAC. 9 10 the SAC. 11 12 13 14 15 16 62. VI. SECOND CAUSE OF ACTION (Conspiracy to Commit Fraud-Common Plan of Fraud and Deceit [Including Aiding and Abetting]) [Against all Defendants] Answering paragraph 62 of the SAC, Union Bank incorporates 61. Union Bank denies each and every allegation in paragraph 61 of 60. Union Bank denies each and every allegation in paragraph 60 of
17 by reference its responses to paragraphs 1 through 61 above, as if fully set forth 18 herein. 19 20 the SAC. 21 64. Union Bank lacks knowledge or information sufficient to form a 63. Union Bank denies each and every allegation in paragraph 52 of
22 belief as to the truth or falsity of the allegations contained in paragraph 64 of the 23 SAC and on that basis denies all such allegations. 24 65. Union Bank lacks knowledge or information sufficient to form a
25 belief as to the truth or falsity of the allegations contained in paragraph 65 of the 26 SAC and on that basis denies all such allegations. 27 28
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ANSWER AND AFFIRMATIVE DEFENSES OF UNION BANK TO COMPLAINT
1 2 the SAC. 3 4 the SAC. 5
66.
Union Bank denies each and every allegation in paragraph 66 of
67.
Union Bank denies each and every allegation in paragraph 67 of
68.
Union Bank lacks knowledge or information sufficient to form a
6 belief as to the truth or falsity of the allegations contained in paragraph 68 of the 7 SAC and on that basis denies all such allegations. 8 69. Union Bank denies that it had a duty to investigate the true
9 value of the investment and the true value of plaintiff's and the class members' 10 custodial accounts and denies that it knew or should of known that the values of the 11 investments provided to plaintiffs and the calls in these account statements were 12 false. Union Bank lacks knowledge or information sufficient to form a belief as to 13 the truth or falsity of the remaining allegations contained in paragraph 69 of the SAC 14 and on that basis denies all such allegations. 15 16 the SAC. 17 18 the SAC. 19 20 the SAC. 21 22 23 24 25 73. VII. THIRD CAUSE OF ACTION (Aiding and Abetting Breach of Fiduciary Duty) [Against all Defendants] Answering paragraph 73 of the SAC, Union Bank incorporates 72. Union Bank denies each and every allegation in paragraph 72 of 71. Union Bank denies each and every allegation in paragraph 71 of 70. Union Bank denies each and every allegation in paragraph 70 of
26 by reference its responses to paragraphs 1 through 72 above, as if fully set forth 27 herein. 28
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ANSWER AND AFFIRMATIVE DEFENSES OF UNION BANK TO COMPLAINT
1
74-78. Since the Court dismissed the third cause of action with
2 prejudice, no response is required. 3 4 5 6 7 79. VI [sic]. FOURTH CAUSE OF ACTION (Violations of Business and Professions Code ' 17200, et. seq.) [Against all Defendants] Answering paragraph 79 of the SAC, Union Bank incorporates
8 by reference its responses to paragraphs 1 through 78 above, as if fully set forth 9 herein. 10 80. Union Bank lacks knowledge or information sufficient to form a
11 belief as to the truth or falsity of the allegations contained in paragraph 80 of the 12 SAC and on that basis denies all such allegations. 13 14 15 the SAC. 16 17 the SAC. 18 84. Union Bank lacks knowledge or information sufficient to form a 83. Union Bank denies each and every allegation in paragraph 83 of 81. 82. Admitted. Union Bank denies each and every allegation in paragraph 82 of
19 belief as to the truth or falsity of the allegations contained in paragraph 84 of the 20 SAC and on that basis denies all such allegations. 21 85. Union Bank lacks knowledge or information sufficient to form a
22 belief as to the truth or falsity of the allegations contained in paragraph 85 of the 23 SAC and on that basis denies all such allegations. 24 25 26 27 28
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ANSWER AND AFFIRMATIVE DEFENSES OF UNION BANK TO COMPLAINT
1 2 3
AFFIRMATIVE DEFENSES
As and for its affirmative defenses to Plaintiff=s SAC, Union Bank
4 states as follows: 5 6 7 8 First Affirmative Defense (Failure To State A Claim) Each of the purported causes of action set forth in the SAC fails to
9 allege facts sufficient to state a claim upon which relief can be granted. 10 11 12 13 Second Affirmative Defense (Laches) Each of the purported causes of action set forth in the SAC is barred by
14 the doctrine of laches. 15 16 17 18 Third Affirmative Defense (Waiver) Each of the purported causes of action set forth in the SAC is barred by
19 the doctrine of waiver. 20 21 22 23 Fourth Affirmative Defense (Estoppel) Each of the purported causes of action set forth in the SAC is barred by
24 the doctrine of estoppel. 25 26 27 28
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Fifth Affirmative Defense (Unclean Hands)
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ANSWER AND AFFIRMATIVE DEFENSES OF UNION BANK TO COMPLAINT
1
Each of the purported causes of action set forth in the SAC is barred by
2 the doctrine of unclean hands. 3 4 5 6 Sixth Affirmative Defense (Capacity To Be Sued) Each of the purported causes of action set forth in the SAC fails
7 because Union Bank has no authority over Plaintiffs' accounts, has no authority to act 8 on Plaintiffs' behalf, and/or is not a fiduciary to Plaintiffs. 9 10 11 12 13 14 Seventh Affirmative Defense (Unnecessary Party) Each of the purported causes of action set forth in the SAC fails
15 because Union Bank is an unnecessary party. 16 17 18 19 Eighth Affirmative Defense (No Injury) Plaintiffs were not injured or damaged as a result of any action,
20 omission, or conduct by Union Bank. 21 22 23 24 Ninth Affirmative Defense (Real Party In Interest) Each of the purported causes of action set forth in the SAC fails
25 because Union Bank is not a real party in interest. 26 27 28
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Tenth Affirmative Defense
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ANSWER AND AFFIRMATIVE DEFENSES OF UNION BANK TO COMPLAINT
1 2
(Statute Of Limitations) Each of the purported causes of action set forth in the SAC is barred by
3 the applicable statute of limitations. 4 5 6 7 Eleventh Affirmative Defense (Res Judicata) Each of the purported causes of action set forth in the SAC is barred by
8 the doctrine of res judicata. 9 10 11 12 13 Twelfth Affirmative Defense (Collateral Estoppel) Each of the purported causes of action set forth in the SAC is barred by
14 the doctrine of collateral estoppel. 15 16 17 18 Thirteenth Affirmative Defense (Lack of Causation/Comparative Negligence) The injuries and damages purportedly suffered as described in the SAC,
19 if suffered at all, were ultimately caused and aggravated by the actions of Plaintiffs 20 and/or others. Plaintiffs' recovery, if any, should be reduced in proportion to the 21 percentage of the negligence, fault or comparative bad faith of them and that of 22 others. 23 24 25 26 Fourteenth Affirmative Defense (Failure to Mitigate Damages) Plaintiffs have failed to mitigate their damages, if any, with respect to
27 each of the purported causes of action set forth in the SAC. 28
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ANSWER AND AFFIRMATIVE DEFENSES OF UNION BANK TO COMPLAINT
1 2 3 4 Fifteenth Affirmative Defense (Assumption of Risk) Plaintiffs, by their own acts and conduct, assumed the risk of the
5 occurrences and damages alleged, and recognized and accepted the potential for any 6 damages in undertaking its actions. 7 8 9 10 Sixteenth Affirmative Defense (No Entitlement To Prejudgment Interest) Any claim for prejudgment interest is barred as to any purported cause
11 of action for which such relief is not available. 12 13 14 Seventeenth Affirmative Defense (Imposition of Punitive Damages Unconstitutional) The imposition of punitive or exemplary damages in this case would
15 violate the constitutions of the United States of America and the State of California. 16 17 18 19 Eighteenth Affirmative Defense (Inappropriate for Representative Action) The SAC fails to state an adequate basis for a representative action
20 under California Business & Professions Code ' 17200, et seq. 21 22 23 24 Nineteenth Affirmative Defense (Consent) Plaintiffs consented to all the acts and omissions about which Plaintiffs
25 now complain. 26 27 28
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ANSWER AND AFFIRMATIVE DEFENSES OF UNION BANK TO COMPLAINT
1 2
Twentieth Affirmative Defense Union Bank has not completed its investigation and discovery regarding
3 the allegations and claims asserted by Plaintiffs. Accordingly, Union Bank reserves 4 the right to assert such additional affirmative defenses as necessary based on such 5 ongoing investigation and discovery. 6 7 8 9 WHEREFORE, Union Bank prays for judgment against Plaintiffs as follows: 1. Denying Plaintiffs any relief against Union Bank, whether
10 declaratory, injunctive, monetary or otherwise; 11 12 13 fees; and 14 4. That Union Bank have such other and further relief as the Court 2. 3. That the SAC be dismissed with prejudice; For costs of suit incurred herein, including reasonable attorney's
15 deems proper. 16 17 18 19 20 21 22 23 24 25 26 27 28
04913/EF22194D-DBA6-48FF-96D9-7AAF360146BC.DOC
DATED: February 3, 2003
QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP By
Christopher Tayback Attorneys for Defendant Union Bank of California, N.A.
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ANSWER AND AFFIRMATIVE DEFENSES OF UNION BANK TO COMPLAINT
1 2 3
DEMAND FOR JURY TRIAL
Defendant Union Bank of California, N.A. hereby demands a jury trial
4 on all issues triable thereby. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
04913/EF22194D-DBA6-48FF-96D9-7AAF360146BC.DOC
DATED: February 3, 2003
QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP By
Christopher Tayback Attorneys for Defendant Union Bank of California, N.A.
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ANSWER AND AFFIRMATIVE DEFENSES OF UNION BANK TO COMPLAINT
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
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ANSWER AND AFFIRMATIVE DEFENSES OF UNION BANK TO COMPLAINT