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DAVIS WRIGHT TREMAINE LLP JAMES ROSENFELD (Pro Hac Vice Forthcoming) KELLY M. GORTON (CA State Bar No. 300978) DAVIS WRIGHT TREMAINE LLP 505 Montgomery Street, Suite 800 ELECTRONICALLY San Francisco, California 94111 & E Telephone: (415) 276-6500 ao ee Facsimile: (415) 276-6599 ‘County of San Pranciace Email: kellygorton@dwt.com, jamesrosenfeld@dwt.com 05/02/2018 Clerk of the Court Attorneys for Defendant BY-VANESSA WU ‘Twitch Interactive, Inc., erroneously ee cet named as Twitch Interactive, Inc. a/k/a Twitch.tv, Inc. IN THE SUI ERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO JAMES VARGA, Case No. CGC-18-564337 Plaintiff, ANSWER TO COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF Fraud Breach of Contract Unjust Enrichment Declaratory Relief TWITCH INTERACTIVE, INC. TWITCH.TY, INC., Sepa Defendant. Complaint Filed: February 14, 2018 ‘ANWER TO COMPLAINT Case No, CGC-18-564337 4827-3880-94519 2 005146001926 DAVIS WRIGHT TREMAINE LLP See a aw eon WW 12 1B 14 15 16 7 18 19 20 21 22 23 24 25 26 27 28 Defendant Twitch Interactive, Inc., erroneously named as Twitch Interactive, Inc. a/k/a Twitch.ty, Ine., (“Defendant”) hereby responds to the unverified Complaint of plaintiff James Varga (“Plaintiff”): GENERAL DENIAL Pursuant to Code of Civil Procedure § 431.30(d), the Defendant denies, generally and specifically, each and every allegation contained in the Complaint and each and every cause of action therein, Defendant further denies that Plaintiff is entitled to any equitable or legal relief against Defendant on any ground whatsoever, and denies that Plaintiff is entitled to damages against Defendant in any amount. AFFIRMATIVE DEFENSES Having fully answered the allegations in the Complaint, Defendant asserts the following additional affirmative and other defenses. In so doing, Defendant does not allege or admit that it has the burden of proof and/or persuasion with respect to any of these matters. Defendant reserves the right to supplement, amend, or modify these separate and additional defenses, as appropriate, based on information obtained during the course of this litigation. Fu [RMATIVE DEFEN! (Failure to State Cause of Action) i. The Complaint, and each cause of action, is barred by Plaintiff's failure to state a cause of action against Defendant. SECOND AFFIRMATIVE DEFENSE (Unelean Hands) 2. The Complaint is barred, in whole or in part, by Plaintiff"s unclean hands. THIRD AFFIRMATIVE DEFENSE (Waiver) 3. The Complaint is barred, in whole or in part, by Plaintiff's waiver. FOURTH AFFIRMATIVE DEFENSE (Estoppel) 4, The Complaint is barred, in whole or in part, by the doctrine of the estoppel. FIFTH AFFIRMATIVE DEFENSE (Failure to Mitigate Damages) 5. The Complaint is barred, in whole or in part, by Plaintiff's failure to mitigate its 2 ANWER TO COMPLAINT Case No. CGC-18-564337 '4827-3880-9441v.2 0051461-001926 DAVIS WRIGHT TREMAINE LLP. 6 7 8 9 0 u 13 14 = 16 17 18 19 20 21 eet 23 24 26 27 28 damages. SIXTH AFFIRMATIVE DEFENSE (Failure of Conditions) The Complaint fails to state a claim as Plaintiff has failed to satisfy the conditions to the subject contract and is therefore barred from recovery. SEVENTH AFFIRMATIVE DEFENSE (Failure of Consideration) 7. The Complaint fails to state a claim for breach of contract due to a failure of consideration by Plaintiff. EIGHTH AFFIRMATIVE DEFENSE (Excuse) 8. The Complaint fails to state a claim for breach of contract because Defendant's further performance was excused. NINTH AFFIRMATIVE DEFENSE (Laches) 9. The Complaint is barred, in whole or in part, by the doctrine of laches. ‘TENTH AFFIRMATIVE DEFENSE (Set off and Recoupment) 10. Without conceding that any act of Defendant caused damage to Plaintiff, Defendant alleges that it is entitled to offset and recoup against any judgment that may be centered against it the obligations of the Plaintiff owing to the Defendant. Offset and recoupment are appropriate by reason of Plaintiff's breaches of contract, fraud, and other wrongful conduct. ELEVENTH AFFIRMATIVE DEFENSE (Breach by Plaintiff) 11, The Complaint is barred, in whole or in part, by Plaintiff's breach of its obligations to Defendant. TWELFTH AFFIRMATIVE DEFENSE (No Breach by Defendant) 12, The Defendant asserts that it performed all duties owed under the contract other than any duties which were prevented or excused, and therefore never breached the contract. ‘THIRTEENTH AFFIRMATIVE DEFENSE (Anticipatory Repudiation) 13. The Complaint is barred, in whole or in part, due to the anticipatory breach by 3 "ANWER TO COMPLAINT Case No. CGC-18-564337 44827 3880.9441y 2 0081461-001926 LLP DAVIS WRIGHT TREMAINI u 12 13 4 16 7 18 19 20 21 22 23 24 2s 26 27 28 Plaintiff. FOURTEENTH AFFIRMATIVE DEFENSE (Unjust Enrichment) 14. The Complaint is barred, in whole or in part, because Plaintiff would be unjustly entiched if Plaintiff is permitted to recover on the Complaint. FIFTEENTH AFFIRMATIVE DEFENSE (Mistake of Fact or Law) 15. The Complaint is barred, in whole or in part, based on a mistake of fact or law. SIXTEENTH AFFIRMATIVE DEFENSE (Substantial Compliance) 16. Defendant has substantially complied with the contract and as a result, awarding the judgment sought by Plaintiff would be unfair or unjust. SEVENTEENTH AFFIRMATIVE DEFENSE (Failure to Act in Commercially Reasonable Manner) 17. The Complaint is barred, in whole or in part, by Plaintiff's failure to act in a commercially reasonable manner, EIGHTEENTH AFFIRMATIVE DEFENSE (Speculative Damages) 18, The Complaint is barred, in whole or in part, because Plaintiff's damages, if any, are vague, uncertain, imaginary, and speculative. NINETEENTH AFFIRMATIVE DEFENSE (Reasonable Business Judgment) 19. ‘The Complaint is barred, in whole or in part, because any and all conduct of which Plaintiff complains, if it occurred at all, was a just and proper exercise of management, discretion and reasonable business judgment, undertaken for fair and honest reasons, in good faith, under the circumstances then existing. TWENTIETH AFFIRMATIVE DEFENSE (Damages Caused by Acts of Others) 20. Plaintifi?s claims for relief are barred on the basis that Plaintiff's damages, if any, are the result of acts or omissions by other parties or non-parties over which Defendant has no responsibility or control ‘ANWER TO COMPLAINT Case No, CGC-18-564337 4527 3880-94412 0081461-001926 DAVIS WRIGHT TREMAINE LLP ee a aw se 10 ul 12 13 14, 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TWENTY-FIRST AFFIRMATIVE DEFENSE (No Proximate Causation) 21. Any injuries or damages allegedly suffered by Plaintiff were not proximately caused by any acts or omissions of Defendant. TWENTY-SECOND AFFIRMATIVE DEFENSE ‘(Damages Limited by Contract) 22. Plaintiff's claim for damages, which Defendant expressly denies in its entirety, exceed those permitted by the Agreement between the parties, which provides, “NEITHER. PARTY SHALL BE LIABLE TO THE OTHER PARTY (A) FOR LOST REVENUE, LOST PROFITS, LOST BUSINESS OR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) UNDER ANY THEORY OF LIABILITY, AN AGGREGATE AMOUNT EXCEEDING FIFTY THOUSAND DOLLARS (US $50,000).” TWENTY-THIRD AFFIRMATIVE DEFENSE (Claims Limited by Contract) 23. Plaintiff's claim are not permitted under the Agreement by the parties, which expressly provides, “Neither Party shall be liable to the other for damages of any kind solely as @ result of terminating this Agreement in accordance with its terms.” ‘TWENTY-FOURTH AFFIRMATIVE DEFENSE (Right to Assert Additional Defenses) 24, Plaintiff has failed to describe its claims for relief with sufficient particularity so as to enable Defendant to determine all of its legal, contractual and equitable rights. As such, Defendant reserves the right to amend and/or supplement its Answer, and to raise and assert all pertinent defenses ascertained through investigation and discovery in this action. PRAYER WHEREFORE, Defendant prays: 1. That judgment be entered in favor of Defendant and against Plaintiff; 2. That the Complaint be dismissed in its entirety with prejudice; 5 ‘ANWER TO COMPLAINT ‘Case No. CGC-18-564337 (4827-3880-9461v.20051461-001926 DAVIS WRIGHT TREMAINE LLP 3 That Defendant be awarded their attorneys’ fees; 4, That Defendant be awarded their costs of suit incurred herein: and 5, That Defendant be awarded such other and further relief as the Court may deem proper and just. DATED: May 2, 2018 Respectfully submitted, DAVIS WRIGHT TREMAINE LLP JAMES ROSENFELD KELLY M? GORTON’ Attomeys for Defendant Twitch Interactive, Inc., erroneously named as Twitch Interactiv aik/a Twitch.y, Inc. ‘ANWER TO COMPLAINT Case No, CGC-18-564337 4827-3880-94519 2 005146001926 DAVIS WRIGHT TREMAINE LLP oe 3 oO the within action. My business addres Suite 800, San Francisco, CA 94111. On May 2, 2018, I served the within document(s PROOF OF SERVICE Tam a resident of the State of California, over the age of eighteen years, and not a party to Davis Wright Tremaine LLP, 505 Montgomery Street, ANSWER TO COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF MAIL - by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at San Francisco, California addressed as set forth below. (PERSONAL SERVICE - by causing personal delivery of the document(s) listed above to the person(s) at the address(es) set forth below. © BY E-MAIL OR ELECTRONIC TRANSMISSION: I caused a copy of the document(s) to be sent from e-mail address to the persons at the e-mail addresses listed in the Service List. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. C__ FILE& SERVEXPRESS — by electronically serving the document(s) described above via File & ServeXpress, on the recipients designated on the Transaction Receipt located on the File & ServeXPress website (hitps://secure. fileandservexpress.com) pursuant to the Court Order establishing the case website and authorizing service of documents. C —_ OVERNIGHT COURIER — by placing the document(s) listed above in a sealed envelope with shipping prepaid, and depositing in a collection box for next day delivery to the person(s) at the address(es) set forth below via Federal Express. Tames A. Murphy Counsel for Plainiiff James Varga Patrick J. Wingfield MURPHY PEARSON BRADLEY & FEENEY, P.C. 88 Kearny Street, 10" Floor San Francisco, CA 94108 Telephone: (415) 788-1900 Facsimile: (415) 393-8087 Email: jmurphy@mpbf.com Email: p William J, Quinlan Lisa H. Quinlan ‘THE QUINLAN LAW FIRM, LLC 233 South Wacker Drive, Suite 2210 Chicago, Ilinois 60606 ‘Telephone: (312) 629-6022 Facsimile: (312) 630-7939 Email: Iquinlan@quinlanfirm.com ingfield@mpbf.com PROOF OF ERVICE Case No, CGC-18-564337 DAVIS WRIGHT TREMAINE LLP wo oe 3 oO 10 12 B Tam readily familiar with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same jess, am aware that on day with postage thereon fully prepaid in the ordinary course of bus motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. I declare under penalty of perjury under the laws of the State of California that the above is true and correct, Executed on May 2, 2018, at San Francisco, California. ‘Aygta D. Lewis PROOF OF SERVICE Case No, CGC-18-564337