Answer To Complaint

Response

Cal. Super. - 6th Dist.May 19, 2017

© 0 39 O N wn BA WwW o N = N N N N N N N N N E e m e m e m e m e m p m e m c o NN O N Ln BA W N D = O OO 0 R E W I N D = O FILED 7/12/2017 3:49:20 PM Alex Calvo, Clerk A R. Wardell Loveland, Esq. - SBN 127736 By; D vid Criswell ( \ Jonathan C. Harriman, Esq. - SBN 250943 Deut ' pn Cruz Cou 0 J CODDINGTON, HICKS & DANFORTH WRAY } A Professional Corporation, Lawyers Dla 555 Twin Dolphin Drive, Suite 300 Redwood City, CA 94065-2133 Tel.: 650.592.5400 Fax: 650.592.5027 ATTORNEYS FOR Defendant Isaac Moss IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CRUZ PEGGY DWYER, Case No. 17CV01333 Plaintiff, ANSWER TO COMPLAINT Vs. ISAAC MOSS, and DOES 1-20, inclusive, Defendants. Defendant Isaac Moss (hereinafter “Defendant”) answers the Complaint of plaintiff Peggy Dwyer (hereinafter “Plaintiff”) by alleging the following: I. GENERAL DENIAL 1. Pursuant to the provisions of California Code of Civil Procedure Section 431.30(d), Defendant denies generally and specifically, conjunctively and disjunctively, each and every allegation and purported cause of action contained in the Complaint, and further denies that the Complaint and each and every purported cause of action thereof states facts sufficient to constitute a cause of action against the Defendant, and further denies that the answering defendant is in any way responsible in any respect for the damages that plaintiff allegedly has sustained or will allegedly sustain, and denies that plaintiff has sustained or will sustain any Answer to Complaint Case No: CGC-17-558516 407552 © 0 39 O N wn BA WwW o N = N N N N N N N N N E e m e m e m e m e m p m e m c o NN O N Ln BA W N D = O OO 0 R E W I N D = O injury, or is otherwise entitled to the relief requested in the Complaint or any other relief, or at all, by reason of any act, omission or breach on the part of Defendant or his agents. II. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE (FAILURE TO STATE A CAUSE OF ACTION) 2. Defendant alleges that neither Plaintiff's Complaint, nor any cause of action asserted therein, states facts sufficient to constitute a cause of action against Defendant. SECOND AFFIRMATIVE DEFENSE (FAILURE TO MITIGATE) 3. Defendant is informed and believes, and upon that basis alleges, that the Plaintiff failed to take all proper measures and remedies to mitigate her alleged damages, said actions or inactions working as a complete bar or diminishing any recovery herein. THIRD AFFIRMATIVE DEFENSE (BARRED BY STATUTE OF LIMITATIONS) 4. Plaintiff’s Complaint and each and every cause of action therein and claim for relief contained therein is barred in whole or in part by the applicable Statute of Limitations, including but not limited to, Code of Civil Procedure Sections 335-349.4, 337, 337.1, 337.15, 337(1), 337.1(a)(1), 337.1(a)(2), 337.1(b), 337.2, 338, 339, 340, 340(1), 340(3), 359 and/or 343, et seq., and California Commercial Code sections 2607(3)(a) and 2725(1)(2), and Business and Professions Code Sections 7071.11, and all other applicable provisions of the California Code of Civil Procedure, California Civil Code, California Business and Professions Code, and San Francisco Administrative Code. FOURTH AFFIRMATIVE DEFENSE (PLAINTIFF'S COMPARATIVE NEGLIGENCE) 5: Defendant alleges that any and all injuries, if any, sustained or suffered by the Plaintiff were proximately and substantially caused and contributed to by the negligence of the Plaintiff, in that plaintiff failed to exercise ordinary care and reasonable care or caution for hers own well-being. Answer to Complaint Case No: CGC-17-558516 407552 © 0 39 O N wn BA WwW o N = N N N N N N N N N E e m e m e m e m e m p m e m c o NN O N Ln BA W N D = O OO 0 R E W I N D = O FIFTH AFFIRMATIVE DEFENSE (INDEMNIFICATION FROM OTHERS) 0. If Plaintiff recovers damages from Defendant, Defendant is entitled to indemnification, either in whole or in part, from all persons or entities whose negligence or fault proximately caused or contributed to the damages, if any, allegedly incurred by Plaintiff. SIXTH AFFIRMATIVE DEFENSE (LACK OF CAUSATION) 7. Plaintiff is barred from relief in that Defendant’s conduct neither actually nor proximately caused any of the damages allegedly sustained by Plaintiff. SEVENTH AFFIRMATIVE DEFENSE (LACK OF STANDING) 8. Defendant is informed and believes that with respect to matters alleged in the Complaint, Plaintiff lacks standing to assert claims against Defendant. EIGHTH AFFIRMATIVE DEFENSE (LITIGATION PRIVILEGE) 9. Defendant alleges that Plaintiff’s Complaint, and every cause of action therein, is barred by the litigation privilege. NINTH AFFIRMATIVE DEFENSE (EQUITABLE ESTOPPEL) 10. Plaintiff is barred from relief by the equitable principles of equitable estoppel. TENTH AFFIRMATIVE DEFENSE (JUDICIAL ESTOPPEL) 11. Plaintiff is barred from relief under the doctrine of Judicial Estoppel. ELEVENTH AFFIRMATIVE DEFENSE (WAIVER) 12. Plaintiff is barred from relief in that he have either impliedly and/or expressly waived and released any and all claims they have made against these answering Defendant. /17 Answer to Complaint Case No: CGC-17-558516 407552 © 0 39 O N wn BA WwW o N = N N N N N N N N N E e m e m e m e m e m p m e m c o NN O N Ln BA W N D = O OO 0 R E W I N D = O TWELFTH AFFIRMATIVE DEFENSE (INTERVENING ACTIONS) 13. Defendant is informed and believes, and upon that basis allege, that the losses, injuries or damages, if any, incurred by Plaintiff was the result of superseding intervening causes arising from negligent or willful acts or omissions by parties Defendant neither controlled nor had the right to control, and thereby Plaintiff’s claims against Defendant are barred. THIRTEENTH AFFIRMATIVE DEFENSE (UNCLEAN HANDS) 14. Plaintiff filed her Complaint with “unclean hands”, and is in some manner responsible for the alleged circumstances described in the Complaint, and therefore should be estopped from obtaining any relief by virtue of this action. FOURTEENTH AFFIRMATIVE DEFENSE (DOCTRINE OF LACHES) 15. Plaintiff's claims are barred by the doctrine of laches. Plaintiff has delayed in initiating and/or prosecuting this action and each and every cause of action therein, and such delay has caused serious and unreasonable prejudice to this answering Defendant. FIFTEENTH AFFIRMATIVE DEFENSE (ACTIVE NEGLIGENCE AS A BAR) 16. At all times and places alleged in the Complaint, Plaintiff was actively careless and negligent in the matters alleged, and Defendant’s negligence, if any, was passive and based solely upon the derivative form of liability, not resulting from Defendant’s conduct, but only from an obligation imposed upon plaintiff by law; and such active negligence on Plaintiff’s part proximately caused and contributed to the injuries alleged in the Complaint; therefore, said active negligence on the part of Plaintiff bars any right to indemnity from Defendant. SIXTEENTH AFFIRMATIVE DEFENSE (CONSENT) 17. Plaintiff and/or her agents and representatives had full knowledge of the true facts and consented to, approved, and ratified all acts and omissions complained of as against 4 Answer to Complaint Case No: CGC-17-558516 407552 © 0 39 O N wn BA WwW o N = N N N N N N N N N E e m e m e m e m e m p m e m c o NN O N Ln BA W N D = O OO 0 R E W I N D = O this answering Defendant in the Complaint, by his supervision, inspection and acceptance of this answering Defendant’s work, thereby barring Plaintiff from recovering any damages or relief from this answering Defendant. SEVENTEENTH AFFIRMATIVE DEFENSE (EXEMPTION) 18. Plaintiff is barred from relief because Defendant’s conduct is exempted by statute. EIGHTEENTH AFFIRMATIVE DEFENSE (OFFSET AND SET-OFF) 19. Should Defendant be found to have liability for any damages alleged by Plaintiff in the instant action, answering Defendant alleges he is entitled to the rights of offset and set- off. NINETEENTH AFFIRMATIVE DEFENSE (NO DAMAGES) 20. Plaintiff suffered no recoverable damages. TWENTIETH AFFIRMATIVE DEFENSE (ESTOPPEL - ACTION OF PLAINTIFF) 21. Defendant is informed and believes, and upon that basis alleges, that Plaintiff, by his own conduct, is estopped from complaining of any damage or loss allegedly arising as a result of any breach of any obligation alleged in the Complaint. /// TWENTY-FIRST AFFIRMATIVE DEFENSE (ACCEPTANCE AND RATIFICATION) 22. Defendant is informed and believes, and upon that basis alleges that Plaintiff is barred from any recovery against Defendant by reason of its inspection, acceptance and ratification of any work to the unit performed by Defendant. /// /// Answer to Complaint Case No: CGC-17-558516 407552 © 0 39 O N wn BA WwW o N = N N N N N N N N N E e m e m e m e m e m p m e m c o NN O N Ln BA W N D = O OO 0 R E W I N D = O TWENTY-SECOND AFFIRMATIVE DEFENSE (UNWARRANTED CLAIM) 23. Defendant is informed and believes, and upon that basis alleges, that the Complaint filed by Plaintiff was brought without reasonable cause and without a good faith belief that there was a justifiable controversy under the facts or the law which warranted the filing of the Complaint. Plaintiff should therefore be responsible for all of Defendant’s necessary and reasonable defense costs, as more particularly set forth in California Code of Civil Procedure section 1038. TWENTY-THIRD AFFIRMATIVE DEFENSE (APPORTIONMENT) 24. Defendant denies any and all liability to the Plaintiff, but if Defendant is found liable, the responsibility of Defendant is small in proportion to the alleged liability and responsibility of the Plaintiff and other parties, and the Plaintiff should be limited to seek and recover from Defendant only that proportion of alleged injuries and damages for which Defendant are liable and responsible under any applicable theory. TWENTY-FOURTH AFFIRMATIVE DEFENSE (LACK OF PRIVITY) 25. Plaintiffs claims are barred because he lacks privity with this Defendant. TWENTY-FIFTH AFFIRMATIVE DEFENSE (FAILURE OF CONSIDERATION) 26. Plaintiff’s claims are barred because of the failure of consideration. TWENTY-SIXTH AFFIRMATIVE DEFENSE (EXCUSE) 27. Plaintiff's prior breaches of the agreement excused Defendant’s performance. TWENTY-SEVENTH AFFIRMATIVE DEFENSE (LACK OF NOTICE -CIVIL CODE §f 3252, 3227 and 3098) 28. Defendant is informed and believes that Plaintiff failed to provide statutory notice pursuant to Civil Code §§ 3252, 3227, and 3098. 6 Answer to Complaint Case No: CGC-17-558516 407552 © 0 39 O N wn BA WwW o N = N N N N N N N N N E e m e m e m e m e m p m e m c o NN O N Ln BA W N D = O OO 0 R E W I N D = O TWENTY-EIGHTH AFFIRMATIVE DEFENSE (NECESSITY) 29. Defendant is informed and believes that if he breached any duties owed to Plaintiff, that the breach was necessary to prevent a greater harm from occurring. TWENTY-NINTH AFFIRMATIVE DEFENSE (CONDUCT REASONABLE) 30. Plaintiff's claims are barred because these answering Defendant’s conduct with respect to the matters alleged in the Complaint as reasonable relative to the standards, customs, knowledge and practices at the time of the original approval of the work performed by this answering Defendant. THIRTIETH AFFIRMATIVE DEFENSE (PERFORMANCE OF OBLIGATIONS) 31. Defendant is informed and believes and thereon alleges that prior to the commencement of this action, this answering Defendant duly performed, satisfied, and discharged all duties and obligations they may have owed to Plaintiff, if any, arising out of any and all agreements, representations, or contracts made by him or on his behalf and that this action is therefore barred by the provisions of Civil Code §1473. THIRTY-FIRST AFFIRMATIVE DEFENSE (STATUTE OF FRAUDS) 32. Defendant is informed and believes and thereon alleges that the Complaint is barred by the Statute of Frauds. THIRTY-SECOND AFFIRMATIVE DEFENSE (DISCHARGE BY OPERATION OF LAW) 33. Defendant is informed and believes and thereon alleges that the obligation of the parties, if any, and in particular this answering Defendant has been discharged by operation of law. /1/ /1/ Answer to Complaint Case No: CGC-17-558516 407552 © 0 39 O N wn BA WwW o N = N N N N N N N N N E e m e m e m e m e m p m e m c o NN O N Ln BA W N D = O OO 0 R E W I N D = O THIRTY-THIRD AFFIRMATIVE DEFENSE (NO DUTY OWED) 34. Defendant is informed and believes and thereon alleges that this Defendant did not owe a duty to Plaintiff with regards to the allegations in the Complaint and that Plaintiff is barred from recovering from this answering Defendant. THIRTY-FOURTH AFFIRMATIVE DEFENSE (FAILURE TO EXERCISE DUE CARE) 35. This answering Defendant allege that Plaintiff failed to exercise reasonable and ordinary care, caution, or prudence in order to avoid the alleged incident and any resulting injuries and damages. THIRTY-SIXTH AFFIRMATIVE DEFENSE (INCORPORATION OF ALLEGATIONS SET FORTH IN SECOND AMENDED COMPLAINT) 36. This answering Defendant hereby incorporates by reference herein the allegations set forth in the Complaint filed in this action. Dated: July 12, 2017 CODDINGTON, HICKS & DANFORTH (of BR Wardell Loveland B vy: R. Wardell Loveland Attorneys for Defendant Isaac Moss Answer to Complaint Case No: CGC-17-558516 407552 NO 0 9 O N nn Ba PROOF OF SERVICE California Code of Civil Procedure sections 1011, 1013, 10132, 2015.5 California Rule of Court rule 2.251 Federal Rule of Civil Procedure Rule 5(b) I, the undersigned, declare that I am employed in the County of San Mateo, State of California. 1 am over the age of eighteen (18) years and not a party to the within action. My business address is 555 Twin Dolphin Drive, Suite 300, Redwood City, California 94065. I am readily familiar with my employet’s business practice for collection and processing of correspondence and documents for mailing with the United States Postal Service, mailing via overnight delivery, transmission by facsimile machine, and delivery by hand. On July 12, 2017, I served a copy of each of the documents listed below by placing said copies for processing as indicated herein. Answer to Complaint X United States Mail: The correspondence or documents were placed in sealed, labeled envelopes with postage thereon fully prepaid on the above date placed for collection and mailing at my place of business to be deposited with the U.S. Postal Service at Redwood City, California on this same date in the ordinary course of business. Overnight Delivery: The correspondence or documents wete placed in sealed, labeled packaging for overnight delivery, with Federal Express, with all charges to be paid by my employer on the above date for collection at my place of business to be deposited in a facility regularly maintained by the overnight delivery carrier, ot delivered to a courier or driver authorized by the overnight delivery carrier to receive such packages, on this date in the ordinary course of business. Hand Delivery: The correspondence or documents were placed in sealed, labeled envelopes and served by personal delivery to the party or attorney indicated herein, or if upon attorney, by leaving the labeled envelopes with a receptionist or other person having charge of the attorney’s office. Facsimile Transmission: The correspondence or documents wete placed for transmission from (650) 592-5027 at Redwood City, California, and were transmitted to a facsimile machine maintained by the party or attorney to be served at the facsimile machine telephone number provided by said party or attorney, on this same date in the ordinary course of business. The transmission was reported as complete and without error, and a record of the transmission was properly issued by the transmitting facsimile machine. Electronic Transmission: The correspondence or documents were transmitted electronically to the electronic address set forth below. State. The recipient has filed and served notice that he or she accepts electronic service; the recipient has electronically filed a document with the court; and/or the Court has mandated that the patties serve documents through its Court I EA N o R 9 D N approved vendor. The printed form of this document bearing the original signature is on file and available for inspection at the request of the coutt or any patty to the action or proceeding in which it is filed, in the manner provided in California Rule of Court Rule 2.257 (a). Federal. The recipient of this electronic service has consented to this method of service in writing, a copy of which is on file and available for inspection in my employer’s office. I have recetved no indication the electronic transmission did not reach the recipient. PERSONS OR PARTIES SERVED: John P. Hannon, II, Esq. Law Offices of John P. Hannon, IT 716 Capitola Avenue, Suite F Capitola, CA 95010 Tel. 831) 746-8005 Fax: 831) 476-8984 I certify (or declare) under penalty of petjuty under the laws of the State of California that the foregoing 1s true and correct and that this Aho on July 12, 2017. Sheri Datbonne Court: Santa Cruz County Superior Court Action No: 17CV01333 Case Name: Dwyer v. Moss