Answerresponsedenialdemurrer First Appearance

Response

Cal. Super. - 6th Dist.April 30, 2018

G D © oe NN aN wn ELECTRONICALLY FILED Superior Court of California H. Gregory Nelch, Esq. - SBN 118258 County of Santa Cruz Rebecca D. Martino, Esq. - SBN 236094 12/3/2018 1:32 PM CODDINGTON, HI KS & DANFORTH Alex Calvo, Clerk A Professional Corporation, Lawyers By; Mglepa Hangan, uty 555 Twin Dolphin Drive, Suite 300 Redwood City, CA 94065-2133 Tel: 650.592.5400 Fax: 650.592.5027 ATTORNEYS FOR Defendant David Wayne Robinsot: IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CRUZ DANA REDINGTON & LYNN Case No. 18CV02226 REDINGTON, Plaintiffs, DEFENDANT DAVID WAYNE Vs. ROBINSON’S ANSWER TO UNVERIFIED COMPLAINT DAVID WAYNE ROBINSON (D.B.A. “SKYHOUSE VACATION RENTAL”), SUSAN M. DYKHUIZEN, THOSE ROBINSON BOYS, INC, MOVSHARING NETWORK, INC. & DOES 1- 50, Defendants. 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 putported cause of action contained in the First Amended Complaint, and further denies that the First Amended 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 Plaintiffs allegedly have sustained or will allegedly sustain, and denies that Plaintiffs have sustained ot will sustain any injury, or are otherwise entitled to the relief requested in the First Amended Complaint or any other relief, or at all, by reason of any act, omission or breach on the part of Defendant or his agents. Answer to Unverified Complaint Case No: 18CV02226 543213 W I NO 0 J ON i II. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE (FAILURE TO STATE A CAUSE CF ACTION) 2 Defendant alleges that neither Plaintiffs’ 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) 5 Defendant is informed and believes, and upon that basis alleges, that the Plaintiffs failed to take all proper measures and remedies to mitigate their 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. Plaintiffs’ First Amended Complaint and each and every cause of action therein and claim for relief contained thetein 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(2)(1), 337.1(2)(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 and California Business and Professions Code FOURTH AFFIRMATIVE DEFENSE (PLAINTIFFS COMPARATIVE NEGLIGENCE) 5. Defendant alleges that any and all injuries, if any, sustained or suffered by the Plaintiffs were proximately and substantially caused and contributed to by the negligence of the Plaintiffs, in that Plaintiffs failed to exercise ordinary or reasonable care. [17 /17 /1/ Answer to Unverified Complaint Case No: 18CV02226 543213 w R W N O e 3 DN FIFTH AFFIRMATIVE DEFENSE (INDEMNIFICATION FROM OTHERS) 6. If Plaintiffs recover damages from Defendant, Defendant is entitled to indemnification, either in whole or in patt, from all persons or entities whose negligence or fault proximately caused or contributed to the damages, if any, allegedly incurred by Plaintiffs. SIXTH AFFIRMATIVE DEFENSE (LACK OF CAUSATION) Ts Plaintiffs are batred from relief in that Defendant’s conduct neither actually nor proximately caused any of the damages allegedly sustained by Plaintiffs. SEVENTH AFFIRMATIVE DEFENSE (LACK OF STANDING) 8. Defendant is informed and believes that with respect to matters alleged in the First Amended Complaint, Plaintiffs lack standing to assert claims against Defendant. EIGHTH AFFIRMATIVE DEFENSE LITIGATION PRIVILEGE) 9. Defendant alleges that Plaintiffs’ First Amended Complaint, and every cause of action therein, is barred by the litigation privilege. NINTH AFFIRMATIVE DEFENSE (EQUITABLE ESTOPPEL) 10. Plaintiffs are barred from relief by the equitable principles of equitable estoppel. TENTH AFFIRMATIVE DEFENSE (JUDICIAL ESTOPPEL) 11. Plaintiffs are barred from relief under the doctrine of Judicial Estoppel. ELEVENTH AFFIRMATIVE DEFENSE (WAIVER) 12. Plaintiffs are barred from relief in that they have either impliedly and/or expressly waived and released any and all claims they have made against this answeting Defendant. Answet to Unverified Complaint Case No: 18CV02226 543213 Ww ~~ aN w n + oo TWELFTH AFFIRMATIVE DEFENSE (INTERVENING ACTIONS) 13. Defendant is informed and believes, and upon that basis alleges, that the losses, injuries or damages, if any, incurred by Plaintiffs were 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 Plaintiffs’ claims against Defendant are barred. THIRTEENTH AFFIRMATIVE DEFENSE (UNCLEAN HANDS) 14. Plaintiffs filed their First Amended Complaint with “unclean hands”, and are in some manner responsible for the alleged circumstances described in the First Amended Complaint, and therefore should be estopped from obtaining any relief by virtue of this action. FOURTEENTH AFFIRMATIVE DEFENSE (DOCTRINE OF LACHES) 15. Plaintiffs’ claims are barred by the doctrine of laches. Plaintiffs have 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 First Amended Complaint, Plaintiffs were actively careless and negligent in the matters alleged, and Defendant’s negligence, if any, was passive and based solely upon the detivative form of liability, not resulting from Defendant’ conduct, but only from an obligation imposed upon plaintiffs by law; and such active negligence on Plaintiffs’ part proximately caused and contributed to the injuries alleged in the First Amended Complaint; therefore, said active negligence on the part of Plaintiffs bar any right to indemnity from Defendant. /1/ /17 Answer to Unverified Complaint Case No: 18CV02226 543213 wn + Wa ON NO C o J SIXTEENTH AFFIRMATIVE DEFENSE (CONSENT) 17. Plaintiffs and/or their agents and representatives had full knowledge of the true facts and consented to, approved, and ratified all acts and omissions complained of as against this answering Defendant in the Complaint, by his supervision, inspection and acceptance of this answering Defendant’s work, thereby barring Plaintiffs from recovering any damages or relief from this answering Defendant. (EXEMPTION) 18. Plaintiffs ate 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 Plaintiffs in the instant action, answering Defendant alleges he is entitled to the rights of offset and set- off. NINETEENTH AFFIRMATIVE DEFENSE (NO DAMAGES) 20. Plaintiffs suffered no recoverable damages. TWENTIETH AFFIRMATIVE DEFENSE (ESTOPPEL - ACTION OF PLAINTIFF) 21. Defendant is informed and believes, and upon that basis alleges, that Plaintiffs, by their own conduct, are estopped from complaining of any damage or loss allegedly arising as a result of any breach of any obligation alleged in the First Amended Complaint. TWENTY-FIRST AFFIRMATIVE DEFENSE (UNWARRANTED CLAIM) 22. Defendant is informed and believes, and upon that basis alleges, that the First Amended Complaint filed by Plaintiffs was brought without reasonable cause and without a 5 Answer to Unverified Complaint Case No: 18CV02226 543213 [8 ] ~~ SN Wn RE S co good faith belief that there was a justifiable controversy under the facts or the law which warranted the filing of the First Amended Complaint. Plaintiffs should therefore be responsible fot all of Defendant’s necessary and reasonable defense costs, as more particularly set forth in California Code of Civil Procedure section 1038. TWENTY-SECOND AFFIRMATIVE DEFENSE (APPORTIONMENT) 23. Defendant denies any and all liability to the Plaintiffs, but if Defendant is found liable, the responsibility of Defendant is small in proportion to the alleged liability and responsibility of the Plaintiffs and other parties, and the Plaintiffs should be limited to seek and recovet from Defendant only that proportion of alleged injuries and damages for which Defendant is liable and responsible under any applicable theory. TWENTY-THIRD AFFIRMATIVE DEFENSE (LACK OF PRIVITY) 24. Plaintiffs’ claims are barred because they lack privity with this Defendant. TWENTY-FOURTH AFFIRMATIVE DEFENSE (FAILURE OF CONSIDERATION) 25. Plaintiffs’ claims are barred because of the failure of consideration. TWENTY-FIFTH AFFIRMATIVE DEFENSE (EXCUSE) 26. Plaintiffs’ prior breaches of the agreement excused Defendant’s performance. TWENTY-SIXTH AFFIRMATIVE DEFENSE (NECESSITY) 27. Defendant is informed and believes that if he breached any duties owed to Plaintiffs, that the breach was necessary to prevent a greater harm from occurring. TWENTY-SEVENTH AFFIRMATIVE DEFENSE (CONDUCT REASONABLE) 28. Plaintiffs’ claims are barred because this answering Defendant’s conduct with respect to the matters alleged in the First Amended Complaint is reasonable relative to the 6 Answer to Unverified Complaint Case No: 18CV02226 543213 oN Wn EE w \) ~~ standards, customs, knowledge and practices at the time of the original approval of the work performed by this answering Defendant. TWENTY-EIGTH AFFIRMATIVE DEFENSE (PERFORMANCE OF OBLIGATIONS) 29. Defendant is informed and believes and thereon alleges that prior to the commencement of this zction, this answering Defendant duly performed, satisfied, and discharged all duties and obligations he may have owed to Plaintiffs, 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 batred by the provisions of Civil Code §1473. TWENTY-NINTH AFFIRMATIVE DEFENSE (STATUTE OF FRAUDS) 30. Defendant is informed and believes and theteon alleges that the First Amended Complaint is barred by the Statute of Frauds. THIRTIETH AFFIRMATIVE DEFENSE (DISCHARGE BY OPERATION OF LAW) 31. Defendant is informed and believes and thereon alleges that the obligation of the parties, if any, and in particular this answeting Defendant has been discharged by operation of law. THIRTY-FIRST AFFIRMATIVE DEFENSE (NO DUTY OWED) 32. Defendant is informed and believes and thereon alleges that this Defendant did not owe a duty to Plaintiffs with regards to the allegations in the First Amended Complaint and that Plaintiffs are barred from recovering from this answering Defendant. THIRTY-SECOND AFFIRMATIVE DEFENSE (FAILURE TO EXERCISE DUE CARE) 33. This answering Defendant alleges that Plaintiffs failed to exercise reasonable and ordinary care, caution, or prudence in otdet to avoid the alleged incidents and any resulting injuries and damages. Answer to Unverified Complaint Case No: 18CV02226 543213 Ww hn ON Oo 0 3 THIRTY-THIRD AFFIRMATIVE DEFENSE (FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES) 34. This answering Defendant alleges that Plaintiffs failed to file and pursue a claim with the responsible government agency before filing this lawsuit. THIRTY-FOURTH AFFIRMATIVE DEFENSE (RATIFICATION OF ACTS) 35. This answering Defendant alleges that Plaintiffs, by their acts, conduct and/or omissions, haves ratified the acts, conduct and omissions, if any, of this answering Defendant; therefore, Plaintiffs are barred from seeking any relief from this answering Defendant. THIRTY-FIFTH AFFIRMATIVE DEFENSE (LACK OF REASONABLE RELIANCE) 36. This answeting Defendant alleges that Plaintiffs did not reasonably rely upon any alleged misrepresentations ot nondisclosures of material facts made by this answering Defendant; therefore, Plaintiffs are barred from seeking any affirmative relief against this answering Defendant. (RES JUDICATA/COLLATERAL ESTOPPEL) 37. This answering defendant asserts that at least some of the issues in this case wete decided previously in another court and that the plaintiffs are unable to seek a different result in this case. THIRTY-SEVENTH AFFIRMATIVE DEFENSE (RESERVATION) 38. This answeting Defendant acknowledges that he may have insufficient knowledge or information on which to form a belief as to whether additional affirmative defenses ate available; therefore, this answeting defendant reserves the right to assert additional affirmative defenses as appropriate. /1/ /1/ Answer to Unverified Complaint Case No: 18CV02226 543213 U 2 J aN wn + oo WHEREFORE, Defendant prays that plaintiffs take nothing against said defendant by his said first amended complaint, and that defendant has judgment for his costs of suit herein incurred, together with such other and further relief as may be just and proper. Dated: December 3, 2018 CODDINGTON, HIZKS & DANFORTH oy: i Rebecca D. Martino Attorneys for Defendant David Wayne Robinson Answer to Unverified Complaint Case No: 18CV02226 543213 No ~J NO 10 11 12 13 14 15 - aN PROOF OF SERVICE California Code of Civil Procedure sections 1011, 1013, 1013a, 2015.5 California Rule of Court rule 2.251 Federal Rule of Civil Procedure Rule 5(b) I, the undersigned, declate that I am employed in the County of San Mateo, State of California. I 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. My electronic mail address is kratto@chdlawyers.com. 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 December 3, 2018, I served a copy of each of the documents listed below by placing said copies for processing as indicated herein. DEFENDANT DAVID WAYNE ROBINSON’S ANSWER TO UNVERIFIED COMPLAINT X United States Mail: The cotrespondence 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 were 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 regulatly maintained by the overnight delivery catrier, or delivered to a courier or driver authorized by the overnight deltvety carrier to receive such packages, on this date in the ordinary course of business. Hand Delivery: The cottespondence or documents were placed in sealed, labeled envelopes and setved by personal delivery to the patty or attorney indicated herein, ot if upon attorney, by leaving the labeled envelopes with a receptionist or other person having charge of the attorney’s office. Facsimile Transmission: The coirespondence or documents were 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 rovided by said party or attorney, on this same date in the otdinaty course of business. The transmission was reported as complete and without error, and a record of the transmission was propertly issued by the transmitting facsimile machine. Electronic Transmission: The correspondence or documents were transmitted electronically to the electronic address set forth below. NS ] WY ~J \D 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 parties serve documents through its Court approved vendor. The printed form of this document bearing the original signature is on file and available for inspection at the request of the court or any party 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: Nicholas L. Holdet, Esq. Buckwalter & Holder 9053 Soquel Drive Suite 206 Aptos, CA 95003-4034 Telephone: (831) 688-0163 Facsimile: (831) 688-0896 E-mail: nicholas@buckwaltetlaw.com I certify (or declare) under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration was executed cember 3, 2018. Yr 4 Kim Ratto Coutt: Superior Court of California,Santa Crug, Conuty Action No: 18CV02226 Case Name: Redington v. Robinson