To_complaint_atty_wintle

Response

Cal. Super. - 6th Dist.February 5, 2018

T H E H E R I T A G E L A w G r o u p A P R O F E S s I o n N a L C O R P O R A T I O N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18CV322918 Santa Clara - Civil A. Hwang Roger D. Wintle (SBN 142484) E-FILED Marialorena Relos (SBN 247446) 3/5/2018 11:30 AM THE HERITAGE Law GROUP Clerk of Court 152 North Third Street, Suite 550 Superior Court of CA, San Jose, California 95112 County of Santa Clara Tel: (408) 993-2100 18CV322918 Fax: (408) 993-2101 Reviewed By: A. Hwang Email: rdw@hlgusa.com Envelope: 127689 Attorneys for Defendant: ERIC VAN DYKE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA UNLIMITED JURISDICTION ELIZABETH VAN DYKE, PETER VAN NH Case No. 18CV322918 DYKE & KURT VAN DYKE Plaintifs VERIFIED ANSWER TO VERIFIED amntitts COMPLAINT OF ELIZABETH VAN @ DYKE, PETER VAN DYKE AND KURT VAN DYKE ERIC VAN DYKE, Date Action Filed: February 5, 2018 eft Trial Date: Not Set Defendant ERIC VAN DYKE (“Defendant”) answers the verified complaint (“Complaint”) of Plaintiffs, ELIZABETH VAN DYKE, PETER VAN DYKE & KURT VAN DYKE (collectively, “Plaintiffs) and responds as follows: la. Defendant admits the allegations of paragraph 1a of the Complaint. 1b. Defendant admits the allegations of paragraph 1b of the Complaint. lc Defendant admits the allegations of paragraph 1c of the Complaint. VERIFIED ANSWER TO VERIFIED COMPLAINT OF ELIZABETH VAN DYKE, ET AL Page 1 T H E H E R I T A G E L a w G R O U P A P R O F E S S I O N A L C O R P O R A T I O N =~ Ww Oo 9 o n wn Ss B a =m BE E R G e R E e m e w p g = 3 8 8 B R B R8B E E S % S E 5 F 5 8 5 2 = 1d. Defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 1d of the Complaint and on that basis deny each and every allegation contained therein. 2. Defendant admits that the “sale of the Bolsa ranch as described in pages 2 & 3 of Exhibit B is now pending”. Defendant is without sufficient knowledge or information to form a belief as to the truth of the remaining allegations in paragraph 2 of the Complaint and on that basis deny cach and every allegation contained therein. 3. 4. Defendant denies the allegations of paragraph 3 of the Complaint. Defendant denies the allegations of paragraph 4 of the Complaint, Defendant asserts the responses set forth above regarding paragraph 5 of the Complaint. Defendant denies the allegations of paragraph 6 of the Complaint. Defendant asserts the responses set forth above regarding paragraph 5 of the Complaint. Defendant admits that the quoted text in paragraph § is correct, but denies each and every other allegation contained therein. Defendants are without sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 9 of the Complaint and on that basis deny each and every allegation contained therein. AFFIRMATIVE DEFENSES AS FURTHER, SEPARATE, AND AFFIRMATIVE DEFENSES TO THE COMPLAINT AND EACH AND EVERY CAUSE OF ACTION ASSERTED THEREUNDER, DEFENDANT ALLEGEs AS FOLLOWS: FIRST AFFIRMATIVE DEFENSE (INSUFFICIENT PLEADING) VERIFIED ANSWER TO VERIFIED COMPLAINT OF ELIZABETH VAN DYKE, ET AL Page 2 T H E H E R I T A G E L a w G R O U P A P R O F E S S I O N A L C O R P O R A T I O N S 0 ® 9 oo 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Complaint and each and every cause of action thereof, fails to state facts sufficient to constitute a cause of action upon which relief may be granted. SECOND AFFIRMATIVE DEFENSE (STATUTE OF LIMITATIONS) The Complaint and all the alleged causes of action set forth therein, are barred by the applicable statute of limitations as set forth in the Code of Civil Procedure sections 337, 339, and 343. THIRD AFFIRMATIVE DEF ENSE (STATUTE OF FRAUDS) Each cause of action based on or arising from any alleged oral or written agreements, representations, or statements is barred by the applicable statute of frauds, including, but not limited to, section 1624 of the California Civil Code, FOURTH AFFIRMATIVE DEFENSE (WAIVER) . The relief Plaintiffs seck is barred by the doctrine of waiver. FIFTH AFFIRMATIVE DEFENSE (ESTOPPEL) . The relief which Plaintiffs seek is barred by the doctrine of estoppel. SIXTH AFFIRMATIVE DEFENSE (UNCLEAN HANDS) Plaintiff have unclean hands with respect to the matters at issue and relief sought, and is therefore barred from recovery by the doctrine of unclean hands, SEVENTH AFFIRMATIVE DEFENSE VERIFIED ANSWER TO VERIFIED COMPLAINT OF ELIZABETH VAN DYKE, ET AL Page 3 T H E H E R I T A G E L a w G R O U P A P R O F E S S I O N A L C O R P O R A T I O N © © ® uN a wu o r o w 11 12 I3 14 15 16 I? 18 19 20 21 22 Ad 24 25 26 27 28 (LACHES) 7. Plaintiff have unreasonably delayed in bringing this action, and this delay had unfairly prejudiced Defendant, such that Plaintiff should be barred from recovery under the Doctrine of Laches. EIGHTH AFFIRMATIVE DEFEN SE (FAILURE TO MITIGATE DAMAGES PLEADING) 8. To the extent that Plaintiffs suffered any loss or damage, such loss or damage should be barred or offset by Plaintiffs’ failure to mitigate their damages. NINTH AFFIRMATIVE DEFENSE (EXCUSE OF PERFORMAN CE) 9. To the extent that the allegations of the Complaint state a cause of action against Defendant based on or arising from any of the contracts alleged therein, Defendant was excused from performing any obligations under said contracts by reason of Plaintiffs’ failure to perform their obligations thereunder, the performance of which was a condition precedent to such performance by Defendant. TENTH AFFIRMATIVE DEFENSE (FULL PERFORMANCE) 10. To the extent that the allegations of the Complaint state a cause of action against Defendant based on or arising from any of the contracts alleged therein, Defendant’s contractual duties have been discharged by Defendant’s full performance under the contract. ELEVENTH AFFIRMATIVE DEFENSE (BREACH OF CONTRACT) VERIFIED ANSWER TO VERIFIED COMPLAINT OF ELIZABETH VAN DYKE, ET AL Page 4 T H E H E R I T A G E L a w G R O U P A P R O F E S s I o N A L C O R P O R A T I O N Lo N O N Ww» 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 IZ 13. 14. 13. . To the extent that the allegations of the Complaint state a cause of action against Defendant based on or arising from any of the contracts alleged therein, each cause of action is barred by Plaintiff *s breach of said contract. TWELFTH AFFIRMATIVE DEFENSE (FAILURE OF PERFORMAN CE) To the extent that the allegations of the Complaint state a cause of action against Defendant based on or arising from any of the contracts alleged therein, Plaintiffs failed to perform the terms and conditions of the alleged contract. THIRTEENTH AFFIRMATIVE DEFENSE (GOOD FAITH) The Complaint is without merit because at all material times Defendant acted fairly and equitably toward Plaintiffs and any and all conduct of which Plaintiffs complain was a just and proper exercise of discretion on the part of Defendant. FOURTHEENTH AFFIRMATIVE DEFENSE (UNJUST ENRICHMENT) The Defendant asserts that the Plaintiffs are seeking to recover more than Plaintiffs are entitled to recover in this case, and award of the judgment sought by the Plaintiffs would unjustly enrich the Plaintiffs, FIFTEENTH AFFIRMATIVE DEFENSE (RES JUDICATA/COLLATERAL ESTOPPEL) The Defendant asserts that the issues in this case were decided previously in another court case, case involving the same issues and parties, and that the Plaintiffs is unable to seek a different result in this case. VERIFIED ANSWER TO VERIFIED COMPLAINT OF ELIZABETH VAN DYKE, ET AL Page 5 T H E H E R I T A G E L a w G R O U P A P R O F E S s I o n N a L C O R P O R A T I O N A ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SIXTEENTH AFFIRMATIVE DEFENSE (EQUITABLE ESTOPPEL) 16. The Defendant reasonably relied upon Plaintiffs representation in Court to his detriment and now ask the court to decide this case as if representation were true. RESERVATION OF RIGHTS TO ALLEGE OTHER AFFIRMATIVE DEF ENSES 17. Defendant reserves the right to assert any additional defenses that are supported by information or facts obtained through discovery or other means during this case and expressly reserve the right to amend their ANSWER to assert such additional affirmative defenses in the future. PRAYER WHEREFORE, Defendant prays for judgment on the Complaint as follows: 1. That Plaintiffs take nothing by their Complaint; 2. For attorney’s fees and costs herein, to the extent recoverable under applicable law and the evidence submitted to the court; 3. For such other and further relief as the court deems just and proper. Dated: £ [1 7 (¢ Respectfully Submitted, THE HERITAGE LAwW Group ger alts Roger D. Wintle Attorney for Defendant: Eric Van Dyke VERIFIED ANSWER TO VERIFIED COMPLAINT OF ELIZABETH VAN DYKE, ET AL Page 6 T H E H E R I T A G E L a w G R O U P A P R O F E S s I o N a L C O R P O R A T I O N S S © ® 9 oo 11 12 13 14 15 16 I 18 19 20 21 22 23 24 25 26 27 28 Dated: 7 J 21 ,2018 Respectfully Submitted, THE HERITAGE LAW GROUP Madly Roger D.| Wintle Attorneys for Defendant: Eric Van Dyke VERIFICATION I, Eric Van Dyke, declare as follows: I am the Defendant named in the above-entitled action. [ have read the foregoing Verified Answer and know the contents thereof. The same is true of my own knowledge, except those matters which are therein stated on information and belief, and as to those matters, I believe them to be true. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Zit} ,2018 2. A Efic ¥an Dyke VERIFIED ANSWER TO VERIFIED COMPLAINT OF ELIZABETH VAN DYKE, ET AL Page 7