Answer_to_complaint_atty_hoffman

Response

Cal. Super. - 6th Dist.July 31, 2018

10 11 12 18 14 15 16 Li 18 19 20 21 22 23 24 25 26 27 28 18CV332849 Santa Clara - Civil Electronically Filed KIRKMAN J. HOFFMAN, C.S.B.N. 148663 i rt of CA, HOFFMAN LAW GROUP, APC Oy Superior Court ounty of Santa Clara, 2021 The Alameda, #275 . San Jose, CA 95126 on 10/4/2018 2:17 PM (408) 241-9620 Reviewed By: E. Fang Case #18CV332849 Attorney for Defendants Envelope: 2023710 ERIC ALLEGAKOEN and GWYNNETH ALLEGAKOEN IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA STACY DECK, AKA STACEY DECK; (Case No.: 18CV332849 ALAN DECK; DARBI DECK; CAPRI DECK, a minor through her proposed guardian ad litem, ALAN DECK, HEHE ANSWER TO COMPLAINT Ba Y DEFENDANTS Plaintiffs, V ERIC ALLEGAKOEN; GWYNNETH ALLEGAKOEN; and Does 1-30, inclusive, Defendants. Defendants, ERIC ALLEGAKOEN and GWYNNETH ALLEGAKOEN (together herein, “Defendants™), hereby answer the verified complaint of Plaintiffs in this action, as follows: 1. Defendants are without sufficient information or belief to admit or deny the allegations contained in the following paragraphs of the complaint, except as otherwise noted and, on that basis, deny the allegations therein, unless otherwise noted herein: 3,4, 7, 8, 9, 10, 18 (but Defendants promptly hired company to help VERIFIED ANSWER TO COMPLAINT E. Fang 10 hi | 1:2 13 14 Ls 16 19 18 1.8 20 21 22 23 24 25 26 249 28 address potential rodent issues in August 2017), 19 (but admit the Defendants promptly hired an appliance repair company to fix the leaking part and hired a contractor to inspect and remediate flooring), 20 (but admit that appliance repair company promptly fixed the issue), 22 (but admit offering Plaintiffs alternative lodging or free rent for December 201 7), 23 (but admit that prompt action was taken and that there was no mold relating to this leak), 25 (but admit that heavy rains in late February-early March 2018 had caused a relatively minor leak and damage around the master bedroom balcony door frame, which Defendants had promptly repaired and a comprehensive leak detection performed), 27, 34 (Defendants deny any claim of uninhabitability or dangerous condition and any breach or negligence on Defendants’ part concerning the matters alleged), 36 (some funds are being held by Ms. Davey, but the amounts will be according to proof), 37, 38, 40 (this calls for a legal opinion), 43 (Plaintiffs were aware of the air conditioning unit was awaiting a repair part when they moved in and were aware of the odor at and before move-in, which was believed to be pet odors. Defendants admit that they promptly replied to repair requests during this tenancy), 57, 58, 59, 62. 2. Defendants admit the allegations contained in the following paragraphs of the complaint, unless otherwise indicated: 1,2,35,6,11, 12, 13 (but deny the last sentence on information and belief), 14, 24 (deny any mold presence concerning this leak), 29, 30, 31, 32, 39, 49, 54, 55, 63. 3. Except as provided above, Defendants expressly deny the allegations contained in the following paragraphs, and any paragraph of the Complaint not listed above: 15 and 16 (but admit that Defendants promptly repaired and/or resolved the alleged VERIFIED ANSWER TO COMPLAINT 10 11 12 1.3 14 15 16 ii? 18 1.5 20 24. 22 23 24 25 26 27 28 issues with the HVAC, icemaker/refrigerator, and odor issues), 17 (but admit that Defendants had the icemaker repaired on or about 7/20/17, when notified that it was not working), 21 (but admit that they immediately had appliance company and contractor investigate the leaking refrigerator on or about 11/4/17, and decided to replace the refrigerator and repair water damage to flooring. A mold report showed no need to vacate the premises. Defendants admit that on 11/4/17 there was an unrelated roof leak in the front foyer area due to heavy rains, which as promptly fixed upon notification), 26, 28, 33, 35, 41, 42, 44, 45, 46, 47, 48, 50, 51, 52, 53, 56, 60, 61, 64, 65, 66, 67. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE 1. The Complaint, and each cause of action therein, fail to state facts sufficient to state a cause of action against these answering Defendants. SECOND AFFIRMATIVE DEFENSE 2. The Complaint, and each cause of action therein, is barred against these answering Defendants by virtue of the statute of limitations for the type of claim alleged, under California law, including, but not limited to claims under Code of Civil Procedure sections 312, 318, 319, 320, 321, 322, 323, 324, 325, 326, 335, 337.1, 338,339, 339.5, and 343, and Civil Code sections 2079.4. THIRD AFFIRMATIVE DEFENSE 3. Plaintiff suffered no damages caused by these Defendants and failed to reasonably mitigate any damages Plaintiff may have. VERIFIED ANSWER TO COMPLAINT 10 1] 12 13 14 15 16 Ly 18 1S 20 21 22 23 24 25 26 2 28 FOURTH AFFIRMATIVE DEFENSE 4. The Complaint, and each cause of action therein, are barred under the Doctrines of Unclean Hands and Estoppel, based upon Plaintiffs’ own conduct. FIFTH AFFIRMATIVE DEFENSE 5. The Complaint, and each cause of action therein, is barred under the Doctrine of Waiver, in that Plaintiffs failed to act reasonably to protect their respective interests, and/or expressly, or impliedly by their conduct, waived any claims against Defendants in this matter, including, but not limited to attorney’s fees based on Plaintiffs’ commencement of this action without first attempting to resolve the matter through mediation, as required under Section 39A of the lease. SIXTH AFFIRMATIVE DEFENSE 6. The Complaint, and each cause of action therein, is barred under the Doctrine of Laches, due to the undue prejudice caused by Plaintiffs’ unreasonable delay in this matter. SEVENTH AFFIRMATIVE DEFENSE 7. Defendants allege that Plaintiffs’ complaint and each alleged cause of action therein is barred in that the defects plaintiff alleges the defendants failed to disclose were known to or within the diligent attention and observation of the Plaintiffs and/or their agents. EIGHTH AFFIRMATIVE DEFENSE 8. Plaintiffs were negligent and failed to exercise reasonable care with respect to their own decisions and actions in this matter, including, but not limited to, failing to VERIFIED ANSWER TO COMPLAINT 10 tl: 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 207 28 take reasonable action to prevent avoidable consequences. Any liability of Defendants for damages allegedly suffered by Plaintiffs should be barred or reduced comparatively. NINETH AFFIRMATIVE DEFENSE 9. There is no basis in facts or law for Plaintiffs to claim punitive damages in this action. TENTH AFFIRMATIVE DEFENSE 10. There is no basis in fact or law for Plaintiff to claim an entitlement to attorney’s fees in this matter, which in any event are not to exceed $1,000, except as provided in Section 39A of the lease. ELEVENTH AFFIRMATIVE DEFENSE 11. In the event Defendants are found to have any liability in this action, Defendants are entitled to an equitable offset, for credits, offsets, or liabilities found owing to Defendants from Plaintiffs, including but not limited to, Defendants’ claims against Plaintiffs in this or any other action. TWELVTH AFFIRMATIVE DEFENSE 12. Plaintiffs’ claims of damages in this action are speculative, uncertain, unreasonable, and/or are without documentation or support. THIRTEENTH AFFIRMATIVE DEFENSE 13. Plaintiffs and their agents had actual, constructive, or imputed knowledge of the defects alleged in the complaint, precluding any justifiable reliance on Plaintiffs’ part. VERIFIED ANSWER TO COMPLAINT 10 il 12 1.3 14 15 16 Lif 18 19 20 21 22 23 24 25 26 27 28 14. I 16. FOURTEENTH AFFIRMATIVE DEFENSE Defendants were not negligent and acted promptly and reasonably upon notice concerning the alleged defects and conditions in the complaint. FIFTEENTH AFFIRMATIVE DEFENSE The defects and conditions alleged in the complaint were trivial and/or not sufficient in gravity, duration, or degree to constitute a breach of the lease or any covenant or warranty. SIXTEENTH AFFIRMATIVE DEFENSE At all times relevant herein, Defendants acted reasonably and in good faith, within their rights and privileges under the lease and the law. WHEREFORE, these answering Defendants pray for judgment against Plaintiffs, and each of them, in this action as follows: Ls Dated: That Plaintiffs take nothing by the complaint, as against these answering Defendants, or any of them; That Defendants be awarded reasonable attorney’s fees pursuant to the written contract in this action and/or statute, as applicable; For costs incurred in responding to this action; and For such other and further relief as the Court deems just and proper. 10/1/18 HOFFMAN LAW GROUP, APC By KIRKMAN J. HOFFMAN, Attorney for Defendants VERIFIED ANSWER TO COMPLAINT 10 14 12 13 14 5 16 17 18 19 20 21 22 23 24 25 26 27 28 VERIFICATION I, the undersigned, hereby verify and declare that I one of the cross-defendants in this action and that I have reviewed the attached Answer and know the contents thereof. I hereby verify and declare that the facts set forth therein are true and correct to my own knowledge, except for those matters alleged 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 and that this verification was executed in the County of Santa Clara, California, on /o/a)2e01% ! pr Se NE ERIC ALLEGAKOEN VERIFIED ANSWER TO COMPLAINT le 1.7 18 19 20 21 22 23 24 25 26 27 28 VERIFICATION I, the undersigned, hereby verify and declare that I one of the cross-defendants in this action and that I have reviewed the attached Answer and know the contents thereof, I hereby verify and declare that the facts set forth therein are true and correct to my own knowledge, except for those matters alleged 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 and that this verification was executed in the County of Santa Clara, California,on © /2> //& ; GWYNNETH ALLEGAKOEN VERIFIED ANSWER TO COMPLAINT 10 Lk 12 13 14 15 le 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE CASE NAME: DECK V. ALLEGAKOEN, ET AL. ACTION NO.: 18CV332849 I am over the age of eighteen years and am not a party to the within action. I am employed in the County of Santa Clara, State of California. My business address is 2021 The Alameda, #275, San Jose, CA 95126. I served the following-described documents on each of the individuals set forth below, by the service method set forth below: VERIFIED ANSWER TO COMPLAINT BY DEFENDANTS The addresses and methods of service were as follows: Josh H. Escovedo, Esq. Zachary S. Thompson, Esq. Weintraub Tobin Chediak Coleman Grodin 400 Capitol Mall, 11%" Floor Sacramento, CA 95814 ___ Personal Delivery _X_First-class Mail ___ Certified Mail, Return Receipt Requested __ Facsimile: __ E-mail: If service was by personal delivery, I caused the documents to be hand-delivered to the addressee(s). If service was by first-class, certified, overnight, or express mail, I caused a properly addressed envelope containing the above-described documents, to be place in the United States mail or the overnight courier with postage fully pre-paid thereon, at San Jose, CA, on the date signed below. If service was by email, I caused the documents to be scanned and emailed to the email addresses(s) set forth above on the date signed below. [ declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, and that this declaration and proof of service was executed on the _4~ day of October 2018 at San Jose, CA. ERIN TE VERIFIED ANSWER TO COMPLAINT