Answer Unlimited Fee AppliesCal. Super. - 6th Dist.September 7, 20181 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WRIGHT, FINLAY & ZAK, LLP T. Robert Finlay, Esq. (SBN 167280) Olivier J. Labarre, Esq. (SBN 264246) 4665 MacArthur Court, Suite 280 Newport Beach, CA 92660 Tel: (949) 477-5050; Fax: (949) 608-9142 Attorneys for Defendant, Rushmore Loan Management Service, LLC SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA Midlands Restoration, Inc. dba JM Case No.: 18CV334656 Construction, ANSWER OF DEFENDANT RUSHMORE LOAN MANAGEMENT SERVICE, LLC Rushmore Loan Management Service, LLC, a limited liability company; and DOES 1 through 50, inclusive, Complaint filed: September 7, 2018 Defendants. Trial Date: Not yet assigned Defendant Rushmore Loan Management Service, LLC ("Defendant"), hereby responds to the Complaint of Plaintiff, Midland Restoration, Inc. dba JM Construction ("Plaintiff'), as follows: GENERAL DENIAL Pursuant to section 431.30, subdivision (d), of the Code of Civil Procedure, Defendant denies each and every material allegation of Plaintiffs Complaint. Defendant further denies that Plaintiff was damaged in the manner or sum alleged in this Complaint, or in any manner or in any sum, or at all, as the result of any action or omission, if any, of Defendant, either individually or through the actions or omissions of its agents, servants or employees. /// Plaintiff, VS. ANSWER Electronically Filed by Superior Court of CA, County of Santa Clara, on 11/26/2018 1:02 PM Reviewed By: L Del Mundo Case #18CV334656 Envelope: 2202196 AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE (Failure to State a Cause of Action) Defendant alleges that the Plaintiff has failed to state facts sufficient to constitute any cause of action against Defendant. SECOND AFFIRMATIVE DEFENSE (No Duty) Defendant contends that it owed no duty of care to Plaintiff, fiduciary or otherwise. THIRD AFFIRMATIVE DEFENSE (No Proximate Cause) Defendant contends that the acts and omissions of Defendant, as alleged in the Complaint, were not a proximate cause of the loss or damage for which Plaintiff seeks recovery. FOURTH AFFIRMATIVE DEFENSE (No Breach) Defendant allege that, to the extent a duty of care was owed to Plaintiff, there has been no breach of that duty. FIFTH AFFIRMATIVE DEFENSE (Intervening/Superseding Causes) Plaintiffs alleged injuries, if any, are the result of intervening and/or superseding causes over which Defendant exercised no control or dominion. SIXTH AFFIRMATIVE DEFENSE (Plaintiff's Comparative Fault) Defendant alleges that, Plaintiff was at fault in how he conducted his affairs relative to the incident described in the Plaintiff and that such fault contributed to the damages complained of in the Complaint, to the extent Plaintiff has suffered any such damages. SEVENTH AFFIRMATIVE DEFENSE (Comparative Fault of Third Parties) Defendant allege that, people or entities other than this Defendant caused or contributed to the 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ANSWER damages Plaintiff claims to have suffered and, therefore, any award made in favor of Plaintiff in this case must be reduced by an amount equal to the percentage of the fault of others in causing or contributing to the damages as alleged in the complaint. EIGHTH AFFIRMATIVE DEFENSE (Failure to Mitigate Damages) If Plaintiff has suffered damage by reason of the activity alleged in the Complaint, Plaintiff has failed to take action or has taken insufficient action to mitigate its damages. Consequently, any damages suffered by Plaintiff must be reduced in an amount by which it could have mitigated its damages NINTH AFFIRMATIVE DEFENSE (Equitable Defenses) Plaintiffs claims are barred by the equitable doctrines of unclean hands and in pari delicto. TENTH AFFIRMATIVE DEFENSE (Estoppel) Defendant alleges that Plaintiff has acted in such a manner that he is estopped from bringing the causes of action as set forth in the Complaint. ELEVENTH AFFIRMATIVE DEFENSE (Insufficient Particularity) The Complaint does not describe the claims against Defendant with sufficient particularity and certainty to enable Defendant to determine what defenses may exist. Defendant reserves the right to assert all defenses that may be pertinent to or arise from Plaintiffs claims against it when the precise nature of those claims has been ascertained. /// /// /// 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 /// ANSWER WHEREFORE, Defendant prays for judgment as follows: 1. That Plaintiff takes nothing by reason of its Complaint on file herein; 2. For costs of suit incurred herein; and 3. For such other and further relief as the court may deem just and proper. Respectfully Submitted, WRIGH , FINLAY & ZAK, LLP Dated: November 26, 2018 By: T. R bert Finlay, Esq. Olivier J. Labarre, Esq. Attorneys for Defendant, Rushmore Loan Management Services, LLC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 ANSWER 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I, Kimberly A. Walsh, declare as follows: I am employed in the County of Orange, State of California. I am over the age of eighteen (18) and not a party to the within action. My business address is 4665 MacArthur Court, Suite 200, Newport Beach, California 92660. I am readily familiar with the practices of Wright, Finlay & Zak, LLP, for collection and processing of correspondence for mailing with the United States Postal Service. Such correspondence is deposited with the United States Postal Service the same day in the ordinary course of business. I am aware that on motion of 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. On November 26, 2018,1 served the within ANSWER OF DEFENDANT RUSHMORE LOAN MANAGEMENT SERVICE, LLC on all interested parties in this action as follows: [X] by placing [ ] the original [X] a true copy thereof enclosed in sealed envelope(s) addressed as follows: Christopher J. Olson, Esq. William F. Stanger, Esq. Sweeney, Mason, Wilson & Bosomworth 983 University Avenue, Suite 104C Los Gatos, CA 95032-7637 Tel: (408) 356-3000; Fax: (408) 354-8839 Attorney for Plaintiff; Midlands Restoration, Inc., dba JM Construction [X] (BY MAIL SERVICE) I placed such envelope(s) for collection to be mailed on this date following ordinary business practices. (BY CERTIFIED MAIL SERVICE) I placed such envelope(s) for collection to be mailed on this date following ordinary business practices, via Certified Mail, Return Receipt Requested. (BY PERSONAL SERVICE) I caused personal delivery by ATTORNEY SERVICE of said document(s) to the offices of the addressee(s) as set forth on the attached service list. (BY FACSIMILE) The facsimile machine I used, with telephone no. (949) 477-9200, complied with California Rules of Court, Rule 2003, and no error was reported by the machine. Pursuant to California Rules of Court, Rule 2006(d), I caused the machine to print a transmission record of the transmission, a copy of which is attached to the original Proof of Service. [ (BY FEDERAL EXPRESS OVERNIGHT- NEXT DAY DELIVERY) I placed true and correct copies thereof enclosed in a package designated by Federal Express Overnight with the delivery fees provided for. (CM/ECF Electronic Filing) I caused the above document(s) to be transmitted to the office(s) of the addressee(s) listed by electronic mail at the e-mail address(es) set forth above pursuant to Fed.R.Civ.P.5(b)(2)(E). "A Notice of Electronic Filing (NEF) is generated automatically by the ECF system upon completion of an electronic filing. The NEF, when e-mailed to the e-mail address of record in the case, shall constitute the proof of service as required by Fed.R.Civ.P.5(b)(2)(E). A copy of the NEF shall be attached to any document served in the traditional manner upon any party appearingipro se." PROOF OF SERVICE 0 Kimberly A. Wals [X] (State) I declare under penalty of perjury under the law of the State of California that the foregoing is true and correct. Execut on November 26, 2018, at Newport Beach, California. 2 PROOF OF SERVICE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28