To_complaint_atty_sunResponseCal. Super. - 6th Dist.January 30, 2020Oo 0 N S i n A W N B N N N N N N N N e m mm a m e e m e m ee d pe d pe e fe ed pe es c o 3 S N nn Rk W N = D O N N Y Wn R W = D 20CV364285 Santa Clara - Civil Electronically Filed by Superior Court of CA, ROBERT E. CAREY, JR., ESQ. SBN: 47556 County of Santa Clara, CHRISTOPHER P. SUN, ESQ. SBN: 250109 on 6/30/2020 11:08 Al ce gb Corey Reviewed By: Y. Chayez UL box Palo Alto, California 94302 Envelope: prance Telephone: (650) 328-5510 Facsimile: (650) 853-3632 Attorney for Defendant CAREY & CAREY SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA COUNTY LOLITA QUE, AKA LOLITA SANCHEZ, an [Civil Action No. 20CV364285 individual. Plaintiff, Vs. DEFENDANT CAREY & CAREY’S IANS MPLAINT JERRY Y. FONG, ESQ., KATHRYN WER TO €O MUELLER CAREY, dba CAREY & CAREY, and DOES 1 through 100 inclusive, Defendant. Defendant Carey & Carey (“Defendant”), a California Corporation, by and through their attorney of record, Christopher P. Sun, hereby answers the allegations in Plaintiff Lolita Que’s (“Lolita Que”) unverified Complaint as follows: 1. Pursuant to the provision of Section 431.30(d) of the California Code of Civil Procedure, Defendant denies, both generally and specifically, each, and every and all of the allegations of Plaintiff and each and every cause of action contained therein, and the whole thereof; Defendant further denies that Plaintiff was damaged and/or injured in any sum or sums, or at all, by reason of conduct on the part of the Defendant, or any of their agents and/or employees. DEFENDANT CAREY & CAREY’S ANSWER TO FIRST AMENDED COMPLAINT OF LOLITA QUE 1 Y. Chavez A W N w o e 3 A N 10 I1 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 AFFIRMATIVE DEFENSES 2. AS A FIRST SEPARATE AND AFFIRMATIVE DEFENSE to the Complaint and each and every cause of action thereof, Defendant alleges that the Complaint and each purported cause of action thereof fails to state facts sufficient to constitute a cause of action against Defendant. 3. AS A SECOND SEPARATE AND AFFIRMATIVE DEFENSE to the Complaint, Defendant alleges that certain causes of action thereof are barred by one or more of the applicable statutes of limitations, including, but not limited to, Code of Civil Procedure Sections 335.1, 337, 338, 339, 340 and 340.8. 4. AS A THIRD SEPARATE AND AFFIRMATIVE DEFENSE to the Complaint and each and every cause of action thereof, Defendant alleges that Plaintiff’s injuries, loss, and/or damages, if any there were, were aggravated by Plaintiff's failure to use reasonable diligence to mitigate the same. 5. AS A FOURTH SEPARATE AND AFFIRMATIVE DEFENSE to the Complaint and each and every cause of action thereof, Defendant alleges that Plaintiff is barred from asserting any causes of action by virtue of its consent to the alleged acts or conditions. 6. AS A FIFTH SEPARATE AND AFFIRMATIVE DEFENSE to the Complaint and each) and every cause of action thereof, Defendant alleges that Plaintiff has waived and/or released its right to maintain the action filed in this case. 7. AS A SIXTH SEPARATE AND AFFIRMATIVE DEFENSE to the Complaint and each) and every cause of action thereof, Defendant alleges that Plaintiff is estopped by action of law or by conduct from maintaining the action filed in this case. 8. AS A SEVENTH SEPARATE AND AFFIRMATIVE DEFENSE to the Complaint and each and every cause of action thereof, Defendant alleges that the action filed in this case is not maintainable because of and under the equitable doctrine of laches. 9, AS AN EIGHTH SEPARATE AND AFFIRMATIVE DEFENSE to the Complaint and each and every cause of action thereof, Defendant alleges that Plaintiff is barred from recovery in this case under the doctrine of unclean hands. DEFENDANT CAREY & CAREY’S ANSWER TO FIRST AMENDED COMPLAINT OF LOLITA QUE 2 O e 1 A Y i n BA W N N O N N N N N R N N N me m m e m ke s e m e s ee d ee ee C 0 ~ 3 O N i BA W N = O Y e ~ A N nn R W N e — Oo 10. AS A NINTH SEPARATE AND AFFIRMATIVE DEFENSE to the Complaint and each and every cause of action thereof, Defendant contends that prior to the commencement of this action, Defendant duly performed, satisfied and discharged all duties and obligations they may have owed to Plaintiff arising out of any and all agreements, representations, or contracts made by or on behalf of Defendant, if any, and this action is therefore barred by the provisions of California Civil Code Section 1473. 11. AS A TENTH SEPARATE AND AFFIRMATIVE DEFENSE to the Complaint and each and every cause of action thereof, Defendant alleges that, at all times mentioned herein, they acted with honest intent and good faith when fulfilling their obligations arising out of any and all agreements, representations, or contracts made by or on behalf of Defendant. 12. AS AN ELEVENTH SEPARATE AND AFFIRMATIVE DEFENSE to the Complaint and each and every cause of action thereof, Defendant alleges that the Complaint is barred because some of or all of the obligations imposed on Defendant, if there were any, were prevented and excused by wrongful and unjustified actions of the Plaintiff and others. 13. AS A TWELFTH SEPARATE AND AFFIRMATIVE DEFENSE to the Complaint and each and every cause of action thereof, Defendant alleges that the Complaint is barred by Plaintiff’ own failure to perform all conditions, covenants, and promises required to be performed by, Plaintiff. 14. AS A THIRTEENTH SEPARATE AND AFFIRMATIVE DEFENSE to the Complaint and each and every cause of action thereof, Defendant alleges that the obligations of the parties under the terms and conditions of the alleged duties and obligations have been discharged by operation of law. 15. AS A FOURTEENTH SEPARATE AND AFFIRMATIVE DEFENSE to the Complaint and each and every cause of action thereof, Defendant alleges that Plaintiff is barred from recovery against Defendant by the doctrine of in pari delicto. in " in DEFENDANT CAREY & CAREY’S ANSWER TO FIRST AMENDED COMPLAINT OF LOLITA QUE 3 Oo 0 NN ) A N nn Bs W N ee R N D N N N N R Y ee e m e s = p e pe d ee d pe e e XW N N N Ln k W ND ~~ O O N Y B A W N e Oo 16. AS A FIFTEENTH SEPARATE AND AFFIRMATIVE DEFENSE to the Complaint and each and every cause of action thereof, Defendant contends that they have suffered damages by reason of Plaintiffs conduct; and that if Defendant is found liable for any damages to Plaintiff] Defendant has a right of offset against damages caused by Plaintiff. 17. AS A SIXTEENTH SEPARATE AND AFFIRMATIVE DEFENSE to the Complaint and each and every cause of action thereof, Defendant alleges that each and every cause of action is barred because Plaintiff has set forth the allegations in the Complaint in such ambiguous and uncertain terms that Defendant cannot ascertain the full nature and extent of the wrongs alleged so as to set forth all defenses available to them, and Defendant reserve the right to amend their answer to conform to proof. 18. AS A SEVENTEENTH SEPARATE AND AFFIRMATIVE DEFENSE to the Complaint and each and every cause of action thereof, Defendant alleges that this action is barred by the doctrine of bad faith. 19. AS AN EIGHTEENTH SEPARATE AND AFFIRMATIVE DEFENSE to the Complain and each and every cause of action thereof, Defendant alleges that any alleged nonperformance by) Defendant of any contractual term is excused by the doctrine of impossibility and/or frustration. 20. AS ANINTHTEENTH SEPARATE AND AFFIRMATIVE DEFENSE to the Complaint and each and every cause of action thereof, Defendant alleges that the Complaint is barred due to failure and/or lack of consideration. 21. AS A TWENTIETH SEPARATE AND AFFIRMATIVE DEFENSE to the Complain and each and every cause of action thereof, Defendant alleges that the contract alleged in the Complaint is unenforceable because it is contrary to the express provision or provisions of law. 22. AS A TWENTY-FIRST SEPARATE AND AFFIRMATIVE DEFENSE to thg Complaint and each and every cause of action thereof, Defendant alleges that Plaintiff is precluded from asserting the cause of action in the Complaint on the ground that Plaintiff, or its agents, employees or their representatives, directed, ordered, ratified, or approved the actions which form the causes of action set forth in the Complaint. DEFENDANT CAREY & CAREY’S ANSWER TO FIRST AMENDED COMPLAINT OF LOLITA QUE 4 O e N N h n hk W N BR N N N N N N N N m e m e e a a e d he t be d pe t ed c e N y nh BR W N = O N D 0 S Y R W D e e Oo 23. AS A TWENTY-SECOND SEPARATE AND AFFIRMATIVE DEFENSE to the Complaint and each and every cause of action thereof, Defendant alleges that Plaintiff substantially and materially breached the obligation/contract complained of prior to commencement of this action, which conduct extinguishes the right to maintain the instant action. 24. AS A TWENTY-THIRD SEPARATE AND AFFIRMATIVE DEFENSE to the Complaint and each and every cause of action thereof, Defendant alleges that the Complaint ig barred and fails to state a cause of action by reason of the provisions of Section 1688 et seq. of the Civil Code concerning rescission of contracts. By virtue of facts supporting rescission, Defendant is entitled to treat the contract as rescinded, and therefore the contract cannot form a basis of liability. 25. AS A TWENTY-FOURTH SEPARATE AND AFFIRMATIVE DEFENSE to the Complaint and each and every cause of action thereof, Defendant alleges that Plaintiff's alleged damages were the result of negligence, strict liability, fault and/or responsibility of persons, corporations, partnerships, or entities other than this answering Defendant, and the acts, omissions, or liability of such were the sole proximate cause of the alleged damage claimed by Plaintiff in) this action. 26. AS A TWENTY-FIFTH SEPARATE AND AFFIRMATIVE DEFENSE to the Complaint and each and every cause of action thereof, Defendant asserts that the Plaintiff or Plaintiffs assignor obtained the Defendant’s consent to the contract or transaction through fraud, deceit, or misrepresentation by the Plaintiff or Plaintiff's assignor, and that as a result the contract is invalid. WHEREFORE, Defendant requests that the Court enter judgment in its favor, and against Plaintiff as follows: 1. That Plaintiff takes nothing by way of her complaint; 2. That Judgment be entered in Defendant’s favor; 3. For dismissal of this action with prejudice; 4 . For costs of suit incurred herein; DEFENDANT CAREY & CAREY’S ANSWER TO FIRST AMENDED COMPLAINT OF LOLITA QUE 5 O 0 0 ~ N E W NN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5. For reasonable attorneys’ fees; and 6. For such other and further relief as this Court may deem just and proper. Dated: June 29, 2020 CAREY & CAREY LOE CHRI STOPHER P-SUN Attor re for Defendant DEFENDANT CAREY & CAREY’S ANSWER TO FIRST AMENDED COMPLAINT OF LOLITA QUE 6 OO 0 3 N n R W ND e e NV N N R N N N N R N mm R k e m e d e k pe e b ee t p d e t 00 N N N nn BA W N = O D N RA W N = O PROOF OF SERVICE I am employed in the County of Santa Clara, California. Iam over the age of eighteen years and not a party to the within action. My business address is 706 Cowper Street, Palo Alto, California 94301. On this date I served the below listed document(s) on all parties in this action by placing true copies thereof in sealed envelopes addressed as shown below. DOCUMENT(S « DEFENDANT CAREY & CAREY’S ANSWER TO COMPLAINT eo CROSS-COMPLAINT / DEMAND FOR JURY TRIAL ADDRESSES Steven Miyake One Embarcadero Center, Suite 1020 San Francisco CA 94111 XXX (MAIL SERVICE) I placed each such sealed envelope, with postage thereon fully prepaid for first-class mail, for collection and mailing at the Palo Alto Post Office. Iam familiar with the practice of the law firm for collection and processing of correspondence, said practice being that in the ordinary course of business, correspondence is deposited with the United States Postal Service the same day as if placed for collection. (VIA FACSIMILE) I faxed a true copy of each above-referenced document to all parties listed in the "address" section of this same document. (VIA Email) [ emailed a true copy of each above-referenced document to all parties listed in the "address" section of this same document. I declare under penalty of perjury under the laws of the State of California hat the foregoing is true and correct. Executed this day at Palo Alto, California. \ Dated: June 30, 2020 Shawn 1 Que, Lolita//Case No. 20CV364285 PROOF OF SERVICE
