Answer Unlimited Fee AppliesCal. Super. - 6th Dist.November 16, 202020CV373547 Santa Clara - Civil R. Anagon Electronically Filed 1 RONALD R. ROSSI (SBN 43067) . RICHARD B. GULLEN (SBN 144513) by SUpemr cw” °f CA’ 2 GABRIEL A. RODRIGUEZ (SBN 292911) C°unty °f santa C'a’a’ ROSSI, HAMERSLOUGH, REISCHL & CHUCK 0n “13/2021 3:53 PM 3 1960 The Alameda, Suite 200 Reviewed By: R. Aragon San Jose, CA 95126-1493 Case #20CV373547 4 T613 (408) 261-4252 Envelope: 5636752 Fax: (408) 261-4292 5 ron@rhrc.net rick@rhrc.net 6 gabe@rhrc.net 7 Attorneys for Defendant DEALERCMO, INC., a California Corporation 8 (erroneously sued as DealerCMO) 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 FOR THE COUNTY OF SANTA CLARA 11 SCOTT GOODSELL, Case N0.: 20CV373547 12 Plaintiff, ANSWER TO COMPLAINT 13 VS. 14 DEALERCMO, INC., a California Corporatiojn (erroneously sued as 15 DealerCMO); and DOES 1 through 20, inclusive, 16 Action Filed: 1 1/1 6/2020 Defendants. Trial Date: T.B.D. 1 7 18 Defendant DEALERCMO, INC., a California Corporation (erroneously sued as 19 DealerCMO) (hereinafter “Defendant”) generally denies each and every allegation of Plaintiff’s 20 Complaint. 21 Defendant states the following separate affirmative defenses t0 Plaintiff’s Complaint: 22 AFFIRMATIVE DEFENSES 23 1. Defendant denies each and every allegation of the Complaint and in particular 24 denies that Plaintiff was damaged in the sums alleged or in any sum as a result of any act or Rosswmslwgh, 25 omission 0f Defendant. Reischl & Chuck 1960 The Alameda siuifsi°3A 26 2. The Complaint and each cause of action fail t0 allege facts sufficient to constitute 951264493 (408) 2614252”WWW” 27 a cause 0f action. 28 3. Plaintiff has failed to invoke arbitration as required under the parties’ Lease ANSWER TO COMPLAINT 1 Rossi, Hamerslough, Reischl & Chuck 1960 The Alameda Suite 200 San Jose, CA 95126-1493 (408) 261 -4252 Fax (408) 261 -4292 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 agreement before the filing 0f the instant complaint. 4. Plaintiff’s claims are partial barred by Defendant’s right t0 offset 0f amounts already paid 0r deposits already made and in possession of Plaintiff. 5. The Complaint and each cause of action are barred by Civil Code § 1511 stemming from the global pandemic 0f COVID-19 and the resultant state and local shelter in place orders and other orders 0f state and local public health officers and government officials. 6. The Complaint and each cause of action are barred by reason 0f the doctrine 0f impossibility 0fperformance 0f the contract stemming from COVID-19 and the resultant state and local shelter in place orders and other orders 0f state and local public health officers and government officials. 7. The Complaint and each cause 0f action are barred by reason 0f the doctrine 0f frustration 0f purpose 0f the contract stemming from COVID-19 and the resultant state and local shelter in place orders and other orders 0f state and local public health officers and government officials. 8. The Complaint and each cause of action are barred by the doctrine of estoppel. 9. The Complaint and each cause 0f action are barred by the doctrine 0f rescission. 10. The Complaint and each cause of action are barred by the application 0f the doctrine of waiver t0 the acts, conduct, and representations by Plaintiff. 11. Plaintiff is guilty of unclean hands, Which bars its right 0f recovery against Defendant. 12. The Complaint and each cause of action are barred by the doctrine of laches. 13. The Complaint and each cause 0f action are barred by application 0f the doctrine 0f unjust enrichment t0 the acts, conduct, and representations by Plaintiff. 14. The Complaint and each cause of action are barred by application of the doctrine 0f assumption 0f risk to the acts, conduct, and representations by Plaintiff. 15. Plaintiff failed to mitigate its damages, if any, and any recovery awarded should be reduced by the amount 0f damages that could reasonably have been avoided by such actions. 16. Plaintiff’s claims are barred by the applicable statute 0f frauds. ANSWER TO COMPLAINT 2 Rossi, Hamerslough, Reischl & Chuck 1960 The Alameda Suite 200 San Jose, CA 95126-1493 (408) 261 -4252 Fax (408) 261 -4292 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17. The Complaint and each cause 0f action are barred by failure of consideration. 18. The Complaint and each cause 0f action are barred by the material mistake 0f fact. 19. The Complaint and each cause of action are barred by the application of the doctrine of uncertainty and indefiniteness 0f the agreement. 20. The Complaint and each cause of action are barred by the failure of certain contingencies 0r conditions precedent. 21. The Complaint and each cause 0f action alleged therein fail t0 state facts sufficient t0 allow for Plaintiff s recovery 0f attorney’s fees. 22. Defendant is informed and believes, and upon such information and belief alleges, that Plaintiff s Complaint and each alleged cause 0f action therein are absolutely barred by the failure of Plaintiff to give this answering Defendant reasonable notice 0f the alleged breach 0f contract for the wrongful conduct as alleged in the Complaint. 23. Plaintiff” s claims concerning the nonpayment 0f rent are barred as unripe 0n account 0f the County 0f Santa Clara’s Commercial Eviction Moratorium (N0. NS-9.287 and various extensions), and the repayment plan codified therein, Which mandates that qualified tenants have 6 months t0 pay 50% of the past-due rent and 12 months to pay 100% of the past- due rent following the expiration 0f the County’s ordinance, currently set for April 3 1 , 2021, or the State of California Emergency Executive Order N-28-20, Whichever is earlier. 24. Plaintiff’s claims regarding late fees are barred 0n account 0f the County 0f Santa Clara’s Commercial Eviction Moratorium (N0. NS-9.287 and various extensions), and its barring of the charging of late fees for rent delayed during the term of the Ordinance Which is ongoing and currently set to expire at the earlier 0f April 31, 2021 0r the expiration of the State of California Emergency Executive Order N-28-20 so long as such rent is paid in accordance with the repayment provisions 0f the Ordinance. 25. As reflected in the County 0f Santa Clara’s Commercial Eviction Moratorium (N0. NS-9.287 and various extensions) the Lease and its terms are unconscionable and/or void against public policy and the Lease should be rescinded its entirety 0n that basis 0r, alternatively, ANSWER TO COMPLAINT 3 Rossi, Hamerslough, Reischl & Chuck 1960 The Alameda Suite 200 San Jose, CA 951264493 (408) 2614252 Fax (408) 2614292 KOOOQQ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to the extent severable, those terms which are found t0 be unconscionable and/or void against public policy should be ordered severed from the Lease, including but not limited to any provisions in the Lease waiving application 0f future statutes t0 the extent that such statutes are inconsistent with the Lease. WHEREFORE, Defendant prays that Plaintiff take nothing by its Complaint; that Defendant be awarded costs of suit and reasonable attorneys’ fees pursuant to Civil Code §1717, and § 1717.5 as applicable; and for such other relief as the Court deems just and proper. Dated: JanuarV 13. 2021 ROSSI. HAMERSLOUGH. REISCHL & CHUCK /s/ GabrLeJ/A. 1%me BY: RONALD R. ROSSI, ESQ, RICHARD B. GULLEN, ESQ. GABRIEL A. RODRIGUEZ. ESQ. Attorneys for Defendant DEALERCMO, INC., a California Corporation (erroneously sued as DealerCMO) ANSWER TO COMPLAINT 4 Rossi, Hamerslough, Reischl & Chuck 1960 The Alameda Suite 200 San Jose, CA 95126-1493 (408) 261 -4252 Fax (408) 261 -4292 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF SANTA CLARA: I, the undersigned, state that I am a citizen 0f the United States and am employed in the County of Santa Clara; that I am over the age 0f eighteen (1 8) years and not a party t0 the within action; and that my business address is 1960 The Alameda, Suite 200, San Jose, CA 95 126-1493. On the date set forth below, I served the following documents: ANSWER TO COMPLAINT on the person(s) listed below: William J. Healy, Esq. Attorneys for Plaintiff Law Office 0fWilliam J. Healy 748 Holbrook Place Sunnvvale. CA 94087 (BY MAIL) I enclosed documents in sealed envelope(s) or package(s) addressed to the persons at the addresses listed above and placed said envelope(s) 0r package(s) for collection and mailing following Rossi, Hamerslough, Reischl & Chuck’s ordinary business practices, with Which I am readily familiar. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the U.S. Postal Service, with postage thereon fully prepaid. (BY ELECTRONIC TRANSMISSION) Pursuant to C.C.P. §1010.6, by my contemporaneous submission herewith t0 a Court-approved electronic filing service provider, I caused said document(s) t0 be transmitted by electronic transmission 0n this date t0 the electronic service address(es) 0f the addressee(s). A true and correct copy 0f said provider’s electronic notification 0f service [C.C.P. §1010.6(a)(1)(C)] will be produced if requested by any party to the Within action or the Court. D (BY ELECTRONIC TRANSMISSION [non e-filed document(s)]) I caused said document(s) t0 be transmitted by electronic mail service on this date to the offices of addressee(s), using the email addresses noted above. My email address is @rhrc.net. D (BY PERSONAL SERVICE) I caused said envelope(s) or package(s) t0 be delivered by hand this date to the office(s) of the addressee(s). D (BY OVERNIGHT DELIVERY) I enclosed said document(s) in an envelope 0r package provided by an overnight delivery carrier and addressed to the persons at the addresses listed 0n this Proof of Service. Iplaced the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box 0f overnight delivery carrier 0r caused the envelope 0r package t0 be delivered t0 a courier 0r driver authorized by overnight delivery carrier to receive documents. (STATE) I declare under penalty 0f perjury under the laws of the State of California that the foregoing is true and correct. Executed on January 13, 2021 at San Jose, California. A/fokuie/Carola” JAMIE CARDOSO S:\CL\R\R20354\Pldgs\Ans To Complaint [1-13-2021].D0cx
