Answer Unlimited Fee Applies

Cal. Super. - 6th Dist.March 3, 2021

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ALDO E. IBARRA (SBN 268585) Electronically Filed aibarra@nixonpeabody.com by Superior Court of CA, NIXON PEABODY LLP County of Santa Clara, One Embarcadero Center, 32nd Floor on 5/26/2021 9:53 AM San Francisco, CA 941 11 . _ Tel; 415-984-8200 ReVIewed By. L Del Mundo Fax; 415-984-8300 Case #21CV379124 Envelope: 6523081 Attorneys for Defendants INFRRD, INC. and RARE MILE TECHNOLOGIES, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA UNLIMITED JURISDICTION HUDSON GATEWAY PLACE, LLC, Case N0. 21CV379124 Plaintiff, ANSWER TO COMPLAINT FOR BREACH OF LEASE AND DAMAGES VS. INFRRD, INC., RARE MILE TECHNOLOGIES, INC. and DOES 1-100, Defendants. Defendants INFRRD, INC. (“Infrrd”) and RARE MILE TECHNOLOGIES, INC. (“RMT”), collectively the “Defendants,” hereby respond t0 PlaintiffHUDSON GATEWAY PLACE, LLC’s (“Plaintiff’) Complaint (“Complaint”) and state as follows: GENERAL DENIAL Pursuant t0 California Code of Civil Procedure § 43 1 .30(d), Defendants deny generally and specifically each and every allegation contained in Plaintiff’s Complaint and the whole thereof, and further deny that Plaintiff has been damaged in any sum or sums, 0r in any manner at all, or is entitled to any reliefwhatsoever from Defendants. /// 4843-76 1 8-9669.2 ANSWER TO COMPLAINT FOR BREACH OF LEASE AND DAMAGES; CASE NO. 21CV379124 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AFFIRMATIVE DEFENSES Without alleging that Defendants have the burden 0fproof 0n the following, Defendants state the following affirmative defenses t0 Plaintiff s Complaint: FIRST AFFIRMATIVE DEFENSE (Failure t0 State Cause 0f Action) 1. Each cause 0f action alleged against Defendants fails t0 state facts sufficient to constitute a cause of action. SECOND AFFIRMATIVE DEFENSE (Statute 0f Limitations) 2. Plaintiff failed t0 comply with all applicable statutes 0f limitation, including, but not limited to, Code 0f Civil Procedure §§ 337, 339 and 343. THIRD AFFIRMATIVE DEFENSE (Laches) 3. Plaintiff s claims are barred under the equitable doctrine 0f laches. FOURTH AFFIRMATIVE DEFENSE (Material Breaches) 4. Plaintiff materially breached its alleged contractual obligations With Defendants and/or with third parties and thus is not entitled t0 contractual damages, 0r any damages whatsoever. FIFTH AFFIRMATIVE DEFENSE (Contributory/Comparative Fault) 5. Any recovery against Defendants is barred in Whole, 0r in part, by Plaintiff’ s own contributory and/or comparative fault. SIXTH AFFIRMATIVE DEFENSE (Actions of Third Parties) 6. If Plaintiff has suffered any damages, such damages were proximately caused by acts 0f third parties over which Defendants had no control. 4843-7618-9669.2 2 ANSWER TO COMPLAINT FOR BREACH OF LEASE AND DAMAGES; CASE NO. 21CV379124 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SEVENTH AFFIRMATIVE DEFENSE (No Damages) 7. Defendants were not a party to any conduct, acts, and/or omissions, if any, that were a direct 0r proximate cause of the losses, damages, injuries 0r Violations alleged by Plaintiff, if any. EIGHTH AFFIRMATIVE DEFENSE (Unclean Hands, in Pari Delicto, and Other Equitable Doctrines) 8. Plaintiff’s claims are barred in Whole 0r in part by in pari delicto, unclean hands, and all other applicable equitable doctrines from seeking any recovery from Defendants. NINTH AFFIRMATIVE DEFENSE (Estoppel) 9. Plaintiff is estopped by her conduct from recovering any relief from Defendants. TENTH AFFIRMATIVE DEFENSE (Failure to Mitigate Damages) 10. Any recovery from Defendants is barred in whole, 0r in part, by Plaintiff s failure to mitigate its damages, if any. ELEVENTH AFFIRMATIVE DEFENSE (Good Faith) 1 1. Defendants have acted in good faith, without malice, and have not violated any right that Plaintiffmay have under law. TWELFTH AFFIRMATIVE DEFENSE (Setofi) 12. Defendants have claims for damages against Plaintiff Which co-existed at the same time 0f the claims asserted in the Complaint. Plaintiff s recovery, if any, against Defendants must be reduced Via setoff in an amount equal t0 the claims Which Defendants have against Plaintiff. THIRTEENTH AFFIRMATIVE DEFENSE (Failure 0f Performance) 13. Plaintiff failed to perform under the agreement(s) with Defendants alleged in the Complaint, if any such agreement(s) existed. 4843-7618-9669.2 _ 3 _ ANSWER TO COMPLAINT FOR BREACH OF LEASE AND DAMAGES; CASE NO. 21CV379124 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FOURTEENTH AFFIRMATIVE DEFENSE (Breach 0f Implied Covenant 0f Good Faith and Fair Dealing) 14. The Complaint against Defendants is barred by Plaintiff’s prior breach(es) 0f the implied covenant of good faith and fair dealing. FIFTEENTH AFFIRMATIVE DEFENSE (Lack 0f Standing) 15. Plaintiff lacks standing to pursue any of the alleged causes of action against Defendants. SIXTEENTH AFFIRMATIVE DEFENSE (Lack 0f Causation) 16. Defendants were not the cause, either legally 0r proximately, 0f the damages sustained by Plaintiff, if any. SEVENTEENTH AFFIRMATIVE DEFENSE (Ratification) 17. Plaintiff s claims are barred, in whole 0r in part, by ratification. EIGHTEENTH AFFIRMATIVE DEFENSE (Failure 0f Condition) 18. Plaintiff failed to perform the requisite conditions required under the alleged contracts, if any. NINETEENTH AFFIRMATIVE DEFENSE (Excuse) 19. Any alleged failure of Defendants t0 perform a duty have been excused by Plaintiff s failure to perform its responsibilities and/or contractual obligations, if any. TWENTIETH AFFIRMATIVE DEFENSE (Limitation 0n Remedies) 20. To the extent that Plaintiff is entitled t0 any remedy against Defendants, such remedy is limited t0 the remedies, if any, set forth in the alleged contract(s) between Plaintiff and Defendants. 4843-7618-9669.2 _ 4 _ ANSWER TO COMPLAINT FOR BREACH OF LEASE AND DAMAGES; CASE NO. 21CV379124 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TWENTY-FIRST AFFIRMATIVE DEFENSE (Any Alleged Damage is Speculative/Uncertain) 21. Plaintiff s claims are barred, in whole 0r in part, because any alleged damages are speculative, uncertain, and impossible t0 ascertain 0r allocate. TWENTY-SECOND AFFIRMATIVE DEFENSE (Unjust Enrichment) 22. Plaintiff’ s claims are barred, in whole 0r in part, because recovery 0n such claims would result in unjust enrichment t0 Plaintiff. TWENTY-THIRD AFFIRMATIVE DEFENSE (Defendants Acted Reasonably) 23. Plaintiff s claims are barred, in whole 0r in part, because any conduct engaged in by Defendants has been reasonable, based upon independent, legitimate business and economic justifications, and Without any purpose or intent t0 injure competition. TWENTY-FOURTH AFFIRMATIVE DEFENSE (Preemptive Executive Order/Failure t0 Meet Requirements/Defective Notice) 24. The California Governor issued an Executive Order, and the County of Santa Clara an Ordinance, regarding a moratorium against the claims Plaintiff asserts in its Complaint, thereby preempting all of Plaintiff’s claims. Furthermore, the existing Executive Order and Ordinance provide for certain requirements and notices, Which Plaintiff failed t0 comply by before filing the present Complaint. Plaintiff s notice on which the present action is based is defective and improper. TWENTY-FIFTH AFFIRMATIVE DEFENSE (Force Majeure) 25. The Covid-19 Pandemic excuses Defendants from the alleged failure to perform under the principles of force maj eure. TWENTY-SIXTH AFFIRMATIVE DEFENSE (Impossibility) 26. Defendants’ performance obligations, if any, under the parties’ alleged relationship 4843-7618-9669.2 _ 5 _ ANSWER TO COMPLAINT FOR BREACH OF LEASE AND DAMAGES; CASE NO. 21CV379124 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 asserted in the Complaint were impossible t0 perform given unforeseeable circumstances and circumstances outside 0f Defendants’ control. TWENTY-SEVENTH AFFIRMATIVE DEFENSE (Impracticability/Frustration 0f Purpose) 27. Defendants’ performance obligations, if any, under the parties’ alleged relationship asserted in the Complaint were impractical to perform and the purpose 0f any such relationship was frustrated given unforeseeable circumstances and circumstances outside of Defendants” control. TWENTY-EIGHTH AFFIRMATIVE DEFENSE (Constructive Eviction/Retaliatory Eviction) 28. Plaintiff acts and omissions have intervened with Defendants’ right t0 beneficial and peaceful possession in breach of the covenant 0f quiet enjoyment and such conduct and omission amounts t0 constructive eviction, such constructive eviction is for an improper purpose, and in retaliation for Defendants’ assertion of its rights. TWENTY-NINTH AFFIRMATIVE DEFENSE (Incorporation 0f Other Defenses) 3 1. Defendants allege that any affirmative defenses pled by any other defendant 0r cross-defendant and not pled herein are incorporated as though fully set forth herein. THIRTY AFFIRMATIVE DEFENSE (Ambiguous Complaint-Defenses Reserved) 30. Defendants alleges that, because Plaintiff” s Complaint is vague and ambiguous, it presently has insufficient knowledge 0r information 0n Which t0 form a belief as t0 Whether it may have additional, as yet unstated, defenses available. Defendants, accordingly, reserve their right to assert additional defenses in the event they determine that such defenses may be appropriate. /// /// /// 4843-7618-9669.2 6 ANSWER TO COMPLAINT FOR BREACH OF LEASE AND DAMAGES; CASE NO. 21CV379124 \IQUI-hWN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WHEREFORE, these Answering Defendants pray as follows: 1. That Plaintiff takes nothing by way 0f its Complaint; 2. That the causes 0f action against Defendants be dismissed entirely; 3. That Defendants be awarded judgment herein; 4. That Defendants be awarded attomeys’ fees and costs incurred herein; 5. That Defendants be awarded such other further relief as the Court may deem just and proper. Dated: May 26, 2021 NIXON PEABODY L By: Aldo E. Ibarra Attorneys for Defendants INFRRD, INC. and RARE MILE TECHNOLOGIES, INC. 4843-76 1 8-9669‘2 7 ANSWER TO COMPLAINT FOR BREACH OF LEASE AND DAMAGES; CASE NO. 21CV3 79124 “GUIAWN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE CASE NAME: Hudson Gateway Place, LLC v. Infrrd, Inc. et a1 COURT: Superior Court, County of Santa Clara CASE NO.: 21cv379124 NP FILE: 093353-3 I, the undersigned, certify that I am employed in the City and County 0f San Francisco, California; that I am over the age of eighteen years and not a party to the within action; and that my business address is One Embarcadero Center, 32nd Floor, San Francisco, California 941 1 1. On this date, I served the following document(s): ANSWER TO COMPLAINT FOR BREACH OF LEASE AND DAMAGES on the parties stated below, through their attorneys of record, by placing true copies thereof in sealed envelopes addressed as shown below by the following means of service: x_z By First-Class Mail- I am readily familiar with the firm’s practice for collection and processing 0f correspondence for mailing. Under that practice, the correspondence is deposited with the United States Postal Service on the same day as collected, with first- class postage thereon fully prepaid, in San Francisco, California, for mailing to the office 0f the addressee following ordinary business practices. _: X : BV Electronic Mail/E-Filing- I caused each such document(s) to be served electronically on the person(s) listed below Via their electronic email address listed. Kevin P. Montee, Esq. Montee Law Firm, APC 1250-1 Newall Avenue, Suite 149 Walnut Creek, CA 94596 Tel: 925-979-5579 Fax: 925-955-1648 kmontee@monteefirm.com I declare under penalty ofperjury that the foregoing is true and correct. Executed 0n May 26, 2021, at Livermore, California.WWW Gina Caspersen 4834-5043-1 198.1 PROOF OF SERVICE