Answer Unlimited Fee AppliesCal. Super. - 6th Dist.March 24, 202110 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Thomas J. D'Amato - 219174 E|ectronica||y Filed tdamato damatolc.com . D'Amato Law C@6rporation by SUpenor court Of CA’ 25 Orinda Way, suite 308 COUMY 0f Santa C'aras Qrinda, CA 94563 on 6/1 0/2021 3:52 PM Telephone: (925) 317-1300 Reviewed By: L Del Mundo Facsimile: (925) 3 1 7-3239 Case #21 CV381 078 Envelope: 6626698 Attorneys for Defendants OPA! SANTA CLARA, L.P., DBA OPA! AUTHENTIC GREEK CUISINE and OPA MANAGEMENT GROUP, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA AUGUSTINE BOWERS II, a Delaware Case: 21CV381078 limited liability company, Plantiff, DEFENDANTS OPA! SANTA CLARA, L.P., DBA OPA! AUTHENTIC GREEK VS. CUISINE, AND OPA MANAGEMENT GROUP, INC.’S ANSWER TO OPA! SANTA CLARA, L.P., a California UNVERIFIED COMPLAINT limited partnership, dba OPA! AUTHENTIC GREEK CUISINE; OPA DEMAND FOR JURY TRIAL MANAGEMENT GROUP, INC., a California corporation; ANGELO Complaint filed: March 24, 2021 HEROPOULOS; SHELBY HEROPOULOS, MOLLY ADAMS; MARCUS ADAMS; DOES 1 THROUGH 20, INCLUSIVE, Defendants Defendants OPA! SANTA CLARA, L.P., DBA OPA! AUTHENTIC GREEK CUISINE and OPA MANAGEMENT GROUP, INC. (“Defendants”) respond t0 the unverified Complaint 0f Plaintiff AUGUSTIN BOWERS II, a Delaware limited liability company, as follows: GENERAL DENIAL Defendants deny generally and specifically, all and singular, each and every allegation of the -1- DEFENDANTS’ ANSWER TO COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Complaint, denies that Defendants were otherwise at fault in and about the matters alleged in said Complaint, and further denies that Plaintiff has been injured and/or damaged in any sum, sums, 0r at all. FIRST AFFIRMATIVE DEFENSE 1. Defendants allege that the Complaint, and each cause of action contained therein, fails t0 state facts sufficient to constitute a cause 0f action. SECOND AFFIRMATIVE DEFENSE 2. Defendants allege that the Complaint, and each cause of action contained therein, fails t0 state facts sufficient to constitute a breach of contract including, but not necessarily limited to, Plaintiff s performance of all requisite duties, and a breach, if any, by Defendants. THIRD AFFIRMATIVE DEFENSE 3. Defendants allege that the Complaint, and each contract generically alleged therein without being attached, was not formed and thus Defendants did not owe or breach any obligation to Plaintiff with respect t0 the allegations set forth in the Complaint. FOURTH AFFIRMATIVE DEFENSE 4. Defendants allege that the Complaint, and each cause 0f action therein, is barred by the applicable statute of limitations stated in Part Two, Title II, Chapter 3, of the Code of Civil Procedure. FIFTH AFFIRMATIVE DEFENSE 5 . Defendants are informed and believe and thereon allege that Plaintiff failed and neglected t0 use reasonable care t0 mitigate damages and protect itself and t0 minimize the losses and damages complained of, if any there were. SIXTH AFFIRMATIVE DEFENSE 6. Defendants are informed and believe and thereon that Plaintiff’ s claims in its Complaint are fatally uncertain as Plaintiff has failed to attach the at-issue contracts t0 the Complaint 0r t0 plead their substance verbatim. Defendants assert that the Complaint can and will be subject to a motion for judgment 0n the pleadings and reserves all such rights to make such a motion. SEVENTH AFFIRMATIVE DEFENSE 7. Defendants are informed and believe and thereon that Plaintiff s claims are barred by the parol evidence rule t0 the extent they are based on allegations or omissions Which either contradict or -2- DEFENDANTS’ ANSWER TO COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 are not specifically addressed in the alleged written agreements. EIGHTH AFFIRMATIVE DEFENSE 8. Defendants are informed and believe and thereon allege that Plaintiff s claims are barred in Whole 0r in part by the statute of frauds. NINTH AFFIRMATIVE DEFENSE 9. Defendants are informed and believe and thereon allege that the Complaint, and each cause 0f action contained therein, is barred by the equitable Doctrine of Laches. TENTH AFFIRMATIVE DEFENSE 10. Defendants are informed and believe and thereon allege that the Complaint, and each cause 0f action contained therein, is barred by the equitable Doctrine of Unclean Hands. ELEVENTH AFFIRMATIVE DEFENSE 11. Defendants are informed and believe and thereon allege that the Complaint, and each cause of action contained therein, is barred by the equitable Doctrine of Waiver and Plaintiff is also estopped from maintaining this action. TWELTH AFFIRMATIVE DEFENSE 12. Defendants are informed and believe and thereon allege that the Complaint, and each cause 0f action contained therein demanding sums is barred in Whole or in part by existing local and state ordinances related t0 COVID-19 and/or performance is excused in whole, or in part, by way legal concepts that include, but are not limited to, frustration 0f purpose, commercial impossibility, or commercial impracticability and/or Plaintiff fail t0 comply With notice and other provisions required by existing local and state ordinances, including but not limited to Santa Clara Ordinance No. NS-9.287, as extended and amended. THIRTEENTH AFFIRMATIVE DEFENSE 13. Defendants are informed and believe and thereon allege that jury trial waiver and demand for judicial reference requested in the Complaint is invalid, void or otherwise unenforceable. FOURTEENTH AFFIRMATIVE DEFENSE 14. Defendants presently have insufficient knowledge 0r information 0n which t0 form a belief as to whether Defendants may have additional, as yet unstated, defenses available. Defendants -3- DEFENDANTS’ ANSWER TO COMPLAINT \OOONQ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 reserve herein the right to assert additional defenses in the event discovery indicates that they would be appropriate. WHEREFORE, Defendants pray as follows: 1. That Plaintiff take nothing from these answering Defendants by this Complaint; 2. That Defendants be awarded judgment in this action; 3. For reasonable attorney fees and costs 0f suit incurred herein; and 4. For such other and fithher relief as the Court deems proper. DEMAND FOR JURY TRIAL Defendants hereby demands a trial by jury to the fullest extent permitted by law. DATED: June 10, 2021 D'AMATO LAW CORPORATION B 93%" Thomas J. D’Amato Attorneys for Defendants OPA! SANTA CLARA, L.P., DBA OPA! AUTHENTIC GREEK CUISINE and OPA MANAGEMENT GROUP, INC. -4- DEFENDANTS’ ANSWER TO COMPLAINT \OOONQ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE I, Gina Taber, declare: I am a citizen of the United States, am over the age of eighteen years, and am not a party to or interested in the Within entitled cause. My business address is 25 Orinda Way, Suite 308, Orinda, CA 94563. On June 10, 2021, I served the following document(s) 0n the parties in the within action: DEFENDANTS ANSWER TO COMPLAINT VIA MAIL: I am familiar with the business practice for collection and processing of mail. The above-described document(s) Will be enclosed in a sealed envelope, With first class postage thereon fully prepaid, and deposited with the United States Postal Service at Orinda, California on this date, addressed as listed below. VIA E-MAIL: I attached the above-described document(s) to an e-mail message, and X invoked the send command at approximately 5 :00 PM t0 transmit the e-mail message to the person(s) at the e-mail address(es) listed below. My email address is gtaber@damatolawcorp.com/ Ernie Zachary Park Attorney for Plaintiffs BEWLEY, LASSLEBEN & MILLER LLP AUGUSTINE BOWERS II 13215 E. Penn Street, Suite 510 Whittier, CA 90602 Ernie.Park(cDBewleV1aw.com I declare under penalty of perjury under the laws of the State of California that the foregoing is a true and correct statement and that this Certificate was executed 0n June 10, 2021. By- Gina Taber -5- DEFENDANTS’ ANSWER TO COMPLAINT