Answer Unlimited Fee Applies

Cal. Super. - 6th Dist.March 29, 2021

flam-bUJN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 CV381435 Santa Clara - Civil A. VillanL HAMBURG, KARIC, EDWARDS & MARTIN LLP Electroniflally Filed GREGG A. MARTIN, ESQ, State Bar No. 135685 by SUperlor Court of CA, ROBERT GRIJALBA, ESQ, State Bar No. 162810 County 0f Santa Clara, 1900 Avenue ofthe Stars, Suite 1800 0n 1/27/2022 12:54} PM Los Angeles, California 90067-4409 ReVIewed By: A. VIIIanueva Telephone: (310) 552-9292 C339 #21 CV381 435 Facsimile: (310) 552-9291 Envelope: 81 54902 Attorneys for Defendant, SHAPELL NORCAL RENTAL PROPERTIES, a Delaware limited liability company SUPERIOR COURT 0F THE STATE 0F CALIFORNIA 1N THE COUNTY 0F SANTA CLARA SAVE MART SUPERMARKETS, a California ) CASE NO" ”CV381435 corporation, ) Complaint Filed: March 29, 2021 Plamtlff’ ) [Assignedfor All Purposes t0 the Honorable Peter V ) Kirwan, Department I9] vv SHAPELL NORCAL RENTAL PROPERTIES, a ) DEFENDANT’S ANSWER T0 COMPLAINT Delaware limited liability company; and DOES 1 through 10, inclusive, Defendants. VVVVVVV ANSWER TO COMPLAINT _ 1 _ 8V8 flam-bWN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant, SHAPELL NORCAL RENTAL PROPERTIES (Defendant) submits its Answer to the Plaintiff’s SAVE MART SUPERMARKETS (Plaintiff) Complaint as follows: 1. Defendant denies both generally and specifically, each and every allegation contained in the Complaint, and the Whole thereof, including each and every purported cause of action contained therein. 2. Whenever a sum 0fmoney appears in the Complaint, Defendant denies said sum and the whole thereof, or any other sum; Whenever a date appears, Defendant denies said date, or any other date; whenever a time appears, Defendant denies each and every time, or any other time; and Whenever a rate 0r amount 0f interest appears, Defendant denies such rate and amount, 0r any other rate 0r amount. FIRST AFFIRMATIVE DEFENSE (Failure to State a Claim) 3. Defendant is informed and believes, and thereupon alleges that the Complaint, and each and every purported cause 0f action contained therein, fails to state a claim sufficient t0 constitute a cause of action against the Defendant. SECOND AFFIRMATIVE DEFENSE (Lack 0f Capacity to Sue) 4. Defendant is informed and believes, and thereupon alleges that Plaintiff lacks the capacity to sue due t0 the suspension of its corporate powers, rights and privileges. THIRD AFFIRMATIVE DEFENSE (Performance Excused) 5. Defendant is informed and believes, and thereupon alleges, that assuming it failed to perform the obligations described in the Complaint (which failure is generally and specifically denied), such failure resulted from the conduct 0f Plaintiff 0r others not named in the Complaint. Said failure t0 perform by Plaintiff or others not named in the Complaint was a condition precedent to or concurrent condition with the performance of Defendant’s obligations. FOURTH AFFIRMATIVE DEFENSE (Failure to Mitigate) 6. Plaintiff failed to take reasonable and necessary steps to mitigate its damages as alleged ANSWER TO COMPLAINT -2- flONUI-PUJN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 in the Complaint, if any there were. To the extent that such damages, if any there were, were incurred, Plaintiff s recovery, if any, should be reduced or barred in its entirety accordingly. FIFTH AFFIRMATIVE DEFENSE (Estoppel) 7. Plaintiff is estopped from asserting the allegations contained in the Complaint or otherwise asserting any right t0 relief against Defendant by reason 0f Plaintiff” s acts, omissions, representations, and courses of conduct upon Which Defendant was led to rely to their detriment. SIXTH AFFIRMATIVE DEFENSE (Justification and Privilege) 8. Defendant is informed and believes, and thereupon alleges, that the conduct 0f Defendant, as alleged in the Complaint, was justified and permitted by the express terms 0f the agreement, and by reason 0f the foregoing, Plaintiff is barred from any recovery against Defendant. SEVENTH AFFIRMATIVE DEFENSE (Waiver) 9. Plaintiff have voluntarily, expressly, impliedly, or knowingly waived each and all of its purported rights and claims and causes of action contained in the Complaint against Defendant. EIGHTH AFFIRMATIVE DEFENSE (Unclean Hands) 10. Defendant is informed and believes, and thereupon alleges, that Plaintiff” s claims are barred by the doctrine of unclean hands. NINTH AFFIRMATIVE DEFENSE (Comparative Fault) 11. Defendant is informed and believes, and thereupon alleges, that it is not legally responsible in any fashion With respect to the damages and injuries claimed by Plaintiff in their Complaint. However, if Defendant is subject t0 any liability to Plaintiff herein, it Will be due in whole or in part to the strict liability, breach 0f warranty, breach of contract, acts, omissions, activities, carelessness, recklessness and/or negligence of other third parties, including, but not limited to, the ANSWER TO COMPLAINT -3- flam-bUJN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff herein. Wherefore, any recovery obtained by Plaintiff herein against Defendant should be reduced in proportion t0 its respective negligence and fault and/or legal responsibility 0f all of the parties, persons 0r entities, their agents, servants and employees, Who contributed t0 and/or cause any such injury and/or damages in accordance With the law. The liability of Defendant, if any, is limited in direct proportion to the percentage of fault actually attributed t0 Defendant. TENTH AFFIRMATIVE DEFENSE (Completed Performance) 12. Defendant is informed and believes, and thereupon alleges, that Defendant fully performed all the terms, conditions, and covenants it was required t0 perform under the contract, except that which they were prevented from performing by Plaintiff, whether jointly or severally, and Plaintiff s are therefore barred from asserting any cause of action against Defendant. ELEVENTH AFFIRMATIVE DEFENSE (Breach of Implied Covenant of Good Faith and Fair Dealing) 13. Defendant is informed and believes, and thereupon alleges, that based upon Plaintiff s conduct, Plaintiff has breached the implied covenant of good faith and fair dealing. TWELFTH AFFIRMATIVE DEFENSE (Unjust Enrichment) 14. Plaintiffwould be unjustly enriched if allowed to recover on its Complaint. THIRTEENTH AFFIRMATIVE DEFENSE (Lack of Consideration) 15. Plaintiff is are barred from all relief sought in the Complaint due to lack 0f consideration. FIFTEENTH AFFIRMATIVE DEFENSE (Lack 0f Standing) 16. Defendant is informed and believes, and thereupon alleges, that Plaintiff lack standing t0 assert any of the claims set forth in the Complaint against it. ANSWER TO COMPLAINT -4- flONUI-PUJN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SIXTEENTH AFFIRMATIVE DEFENSE (Statute 0f Frauds) 17. Defendant alleges that Plaintiffs claims are barred by the statute 0f frauds, and by reason of the foregoing, Plaintiff is barred from any recovery against Defendant. SEVENTEENTH AFFIRMATIVE DEFENSE (Set-off) 18. Defendant is informed and believes, and thereupon alleges, that to the extent that Defendant may become liable to Plaintiffby Virtue 0f the allegations contained in the Complaint herein (which liability is generally and specifically denied), Defendant alleges that it is entitled t0 a counter- claim and/or setoff against Plaintiffby Virtue 0f their own breach 0f contract, acts, omissions or any other wrongful conduct. EIGHTEENTH AFFIRMATIVE DEFENSE (Laches) 19. The claims in the Complaint are barred by the equitable doctrine of laches. PRAYER FOR RELIEF WHEREFORE, Defendant prays for judgment as follows: 1. That Plaintiff takes and have nothing by way of its Complaint; 2. That Judgment be entered in favor of Defendant on the Complaint; 3. That Defendant be awarded costs of suit incurred herein; 4. That Defendant be awarded attorneys’ fees incurred herein; and 5. For such other and further legal and equitable relief as the court deems just and proper. DATED: January 27, 2022 HAMBURG, KARIC, EDWARDS & MARTIN LLP By: /s/GREGG A. MARTIN, ESQ. GREGG A. MARTIN, ESQ. ROBERT GRIJALBA, ESQ. Attorneys for Defendant, SHAPELL NORCAL RENTAL PROPERTIES ANSWER TO COMPLAINT -5- QQUI-bUJN 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 LOS ANGELES I am employed in the County of Los Angeles, State of California. I am over the age 0f 18 and not a party to the within action. My business address is 1900 Avenue 0f the Stars, Suite 1800, Los Angeles, California 90067-4409. On January 27, 2022, I served the foregoing document described as DEFENDANT’S ANSWER TO COMPLAINT 0n all 0f the following interested parties in this action by placing true copies thereof enclosed in sealed envelopes addressed as stated below: Simon O. Offord, Esq. Brewer Offord & Pedersen LLP 2225 E1 Camino Real Palo Alto, California 94306 Attorneyfor Plaintiffi SA VEMARTSUPERMARKETS simon@brewerfirm.com BY ELECTRONIC MAIL OR ELECTRONIC TRANSMISSION: Based 0n a court order 0r an agreement 0f the parties t0 accept service by e-mail or electronic transmission, I caused the document to be sent to the respective e-mail addresses 0f the parties. I did not receive, within a reasonable time after the transmission, any electronic message 0r other indication that the transmission was unsuccessful. Executed 0n January 27, 2022, at Los Angeles, California. (State) I declare under penalty 0f perjury under the laws 0f the State 0f California that the above is true and correct. D (Federal) I declare that I am employed in the office of a member of the bar of this Court at whose direction the service was made. /s/PHILIP SANCHEZ Philip Sanchez -8- ANSWER TO COMPLAINT