Answer Unlimited Fee AppliesCal. Super. - 6th Dist.March 29, 2021JEPPSON & GRIFFIN, LLP 1478 Stone Point Drive, Suite 100, Roseville, CA 95661 KDOOQQUIhUJNt-l NNNNNNNNNp-Au-Awr-Ar-Ar-‘Hb-AI-It-t WQONUI-bUJNI-iOwOOQQUI-FWNI-‘O 21 CV381441 Santa Clara - Civil Desiree l lfaro Marc C. Guédenet (State Bar No 292868) JEPPSON & GRIFFIN, LLP Electronically Filed 1478 Stone Point Drive, Suite 100 by Superior Court of CA, ROSCVille, CA 95661 County of Santa Clara, Telethne: (916) 780-7008 on 1120/2022 8:34 AM Facsmule: (916) 780'7118 Reviewed By: Desiree Alfaro Attorneys for Defendants Sheila Leigh Miller and gasel#21 ?gggggg Mitchell Lance Miller nve Ope' SUPERIOR COURT 0F THE STATE 0F CALIFORNIA COUNTY 0F SANTA CLARA -000- HARPEL ASSOCIATES, LLC, A California Case No. 21CV38 1441 limited liability company, DEFENDANT MITCHELL LANCE plaintiff MILLER’S ANSWER TO FIRST ’ AMENDED COMPLAINT V. PHYSICAL CULTURE STRENGTH AND First Amended Complaint Filed: 8/19/2021 CONDITIONING, a California corporation, SHEILA LEIGH MILLER, an individual, MITCHELL LANCE Miller, an individual, . MARNEL ELLEN KING, an individual, Trlal Date‘ N“ Set PATRICIA KATHLEEN LYNCH, an individual, and DOES l through 10, Inclusive Defendants. ANSWER Defendant MITCHELL LANCE MILLER (“Defendant”) hereby responds to Plaintiff HARPEL ASSOCIATES, LLC’s (“Plaintiff”) unverified First Amended Complaint (“Complaint”) and alleges as follows: GENERAL Defendant generally denies each and every allegation in the Complaint, and further specifically denies that Plaintiffwas damaged in the sums alleged or in any other sum, or at all, by reason of any conduct on the part of Defendant. 1 DEFENDANT MITCHELL LANCE WLLER’S ANSWER TO FIRST AMENDED COMPLAINT JEPPSON & GRIFFIN, LLP 1478 Stone Point Drive, Suite 100, Roseville, CA 95661 Uth-l \OOOQON 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AFFIRMATIVE DEFENSES Pursuant to California Code of Civil Procedure section 431 .30(b)(2) and (g), Defendant asserts and reserves the following affirmative defenses: FIRST AFFIRMATIVE DEFENSE As a First Separate and Affirmative Defense, Defendant alleges that the Complaint, and each cause of action set forth therein, fails t0 state facts sufficient to constitute a cause of action upon which relief can be granted. SECOND AFFIRMATIVE DEFENSE As a Second Separate and Affirmative Defense, Defendant alleges that Plaintiff failed to take appropriate action t0 mitigate its alleged damages, if any exist, which Plaintiff claims to have sustained, and Plaintiff’s recovery should, therefore, be barred 0r diminished accordingly. Plaintiff has always had possession of the subject property and had an obligation and duty to use reasonable care and diligence in mitigating its damages, if any. Plaintiff’s Complaint is devoid of any allegations regarding mitigation efforts of its claimed damages, to the extent Plaintiff has suffered any damages. THIRD AFFIRMATIVE DEFENSE As a Third Separate and Affirmative Defense, Defendant alleges that the Complaint, and each cause of action purportedly alleged therein and any damages obtained thereunder, should be offset by the approximately $4,391and $5,372 rental security deposits paid by the Tenant and co- defendant Physical Culture Strength and Conditioning. Further, if any liability is established against this answering Defendant, any such amount should be further offset by any amounts received by Plaintifffiom co-defendants Marnel Ellen King and Patricia Kathleen Lynch. FOURTH AFFIRMATIVE DEFENSE As a Fourth Separate and Affirmative Defense, Defendant alleges that the Complaint, and each cause of action purportedly alleged therein, is barred, in whole or in part, based on lack 0f mutual assent between this answering Defendant and Plaintiff in that this Defendant is not the Tenant nor a party to the underlying lease agreements. /// 2 DEFENDANT MITCHELL LANCE MILLER’S ANSWER TO FIRST AMENDED COMPLAINT JEPPSON & GRIFFIN, LLP 1478 Stone Point Drive, Suite 100, Roseville, CA 95661 UI¥UJN \OOONQ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FIFTH AFFIRMATIVE DEFENSE As a Fifth Separate and Affn‘mative Defense, Defendant alleges that the Complaint, and each cause of action purportedly alleged therein, is barred, in whole in or in part, to the extent that damages claimed are the result of errors, omissions, and breach of contractual duties of others over whom Defendant had no control. SIXTH AFFIRMATIVE DEFENSE As a Sixth Separate and Affirmative Defense, Defendant alleges that the Complaint, and each cause of action purportedly alleged therein, is barred, in whole or in part, based on mistake. SEVENTH AFFIRMATIVE DEFENSE As a Seventh Separate and Affirmative Defense, Defendant alleges that no reliefmay be obtained fiom or against Defendant under the Complaint, or any claim therein, because to the extent Plaintiff suffered any harm or damage, such harm or damage was the result of the actions and/or omissions of parties other than Defendant thus barring wholly or reducing the percentage of liability by Defendant. EIGHTH AFFIRMATIVE DEFENSE As an Eighth Separate and Affirmative Defense, Defendant alleges that the Complaint, and each cause of action purportedly alleged therein, is barred in whole or in part by the statute of limitations including but not limited t0 Civil Code section 337. NINTH AFFIRMATIVE DEF_ENSE As a Ninth Separate and Affirmative Defense, Defendant alleges that the Complaint, and each cause of action purportedly alleged therein, is barred as a result of the Plaintiff’s failure to satisfy conditions precedent. TENTH AFFIRMATIVE DEFENSE As a Tenth Separate and Affirmative Defense, Defendant alleges that if Defendant is held liable in any manner for the injuries or damages allegedly sustained by Plaintiff, Plaintiff s recovery from Defendant should be reduced, diminished, offset, and/or barred by reason of the negligence 0r wrongful conduct or omissions 0f other persons 0r entities who proximately caused or contributed to the said alleged injuries and/or damages to Plaintiff, if any. 3 DEFENDANT MITCHELL LANCE MILLER’S ANSWERTO FIRST AMENDED COMPLAINT JEPPSON & GRIFFIN, LLP 1478 Stone Point Drive, Suite 100, Roseville, CA 95661 KOOOQO 10 11 12 13 14 15 16 17 18 l9 20 21 22 23 24 25 26 27 28 ELEVENTH AFFIRMATIVE DEFENSE As an Eleventh Separate and Affirmative Defense, Defendant alleges that no reliefmay be obtained under the Complaint, or any claim therein, in that the purpose of the lease agreements has been frustrated as a result 0f COVID-19. TWELFTH AFFIRMATIVE DEFENSE As a Twelfth Separate and Affirmative Defense, Defendant alleges that no reliefmay be obtained under the Complaint, or any claim therein, in that the purpose of the lease agreements has been rendered impracticable as a result of COVID-19. THIRTEENTH AFFIRMATIVE DEFENSE As a Thirteenth Separate and Affirmative Defense, Defendant alleges that no reliefmay be obtained under the Complaint, or any claim therein, in that the purpose of the lease agreement has been rendered impossible as a result ofCOVID-19 FOURTEENTH AFFIRMATIVE DEFENSE As a Fourteenth Separate and Affirmative Defense, Defendant alleges that the Complaint, and each cause of action purportedly alleged therein, is barred by Plaintiffs failure to join an indispensable party. FIFTEENTH AFFIRMATIVE DEFENSE As a Fifieenth Separate and Affirmative Defense, Defendant alleges that the Complaint, and each cause of action purportedly alleged therein, is barred, in whole or in part, by lack of an enforceable contract between Defendant and Plaintiff. SIXTEENTH AFFIRMATIVE DEFENSE As a Sixteenth Separate and Affirmative Defense, Defendant alleges that the Complaint, and each cause of action purportedly alleged therein, is barred, in that this answering Defendant are not the alter-ego of the Tenant and co-defendant Physical Culture Strength and Conditioning. Physical Culture Strength and Conditioning was incorporated on or about May 4, 2010, and at all relevant times during the periods as alleged in the Complaint has been in active, good standing status and has otherwise complied with all corporate requirements. /// 4 DEFENDANT MITCHELL LANCE MILLER’S ANSWERTO FIRST AMENDED COMPLAINT JEPPSON & GRIFFIN, LLP 1478 Stone Point Drive, Suits 100, Roseville, CA 95661 \DOOQO‘UI-BUJN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SEVENTEENTH AFFIRMATIVE DEFENSE As a Seventeenth Separate and Affirmative Defense, Defendant alleges that the Complaint, and each cause of action purportedly alleged therein, is barred, in whole or in part, because there was no breach by Defendant as Defendant performed all duties owed under the contract other than duties which were prevented or excused. EIGHTEENTH AFFIRMATIVE DEFENSE As an Eighteenth Separate and Affirmative Defense, Defendant alleges that the Complaint, and each cause of action purportedly alleged therein, is barred, in whole or in part, because any award 0f damages to Plaintiffwould unjustly enrich the Plaintiff. NINETEENTH AFFIRMATIVE DEFENSE As a Nineteenth Separate and Affirmative Defense, Defendant alleges that the Complaint, and each cause of action purportedly alleged therein, is barred, in whole or in part, because Defendant substantially complied with the contract, leaving only a small, immaterial portion of the contract unfulfilled and that awarding any damages to Plaintiffwould be unjust and unfair. TWENTIETH AFFIRMATIVE DEFENSE As a Twentieth Separate and Affirmative Defense, Defendant alleges that the Complaint, and each cause of action purportedly alleged therein, is barred, in whole or in part, as Plaintiff and/or its agents and/or persons and entities acting on its behalf agreed to accept the surrender of the premises fi'om the Tenant and therefore cannot charge holdover rent on either space. TWENTY-FIRST AFFIRMATIVE DEFENSE As a Twenty-First Separate and Affirmative Defense, Defendant alleges that because the Complaint is couched in conclusory terms, Defendant cannot anticipate all affirmative defenses that may be applicable in this action. Accordingly, Defendant hereby reserves the right to assert additional affirmative defenses to the extent that they may be applicable to this action. PRAYER FOR RELIEF WHEREFORE, Defendant prays forjudgment as follows: 1. That all of Plaintiff’s prayers for reliefbe denied and judgment of dismissal be entered as to each, and every cause of action asserted; 5 DEFENDANT MITCHELL LANCE MILLER’S ANSWERTO FIRST AMENDED COMPLAINT JEPPSON & GRIFFIN, LLP 1478 Stone Point Drive, Suite 100, Roseville, CA 95661 QONUI-bUJN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. That all of Plaintiffs prayers for damages, costs, and attorneys’ fees be denied; 3. For costs of suit and reasonable attorneys’ fees incurred herein; and 4. For such other and further relief as this court may deem just and proper. Dated: January 20, 2022 JEPPSON s: GRIFFIN, LLP ARC C. GUEDENET Attorneys for Defendants Sheila Leigh Miller and Mitchell Lance Miller 6 DEFENDANT MITCHELL LANCE MILLER’S ANSWER TO FIRST AMENDED COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF 0F SERVICE CASE TITLE: Harpel Associates, LLC v. Physical Culture Strength and Conditioning COURT: County of Santa Clara Superior Court CASE N0.: 21CV381441 I am a citizen of the United States, and I am employed in Placer County, State 0f California. My business address is 1478 Stone Point Drive, Suite 100, Roseville, CA 95661. I am over the age of 18 years and not a party to the above-entitled action. I am familiar with JEPPSON & GRIFFIN, LLP’S office practice whereby the mail is sealed, given the appropriate postage and placed in a designated mail collection area. Each day's mail is collected and deposited in the U.S. mailbox after the close 0f each day's business. On January 20, 2022, I served the following: DEFENDANT MITCHELL LANCE MILLER’S ANSWER TO FIRSTAMENDED COMPLAINT M on the party(ies) in this action by causing a true copy(ies) thereof to be placed in a sealed envelope with postage thereon fully prepaid and deposited in the designated area for outgoing U.S. Mail addressed as follows: D on the party(ies) in this action by causing a true copy(ies) thereof to be delivered by hand as follows: D on the party(ies) in this action by causing a true copy(ies) thereof to be delivered by Overnight Delivery in a sealed envelope(s) with receipts affixed thereto promising overnight delivery thereof addressed as follows: D on the party(ies) in this action by causing a true copy(ies) thereof to be delivered by electronic transmission as follows: Dawn C. Sweatt Leila N. Sockolov Berliner Cohen, LLP Ten Almaden Boulevard, 11th Floor San Jose, CA 95 1 13-2233 Ph: (408) 286-5800 F: (408) 998-5388 Email: dawn.sweatt@berliner.com leila.sockolov@berliner.com Attorneys for Plaintiff Harpel Associates, LLC I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, and that this declaration is executed 0n January 20, 2022, at Roseville, California. meW BAR'B TAYLOR PROOF OF SERVICE
