Answer Response No Fee

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

©WVO§LH$CDN~¥ NNNNNNNNNAAA-s-L-LA-LAA mem-fiWN-‘OOmNmm-bWN-AO 21 CV381442 Santa Clara - Civil V. Castaneda ANDREW LEFF, ESQ, State Bar No. 125850 E'ec"°"'°a"y F"ed SPILE, LEFF 8. 600R, LLP by Super” 30"” 0f CA, 16501 Venture Boulevard, Suite 61o County of Santa Clara, Encino, California 91436-2072 0n 1/1 4/2022 11:03 AM Telephone Number: (818) 784-6899 Reviewed By: V. Castaneda Facsimile Number: (818) 784-0176 Case #21cv331442 Attorneys for Defendants SERENO GROUP, INC. anEnveIOpe: 8062648 NICHOLAS A. FRENCH SUPERIOR COURT OF THE STATE OF CALIFORNlA FOR THE COUNTY OF SANTA CLARA BO WANG AND ALICIA WANG, Case No. 21CV381442 Plaintiffs, [Assigned to the Hon. Peter H. Kirwan, Dept. 19] vs. DEFENDANTS SERENO GROUP, INC. AND NICHOLAS A. FRENCH’S ANSWER T0 PLAINTIFFS’ COMPLAINT Action filed: March 29, 2021 SERENO GROUP, INC.; NICHOLAS A. FRENCH; and DOES 1 THROUGH-SO, inclusive, vvvvvvvvvvvv Defendants. Defendants SERENO GROUP, INC. and NICHOLAS A. FRENCH (herein collectively (“SERENO”), respond to the Complaint of Plaintiffs BO WANG and ALICIA WANG (herein collectively referred to as “Plaintiffs”), and for SERENO alone and for no others, allege as follows: GENERAL DENIAL On November 30, 2021, the court granted the Motion to Strike Punitive Damages filed by SERENO GROUP, |NC., with 1O days’ leave to amend. Plaintiffs chose not to amend, so the Plaintiffs have waived their right to amend the Complaint and waived their right to obtain punitive damages against SERENO GROUP, INC. 1. Pursuant to Code of Civil Procedure § 431 .30(d), in answer to all paragraphs of the Complaint, SERENO denies, generally and specifically, each and _ 1 _ DEFENDANTS SERENO, INC. & FRENCH’S ’S ANSWER TO COMPLAINT (Dmflmo'i-wa-A NNNNNNNNNAAAAAAAAAA mflmmwa-XOOmem-hwméo every allegation therein contained, and more specifically denies that Plaintiffs were damaged in the sum or sums alleged in the Complaint, or any other sum or sums or at all, either for the reasons set forth therein or otherwise, by any act or omission of SERENO. 2. SERENO alleges that each and every cause of action complained of herein lacks sufficient particularity to enable SERENO to determine each and every defense it may have against Plaintiffs. SERENO, therefore, reserves the right to assert all defenses, including affirmative defenses, which may be discovered or become relevant to Plaintiffs’ claims once the precise nature of those claims are ascertained. FIRST AFFIRMATIVE DEFENSE (Failure to State a Cause of Action) 3. The Complaint on file herein fails to state facts sufficient to constitute a cause of action against SERENO. SECOND AFFIRMATIVE DEFENSE (Full Disclosure) 4. At all times herein mentioned, SERENO’s agent NICHOLAS FRENCH and/or SERENO’s attorney fully disclosed to Plaintiffs material facts concerning the subject transaction, and Plaintiffs fully recognized and accepted the terms and risks of the subject transaction, which is the subject of the within litigation. THIRD AFFIRMATIVE DEFENSE (Civil Code § 2079.5) 5. As a further and separate affirmative defense to the Complaint, and each cause of action therein contained, SERENO is informed and believes, and therefore alleges, that the Plaintiffs had a duty to exercise reasonable care to protect their own /// - 2 _ DEFENDANTS SERENO, INC. & FRENCH’S ’S ANSWER TO COMPLAINT (DWNODU'l-wa-A N.N N N N N N N N .x .A .4. .4 .4 A .3 .4 .4 .4 WNQUI-thAOCOmVCDUT-hWN-AO interests, including those facts which were know to or within their diligent attention and knowledge. (See: Civil Code § 2079.5). FOURTH AFFIRMATIVE DEFENSE (Satisfaction of Duties) 6. SERENO satisfied SERENO’s duties in connection with the transaction. FIFTH AFFIRMATIVE DEFENSE (No Causation) 7. There is not a preponderance of the evidence that SERENO ‘s conduct was the proximate cause of the Plaintiffs allegedly incurring damage. SIXTH AFFIRMATIVE DEFENSE (Speculative and/or Nonexistent Damages) 8. The Complaint is premised on speculative and/or nonexistent damages. Pursuant to the court ruling on SERENO GROUP lNC’s Motion to Strike, the court struck Plaintiffs’ claims for punitive damages against it. Plaintiffs are seeking to be indemnified by SERENO of what they paid the Seller, which was $217,500, but SERENO was not at fault for their paying $217,500. SERENO did not advise the Plaintiffs to pay this sum. The Plaintiffs chose to pay this sum. The deposit of $1 18,500 was never made, even though NICHOLAS FRENCH and SERENO’s counsel told the Plaintiffs to deposit $1 18,500. Plaintiffs have conceded that if the deposit was made it would have limited the Plaintiffs’ exposure to the Seller for breach of contract to the amount of the deposit ($1 18,500). Tort of another fees is also not recoverable as the Plaintiffs’ misconduct was a cause of the Plaintiffs being sued by the Seller. The Seller also did not sue the Plaintiffs because of SERENO’s tort, but instead because they refused to close escrow. /// .. 3 _. DEFENDANTS SERENO, INC. & FRENCH’S ’S ANSWER TO COMPLAINT (DmVOBUI-wa-A NNNNNNNNNAAAAAAAAAA mVCDU'I-hOON-AOCDQNODU'l-hQJN-‘O SEVENTH AFFIRMATIVE DEFENSE (Intervening and Superseding Causes) 9. As a further separate affirmative defense SERENO is informed and believes and thereon alleges that, if, in fact, the Plaintiffs were damaged in any manner whatsoever, that said damage, if any, was a direct and proximate result ofthe intervening and superseding actions on the part of other parties, and not SERENO, and that such intervening and superseding actions of said parties bar recovery by the Plaintiffs. EIGHTH AFFIRMATIVE DEFENSE (Apportionment of Fault) 10. The damages alleged in the Complaint, if any, were a direct and proximate result of actions by persons other than SERENO. Accordingly, SERENO’s liability, if any, is limited in direct proportion to the percentage of fault, if any, directly attributable to SERENO. NINTH AFFIRMATIVE DEFENSE (Presumed to Understand Documents) 11. As a further and separate affirmative defense to the Complaint, and each cause of action therein contained, the Plaintiffs are presumed to understand documents that they signed and received and know its content. TENTH AFFIRMATIVE DEFENSE (Mitigation of Damages) 12. As a further and separate affirmative defense to the Complaint, and each cause of action therein contained, the Plaintifffs had an affirmative duty to mitigate their alleged damages. /// .. 4 .. DEFENDANTS SERENO, INC. & FRENCH’S 'S ANSWER TO COMPLAINT (DmNCDU‘l-wa-A NNNNNNNNNAAAAAAAA-sé CONCDU'I-wa-AOCDOONODCfl-th-AO ELEVENTH AFFIRMATIVE DEFENSE (Statute of Limitations) 13. As a further, separate and distinct affirmative defense, SERENO is informed and believes, and therefore alleges that the Negligence Cause of Action is barred by the Statue of Limitations. TWELFTH AFFIRMATIVE DEFENSE (Fiduciary Must Follow instructions of his Principal) 14. SERENO is informed and believes, and therefore alleges, that NICHOLAS FRENCH made a recommendation for Plaintiffs to close the transaction but he had to promptly follow the Plaintiffs’ instructions and send the Cancellation. NICHOLAS FRENCH could neither make the Seller agree to cance! nor make the Plaintiffs either make their deposit or close the escrow. WHEREFORE, SERENO prays judgment as follows: 1. That Plaintiffs take nothing on their Complaint and the Court dismiss the Complaint, with prejudice; 2. That SERENO be awarded all costs of suit incurred herein and for such other and further relief as the Court deems just and proper. DATED: January 14, 2022 SPILE, LEFF & GOOR, LLP By: ANDREW LEF‘F ‘ESV Attorneys for Defendants SERENO GROUP, INC. and NICHOLASA. FRENCH _ 5 _ DEFENDANTS SERENO, INC. & FRENCH'S *s ANSWER To COMPLAINT Ocom‘flCDU‘l-bOON-l NNNNNNNNNAAAAAAAAAA mNCJU'I-bOONAOCDmNOUU‘l-hWN-A PROOF OF SERVICE STATE OF CALIFORNIA ) )§ COUNTY 0F Los ANGELES ) I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My present business address is 16501 Ventura Boulevard, Suite 610, Encino, California 91436. On January 14, 2022, I served a true and correct copy of the document described as DEFENDANTS SERENO GROUP, INC. AND NICHOLAS A. FRENCH’S ANSWER TO PLAINTIFF’S COMPLAINT on the interested parties, as follows: Eric T. Hartnett Esq. 563 Murphy Ave. Sunnyvale, CA 94086 Telephone: (408) 290-8228 Email: ehartnett@erichartnettlaw.com Attorneyfor Plaintiff BY HAND DELIVERY By Third Party, Ace Messenger and Attorney Service, Inc. BY FACSIMILE TRANSMISSION: By use of facsimile machine telephone number (8 1 8) 784-0176, in accordance with Code of Civil Procedure §1013(e) and California Rules of Court 20008(e), to the within parties at the facsimile number(s) indicated. This transmission was reported as complete and without error, and a copy of the transmission report which was issued by the transmitting facsimile machine is attached to the original hereof. E BY UNITED STATES POSTAL SERVICE: Iam “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the United States Postal Service on that same day with postage thereon fully prepaid at Los Angeles, California in the ordinary course of business. BY NEXT DAY BUSINESS DELIVERY: I am “readily familiar” with the firm’s practice of collection and processing documents for delivery via Federal Express Overnight Mail. Under that practice it would be deposited in the Federal Express Service drop-offbox on that same day prior to the 5:00 p.m. pick-up time for delivery the next business day in the ordinary course 0f business. E BY E-MAIL ELECTRONIC: from our firm’s Microsoft Outlook e-mail system for delivery to the above e-mail addresses, read receipt requested. ’1‘ (STATE) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on January 22, 2022 at Encino, California.W Barbara Birlew ' 1 Proof of Service