Motion To Set aside Default of The Vapor Lair

Motion

Cal. Super. - 4th Dist.January 7, 2016

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Shawn M. Olson, Esq. (SBN 245688) Kevin A. Spainhour, Esq. (SBN 182358) OLSON SPAINHOUR 7372 Prince Drive, Suite 104 Huntington Beach, CA 92647 Telephone: (714) 847-2500 Facsimile: (714) 847-2550 Attorney for Defendants THE VAPOR LAIR, LLC and TRONG NGUYEN SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE- CENTRAL JUSTICE CENTER LIMITED JURISDICTION HEALTHY HOOKAH, LLC Case No: 30-2016-00828919-CL-BC-CJC Assigned for All Purposes to: Judge: Hon. Corey S. Cramin Dept.: 03 Plaintiff, v. NOTICE OF MOTION AND MOTION TO SET ASIDE DEFAULT OF DEFENDANT THE VAPOR LAIR, LLC PURSUANT TO CCP §473(b); MEMORANDUM OF POINTS AND AUTHORITEIS IN SUPPORT THEREOF; DECLARATION OF SHAWN M. OLSON, ESQ. IN SUPPORT THEREOF THE VAPOR LAIR, LLC, a California limited liability company; TRONG NGUYEN; and DOES 1 to 100, Defendants. [Filed Concurrently with Declaration of Trong Nguyen and Proposed Order] Date of Hearing: June 23, 2016 Time of Hearing: 9:30 AM Dept: 03 Date Complaintfiled: January 7, 2016 N a r ’ S r a N e N a S e N a e N a N a N e N e N a ’ N a N a N e S a N a N a N a N e ” nn 1 1" NOTICE OF MOTION AND MOTION TO SET ASIDE DEFAULT OF DEFENDANT THE VAPOR LAIR, LLC-1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on June 23, 2016 at 9:30 AM,or as soon thereafter as the matter may be heard in Department 03, in the above entitled Court, located at 700 Civic Center Dr. West, Santa Ana, CA 92701, Defendant THE VAPOR LAIR, LLC (“Defendants”) will and hereby does move the Court for an order setting aside the Default and Default Judgment entered against Defendants. This Motion to Set Aside the Default Against Defendants is based on this Notice, the Code of Civil Procedure of the State of California, the attached Memorandum of Points and Authorities, the attached Declaration of Shawn Olson, concurrently filed Declaration of Trong Nguyen, and all of the Court documents on file in this case, and such other oral or written evidence that may be requested at the time ofthe hearing. OLSON SPAINHOUR Dated: May 18, 2016 By: Se Soon Shawn M.Olson, Esq., Attorney for Defendant THE VAPOR LAIR, LLC and TRONG NGUYEN NOTICE OF MOTION AND MOTION TO SET ASIDE DEFAULT OF DEFENDANT THE VAPOR LAIR, LLC-2 10 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION/BACKGROUND Plaintiff, HEALTHY HOOKAH, LLC (hereafter “Plaintift”) filed its complaint on January 7, 2016, which alleges one cause of action for Breach of Contract against Defendants THE VAPOR LAIR, LLC (hereafter “Vapor”) and TRONG NGUYEN (hereafter “Nguyen”). Vaporis a Limited Liability Company doing business in the State of California. (Decl. of Trong Nguyen, 1). Vapor has established a registered agent for service of process with the California Secretary of State. (Decl. ofNguyen, 92). A true and correct copy of the California Secretary of State Business Entity Detail for Vaporis attached to the Declaration of Shawn Olson as Exhibit “A”. On January 8, 2016, the Plaintiffs complaint was served by substituted service, with the documents being left with a person by the name of “Anh Le”. (Declaration of Olson, 4 and Exhibit “B”). The Proof of Service indicates that Anh Le was the “person in charge of the office”, but Anh Le was not a person authorized to accept service for Vapor. (Decl. of Nguyen, 93) On March 9, 2016, Plaintiff filed a Request for Entry of Default of Vapor, and also indicated that the Request was sent via mail to Vapor, and Vapor’s default was entered by the clerk of the Court on March 23,2016. (Decl. of Olson, 5). It was on receipt ofthe Request for Entry of Default that Vapor first learned that a lawsuit had been filed againstit. (Declaration ofNguyen, 94) On March 25, 2016, Vapor sought out and retained counsel to deal with the entry of default and to represent Vapor and Nguyen in the pending litigation. (Declaration ofNguyen, 5. II. LEGAL ARGUMENT A. The Court Should Set Aside the Default and Default Judgment Against Defendant Based on Inadvertence, Surprise, or Excusable Neglect. On application, the court may, on any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against NOTICE OF MOTION AND MOTION TO SET ASIDE DEFAULT OF DEFENDANT THE VAPOR LAIR, LLC-3 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 him or her through his or her mistake, inadvertence, surprise, or excusable neglect. (Code Civ. Proc. § 473(b)). In the Instant Action, Vapor did not know about the lawsuit filed by Plaintiff until it received the Request for Entry of Default via mail. Vapor was surprised by the receipt of a Court documentstating that it was in default, and began looking for counsel to assist it. However, by the time Vapor retained counsel, it was too late, as the Court clerk entered Vapor’s default on March 23, 2016. The reason that Vapor was unaware of the lawsuit stems from the incorrect service of the lawsuit by Plaintiff’s process server. California Code of Civil Procedure § 415.95 (a)(b) provides the following: (a) A summons may be served on a business organization, form unknown, by leaving a copy of the summons and complaint during usual office hours with the person who is apparently in charge ofthe office of that business organization, and by thereafter mailing a copy of the summons and complaint by first- class mail, postage prepaid, to the person to be served at the place where a copy of the summons and complaint was left. Service of a summons in this manner is deemed complete on the 10th day after the mailing. (b) Service of a summons pursuant to this section is not valid for a corporation with a registered agent for service of process listed with the Secretary of State. (Emphasis added) Vapor established a registered agent for service of process with the California Secretary of State on December 21, 2012. (See Exhibit “A”). Plaintiffs complaint was not served on the registered agent, but, rather, on “Anh Le - Person in Charge of Office” (See Exhibit “B”), which does not comport with the requirements of CCP § 415.95(b). Furthermore, despite the fact that Exhibit “B” contains a declaration of mailing of the lawsuit to Vapor, the only time that Vapor received notice of a lawsuit against it was when it received the Request for Entry of Default. There is well established case law that discusses the application of CCP 473(b). In Shapiro v. Clark (2008) 164 Cal App. 4™, 1128, 1141-1142, the Court found that the issue of whether or not a Default can be set aside is dependent on whether a moving party has shown a reasonable excuse for the default. In the instant action, Vapor did not know Plaintiff had NOTICE OF MOTION AND MOTION TO SET ASIDE DEFAULT OF DEFENDANT THE VAPOR LAIR, LLC-4 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 served it with a complaint. Upon receipt of the Request for Entry of Default, Vapor immediately sought out counsel to represent it in this litigation. Under Shapiro, the Vapor had a reasonable excuse for defaulting because, had Vapor received valid service and reasonable notice of the lawsuit againstit, then it would have sought counsel and prepared the appropriate responsive document as it has post-default. Therefore, the default against Vapor should be set aside. B. Policy of Law Favors Trial On the Merits The policy ofthe law is that controversies should be heard and disposed of on their merits. See Fasuyi v. Permatex, Inc. (2008) 167 Cal. App. 4th 681, 694-703; Berman v. Klassman (1971) 17 Cal. App. 3d 900, 909). In the Instant Action, but for Vapor not being properly served and provided notice ofthe Instant Action, this motion would not be necessary and the case would have moved forward to discovery and trial, thus getting to the merits of the case. Based on such policies, the merits of the case should be tried, and the default against Vapor should be set aside. C. The Court has Wide Discretion in Granting Relief, as Long as the Moving Party Acts Diligently Within a Reasonable Time After Discovery of the Default. A trial court has wide discretion to grant relief under Code of Civil Procedure Section 473. (Berman v. Klassman (1971) 17 Cal. App. 3d 900, 909). However, that discretion is dependent upon a party seeking relief within a reasonable time, and that time must not exceed 6 monthsafter the entry of default. CCP § 473(b) provides that to seek relief from a Default, Vapor must bring the Instant Motion within a reasonable period of time, and no later than 6 months from entry of default. See also Elston v. City ofTurlock (1985) 38 C.3d 227, 234. In the Instant Action, the entry of default was on March 23, 2016. Upon receipt ofthe Request for Entry of Default, which was Vapor’s only notice that it was being sued, Vapor immediately began searching for counsel, which was retained on March 25, 2016. Based on the above, the Court has discretion to, and should,set aside the Default and Default Judgment against Defendants. NOTICE OF MOTION AND MOTION TO SET ASIDE DEFAULT OF DEFENDANT THE VAPOR LAIR, LLC-5 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D. Defendants Have Attached an Answer to Plaintiffs Complaint Showing a Meritorious Defense. Attached as Exhibit “C”to the Declaration of Shawn Olson is a copy of Vapor’s answer to Plaintiff's complaint. The answer indicates that Vapor does have a meritorious defense to Plaintiff’s complaint, which lawsuit fails onits face. In this regard, Mr. Olson asked Plaintiff’s counsel Farris Ain to stipulate to set aside the default for a couple of reasons: (1) Vapor’s failure to file an answer was the result of the mistake stated herein; and (2) Plaintiff needs to file an amended complaint regardless because the case as pled will result in a judgment on the pleadings and/or a directed verdict. Mr. Ain said that he would stipulate to set aside the default only if Defendant paid him $581.25 for the costs he incurred in filing a simple Request for Entry of Default. Said amountis absurd and this motion ensued. (Decl. of Shawn Olson). III. CONCLUSION Based on the foregoing, Vapor respectfully requests this Court to set aside the Default entered against it on March 23, 2016, and to deem the answer attached to the Declaration of Shawn Olson as Exhibit “C”filed as of the date of the Order concurrently filed herewith. OLSON SPAINHOUR Dated: May18, 2016 By: STs Gon Shawn M.Olson, Esq., Attorney for Defendant THE VAPOR LAIR, LLC and TRONG NGUYEN NOTICE OF MOTION AND MOTION TO SET ASIDE DEFAULT OF DEFENDANT THE VAPOR LAIR, LLC-6 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF SHAWN M. OLSON I, Shawn M. Olson, declare as follows: 1. Iam an attorney at law duly licensed to practice before all of the Courts of the State of California, including the U.S. District for the Central District Court of California, and am the attorney of record for defendants THE VAPOR LAIR, LLC (hereafter “Vapor”) and TRONG NGUYEN (hereafter “Nguyen”), in the above entitled action. The facts stated in this Declaration are based upon my own personal knowledge and if called upon to testify, I could and would competently testify as to the facts stated herein. 2. On March 25, 2016, both Vapor and Nguyen retained me to represent them in the Instant Action. 3. After reviewing all of the paperwork from the case, including Plaintiff's complaint and the Request for Entry of Default, I navigated to the California Secretary of State website to review Vapor’s status with the Secretary of State. It was at this point I was able to determine that Vapor had filed paperwork with the Secretary of State establishing a registered agent for service ofprocess. A true and correct copy of the Business Entity Details with the Secretary of State for Vaporis attached hereto as Exhibit “A”. 4. TI also reviewed the Court’s website and obtained a copy ofthe Proof of Service of Summons filed by Plaintiff on March 9, 2016, which indicated substituted service ofthe summons and complaint on an individual by the name of Anh Le. A true and correct copy of this Proof of Service is attached hereto as Exhibit “B”. 5. On March 9, 2016, pursuant to the Court’s docket, Plaintiff filed a Request for Entry of Default of Vapor, which was subsequently accepted by the Court, and Vapor’s default was entered on March 23, 2016. This request also indicated that it had been mailed to Vapor on March 9, 2016. nn 1H I" 1 NOTICE OF MOTION AND MOTION TO SET ASIDE DEFAULT OF DEFENDANT THE VAPOR LAIR, LLC-7 10 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6. Attached hereto as Exhibit “C”is Vapor’s Answerto Plaintiff's complaint, which I request be deemed filed on the date the Court signs the concurrently filed order. 7. Once I found out that the default had been entered, I asked Plaintiff's counsel Farris Ain to stipulate to set aside the default for a couple of reasons: (1) Vapor’s failure to file an answer was the result ofthe mistake stated herein; and (2) that Plaintiff needed to file an amended complaint regardless because I believe the case as pled will result in ajudgment on the pleadings and/or a directed verdict. Mr. Ain said that he would agree to stipulate to set aside the default only if Defendant paid him $581.25 for the costs he incurred in filing a simple Request for Entry of Default. I declare underthe penalty of perjury in accordance with the laws of the state of California that the foregoing is true and correct. DATED: May 18,2016 S722 Goa Shawn M. Olson, Esq. NOTICE OF MOTION AND MOTION TO SET ASIDE DEFAULT OF DEFENDANT THE VAPOR LAIR, LLC-8 EXHIBIT “A” 29/2016 Secretary of State Main Website Business Search - Business Entities - Business Programs Notary & Authentications Elections Campaign & Lobbying iness Entities (BE) Online Services - E-File Statements of Information for Corporations - Business Search - Processing Times - Disdosure Search Main Page Service Options Name Availability Forms, Samples & Fees Statements of Information {annual/biennial reports) Filing Tips Information Requests (certificates, copies & status reports) Service of Process FAQs Contact Information Resources - Business Resources - Tax Information - Starting A Business Customer Alerts - Business Identity Theft - Misleading Business Solicitations http://kepler.sos.ca.gov/ Business Entity Detail Data is updated to the California Business Search on Wednesday and Saturday momings. Results reflect work processed through Friday, March 25, 2016. 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Entity Name: VAPOR LAIR, LLC, THE Entity Number: 201301710039 DateFiled: 12/21/2012 Status: ACTIVE CALIFORNIA 14282 BEACH BLVD Jurisdiction: Entity Address: Entity City, State, Zip: WESTMINSTER CA 92683 Agent for Service of Process: RLe/\IeRN\eieN7S1 14282 BEACH BLVDAgent Address: WESTMINSTER CA 92683 Agent City, State, Zip: * Indicates the information is not contained in the California Secretary of State's database. * Note: If the agent for service of process is a corporation, the address of the agent may be requested by ordering a status report. « For information on checking or reserving a name, refer to NameAvailability. = For information on ordering certificates, copies of documents and/or status reports or to request a more extensive search, refer to InformationRequests. = For descriptions of the variousfields and status types, refer to Field Descriptions and Status Definitions. Modify Search New Search Printer Friendly Back to Search Results Privacy Statement | Free Document Readers Copyright © 2016 California Secretary of State in EXHIBIT “B” ELECTRONICALLY FILED ATTORNEY OR PARTY WITHOUT ATTORNEY(Name,Stale Bar number, and address): FOR Cot SuperiorCourtofCafifomia, Farris Ain, 228045 Y g Law Offices of Farris Ain, APC 0317/2016 at 10:23:00 Ad 269 West Bonita Avenue Clerk of the SuperiorCourt Claremont, CA 91711 By e Clerk, Deputy ClerkTELEPHONE NO.: (909) 626-1166 ATTORNEY FOR (Narme) SUPERIOR COURT OF CALIFORNIA, COUNTY OF Superior Court of California, Orange County 700 Civic Center Drive West Santa Ana, CA 92702-1994 PLAINTIFF/PETITIONER: Healthy Hookah, LLC CASE NUMBER: DEFENDANT/RESPONDENT: The Vapor Lair. LLC. et al. 30-2016-00828919CLBCCJC Ref. No. or File No.AMENDED pROOF OF SERVICE OF SUMMONS Healthy Hookah 1. At the time of service | was a citizen of the United States, at least 18 years of age and not a party to this action. 2. I served copies of: Complaint, Civil Case Cover Sheet, Summons Issued and Filed B F 3. a. Party served: The Vapor Lair, LLC, a California Limited Liability Company b. Person Served: Trong Nguyen - Person Authorized to Accept Service of Process 4. Address where the party was served: 14282 Beach Blvd. Westminster, CA 92683 5. 1 served the party b. by substituted service. On (date): 01/08/2016 at (time). 6:25PM 1 left the documentslisted in item 2 with orin the presence of: Anh Le - Person In Charge Of Office (1) (business) a person at least 18 years of age apparently in charge at the office or usual place of business of theperson to be served. | informed him or her of the general nature of the papers. (4) A declaration of mailing is attached. 6. The "Notice to the Person Served” (on the summons) was completed as follows: d. on behalf of: The VaporLair, LLC, a California Limited Liability Company under: Other: Limited Liability Company 7. Person who served papers a. Name: Wendy Duffield b. Address: One Legal - 194-Marin 504 Redwood Blvd #223 Novato, CA 94947 c. Telephone number: 415-491-0606 d. The fee for servicewas: $ 82.40 e lam: (3) registered California process server. (i) Employee or independent contractor. (i) Reaistration No. PSC #408 (ili) County Orange 8. I declare under penalty of perjury under the laws of the United States of America and the State of California that the foregoing is true and correct. Date: 03/17/2016 i Pp Q- Wendy Duffield (NAME OF PERSON WHO SERVED PAPERS) (SIGNATURE)_ 417.10 Form Adopted for MandatoryUse Cade of Civil Procedure, § 41Judicial Cound! of California POS-010 {Rev. Jan 1, 2007 PROOF OF SERVICE OF SUMMONS OL# 10054645 ATTORNEYOR PARTY WITHOUT ATTORNEY (Name andAddress): TELEPHONE NO.: FOR COURT USE ONLYFarris Ain, 228045 (909) 626-1166 Law Offices of Farris Ain, APC 269 West Bonita Avenue Claremont, CA 91711 Ref. No. or File No. ATTORNEY FOR (Name): Healthy Hookah Insert name of count. judicial district or branch court,if any: Central Justice Center Santa Ana 700 Civic Center Drive West Santa Ana, CA 92702-1994 PLAINTIFF: Healthy Hookah, LLC DEFENDANT: The Vapor Lair, LLC, et al. AMENDED CASE NUMBER: PROOF OF SERVICE BY MAIL 30-2016-00828919CLBCCJ( I'am a citizen of the United States, over the age of 18 and not a party to the within action. My business address is 504 Redwood Blvd., Suite 223 Novato, CA 94947. On 01/14/2018,after substituted service under section CCP 41 5.20(a) or 415.20(b) or FRCP 4(e)2)(B) or FRCP 4(h)(1)XB) was made (if applicable), | mailed copies of the: Complaint, Civil Case Cover Sheet, Summons Issued and Filed By Faxwld to the person to be served atthe place where the copies were left by placing a true copy thereof enclosed in a sealed envelope, with First Class postage thereon fully prepaid, in the United States Mail at Los Angeles, CA,California, addressed as follows: The VaporLair, LLC, a California Limited Liability Company Trong Nguyen 14282 Beach Blvd. Westminster, CA 92683 | am readily familiar with the firm's practice for collection and processing of documents for mailing. Underthat practice,it wouldbe deposited within the United States Postal Service, on that same day, with postage thereon fully prepaid, in the ordinarycourse of business. | am aware that on motion of the party served, service is presumed invalid if postal cancellation date orpostage meter date is more than one (1) day after date of deposit for mailing in affidavit. Fee for Service: $ 82.40 I declare under penalty of perjury under the laws ofthe United States of America and the State of California thatthe foregoing is true and correct and that this declaration was executed on 01/14/2016 at Los Angeles, California. One Legal - 194-Marin JE 504 Redwood Blvd #223 AThs Novato, CA 94947 Arthur Kazarian OL# 10054645 EXHIBIT “C” 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Shawn M. Olson, Esq. (SBN 245688) Kevin A. Spainhour, Esq. (SBN 182358) OLSON SPAINHOUR 7372 Prince Drive, Suite 104 Huntington Beach, CA 92647 Telephone: (714) 847-2500 Facsimile: (714) 847-2550 Attorney for Defendants THE VAPOR LAIR, LLC and TRONG NGUYEN SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE- CENTRAL JUSTICE CENTER LIMITED JURISDICTION HEALTHY HOOKAH, LLC ) Case No: 30-2016-00828919-CL-BC-CJC } Assigned for All Purposesto: Plaintiff, ) Judge: Hon. Corey S. Cramin Vv. ) Dept.: 03 ) THE VAPOR LAIR, LLC, a California ) DEFENDANT THE VAPOR LAIR, LLC’S limited liability company; TRONG NGUYEN;) ANSWER TO PLAINTIFF’S and DOES1 to 100, ) UNVERIFIED COMPLAINT ) Defendants. ) ) Defendant THE VAPOR LAIR, LLC (hereafter “Defendant™), by and through counsel, hereby answers the unverified Complaint (“Complaint”) of plaintiff HEALTHY HOOKAH, LLC (“Plaintiff”) and alleges the following affirmative defenses: Pursuantto the provisions of California Code of Civil Procedure, Section 431.30, the answering Defendant denies, generally and specifically, each and every allegation contained in the unverified Complaint. I" nn nn DEFENDANT THE VAPOR LAIR, LLC’S ANSWER TO COMPLAINT - 1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FIRST AFFIRMATIVE DEFENSE (FAILURE TO STATE A CAUSE OF ACTION) The Complaint and each of the purported causes of action contained therein fail to state facts sufficient to constitute a cause of action against Defendant. SECOND AFFIRMATIVE DEFENSE (FAILURE TO MITIGATE) Plaintiff failed to mitigateits alleged damages, if any. THIRD AFFIRMATIVE DEFENSE (LACHES, WAIVER, ESTOPPEL, RELEASE) Plaintiff is barred from relief by the doctrine of latches, waiver,estoppel, and release, due to its own acts and/or omissions with reference to the subject matter of the Complaint. FOURTH AFFIRMATIVE DEFENSE (UNCLEAN HANDS, FRUSTRATION, ECONOMIC DURESS) The Complaint, and each and every purported cause of action contained therein, fails because Plaintiff is barred from relief under the doctrine of unclean hands, frustration of purpose, and/or economic duress. FIFTH AFFIRMATIVE DEFENSE (BAD FAITH) Plaintiff is barred from relief in whole or in part because Plaintiff acted in bad faith. SIXTH AFFIRMATIVE DEFENSE (FAILURE TO JOIN INDISPENSABLE PARTY) Plaintiff is barred from seeking relief in whole or in part based on the Complaint because the Complaint fails to include parties essentialto this litigation, and without them and other essential parties, full relief may not be fashioned. SEVENTH AFFIRMATIVE DEFENSE (LACK OF STANDING/CAPACITY) The Complaint, and each and every purported cause of action contained therein is barred because Plaintiff lacks standing and/or the ability to maintain an action due to its lack of capacity. DEFENDANT THE VAPOR LAIR, LLC’S ANSWER TO COMPLAINT -2 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EIGHTH AFFIRMATIVE DEFENSE (PREVENTION OF PERFORMANCE; REPUDIATION) The Complaint, and each and every purported cause of action contained therein is barred because Plaintiff prevented Defendant’s performance underthe contract, if any, and/or Plaintiff repudiated the contract, if any. NINTH AFFIRMATIVE DEFENSE (SETOFF) The Complaint, and each and every purported cause of action contained therein is barred because Defendant would be entitled to a setoff and/or offsets. TENTH AFFIRMATIVE DEFENSE (NO DUTY) The Complaint, and each and every purported cause of action contained therein,is barred because Defendant did not owe Plaintiff a legal duty ofcare. ELEVENTH AFFIRMATIVE DEFENSE The Complaint and each and every purported cause of action contained therein is barred because any alleged damages were proximately caused and/or contributed to by the conduct of persons or entities other than Defendant, including, but not limited to Plaintiff, which conduct constitutes one or more intervening or superseding causes of the damages alleged in the complaint. TWELFTH AFFIRMATIVE DEFENSE (MUTUAL/UNILATERAL MISTAKE) The Complaint and each and every purported cause of action contained therein is barred because of the doctrines of mutual mistake and/or unilateral mistake. RESERVATION OF RIGHTS Defendantreservesthe right to offer any and all other defenses according to proofas the evidence and facts are disclosed in discovery and or attrial. " 1 DEFENDANT THE VAPOR LAIR, LLC'S ANSWER TO COMPLAINT - 3 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WHEREFORE, Defendant prays for judgment as follows: 1. That Plaintiff take nothing by its Complaint; 2. For the cost ofthe suit herein; 3. For reasonable attorney’s fees; and 4. For such other and furtherrelief as the Court may deem proper and just. OLSON SPAINHOUR Dated: May 18, 2016 By: 5722 (oom Shawn M. Olson, Esq., Attorney for Defendant THE VAPOR LAIR, LLC and TRONG NGUYEN DEFENDANT THE VAPOR LAIR, LLC’S ANSWER TO COMPLAINT - 4 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 ORANGE I am an employee in the County of Orange, State of California. I am over the age of 18 and not a party to the within action; my business address is 7372 Prince Drive, Suite 104, Huntington Beach, CA 92647. On May 19, 2016, I electronically served the foregoing document(s) described, NOTICE OF MOTION AND MOTION TO SET ASIDE DEFAULT OF DEFENDANT VAPOR LAIR, LLC PURSUANT TO CCP §473(b); MEMORANDUM OF POINTS AND AUTHORITEIS IN SUPPORT THEREOF; DECLARATION OF SHAWN M. OLSON, ESQ. IN SUPPORT THEREOF,to the interested parties in this action using One Legalas follows: Farris E. Ain, Esq. LAW OFFICES OF FARRIS AIN 269 W. Bonita Avenue, Suite A Claremont, CA91711 (BY MAIL) The package was delivered with postage thereon fully prepaid. I am “readily” familiar with the firm’s practice of collection and processing correspondence for mailing. The package was deposited with U.S. Postal Service on that same day in the ordinary course of business. I am aware that on motion ofa party served, serviceis presumed invalid if the postal cancellation date or postage meter date is more than one day after date of deposit for mailing an affidavit. (BY PERSONAL SERVICE)I delivered such envelope by hand to the above listed parties. XX Via email address to ain@ainlaw.com. (OVERNIGHT COURIER) I caused such envelope to be deposited in the mail at Huntington Beach, California, United Postal Service. The envelope was mailed with postage thereon fully prepaid. I am “readily” familiar with the firm’s practice of collection and processing correspondence for mailing. The package was deposited with United Postal Service on that same day in the ordinary course of business. I am aware that on motion of a party served, service is presumed invalid if the postal cancellation date or postage meter date is more than one day after date of deposit for mailing an affidavit. XX (STATE) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. May 19, 2016 Date Michael Moore NOTICE OF MOTION AND MOTION TO SET ASIDE DEFAULT OF DEFENDANT THE VAPOR LAIR, LLC -9