Plaintiff Michael Heckethorns Notice of Demurrer Demurrer To Answer of Defendants

Demurrer

Cal. Super. - 4th Dist.July 5, 2018

A K E R M A N LL P 60 1 W E S T FI FT H ST RE ET , SU IT E 30 0 LOS A N G E L E S , C A L I F O R N I A 90 07 1 TE L. : (2 13 ) 68 8- 95 00 - FA X: (2 13 ) 62 7- 63 42 N N N N N N N N = m e m m m e m e m e m p m e a © N A R W , O V N I N R W O N m= Oo O e a Oh AKERMAN LLP JOSHUA R. MANDELL (225269) Email:joshua.mandell@akerman.com HALEY C. GREENBERG (307475) Email: haley.greenberg@akerman.com 601 W. Fifth Street, Suite 300 Los Angeles, California 90071 Telephone: (213) 688-9500 Facsimile: (213) 627-6342 Attorneys for Plaintiff MICHAEL HECKETHORN ELECTRONICALLY FILED Superior Court of California, County of San Diego 09/04/2018 at 04:18:00 PM Clerk of the Superior Court By Ines Quirarte, Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN DIEGO MICHAEL HECKETHORN, an individual, Plaintiff, Vv. JOHN FINLEY, an individual; VILLAGE TRIANGLE PARTNERS, LLC, a California limited liability company; DOES 1 - 25, inclusive, Defendants. Case No. 37-2018-00033234-CU-BC-CTL PLAINTIFF MICHAEL HECKETHORN'S NOTICE OF DEMURRER; DEMURRER TO ANSWER OF DEFENDANTS Date: October 26, 2018 Time: 9:00 a.m. Dept: C-75 TO DEFENDANTS AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that on October 26, 2018 at 9:00 a.m., in Department C-75 of the San Diego County Superior Court, located at 330 West Broadway, San Diego, Plaintiff Michael Heckethorn, will, and hereby does, demur to John Finley and Village Triangle Partners, LLC’s Answer to the Complaint. The demurrer will be based on Code of Civil Procedure § 430.20, this notice of demurrer, the memorandum of points and authorities, and the declaration of Joshua R. Mandell filed herewith, all matters of which the Court may take judicial notice, all pleadings, records and files in this action, and such evidence and argument as may be presented at or before the hearing. Case No, 37-2018-00033234-CU-BC-CTL, NOTICE OF DEMURRER TO ANSWER 46237965;1 A K E R M A N L L P 60 1 W E S T FI FT H ST RE ET , SU IT E 30 0 LO S A N G E L E S , C A L I F O R N I A 90 07 1 TE L. : (2 13 ) 68 8- 95 00 -- FA X: (2 13 ) 62 7- 63 42 «w w 3 O N n n BA N N N ND N N N N N m m p m mm e m p m m m e d p m © 3 nh B R A W N = O 0 N N RA R W Y = o o DATED: September 4, 2018 46237965;1 2 NOTICE OF DEMURRER TO ANSWER AN LLP I ’ Fe Joshua R. Mandell Attorneys for Plaintiff MICHAEL HECKETHORN Case No. 37-2018-00033234-CU-BC-CTL A K E R M A N LL P 60 1 W E S T FI FT H ST RE ET , SU IT E 30 0 LO S A N G E L E S , C A L I F O R N I A 90 07 1 TE L. : (2 13 ) 68 8- 95 00 ~ FA X: (2 13 ) 62 7- 63 42 N N D N N N N m k a em pe d e m pe s 1 e m pe a SN L k W N H O O N Y BR W D = Oo Y e YN B W N N c o I. DEMURRER DEMURRER TO THE FIRST AFFIRMATIVE DEFENSE (Failure to State a Claim) The affirmative defense does not state facts sufficient to constitute a defense. (Code Civ. Proc. § 430.20(a).) 2 DEMURRER TO THE SECOND AFFIRMATIVE DEFENSE (Contributory Fault) The affirmative defense does not state facts sufficient to constitute a defense. (Code Civ. Proc. § 430.20(a).) Ci < 8. 4, DEMURRER TO THE THIRD AFFIRMATIVE DEFENSE (Failure of Condition Precedent) The affirmative defense does not state facts sufficient to constitute a defense. (Code . Proc. § 430.20(a).) DEMURRER TO THE FOURTH AFFIRMATIVE DEFENSE (Estoppel) The affirmative defense does not state facts sufficient to constitute a defense. (Code Civ. Proc. § 430.20(a).) 8 DEMURRER TO THE FIFTH AFFIRMATIVE DEFENSE (Waiver) The affirmative defense does not state facts sufficient to constitute a defense. (Code Civ. Proc. § 430.20(a).) 6. DEMURRER TO THE SIXTH AFFIRMATIVE DEFENSE (Failure to Mitigate Damages) The affirmative defense does not state facts sufficient to constitute a defense. (Code Civ. Proc. § 430.20(a).) 46237965;1 DEMURRER TO THE SEVENTH AFFIRMATIVE DEFENSE (Superseding Cause(s)) 1 Case No. 37-2018-00033234-CU-BC-CTL DEMURRER TO ANSWER A K E R M A N LL P 60 1 W E S T FI FT H ST RE ET , SU IT E 30 0 LO S A N G E L E S , C A L I F O R N I A 90 07 1 TE L. : (2 13 ) 68 8- 95 00 - FA X: (2 13 ) 62 7- 63 42 N N N ND N N N O N = e m p a em e s a p m ® I N n n kA W N H O YW N Y BR W N Ts The affirmative defense does not state facts sufficient to constitute a defense. (Code Civ. Proc. § 430.20(a).) DEMURRER TO THE EIGHTH AFFIRMATIVE DEFENSE (Laches) 8. The affirmative defense does not state facts sufficient to constitute a defense. (Code Civ. Proc. § 430.20(a).) DEMURRER TO THE NINTH AFFIRMATIVE DEFENSE (Assumption of Risk) O. The affirmive defense does not state facts sufficient to constitute a defense. (Code Civ. Proc. § 430.20(a).) DEMURRER TO THE TENTH AFFIRMATIVE DEFENSE (Defendants Acted Reasonably) 10. The affirmative defense does not state facts sufficient to constitute a defense. (Code Civ. Proc. § 430.20(a).) 11. The affirmative defense is uncertain. (Code Civ. Proc. § 430.20(b).) DEMURRER TO THE ELEVENTH AFFIRMATIVE DEFENSE (Offset) 12. The affirmative defense does not state facts sufficient to constitute a defense. (Code Civ. Proc. § 430.20(a).) DEMURRER TO THE TWELFTH AFFIRMATIVE DEFENSE (Privilege) 13. The affirmative defense does not state facts sufficient to constitute a defense. (Code Civ. Proc. § 430.20(a).) DEMURRER TO THE THIRTEENTH AFFIRMATIVE DEFENSE (Plaintiff’s Misrepresentations) 14, The affirmative defense does not state facts sufficient to constitute a defense. (Code Civ. Proc. § 430.20(a).) 15. The affirmative defense is uncertain. (Code Civ. Proc. § 430.20(b).) 2 Case No. 37-2018-00033234-CU-BC-CTL DEMURRER TO ANSWER 46237965;1 A K E R M A N LL P 60 1 W E S T FI FT H ST RE ET , SU IT E 30 0 LO S A N G E L E S , C A L I F O R N I A 90 07 1 TE L. : (2 13 ) 68 8- 95 00 - FA X: (2 13 ) 62 7- 63 42 N N N N N N N ND mm em e m o m pe d e m e m e m p m © N Y nn B A W ND = O V e N Y N R W N OR , O D O 0 ON 16. DEMURRER TO THE FOURTEENTH AFFIRMATIVE DEFENSE (False Representations) The affirmative defense does not state facts sufficient to constitute a defense. (Code Civ. Proc. § 430.20(a).) 17. 18. The affirmative defense is uncertain. (Code Civ. Proc. § 430.20(b).) DEMURRER TO THE FIFTEENTH AFFIRMATIVE DEFENSE (Satisfaction) The affirmative defense does not state facts sufficient to constitute a defense. (Code Civ. Proc. § 430.20(a).) 19. DEMURRER TO THE SIXTEENTH AFFIRMATIVE DEFENSE (Performance) The affirmative defense does not state facts sufficient to constitute a defense. (Code Civ. Proc. § 430.20(a).) 20. DEMURRER TO THE SEVENTEENTH AFFIRMATIVE DEFENSE (Plaintiff’s Breach of Duty of Care) The affirmative defense does not state facts sufficient to constitute a defense. (Code Civ. Proc. § 430.20(a).) Ci < 21. 22. DEMURRER TO THE EIGHTEENTH AFFIRMATIVE DEFENSE (Unclean Hands) The affirmative defense does not state facts sufficient to constitute a defense. (Code . Proc. § 430.20(a).) DEMURRER TO THE NINETEENTH AFFIRMATIVE DEFENSE (Statute of Limitations) The affirmative defense does not state facts sufficient to constitute a defense. (Code Civ. Proc. § 430.20(a).) 46237965;1 DEMURRER TO THE TWENTIETH AFFIRMATIVE DEFENSE (Lack of Notice) 3 Case No. 37-2018-00033234-CU-BC-CTL DEMURRER TO ANSWER A K E R M A N LL P 60 1 W E S T FI FT H ST RE ET , SU IT E 30 0 - = pe e d A W D -~ = O O a - = N n LO S A N G E L E S , C A L I F O R N I A 90 07 1 TE L. : (2 13 ) 68 8- 95 00 - FA X: (2 13 ) 62 7- 63 42 D O R N N N N N O N m m © 9 A Un RA W R N = S&S © & = 23. The affirmative defense does not state facts sufficient to constitute a defense. (Code Civ. Proc. § 430.20(a).) 24, The affirmative defense is uncertain. (Code Civ. Proc. § 430.20(b).) DEMURRER TO THE TWENTY-FIRST AFFIRMATIVE DEFENSE (Statute of Frauds) 25. The affirmative defense does not state facts sufficient to constitute a defense. (Code Civ. Proc. § 430.20(a).) WHEREFORE, Plaintiff requests that this Court grant the following relief: 1. Plaintiff's demurrer to the answer be sustained without leave to amend; 2. An order requiring Defendants to reimburse Plaintiff for attorneys’ fees and costs reasonably incurred in connection with this motion; and 3. Such other relief as the Court deems just and proper. DATED: September 4, 2018 AK N LLP osha ’Ta el Vv ttorneys for Plaintiff ICHAEL HECKETHORN 4 Case No. 37-2018-00033234-CU-BC-CTL DEMURRER TO ANSWER 462379651 A K E R M A N L L P 60 1 W E S T FI FT H ST RE ET , SU IT E 30 0 LO S A N G E L E S , C A L I F O R N I A 90 07 1 TE L. : (2 13 ) 68 8- 95 00 - FA X: (2 13 ) 62 7- 63 42 N N N N N N N H k mm a e d pe s a a pm S N L r k W , O Y N N Y T BR W N M O 0 0 a o Y W N N N N «© MEMORANDUM OF POINTS AND AUTHORITIES IL Introduction Plaintiff Michael Heckethorn filed his Complaint on July 5, 2018 asserting causes of action for: 1) breach of contract, 2) breach of guarantee 3) promissory estoppel; 4) constructive trust; and 5) unjust enrichment. Each of the causes of action relates to defendants’ failure to repay the proceeds of a loan they received. On August 17, 2018, defendants John Finley and Village Triangle Partners, LLC filed their Answer to the Complaint. The Answer asserts 21 affirmative defenses, none of which allege facts and some of which have no basis in the law. Plaintiff attempted to meet and confer with opposing counsel and requested that defendants amend their answer to bring it into compliance with applicable law. (Declaration of Joshua Mandell, 9 3.) Defendants ignored plaintiff’s efforts. Plaintiff therefore requests that this Court sustain its demurrer as to affirmative defenses 1-21 alleged in defendants’ Answer to the Complaint. IL Legal Argument A, Legal Standard for Demurrer A demurrer to an answer is proper where the answer 1) does not state facts sufficient to constitute a defense; 2) is uncertain; or 3) pleads a contract and it cannot be ascertained from the answer whether the contract is written or oral. (Cal. Civ. Proc. Code § 430.20; City of Mountain View v. Superior Court (1975) 54 Cal. App.3d 72, 84 [trial court erroneously overruled appellant’s general demurrer to the answer where answer did not state facts sufficient to constitute a defense).) “Generally speaking, the determination whether an answer states a defense is governed by the same principles which are applicable in determining if a complaint states a cause of action.” (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732.) To survive a demurrer to a complaint, a plaintiff must demonstrate that his factual allegations establish all essential elements of the alleged causes of action. (Rakestraw v. Cal. Physicians’ Serv. (2000) 81 Cal. App.4th 39, 42.) Thus, to survive a demurrer to an answer, the answer must “state facts sufficient to constitute a defense.” (Cal. Civ. Proc. Code § 430.20(a) [emphasis added].) 1 Case No. 37-2018-00033234-CU-BC-CTL MEMORANDUM OF POINTS AND AUTHORITIES, IN SUPPORT OF PLAINTIFF'S DEMURRER TO 46237965;1 A K E R M A N L L P 60 1 W E S T FI FT H ST RE ET , SU IT E 30 0 LOS A N G E L E S , C A L I F O R N I A 90 07 1 TE L. : (2 13 ) 68 8- 95 00 - FA X: (2 13 ) 62 7- 63 42 NO 0 3 ON N N N N N N N N N m k e a e m m a b a p m e m e m p e © NN A nn B R A W N =H DO YO N N RA W O N R=, o o B. Affirmative Defenses 1-21 Fail to Set Forth Facts Sufficient to State a Defense A demurrer to an answer is proper where the answer does not state facts sufficient to constitute a defense. (Cal. Civ. Proc. Code § 430.20(a).) Defendants’ affirmative defenses do not meet this standard because they state no facts and consist of boilerplate statements of applicability. For example, as to the defense of Statute of Limitations, defendants allege nothing more than “Plaintiff is barred from maintaining this action because of underlying plaintiff's failure to timely commence this action.” Defendants do not allege which limitations purportedly applies nor do they allege when the period started to accrue. This is characteristic of the remaining defenses, and provide nothing more than what can be gleaned from the labels of the defenses themselves. (See Richard B. LeVine, Inc. v. Higashi (2005) 131 Cal.App.4th 566, 587 nd [A statute of limitations defense must “be pleaded either by alleging the facts constituting the time bar or alleging the statute and the subdivision of the statute which bars the action . . . the failure to allege the appropriate subdivision of the statute of limitation waives the defense.”]) The following chart lists the defense and the factually devoid allegations, verbatim: # | Defense Label Defense Allegations 1. Failure to State a Claim | The Complaint, and each cause of action contained therein, fails to state facts sufficient to constitute a cause of action against Defendants. 2 Contributory Fault Any damage suffered by Plaintiff was the direct and proximate result of other parties, persons, and/or entities, and that the liability, if any, of Defendants are limited in direct proportion to the percentage of fault attributable to it. 3. Failure of Condition Any breach of duty by Defendants resulted from Plaintiff's Precedent failure satisfactorily to complete performance of conditions described in the contract, if any, and that performance by Plaintiff was a condition precedent to the formation of any duty of Defendants. 4, Estoppel Plaintiff was engaged in conduct with respect to the property and activities which are the subject of the Complaint, as well as with respect to Defendants, that estops Plaintiff from asserting any claim for damages or seeking any other relief from Defendants. S. Waiver Plaintiff has engaged in conduct and activities constituting a waiver of any alleged breach of contract, negligence, duty to indemnify, if any, as set forth in the Complaint. 6. Failure to Mitigate Plaintiff has failed to exercise reasonable care and diligence to Damages avoid loss and to minimize and mitigate its damages, if any. Plaintiff may not recover for losses which could have been 2 Case No. 37-2018-00033234-CU-BC-CTL MEMORANDUM OF POINTS AND AUTHORETIES, IL SUPPORT OF PLAINTIFF'S DEMURRER TO 46237965;1 A K E R M A N LL P 60 1 W E S T FI FT H ST RE ET , SU IT E 30 0 LO S A N G E L E S , C A L I F O R N I A 90 07 1 TE L. : (2 13 ) 68 8- 95 00 - FA X: (2 13 ) 62 7- 63 42 DN N N N N N N m 1 e m pe d e m e a m m A N L r A W N R O D N N T R W N em O O 8 N O N n D N N «© Defense Label Defense Allegations prevented by reasonable efforts on its part, or by expenditures that might reasonably have been made. Plaintiff's recovery, if any, should be reduced by its failure to mitigate. Superseding Cause(s) The injuries and damages described in the Complaint were proximately caused by or contributed to by the acts of other parties, persons and/or entities, whose acts were intervening and superseding causes of Plaintiff's injuries and damages, if any, thus barring any recovery against Defendants. Laches The Complaint is barred totally or partially by the doctrine of laches. Assumption of Risk If Plaintiff sustained any damages, such damages were proximately caused by Plaintiff and that they assumed all risks, if any, in connection with the subject of the Complaint, 10. Defendants Acted Reasonably The conduct of Defendants and its agents and employees, in connection with the damages alleged and all matters alleged and complained of, was reasonable and the conduct of Plaintiff in relation thereto was unreasonable, 11. Offset If Plaintiff is entitled to recover for any loss suffered or sustained at the time and place alleged, then the total amount of damages to which Plaintiff would otherwise be entitled, if any, should be reduced in proportion to the amount of fault attributable to Plaintiff. 12. Privilege Defendants conduct, and the conduct of its agents and employees, in connection with the claims alleged and all matters alleged and complained of, was done as a matter of right and was therefore privileged. 13; Plaintiff's Misrepresentations Plaintiff's damages, if any, were caused by Plaintiff's own conduct, including false representations made with the intent to induce others' reasonable reliance on them, or with reckless disregard of others’ reasonable reliance on them. 14. False Representations Plaintiffs damages, if any, were caused by the conduct of other parties, persons and/or entities, including false representations made with the intent to induce Defendants reasonable reliance on them, or with reckless disregard of Defendants reasonable reliance on them 15. Satisfaction Defendants and/or their employees and agents have already paid all or a portion of the amount demanded pursuant to the contracts alleged in the Complaint, and that recovery, if any, should accordingly be barred totally or in part. 16. Performance Any failure on Defendants part to perform the obligations described in any alleged contract resulted from Plaintiff's failure satisfactorily to complete performance of the work described in the contract alleged in the Complaint, and performance by Plaintiff was a condition precedent to any performance by Defendants. 17. Plaintiff's Breach of Duty of Care Plaintiff was itself responsible for damages, if any, it may have suffered by virtue of its having breached its duty of care to 3 Case No. 37-2018-00033234-CU-BC-CTL MEMORANDUM OF POINTS AND AUTHORTEIES TN SUPPORT OF PLAINTIFF'S DEMURRER TO 46237965;1 A K E R M A N LL P 60 1 W E S T FI FT H ST RE ET , SU IT E 30 0 cw uN ON wn - = = e s pe SA N n n Rk W N D = O O LO S A N G E L E S , C A L I F O R N I A 90 07 1 TE L. : (2 13 ) 68 8- 95 00 - FA X: (2 13 ) 62 7- 63 42 N O D RN N N N ND = em © N Y n n A W N ~~ D O o o = # | Defense Label Defense Allegations Defendants and other persons. 18. | Unclean Hands Plaintiff has acted wrongfully in the matters complained of and are thus barred totally or partially by the doctrine of unclean hands from receiving the relief it requests. 19. | Statute of Limitations | Plaintiff is barred from maintaining this action because of underlying plaintiff's failure timely to commence this action. 20. | Lack of Notice The causes of action in the Complaint are barred by failure to give notice as required by any contract. 21. | Statute of Frauds The contract, if any, was void because it was not in writing and subscribed by Client, as required by Civil Code §1624. Affirmative defenses 1-21 are subject to demurrer because they fail to meet the legal standard requiring facts showing all essential elements of each defense. Defendants’ assertion of boilerplate defenses without a single fact allegation is defective as a matter of law. III. ~~ Conclusion Parties are held to the same standard in pleading an answer as they are in pleading a complaint. Defendants failed to meet this standard because they assert 21 defenses without alleging a single supporting fact. Defendants’ failure to meet the pleading standard, and their subsequent refusal to cure these defects, should be construed against them. Plaintiff therefore respectfully requests that this Court sustain their demurrer as to Affirmative Defenses 1-21 without leave to amend. DATED: September 4, 2018 T / / Juan R. Mandell from for Plaintiff ICHAEL HECKETHORN 4 Case No, 37-2018-00033234-CU-BC-CTL MEMORANDUM OF POINTS AND AUTHORTEIES, TN SUPPORT OF PLAINTIFF'S DEMURRER TO 46237965;1 A K E R M A N LL P 60 1 W E S T FI FT H ST RE ET , SU IT E 30 0 LOS A N G E L E S , C A L I F O R N I A 90 07 1 TE L. : (2 13 ) 68 8- 95 00 - FA X: (2 13 ) 62 7- 63 42 NN N N N N N N N N a h m e a p e d e m p a a e m pe © N A LL R W N R O 0 N N N N R W O N = O WO 0 0 a ON Declaration of Joshua R. Mandell I Joshua R. Mandell, declare as follows: 1. I am an attorney licensed to practice law in the State of California, and am a partner with the law firm Akerman, LLP, counsel of record for plaintiff Michael Heckethorn in this matter. The facts herein recited are of my own personal knowledge, and if called as a witness I could and would competently testify to the following. 2. Defendants served their Answer by mail on August 17, 2018. 3. On Monday, August 27, 2018, I sent defense counsel a detailed meet and confer letter identifying the many defects in the Answer that support plaintiff filing a demurrer to the Answer. I invited counsel to meet and confer with me by telephone. 1 received no response to my correspondence. A true and correct of my letter is attached as Exhibit 1 to my declaration. I declare under penalty of perjury under the laws of California that the foregoing is true and correct. Executed on September 4, 2018 at Los Angeles, Chlift ~ ay Joshrfa MamdellY VV 7 \_ 1 Case No. 37-2018-00033234-CU-BC-CTL DECLARATION OF JOSHUA R. MANDELL 46237965;1 akerman Joshua Mandell Akerman LLP 601 West Fifth Street Suite 300 Los Angeles, CA 90071 T: 213 688 9500 F: 213 627 6342 joshua.mandell@akerman.com August 27, 2018 Gregory Markow CGS3 LLP 12750 High Bluff Drive, Suite 250 San Diego, CA 92130 Re: Heckethorn v. Finley, ef al. San Diego Superior Court Case No. 37-2018-00033234 Meet and Confer Dear Mr. Markow: This letter is an attempt to meet and confer with you before plaintiff files a demurrer to the answer your clients recently filed. Please let me know if you would like to schedule a time to speak by phone today or tomorrow after you have had a chance to review this letter. Absent confirmation that your clients will amend their answer, I will file a demurrer to the answer on behalf of my client on September 4. A demurrer to an answer is proper where the answer 1) does not state facts sufficient to constitute a defense; 2) is uncertain; or 3) pleads a contract and it cannot be ascertained from the answer whether the contract is written or oral, (Cal. Civ, Proc. Code § 430.20; City of Mountain View v, Superior Court (1975) 54 Cal.App.3d 72, 84 [trial court erroneously overruled appellant’s general demurrer to the answer where answer did not state facts sufficient to constitute a defense].) “Generally speaking, the determination whether an answer states a defense is governed by the same principles which are applicable in determining if a complaint states a cause of action.” (South Shore Land Co. v. Petersen (1964) 226 Cal. App.2d 725, 732.) To survive a demurrer to a complaint, a plaintiff must demonstrate that his factual allegations establish all essential elements of the alleged causes of action. (Rakestraw v. Cal. Physicians’ Serv. (2000) 81 Cal. App.4th 39, 42.) Thus, to survive a demurrer to an answer, the answer must “state facts sufficient to constitute a defense.” (Cal. Civ, Proc. Code § 430.20(a) [emphasis added].) Here, defendants’ answer fails to “state facts” sufficient to constitute a defense. Defendants’ affirmative defenses do not meet this standard because they state no facts and consist of boilerplate statements of applicability only. This is not enough and supports the filing of a demurrer. For example, as to the nineteenth defense of statute of limitations, the answer asserts “Plaintiff is barred from maintaining this action because of underlying plaintiff's failure to akerman.com 46214740;1 Gregory Markow August 27,2018 Page 2 timely commence this action.” Not only does this defense fail to allege facts, it fails to allege the applicable limitations period. (See Richard B. LeVine, Inc. v. Higashi (2005) 131 Cal. App.4th 566, 587 nd.) The following chart lists the defenses and the corresponding basis for the demurrer: # | Defense Deficiencies / Notes 1 Failure to State a Cause | The answer does not state facts sufficient to constitute a of Action defense. CCP § 430.20(a); Timberidge Enters. v. City of Santa Rosa (1978) 86 CA3d 873, 879-880, 885-887. 2 Contributory Fault The answer does not state facts sufficient to constitute a defense, CCP § 430.20(a); Timberidge Enters. v. City of Santa Rosa (1978) 86 CA3d 873, 879-880, 885-887. 3 Failure of Condition The answer does not state facts sufficient to constitute a Precedent defense. CCP § 430.20(a); Timberidge Enters. v. City of Santa Rosa (1978) 86 CA3d 873, 879-880, 885-887. 4 | Estoppel The answer does not state facts sufficient to constitute a defense. CCP § 430.20(a); Timberidge Enters. v. City of Santa Rosa (1978) 86 CA3d 873, 879-880, 885-887. 5 Waiver The answer does not state facts sufficient to constitute a defense. CCP § 430.20(a); Timberidge Enters. v. City of Santa Rosa (1978) 86 CA3d 873, 879-880, 885-887. 6 Failure to Mitigate The answer does not state facts sufficient to constitute a Damages defense. CCP § 430.20(a); Timberidge Enters. v. City of Santa Rosa (1978) 86 CA3d 873, 879-880, 885-887, 7 Superseding Cause(s) The answer does not state facts sufficient to constitute a defense, CCP § 430.20(a); Timberidge Enters. v. City of Santa Rosa (1978) 86 CA3d 873, 879-880, 885-887. 8 Laches The answer does not state facts sufficient to constitute a defense. CCP § 430.20(a); Timberidge Enters. v. City of Santa Rosa (1978) 86 CA3d 873, 879-880, 885-887. 9 | Assumption of Risk The answer does not state facts sufficient to constitute a defense. CCP § 430.20(a); Timberidge Enters. v. City of Santa Rosa (1978) 86 CA3d 873, 879-880, 885-887. 10 | Defendants Acted The answer does not state facts sufficient to constitute a Reasonably defense. CCP § 430.20(a); Timberidge Enters. v. City of Santa Rosa (1978) 86 CA3d 873, 879-880, 885-887. 11 | Offset The answer does not state facts sufficient to constitute a defense. CCP § 430.20(a); Timberidge Enters. v. City of Santa Rosa (1978) 86 CA3d 873, 879-880, 885-887. 12 | Privilege The answer does not state facts sufficient to constitute a defense. CCP § 430.20(a); Timberidge Enters. v. City of Santa Rosa (1978) 86 CA3d 873, 879-880, 885-887, 462147401 Gregory Markow August 27,2018 Page 3 13 | Plaintiff's The answer does not state facts sufficient to constitute a Misrepresentations defense. CCP § 430.20(a); Timberidge Enters. v. City of Santa Rosa (1978) 86 CA3d 873, 879-880, 885-887. 14 | False Representations The answer does not state facts sufficient to constitute a defense. CCP § 430.20(a); Timberidge Enters. v. City of Santa Rosa (1978) 86 CA3d 873, 879-880, 885-887. 15 Satisfaction The answer does not state facts sufficient to constitute a defense. CCP § 430.20(a); Timberidge Enters. v. City of Santa Rosa (1978) 86 CA3d 873, 879-880, 885-887. 16 Performance: The answer does not state facts sufficient to constitute a defense. CCP § 430.20(a); Timberidge Enters. v. City of Santa Rosa (1978) 86 CA3d 873, 879-880, 885-887. 17 Plaintiff’s Breach of Duty of Care The answer does not state facts sufficient to constitute a defense. CCP § 430.20(a); Timberidge Enters. v. City of Santa Rosa (1978) 86 CA3d 873, 879-880, 885-887. 18 Unclean Hands The answer does not state facts sufficient to constitute a defense. CCP § 430.20(a); Timberidge Enters. v. City of Santa Rosa (1978) 86 CA3d 873, 879-880, 885-887, 19 Statute of Limitations The answer does not state facts sufficient to constitute a defense. CCP § 430.20(a); Timberidge Enters. v. City of Santa Rosa (1978) 86 CA3d 873, 879-880, 885-887; Richard B. LeVine, Inc. v. Higashi (2005) 131 Cal. App.4th 566, 587 n4, 20 Lack of Notice The answer does not state facts sufficient to constitute a defense. CCP § 430.20(a); Timberidge Enters. v. City of Santa Rosa (1978) 86 CA3d 873, 879-880, 885-887. 21 Statute of Frauds The answer does not state facts sufficient to constitute a defense. CCP § 430.20(a); Timberidge Enters. v. City of Santa Rosa (1978) 86 CA3d 873, 879-880, 885-887, Again, please let me know if you would like to discuss this matter further by phone today/tomorrow or if defendants will instead promptly file an amended answer. Absent prompt confirmation that defendants will amend their answer to “state facts” supporting each affirmative incer¢l 46214740;1 a. will have no choice but to proceed with filing a demurrer on September 4, 2018 y, 27 / rd 4 // 4 . A K E R M A N LL P 60 1 W E S T FI FT H ST RE ET , SU IT E 30 0 LO S A N G E L E S , C A L I F O R N I A 90 07 1 TE L. : (2 13 ) 68 8- 95 00 - FA X: (2 13 ) 62 7- 63 42 N N N N N N N N H m pe e m a e m e m pe d p m S E E E A = o TE - B E E N T e N E O E SC C N T E - E E 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 of 18 years and not a party to this action. My business address is 601 West Fifth Street, Suite 300, Los Angeles, CA 90071. On September 4, 2018, I served the following document(s) described as: PLAINTIFF MICHAEL HECKETHORN'S NOTICE OF DEMURRER; DEMURRER TO ANSWER OF DEFENDANTS on the persons below as follows: Greg Markow, Esq. CROSBIE GLINER SCHIFFMAN SOUTHARD & SWANSON LLP 12750 High Bluff Drive, Suite 250 San Diego, California 92130 Telephone: 858.367.7697 Email: gmarkow@cgs3.com Attorney for Defendants 7 BY MAIL: I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing with the United States Postal Service. Under that practice, it would be deposited with the United States Postal Service that same day in the ordinary course of business. Such envelope(s) were placed for collection and mailing with postage thereon fully prepaid at Los Angeles, California, on that same day following ordinary business practices. (C.C.P. § 1013 (a) and 1013a(3)) a BY FACSIMILE: I caused said document(s) to be transmitted by facsimile pursuant to Rule 2008 of the California Rules of Court. The telephone number of the sending facsimile machine was (213) 627-6342. The name(s) and facsimile machine telephone number(s) of the person(s) served are set forth in the service list. The document was transmitted by facsimile transmission, and the sending facsimile machine properly issued a transmission report confirming that the transmission was complete and without error. a BY ELECTRONIC SERVICE: Complying with Code of Civil Procedure § 1010.6, I caused such document(s) to be electronically served on the party identified and no error was received when transmitted. My electronic business address is [E-mail Address]. O BY OVERNIGHT DELIVERY: I deposited such document(s) in a box or other facility regularly maintained by the overnight service carrier, or delivered such document(s) to a courier or driver authorized by the overnight service carrier to receive documents, in an envelope or package designated by the overnight service carrier with delivery fees paid or provided for, addressed to the person(s) served hereunder. (C.C.P. § 1013(d)(e)) CI BY PERSONAL SERVICE: I caused such envelope(s) to be delivered by hand to the office of the addressee(s). O (CM/ECF Electronic Filing): I caused the above document(s) to be transmitted to the office(s) of the addressee(s) listed above by electronic mail at the e-mail address(es) set forth above pursuant to Fed.R.Civ.P.5(d)(1). "A Notice of Electronic Filing (NEF) is generated 1 CASENO. 37-2018-00033234-CU-BC-CTL PROOF OF SERVICE 46237965;1 A K E R M A N LL P 60 1 W E S T FI FT H ST RE ET , SU IT E 30 0 - = e m me d e k p t pe [ o Y TS E E S E E E = ) LO S A N G E L E S , C A L I F O R N I A 90 07 1 TE L. : (2 13 ) 68 8- 95 00 - FA X: (2 13 ) 62 7- 63 42 D O N D O N O N N N N O N m m 0 N N n n B R A W N = D vO e w automatically by the ECF system upon completion of an electronic filing, The NEF, when e- mailed to the e-mail address of record in the case, shall constitute the proof of service as required by Fed.R.Civ.P.5(d)(1). A copy of the NEF shall be attached to any document served in the traditional manner upon any party appearing pro se." (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. (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. I declare under penalty of perjury under the laws of the United States of America that the above is true and correct, Executed on September 4, 2018, at Los Angeles, California. --- = Evelyn S. Duarte 46237965;1 (Type or print name) (Signature) 2 CASE No. 37-2018-00033234-CU-BC-CTL PROOF OF SERVICE