answer to first amended complaint

Cal. Super. - 1st Dist.June 11, 2021

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Defendants’ Answer to First Amended Complaint Case No: CGC-20-586103 712769 Kathryn C. Klaus, Esq. - SBN 205923 Rebecca D. Martino, Esq. - SBN 236094 CODDINGTON, HICKS & DANFORTH A Professional Corporation, Lawyers 555 Twin Dolphin Drive, Suite 300 Redwood City, CA 94065-2133 Tel.: 650.592.5400 Fax: 650.592.5027 ATTORNEYS FOR Defendants Yifei Hu and Ruijing Hu aka Helen Hu IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO MAHER ZAIRI, an individual, Plaintiff,, vs. YIFEI HU, and individual, RUIJING HU aka HELEN HU, an individual and DOES 1 - 100, inclusive, Defendants. Case No. CGC-20-586103 ANSWER TO FIRST AMENDED COMPLAINT Defendants Yifei Hu and Ruijing Hu aka Helen Hu answer the first amended complaint of Plaintiff Maher Zairi (hereinafter "Plaintiff") by alleging the following: I. GENERAL DENIAL 1. Pursuant to the provisions of California Code of Civil Procedure Section 431.30(d), Defendants deny generally and specifically, conjunctively and disjunctively, each and every allegation and purported cause of action contained in the Complaint, and further deny that the Complaint and each and every purported cause of action thereof states facts sufficient to constitute a cause of action against the Defendants, and further deny that the answering Defendants are in any way responsible in any respect for the damages that Plaintiff allegedly has sustained or will allegedly sustain, and deny that Plaintiff has sustained or will sustain any injury, or is otherwise entitled to the relief requested in the Complaint or any other relief, or at all, by reason of any act, omission or breach on the part of Defendants or their agents. ELECTRONICALLY F I L E D Superior Court of California, County of San Francisco 11/25/2020 Clerk of the Court BY: EDWARD SANTOS Deputy Clerk 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Defendants’ Answer to First Amended Complaint Case No: CGC-20-586103 712769 II. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE (FAILURE TO STATE A CAUSE OF ACTION) 2. Defendants allege that neither Plaintiff’s Complaint, nor any cause of action asserted therein, states facts sufficient to constitute a cause of action against Defendants. SECOND AFFIRMATIVE DEFENSE (FAILURE TO MITIGATE) 3. Defendants are informed and believe, and upon that basis alleges, that the Plaintiff failed to take all proper measures and remedies to mitigate his alleged damages, said actions or inactions working as a complete bar or diminishing any recovery herein. THIRD AFFIRMATIVE DEFENSE (BARRED BY STATUTE OF LIMITATIONS) 4. Plaintiff’s Complaint and each and every cause of action therein and claim for relief contained therein is barred in whole or in part by the applicable Statute of Limitations, including but not limited to, Code of Civil Procedure Sections 335-349.4, 337, 337.1, 337.15, 337(1), 337.l(a)(l), 337.l(a)(2), 337.l(b), 337.2, 338, 339, 340, 340(1), 340(3), 359 and/or 343, et seq., and California Commercial Code sections 2607(3)(a) and 2725(1)(2), and Business and Professions Code Sections 7071.11, and all other applicable provisions of the California Code of Civil Procedure, California Civil Code, California Business and Professions Code, and San Francisco Administrative Code. FOURTH AFFIRMATIVE DEFENSE (PLAINTIFF’S COMPARATIVE NEGLIGENCE) 5. Defendants allege that any and all injuries, if any, sustained or suffered by the Plaintiff was proximately and substantially caused and contributed to by the negligence of the Plaintiff, in that Plaintiff failed to exercise ordinary care and reasonable care or caution for his own well-being. FIFTH AFFIRMATIVE DEFENSE (INDEMNIFICATION FROM OTHERS) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Defendants’ Answer to First Amended Complaint Case No: CGC-20-586103 712769 6. If Plaintiff recovers damages from Defendants, Defendants are entitled to indemnification, either in whole or in part, from all persons or entities whose negligence or fault proximately caused or contributed to the damages, if any, allegedly incurred by Plaintiff. SIXTH AFFIRMATIVE DEFENSE (LACK OF CAUSATION) 7. Plaintiff is barred from relief in that Defendants’ conduct neither actually nor proximately caused any of the damages allegedly sustained by Plaintiff and the subject lawsuit is retaliatory in nature and in violation of Defendants’ right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue. SEVENTH AFFIRMATIVE DEFENSE (LACK OF STANDING) 8. Defendants are informed and believe that with respect to matters alleged in the Complaint, Plaintiff lacks standing to assert claims against Defendants. EIGHTH AFFIRMATIVE DEFENSE (LITIGATION PRIVILEGE) 9. Defendants allege that Plaintiff’s Complaint, and every cause of action therein, is barred by the litigation privilege. NINTH AFFIRMATIVE DEFENSE (EQUITABLE ESTOPPEL) 10. Plaintiff is barred from relief by the equitable principles of equitable estoppel. TENTH AFFIRMATIVE DEFENSE (JUDICIAL ESTOPPEL) 11. Plaintiff is barred from relief under the doctrine of Judicial Estoppel. ELEVENTH AFFIRMATIVE DEFENSE (WAIVER) 12. Plaintiff is barred from relief in that he has either impliedly and/or expressly waived and released any and all claims he has made against said answering Defendants. TWELFTH AFFIRMATIVE DEFENSE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Defendants’ Answer to First Amended Complaint Case No: CGC-20-586103 712769 (INTERVENING ACTIONS) 13. Defendants are informed and believe, and upon that basis, allege that the losses, injuries or damages, if any, incurred by Plaintiff was the result of superseding intervening causes arising from negligent or willful acts or omissions by party Defendants neither controlled nor had the right to control, and thereby Plaintiff’s claims against Defendants are barred. THIRTEENTH AFFIRMATIVE DEFENSE (UNCLEAN HANDS) 14. Plaintiff filed his Complaint with “unclean hands”, and is in some manner responsible for the alleged circumstances described in the Complaint, and therefore should be estopped from obtaining any relief by virtue of this action. FOURTEENTH AFFIRMATIVE DEFENSE (DOCTRINE OF LACHES) 15. Plaintiff’s claims are barred by the doctrine of laches. Plaintiff has delayed in initiating and/or prosecuting this action and each and every cause of action therein, and such delay has caused serious and unreasonable prejudice to said answering Defendants. FIFTEENTH AFFIRMATIVE DEFENSE (ACTIVE NEGLIGENCE AS A BAR) 16. At all times and places alleged in the Complaint, Plaintiff was actively careless and negligent in the matters alleged, and Defendants’ negligence, if any, was passive and based solely upon the derivative form of liability, not resulting from Defendants’ conduct, but only from an obligation imposed upon Plaintiff by law; and such active negligence on Plaintiff’s part proximately caused and contributed to the injuries alleged in the Complaint; therefore, said active negligence on the part of Plaintiff bars any right to indemnity from Defendants. SIXTEENTH AFFIRMATIVE DEFENSE (CONSENT) 17. Plaintiff and/or his agents and representatives had full knowledge of the true facts and consented to, approved, and ratified all acts and omissions complained of as against these answering Defendants in the Complaint, by his supervision, inspection and acceptance of 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 Defendants’ Answer to First Amended Complaint Case No: CGC-20-586103 712769 these answering Defendants’ work, thereby barring Plaintiff from recovering any damages or relief from said answering Defendants. SEVENTEENTH AFFIRMATIVE DEFENSE (EXEMPTION) 18. Plaintiff is barred from relief because Defendants’ conduct is exempted by statute. EIGHTEENTH AFFIRMATIVE DEFENSE (OFFSET AND SET-OFF) 19. Should Defendants be found to have liability for any damages alleged by Plaintiff in the instant action, answering Defendants allege they are entitled to the rights of offset and set-off. NINETEENTH AFFIRMATIVE DEFENSE (NO DAMAGES) 20. Plaintiff suffered no recoverable damages. TWENTIETH AFFIRMATIVE DEFENSE (ESTOPPEL - ACTION OF PLAINTIFFS) 21. Defendants are informed and believe, and upon that basis, allege that Plaintiff, by his own conduct, is estopped from complaining of any damage or loss allegedly arising as a result of any breach of any obligation alleged in the Complaint. TWENTY-FIRST AFFIRMATIVE DEFENSE (ACCEPTANCE AND RATIFICATION) 22. Defendants are informed and believe, and upon that basis allege that Plaintiff is barred from any recovery against Defendants by reason of his inspection, acceptance and ratification of any work to the unit performed by Defendants. TWENTY-SECOND AFFIRMATIVE DEFENSE (UNWARRANTED CLAIM) 23. Defendants are informed and believe, and upon that basis allege, that the Complaint filed by Plaintiff was brought without reasonable cause and without a good faith 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 Defendants’ Answer to First Amended Complaint Case No: CGC-20-586103 712769 belief that there was a justifiable controversy under the facts or the law which warranted the filing of the Complaint. Plaintiff should therefore be responsible for all of Defendants’ necessary and reasonable defense costs, as more particularly set forth in California Code of Civil Procedure section 1038. TWENTY-THIRD AFFIRMATIVE DEFENSE (APPORTIONMENT) 24. Defendants deny any and all liability to the Plaintiff, but if Defendants are found liable, the responsibility of Defendants is small in proportion to the alleged liability and responsibility of the Plaintiff and other parties, and the Plaintiff should be limited to seek and recover from Defendants only that proportion of alleged injuries and damages for which Defendants are liable and responsible under any applicable theory. TWENTY-FOURTH AFFIRMATIVE DEFENSE (LACK OF PRIVITY) 25. Plaintiff’s claims are barred because they lack privity with said Defendants. TWENTY-FIFTH AFFIRMATIVE DEFENSE (FAILURE OF CONSIDERATION) 26. Plaintiff’s claims are barred because of the failure of consideration. TWENTY-SIXTH AFFIRMATIVE DEFENSE (EXCUSE) 27. Plaintiff’s prior breaches of the agreement excused Defendants’ performance. TWENTY-SEVENTH AFFIRMATIVE DEFENSE (LACK OF NOTICE) 28. Defendants are informed and believe that Plaintiff failed to provide statutory notice pursuant to the California Civil Code and San Francisco Residential Rent Stabilization and Arbitration Ordinance. TWENTY-EIGHTH AFFIRMATIVE DEFENSE (NECESSITY) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 Defendants’ Answer to First Amended Complaint Case No: CGC-20-586103 712769 29. Defendants are informed and believe that if they breached any duties owed to Plaintiff, that the breach was necessary to prevent a greater harm from occurring. TWENTY-NINTH AFFIRMATIVE DEFENSE (CONDUCT REASONABLE) 30. Plaintiff’s claims are barred because said answering Defendants’ conduct with respect to the matters alleged in the Complaint as reasonable relative to the standards, customs, knowledge and practices at the time of the original approval of the work performed by said answering Defendants. THIRTIETH AFFIRMATIVE DEFENSE (PERFORMANCE OF OBLIGATIONS) 31. Defendants are informed and believe and thereon allege that prior to the commencement of this action, said answering Defendants duly performed, satisfied, and discharged all duties and obligations they may have owed to Plaintiff, if any, arising out of any and all agreements, representations, or contracts made by them or on their behalf and that this action is therefore barred by the provisions of Civil Code §1473. THIRTY-FIRST AFFIRMATIVE DEFENSE (STATUTE OF FRAUDS) 32. Defendants are informed and believe and thereon allege that the Complaint is barred by the Statute of Frauds. THIRTY-SECOND AFFIRMATIVE DEFENSE (DISCHARGE BY OPERATION OF LAW) 33. Defendants are informed and believe and thereon allege that the obligation of the parties, if any, and in particular these answering Defendants have been discharged by operation of law. THIRTY-THIRD AFFIRMATIVE DEFENSE (NO DUTY OWED) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 Defendants’ Answer to First Amended Complaint Case No: CGC-20-586103 712769 34. Defendants are informed and believe and thereon allege that said Defendants did not owe a duty to Plaintiff with regard to the allegations in the Complaint and that Plaintiff is barred from recovering from said answering Defendants. THIRTY-FOURTH AFFIRMATIVE DEFENSE (FAILURE TO EXERCISE DUE CARE) 35. Said answering Defendants allege that Plaintiff failed to exercise reasonable and ordinary care, caution, or prudence in order to avoid the alleged incident and any resulting injuries and damages. THIRTY-FIFTH AFFIRMATIVE DEFENSE (RESERVATION OF DEFENSES) 36. These answering Defendants do not at this time have sufficient knowledge or information to identify other potentially applicable affirmative defenses, and therefore reserve the right to assert such defenses when investigation or discovery reveals them. Dated: November 25, 2020 CODDINGTON, HICKS & DANFORTH By: /s/ Kathryn C. Klaus Kathryn C. Klaus Rebecca D. Martino Attorneys for Defendants Yifei Hu and Ruijing Hu aka Helen Hu 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PROOF OF SERVICE California Code of Civil Procedure sections 1011 , 1013, 1013a, 2015.5 California Rule of Court rule 2.251 Federal Rule of Civil Procedure Rule 5(6) I, the undersigned, declare that I am employed in the County of San Mateo, State of California. I am over the age of eighteen (18) years and not a party to the within action. My business address is 555 Twin Dolphin Drive, Suite 300, Redwood City, California 94065. My electronic mail address is joseguera@chdlawyers.com I am readily familiar with my employer's business practice for collection and processing of correspondence and documents for mailing with the United States Postal Service, mailing via overnight delivery, transmission by facsimile machine, and delivery by hand. On November 25, 2020, I served a copy of each of the documents listed below by placing them for processing as indicated herein. ANSWER TO FIRST AMENDED COMPLAINT United States Mail: The correspondence or documents were placed in sealed, labeled envelopes with postage thereon fully prepaid on the above date placed for collection and mailing at my place of business to be deposited with the U.S. Postal Service at Redwood City, California on this same date in the ordinary course of business. Overnight Delivery: The correspondence or documents were placed in sealed, labeled packaging for overnight de1ivery, with Federal Express, with all charges to be paid by my employer on the above date for collection at my place of business to be deposited in a facility regularly maintained by the overnight delivery carrier, or delivered to a courier or driver authorized by the overnight delivery carrier to receive such packages, on this date in the ordinary course of business. Hand Delivery: The correspondence or documents were placed in sealed, labeled envelopes and served by personal delivery to the party or attorney indicated herein, or if upon attorney, by leaving the labeled envelopes with a receptionist or other person having charge of the attorney's office. Facsimile Transmission: The correspondence or documents were placed for transmission from (650) 592-5027 at Redwood City, California, and were transmitted to a facsimile machine maintained by the party or attorney to be served at the facsimile machine telephone number provided by said party or attorney, on this same date in the ordinary course of business. The transmission was reported as complete and without error, and a record of the transmission was properly issued by the transmitting facsimile machine. 21 =xx~_ 28 Electronic Transmission: T he correspondence or documents were transmitted electronically to the electronic address set forth below. 1 2 3 4 5 6 7 State. The recipient has filed and served notice that he or she accepts electronic service; the recipient has electronically filed a document with the court; and/ or the Court has mandated that the parties serve documents through its Court approved vendor. The printed form of this document bearing the original signature is on file and available for inspection at the request of the court or any party to the action or proceeding in which it is filed, in the manner provided in California Rule of Court Rule 2.257(a). Federal. The recipient of this electronic service has consented to this method of service in writing, a copy of which is on file and available for inspection in my employer's office. I have received no indication the electronic transmission did not reach the recipient. 8 PERSONS OR PARTIES SERVED: 9 Attorney for Plaintiff 10 Marc Branco, Esq. Marc Branco & Partners, P.C. 11 259 Saybrook Way Vallejo, CA 94951 12 13 14 Telephone: Facsimile: E-mail: (415) 295-4545 (415) 358-4877 Marc@MarcBrancoLaw.com 15 I certify (or declare) under penalty of perjury under the laws of the State of California that 16 the foregoing is true and correct and that this de 17 18 19 20 Court: Superior Court~/ Ca/ifomia, San Framisco Coun(y Action No: CGC-20-586103 21 Case Name: Zairi 11. Hu 22 23 24 25 26 27 28