answer of defendant zerocater inc

Cal. Super. - 1st Dist.October 7, 2021

DEFENDANT ZEROCATER, INC.’S ANSWER TO COMPLAINT CASE NO. CGC-20-586448 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 CROWELL & MORING LLP ATTORNEYS AT LAW Gregory D. Call (State Bar No. 120483) GCall@crowell.com Ethan W. Simonowitz (State Bar No. 314868) ESimonowitz@crowell.com CROWELL & MORING LLP 3 Embarcadero Center, 26th Floor San Francisco, CA 94111 Telephone: 415.986.2800 Facsimile: 415.986.2827 Attorneys for Defendant ZeroCater, Inc. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO UNLIMITED JURISDICTION 113-115 STILLMAN, LLC, a California limited liability company, Plaintiff, v. ZEROCATER, INC., a Delaware corporation, and DOES 1-25, Defendants. Case No. CGC-20-586448 ANSWER OF DEFENDANT ZEROCATER, INC. Trial Date: Not set Date Action Filed: September 8, 2020 Defendant ZeroCater, Inc. (“ZeroCater”) hereby answers the Complaint for Breach of Contract (“Complaint”) of 113-115 Stillman, LLC (“Landlord”) and asserts the following affirmative defenses thereto. GENERAL DENIAL Pursuant to Section 431.30(d) of the California Code of Civil Procedure, ZeroCater generally denies the allegations of the Complaint of Landlord, and each and every purported cause of action alleged therein, and further denies that Landlord is entitled to recover fully or partially in any amount whatsoever by reason of any act, omission, or conduct alleged in the Complaint, or at all. ELECTRONICALLY F I L E D Superior Court of California, County of San Francisco 10/15/2020 Clerk of the Court BY: BOWMAN LIU Deputy Clerk -2- DEFENDANT ZEROCATER, INC.’S ANSWER TO COMPLAINT CASE NO. CGC-20-586448 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 CROWELL & MORING LLP ATTORNEYS AT LAW SEPARATE AND ADDITIONAL DEFENSES ZeroCater asserts the following separate and additional defenses under California Code of Civil Procedure section 431.30(g). Without admitting any of the allegations in Landlord’s Complaint, or any other wrongful conduct, and without assuming any burden of proof not imposed by law, ZeroCater states as follows: FIRST AFFIRMATIVE DEFENSE (Failure to State a Cause of Action - All Causes of Action) As a first and separate defense, and solely by way of an alternative defense and not to be construed as an admission, ZeroCater alleges that neither the Complaint nor any purported cause of action therein states facts sufficient to constitute a cause of action against ZeroCater. SECOND AFFIRMATIVE DEFENSE (Commercial Frustration - All Causes of Action) As a second and separate defense, and solely by way of an alternative defense and not to be construed as an admission, ZeroCater alleges that Landlord’s claims are barred, in whole or in part, by the doctrine of commercial frustration because supervening events substantially destroyed the expected value to be derived from the subject of the underlying lease entered into by Landlord and ZeroCater on or around February 19, 2014 (“Lease”) and frustrated the purpose of the Lease, thereby excusing and relieving ZeroCater from any obligations thereunder. THIRD AFFIRMATIVE DEFENSE (Impossibility - All Causes of Action) As a third and separate defense, and solely by way of an alternative defense and not to be construed as an admission, ZeroCater alleges that Landlord’s claims are barred, in whole or in part, by the doctrine of impossibility because supervening events have prevented ZeroCater’s performance under the Lease, thereby excusing and relieving ZeroCater from any obligations thereunder. -3- DEFENDANT ZEROCATER, INC.’S ANSWER TO COMPLAINT CASE NO. CGC-20-586448 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 CROWELL & MORING LLP ATTORNEYS AT LAW FOURTH AFFIRMATIVE DEFENSE (Excuse - All Causes of Action) As a fourth and separate defense, and solely by way of an alternative defense and not to be construed as an admission, ZeroCater alleges that Landlord’s claims are barred, in whole or in part, because ZeroCater’s alleged non-performance under the Lease was excused under, inter alia, California Civil Code section 1511. FIFTH AFFIRMATIVE DEFENSE (Estoppel - All Causes of Action) As a fifth and separate defense, and solely by way of an alternative defense and not to be construed as an admission, ZeroCater alleges that Landlord’s claims are barred, in whole or in part, by the doctrine of estoppel because of Landlord’s own conduct, representations, and omissions. SIXTH AFFIRMATIVE DEFENSE (Failure to Mitigate Damages - All Causes of Action) As a sixth and separate defense, and solely by way of an alternative defense and not to be construed as an admission, ZeroCater alleges that to the extent Landlord failed to use reasonable efforts to mitigate its damages, if any, Landlord’s failure was the cause of some or all of the alleged damages (to which ZeroCater denies Landlord is entitled) and its claims are barred. SEVENTH AFFIRMATIVE DEFENSE (Avoidable Consequences - All Causes of Action) As a seventh and separate defense, and solely by way of an alternative defense and not to be construed as an admission, ZeroCater alleges that Landlord’s claims are barred, in whole or in part, by the doctrine of avoidable consequences because Landlord’s damages, if any, could have been avoided by reasonable effort or expenditure, which Landlord failed to take. Any recovery of damages there may be (which ZeroCater denies) should be accordingly reduced in the amount by which Landlord could have avoided. -4- DEFENDANT ZEROCATER, INC.’S ANSWER TO COMPLAINT CASE NO. CGC-20-586448 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 CROWELL & MORING LLP ATTORNEYS AT LAW EIGHTH AFFIRMATIVE DEFENSE (Attorneys’ Fees and Interest - All Causes of Action) As an eighth and separate defense, and solely by way of an alternative defense and not to be construed as an admission, ZeroCater alleges that Landlord has failed to state facts sufficient to provide a legal or factual basis to award attorneys’ fees or interest to Landlord. RESERVATION OF ADDITIONAL DEFENSES AND/OR REMEDIES ZeroCater reserves all rights to plead any additional, separate defenses as may become available by law, or pursuant to statute, as the action proceeds. ZeroCater further reserves all rights to withdraw or modify any defenses it may subsequently determine to be inapplicable. Nothing in the foregoing defenses constitutes a concession on the part of ZeroCater that it bears any burden of proof on any issue on which it would not otherwise bear such burden. PRAYER WHEREFORE, ZeroCater prays for judgment against 113-115 Stillman, LLC as follows: 1. That judgment be entered in favor of ZeroCater and that 113-115 Stillman, LLC take nothing by its action; 2. That ZeroCater be awarded its costs of suit and attorneys’ fees, to the extent permitted by law and pursuant to those provisions of the Lease awarding attorneys’ fees and costs to the prevailing party; and 3. For such other and further relief as the Court deems just and proper. Dated: October 15, 2020 CROWELL & MORING LLP By: Gregory D. Call Ethan W. Simonowitz Attorneys for Defendant ZeroCater, Inc. -5- DEFENDANT ZEROCATER, INC.’S ANSWER TO COMPLAINT CASE NO. CGC-20-586448 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 CROWELL & MORING LLP ATTORNEYS AT LAW PROOF OF SERVICE I, Tessie Spagna, state: My business address is 3 Embarcadero Center, 26th Floor, San Francisco, California 94111. I am over the age of eighteen years and not a party to this action. On the date set forth below, I served the foregoing document(s) described as: ANSWER OF DEFENDANT ZEROCATER, INC. On the following person(s) in this action: Michael G. Schinner Reed E. Harvey Agustín R. Pina Schinner & Shain, LLP 96 Jessie Street San Francisco, CA 94105 Telephone: (415)369-9050 Facsimile: (415) 800-1094 Email: pina@schinner.com  BY FIRST CLASS MAIL: I am employed in San Francisco County where the mailing occurred. I caused to be enclosed the document(s) identified above in a sealed envelope or package addressed to the person(s) listed above, with postage fully paid. I caused the envelope or package to be placed for collection and mailing, following our ordinary business practice. I am readily familiar with this firm’s practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service.  BY MESSENGER SERVICE: I served the document(s) identified above by placing them in an envelope or package addressed to the person(s) listed above and providing them to a professional messenger service for service. A declaration of personal service by the messenger is attached.  BY OVERNIGHT DELIVERY: I enclosed the document(s) identified above in a sealed envelope or package addressed to the person(s) listed above, in an envelope or package designated by the overnight delivery carrier with delivery fees paid or provided for. I placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight delivery carrier, or by delivering to a courier or driver authorized by the overnight delivery carrier to receive documents.  BY FACSIMILE: Based on an agreement of the parties to accept service by facsimile transmission, I faxed the document(s) identified above to the person(s) at the fax number(s) listed above. The transmission was reported complete and without error. I have attached a copy of the transmission report that was issued by the facsimile machine. -6- DEFENDANT ZEROCATER, INC.’S ANSWER TO COMPLAINT CASE NO. CGC-20-586448 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 CROWELL & MORING LLP ATTORNEYS AT LAW  BY ELECTRONIC MAIL: Based on a court order or an agreement of the partiesto accept service by electronic mail, I caused the document(s) identified above to be transmitted electronically to the person(s) at the e-mail address(es) listed above. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on October 15, 2020, at Alameda, California. Tessie Spagna