answer contract to complaint of fei jiang

Cal. Super. - 1st Dist.October 15, 2021

Check ONLY ONE of the next two boxes: a. b. If this form is used to answer a cross-complaint, plaintiff means cross-complainant and defendant means cross-defendant. Form Approved for Optional Use Judicial Council of California PLD-C-010 [Rev. January 1, 2007] ANSWER-Contract Code of Civil Procedure, § 425.12 www.courts.ca.gov PLD-C-010 answers the complaint or cross-complaint as follows: Defendant claims the following statements are false (use paragraph numbers or explain): Defendant has no information or belief that the following statements are true, so defendant denies them (use paragraph numbers or explain): Insert name of court, judicial district or branch court, if any, and post office and street address: PLAINTIFF: DEFENDANT: FOR COURT USE ONLY CASE NUMBER:ANSWER-Contract TO COMPLAINT OF TO CROSS-COMPLAINT (name): (name): ATTORNEY OR PARTY WITHOUT ATTORNEY (NAME AND ADDRESS): TELEPHONE: ATTORNEY FOR (NAME): Defendant generally denies each statement of the complaint or cross-complaint. (Do not check this box if the verified complaint or cross-complaint demands more than $1,000.) Defendant admits that all of the statements of the complaint or cross-complaint are true EXCEPT: 1. 2. DEFENDANT (name): 3. (1) Continued on Attachment 3.b.(2). This pleading, including attachments and exhibits, consists of the following number of pages: (2) Continued on Attachment 3.b.(1). Page 1 of 2 SUZAN YEE, ESQ. (SBN 88418) TSAO-WU & YEE LLP 4215 Geary Blvd. San Francisco, California 94118 (415) 777-1688 Defendant ALI KEMAL EREN SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO CIVIC CENTER COURTHOUSE 400 McAllister Street San Francisco, California 94102 FEI JIANG ALI KEMAL EREN; and DOES 1 to 10 CGC-20-587005FEI JIANG TWELVE (12) ALI KEMAL EREN ELECTRONICALLY F I L E D Superior Court of California, County of San Francisco 01/19/2021 Clerk of the Court BY: EDWARD SANTOS Deputy Clerk ANSWER-Contract 4. 5. DEFENDANT PRAYS b. c. Page 2 of 2ANSWER-ContractPLD-C - 010 [Rev. January 1, 2007] that plaintiff take nothing. PLD-C-010 (specify): CASE NUMBER:SHORT TITLE: 6. a. AFFIRMATIVE DEFENSES Defendant alleges the following additional reasons that plaintiff is not entitled to recover anything: Continued on Attachment 4. Other for costs of suit. Other {Signature of party or attorney)(Type or print name) JIANG v. EREN, et al. CGC-20-587005 Please see Attachment "4" to this Answer which is attached hereto and incorporated here by this reference as though fully set forth. DEMAND FOR JURY TRIAL: Defendant ALI KEMAL EREN hereby respectfully demands a trial by jury on all claims triable by a jury. (1) for reasonable attorney's fees in an amount according to proof; (2) for a statement of decision at the time of trial on all controverted issues; -and- (3) for any such other and further relief as the court may deem just and proper. Dated: January 18, 2021 SUZAN YEE, ESQ. AFFIRMATIVE DEFENSES Without admitting any facts alleged by plaintiff, the answering defendant also pleads the following separate and affirmative defenses in answer to the complaint: I. FOR A FIRST AFFIRMATIVE DEFENSE (Failure to State Cause of Action) The complaint, and each purported cause of action contained therein, fails to state facts sufficient to state a cause of action against the answering defendant. II. FOR A SECOND, SEPARATE, AND FURTHER AFFIRMATIVE DEFENSE (Complaint Uncertain) Each and all of the purported causes of action set forth in the complaint are uncertain, ambiguous, and unintelligible. III. FOR A THIRD, SEPARATE, AND FURTHER AFFIRMATIVE DEFENSE (Consent) The plaintiff consented to and approved all the acts and omissions about which plaintiff now complains. Accordingly, plaintiff is barred from pursuing this action. IV. FOR A FOURTH, SEPARATE, AND FURTHER AFFIRMATIVE DEFENSE (Estoppel) By conduct, representations and omissions, plaintiff is equitably estopped to assert, any claim for relief against this answering defendant respecting the matters which are the subject of the complaint. MC-025 CASE NUMBER:SHORT TITLE: ofPage ATTACHMENT (Number): (This Attachment may be used with any Judicial Council form.) (Add pages as required) (If the item that this Attachment concerns is made under penalty of perjury, all statements in this Attachment are made under penalty of perjury.) Form Approved for Optional Use Judicial Council of California MC-025 [Rev. July 1, 2009] ATTACHMENT www.courtinfo.ca.gov to Judicial Council Form JIANG v. EREN, et al. CGC-20-587005 "4" to PLD-C-010 1 10 V. FOR A FIFTH, SEPARATE, AND FURTHER AFFIRMATIVE DEFENSE (Accord and Satisfaction) Plaintiff has been paid in full for all monies due and that, as such, the parties have achieved a full accord and satisfaction with respect to those claims asserted against this answering defendant. VI. FOR A SIXTH, SEPARATE, AND FURTHER AFFIMATIVE DEFENSE (Act of God) The answering defendant is informed and believes and, based thereon, alleges that plaintiff’s damages, if any, and any and all events, transactions, and/or occurrences contributing thereto, are the direct and proximate result of an act of God, and any recovery by plaintiff should therefore be barred. VII. FOR A SEVENTH, SEPARATE, AND FURTHER AFFIRMATIVE DEFENSE (Breach By Plaintiff) Plaintiff's claims are barred, in whole or in part, because she breached the agreement upon which the promissory note which is the subject of the complaint was predicated before any alleged breach by this answering defendant. VIII. FOR AN EIGHTH, SEPARATE, AND FURTHER AFFIRMATIVE DEFENSE (Force Majeure) The answering defendant is excused, in whole or in part, from any obligation alleged in the complaint owing to an insuperable interference to any such obligation occurring without the intervention of this answering defendant as could not have been prevented by the exercise of prudence, diligence and care. MC-025 CASE NUMBER:SHORT TITLE: ofPage ATTACHMENT (Number): (This Attachment may be used with any Judicial Council form.) (Add pages as required) (If the item that this Attachment concerns is made under penalty of perjury, all statements in this Attachment are made under penalty of perjury.) Form Approved for Optional Use Judicial Council of California MC-025 [Rev. July 1, 2009] ATTACHMENT www.courtinfo.ca.gov to Judicial Council Form JIANG v. EREN, et al. CGC-20-587005 "4" to PLD-C-010 2 10 IX. FOR A NINTH, SEPARATE, AND FURTHER AFFIRMATIVE DEFENSE (Unconscionability) No relief may be obtained under the complaint by the plaintiff by reason of Civil Code section 1670.5, the statutory and common law prohibitions on enforcement of unconscionable contracts, including but not limited to contracts of adhesion, the prohibition on receipt of benefits accruing through unconscionable conduct, and the unconscionability of the plaintiff's acts and claims. X. FOR A TENTH, SEPARATE, AND FURTHER AFFIRMATIVE DEFENSE (Unjust Enrichment) Plaintiff would be unjustly enriched if allowed to recover on the complaint. XI. FOR AN ELEVENTH, SEPARATE, AND FURTHER AFFIRMATIVE DEFENSE (Impossibility) Performance of any contract became impossible or totally impracticable through no fault of this defendant and, accordingly plaintiff's claim is without merit. XII. FOR A TWELFTH, SEPARATE, AND FURTHER AFFIRMATIVE DEFENSE (Laches) The answering defendant is informed and believes and, based thereon, alleges that plaintiff waited an unreasonable period of time before asserting her claims, if any, against him, and she is thus barred from asserting such claims under the doctrine of laches. XIII. FOR A THIRTEENTH, SEPARATE, AND FURTHER AFFIRMATIVE DEFENSE (Prevention of Performance) Plaintiff breached any contracts with the answering defendant by failing timely, fully, and adequately to perform the lawful terms and conditions thereof, MC-025 CASE NUMBER:SHORT TITLE: ofPage ATTACHMENT (Number): (This Attachment may be used with any Judicial Council form.) (Add pages as required) (If the item that this Attachment concerns is made under penalty of perjury, all statements in this Attachment are made under penalty of perjury.) Form Approved for Optional Use Judicial Council of California MC-025 [Rev. July 1, 2009] ATTACHMENT www.courtinfo.ca.gov to Judicial Council Form JIANG v. EREN, et al. CGC-20-587005 "4" to PLD-C-010 3 10 thereby preventing said defendant's performance and discharging any obligation on the part of said defendant. XIV. FOR A FOURTEENTH, SEPARATE, AND FURTHER AFFIRMATIVE DEFENSE (Lawful Conduct) The answering defendant asserts that his conduct, and the conduct of his agents, servants, and employees, were at all times reasonable and lawful under the circumstances. XV. FOR A FIFTEENTH, SEPARATE, AND FURTHER AFFIRMATIVE DEFENSE (Novation) The answering defendant is informed and believes and, based thereon, alleges that plaintiff has engaged in conduct and actions to constitute a novation concerning the obligations, conduct, or acts at issue in the complaint, thus barring recovery from the answering defendant. XVI. FOR A SIXTEENTH, SEPARATE, AND FURTHER AFFIRMATIVE DEFENSE (Impracticality) The answering defendant is informed and believes and, based thereon, alleges that plaintiff has engaged in conduct and actions to render the obligations, conduct, or acts which are the subject of the complaint impracticable by said defendant thus barring recovery from said defendant. XVII. FOR A SEVENTEENTH, SEPARATE, AND FURTHER AFFIRMATIVE DEFENSE (Good Faith) The complaint is barred because the answering defendant, and his agents, servants, and employees, acted in good faith at all times relevant thereto, and MC-025 CASE NUMBER:SHORT TITLE: ofPage ATTACHMENT (Number): (This Attachment may be used with any Judicial Council form.) (Add pages as required) (If the item that this Attachment concerns is made under penalty of perjury, all statements in this Attachment are made under penalty of perjury.) Form Approved for Optional Use Judicial Council of California MC-025 [Rev. July 1, 2009] ATTACHMENT www.courtinfo.ca.gov to Judicial Council Form JIANG v. EREN, et al. CGC-20-587005 "4" to PLD-C-010 4 10 without malice, and without directly or indirectly violating any laws or regulations or contractual rights or otherwise, or any duty owed to plaintiff. XVIII. FOR AN EIGHTEENTH, SEPARATE, AND FURTHER AFFIRMATIVE DEFENSE (Privilege) The conduct of the answering defendant was at all times justified and privileged. XIX. FOR A NINETEENTH, SEPARATE, AND FURTHER AFFIRMATIVE DEFENSE (Reasonable or Exigent Circumstances) At all times relevant to the complaint, the answering defendant, and his agents, servants, and employees, performed their duties in a reasonable manner consistent with the exigent circumstances that emerged or existed at the time. In all manners the actions of said defendant, and his agents, servants, and employees, were reasonable and proper based upon the exigent circumstances that existed at the time. XX. FOR A TWENTIETH, SEPARATE, AND FURTHER AFFIRMATIVE DEFENSE (Lack of Equity) As between plaintiff and defendant, the equities do not preponderate in favor of plaintiff so as to allow recovery. XXI. FOR A TWENTY-FIRST, SEPARATE, AND FURTHER AFFIRMATIVE DEFENSE (Statute of Limitations) All or portions of the claims set forth in the complaint are barred by the applicable statute of limitations, including, but not limited to Code of Civil Procedure sections 337, subdivision (a), and 339, subdivision (1) MC-025 CASE NUMBER:SHORT TITLE: ofPage ATTACHMENT (Number): (This Attachment may be used with any Judicial Council form.) (Add pages as required) (If the item that this Attachment concerns is made under penalty of perjury, all statements in this Attachment are made under penalty of perjury.) Form Approved for Optional Use Judicial Council of California MC-025 [Rev. July 1, 2009] ATTACHMENT www.courtinfo.ca.gov to Judicial Council Form JIANG v. EREN, et al. CGC-20-587005 "4" to PLD-C-010 5 10 XXII. FOR A TWENTY-SECOND, SEPARATE, AND FURTHER AFFIRMATIVE DEFENSE (Unclean Hands) Plaintiff comes to court with unclean hands and, for that reason, is barred from equitable relief. XXIII. FOR A TWENTY-THIRD, SEPARATE, AND FURTHER AFFIRMATIVE DEFENSE (Offset) The answering defendant alleges that he has suffered damage by reason of the conduct of plaintiff, and that he has the right to offset if any amount of money is owed to him or due him by way of damage. XXIV. FOR A TWENTY-FOURTH, SEPARATE, AND FURTHER AFFIRMATIVE DEFENSE (Condition Precedent) One or more conditions precedent to the performance of any agreement never happened. XXV. FOR A TWENTY-FIFTH, SEPARATE, AND FURTHER AFFIRMATIVE DEFENSE (Mistake) As mistake was made as to the terms, if any, that were agreed to by plaintiff and the answering defendant. MC-025 CASE NUMBER:SHORT TITLE: ofPage ATTACHMENT (Number): (This Attachment may be used with any Judicial Council form.) (Add pages as required) (If the item that this Attachment concerns is made under penalty of perjury, all statements in this Attachment are made under penalty of perjury.) Form Approved for Optional Use Judicial Council of California MC-025 [Rev. July 1, 2009] ATTACHMENT www.courtinfo.ca.gov to Judicial Council Form JIANG v. EREN, et al. CGC-20-587005 "4" to PLD-C-010 6 10 XXVI. FOR A TWENTY-SIXTH, SEPARATE, AND FURTHER AFFIRMATIVE DEFENSE (Frustration of Purpose) The purposes of any agreements alleged by plaintiff in her complaint have been fundamentally defeated and frustrated through no fault of the answering defendant. XXVII. FOR A TWENTY-SEVENTH, SEPARATE, AND FURTHER AFFIRMATIVE DEFENSE (Excuse) The performance of the answering defendant of any agreement alleged in the complaint was excused, prevented, or delayed, by plaintiff, and/or by an irresistible, superhuman cause, including but not limited to the public health emergency declared by the Secretary of Health and Human Services on January 31, 2020 (42 U.S.C. § 247d), the statewide emergency proclaimed by the Governor of California on March 4, 2020 (Government Code § 8625), the national emergency declared by the President of the United States on March 25, 2020 (42 U.S.C. § 5191(b)), and the COVID-19 pandemic. XXVIII. FOR A TWENTY-EIGHTH, SEPARATE, AND FURTHER AFFIRMATIVE DEFENSE (Void or Voidable Contract) Any agreements or contracts alleged by plaintiff in her complaint are void or voidable. MC-025 CASE NUMBER:SHORT TITLE: ofPage ATTACHMENT (Number): (This Attachment may be used with any Judicial Council form.) (Add pages as required) (If the item that this Attachment concerns is made under penalty of perjury, all statements in this Attachment are made under penalty of perjury.) Form Approved for Optional Use Judicial Council of California MC-025 [Rev. July 1, 2009] ATTACHMENT www.courtinfo.ca.gov to Judicial Council Form JIANG v. EREN, et al. CGC-20-587005 "4" to PLD-C-010 7 10 XXIX. FOR A TWENTY-NINTH, SEPARATE, AND FURTHER AFFIRMATIVE DEFENSE (Duress) Plaintiff made the answering defendant enter into any agreements against his will by taking unfair advantage of his mental state or incapacity or by using threats or force. XXX. FOR A THIRTIETH, SEPARATE, AND FURTHER AFFIRMATIVE DEFENSE (Undue Influence) No agreement was created between plaintiff and the answering defendant because the answering defendant was unfairly pressured into consenting, plaintiff used a relationship of trust and confidence with the answering defendant, or used the needs or distress of the answering defendant, to induce or pressure the answering defendant into consenting to any contract or note, and the answering defendant would not otherwise have consented. XXXI. FOR A THIRTY-FIRST, SEPARATE, AND FURTHER AFFIRMATIVE DEFENSE (Lack of Consent) The answering defendant never consented to any of the agreements alleged to have been concluded with plaintiff in her complaint. XXXII. FOR A THIRTY-SECOND, SEPARATE, AND FURTHER AFFIRMATIVE DEFENSE (Illegality) The complaint is barred by operation of Civil Code sections 1595 through 1599 and the doctrine of illegality. MC-025 CASE NUMBER:SHORT TITLE: ofPage ATTACHMENT (Number): (This Attachment may be used with any Judicial Council form.) (Add pages as required) (If the item that this Attachment concerns is made under penalty of perjury, all statements in this Attachment are made under penalty of perjury.) Form Approved for Optional Use Judicial Council of California MC-025 [Rev. July 1, 2009] ATTACHMENT www.courtinfo.ca.gov to Judicial Council Form JIANG v. EREN, et al. CGC-20-587005 "4" to PLD-C-010 8 10 XXXIII. FOR A THIRTY-THIRD, SEPARATE, AND FURTHER AFFIRMATIVE DEFENSE (Fraud) All or part of the transactions mentioned by plaintiff in her complaint as the basis of liability resulted from fraud, deceit, or misrepresentation. XXXIV. FOR A THIRTY-FOURTH, SEPARATE, AND FURTHER AFFIRMATIVE DEFENSE (Waiver) Plaintiff engaged in conduct that constitutes a waiver of her rights under any agreements alleged in her complaint. By reason of said waiver, the answering defendant is excused from further performance of obligations under any such agreements. XXXV. FOR A THIRTY-FIFTH, SEPARATE, AND FURTHER AFFIRMATIVE DEFENSE (Modification) Any agreements alleged in the complaint were modified by the parties, and plaintiff is accordingly barred from recovery on the original agreements, if any, by reason of said modification. XXXVI. FOR A THIRTY-SIXTH, SEPARATE, AND FURTHER AFFIRMATIVE DEFENSE (Ratification) The answering defendant is informed and believes and, based thereon, alleges that plaintiff, by virtue of her own acts and/or the acts or omissions of others chargeable to her, ratified the alleged acts of said defendant. MC-025 CASE NUMBER:SHORT TITLE: ofPage ATTACHMENT (Number): (This Attachment may be used with any Judicial Council form.) (Add pages as required) (If the item that this Attachment concerns is made under penalty of perjury, all statements in this Attachment are made under penalty of perjury.) Form Approved for Optional Use Judicial Council of California MC-025 [Rev. July 1, 2009] ATTACHMENT www.courtinfo.ca.gov to Judicial Council Form JIANG v. EREN, et al. CGC-20-587005 "4" to PLD-C-010 9 10 XXXVII. FOR A THIRTY-SEVENTH, SEPARATE, AND FURTHER AFFIRMATIVE DEFENSE (Release) The answering defendant is informed and believes and, based thereon, alleges that plaintiff, by virtue of her own acts and/or the acts or omissions of others chargeable to her, expressly, impliedly and/or equitably released all rights against said defendant in connection with any transactions giving rise to the allegations set forth in the complaint. XXXVIII. FOR A THIRTY-EIGHTH, SEPARATE, AND FURTHER AFFIRMATIVE DEFENSE (Usury) Any agreements or notes which are the subject of the complaint charge more interest than the law allows. / / / / / / / / / / / / / / / / / / / / MC-025 CASE NUMBER:SHORT TITLE: ofPage ATTACHMENT (Number): (This Attachment may be used with any Judicial Council form.) (Add pages as required) (If the item that this Attachment concerns is made under penalty of perjury, all statements in this Attachment are made under penalty of perjury.) Form Approved for Optional Use Judicial Council of California MC-025 [Rev. July 1, 2009] ATTACHMENT www.courtinfo.ca.gov to Judicial Council Form JIANG v. EREN, et al. CGC-20-587005 "4" to PLD-C-010 10 10