answer to complaint

Cal. Super. - 1st Dist.September 23, 2021

Phillip G, Vermont, SBN 132035 RANDICK O'DEA TOOLIATOS VERMONT & SARGENT) LLP 5000 Hopyard Road, Suite 225 Pleasanton, California 94588 Telephone: (925) 460-3700 Facsimile: (925) 460-0969 Email: overmontSrandicklaw.corn Attorneys for Defendant, GOORIN BROS., INC., a California Corporation 10 SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO 11 12 13 14 15 16 17 Vera Cort, Trustee of the Vera Cort Revocable Living Trust, Plaintiff, vs. Goorin Bros., Inc., a California Corporation, and DOES 1-10, Defendants. Case No,: CGC-20-587602 ANSWER TO COMPLAINT 18 19 20 21 22 23 24 25 26 27 28 Defendant, Goorin Bros., lnc., a California Corporation (hereinafter, "Defendant") answers Plaintiff s unverified Complaint filed on October 28, 2020, as follows: GENERAL DENIAL Under the provisions of California Code of Civil Procedure section 431.30, this answering Defendant denies, generally and specifically, conjunctively and disjunctively, each and every, all and singular, the allegations contained in the unverified Complaint and deny that Plaintiff is entitled to any remedies against this answering Defendant, that Plaintiff has been or will be damaged by reason of any act or omission of this answering Defendant, that Plaintiff has sustained any injury, damage or loss by reason of any act or omission of this answering Defendant, or that Plaintiff is entitled to the payment of any sum whatsoever from this answering ANSWER TO COMPLAiNT - CASE NO.'CGC-20-587602 490)dl.do 4 ELECTRONICALLY F I L E D Superior Court of California, County of San Francisco 01/07/2021 Clerk of the Court BY: EDWARD SANTOS Deputy Clerk Defendant, or that any sum whatsoever is due and owing to Plaintiff from this answering Defendant. WHEREFORE, Defendant prays for judgment as hereinafter set forth. AFFIRMATIVE DEFENSES 5 FIRST AFFIRMATIVE DEFENSE (Failure to State a Claim) Without admitting any facts pled by Plaintiff, each and every one of Plaintiff s causes of action against Defendant does not state facts sufficient to constitute a cause of action against Defendant. 10 12 13 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SECOND AFFIRMATIVE DEFENSE (Waiver) Without admitting any facts pled by Plaintiff, each and every one of Plaintiff s causes of action are barred in whole or in part by the doctrine ofwaiver. THIRD AFFIRMATIVE DEFENSE (Estoppel) Without admitting any facts pled by Plaintiff, the parties are estopped in whole or in part to enforce and/or declare the obligations or liabilities sought to be enforced and/or declared by Plaintiff s Complaint. FOURTH AFFIRMATIVE DEFENSE (Statute of Limitations) Without admitting any facts pled by Plaintiff, each and every one of Plaintiff's causes of action against Defendant are barred in whole or in part by the applicable statutes of limitation, including but not limited to Code of Civil Procedure sections 337, 338, 339 and 343. FIFTH AFFIRMATIVE DEFENSE (Contributory Negligence) Without admitting any facts pled by Plaintiff, Defendant affirmatively alleges, in the alternative, that in the event Defendant or any of them are found liable, said liability should be ANSWER TO COMPLAINT - CASE NO.: CGC-20-587602 990761 docx 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 shared by the other parties or entities including but not limited to Plaintiff. SIXTH AFFIRMATIVE DEFENSE (Laches) Without admitting any facts pled by Plaintiff, Defendant affirmatively alleges, in the alternative, that all of Plaintiff s claims and causes of action against Defendant are barred in whole or in part by the doctrine of laches. SEVENTH AFFIRMATIVE DEFENSE (Failure to Mitigate Damages) Without admitting any facts pled by Plaintiff, Defendant affirmatively alleges, in the alternative, that Plaintiff had a duty to mitigate her damages and, to the extent she has failed to do so, any damages awarded to Plaintiff under the Complaint should be reduced accordingly. EIGHTH AFFIRMATIVE DEFENSE (Indemnity) Any and all damages sustained by Plaintiff, if any, were proximately caused and contributed to by the independent negligence, carelessness, or the superseding negligence or other tortious conduct of Plaintiff or third parties. Accordingly, Defendant is entitled to total or partial indemnity from Plaintiff, and/or total or partial indemnity from such third parties. NINTH AFFIRAMTIVE DEFENSE (Unclean Hands//n Pari Deiicto) Without admitting any facts pled by Plaintiff, each and every one of Plaintiff s causes of action against Defendant are barred in whole or in part by the doctrine of unclean hands, and/or by Plaintiff s status, in pari delicto. TENTH AFFIRMATIVE DEFENSE (Reasonableness and Good Faith) Without admitting any facts pleaded by Plaintiff, each and every one of Plaintiff's causes of action against Defendant are barred in whole or in part because Defendant acted reasonably, honestly, and in good faith at all times based on all relevant facts and circumstances known by it ANSWER TO COMPLAINT - CASE NO.: CGC-20-587602 490761 dddd at the time it so acted. 2 ELEVENTH AFFIRMATIVE DEFENSE (No Duty) Without admitting any facts pled by Plaintiff, each and every one of Plaintiff's causes of action against Defendant are barred in whole or in part because Defendant did not owe and did not breach any legally cognizable duty to Plaintiff. 7 TWELFTH AFFIRMATIVE DEFENSE 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 (Assumption of Risk) Without admitting any facts pled by Plaintiff, each and every one of Plaintiff s causes of action against Defendant are barred in whole or in part because Plaintiff assumed the risk of the injuries alleged in the Complaint, if any, through their own independent actions and conduct falling outside the scope of the ordinary conduct involved in the activities described in the Complaint. Therefore, Defendant owed no duty to protect Plaintiff from the peculiar risk of harm that allegedly caused Plaintiff s injuries, if any. THIRTEENTH AFFIRMATIVE DEFENSE (No Reliance) Plaintiff is not entitled to any relief because Plaintiff did not reasonably rely on Defendant, its alleged acts or omissions. FOURTEENTH AFFIRMATIVE DEFENSE (No Damage) Plaintiff is not entitled to any damage because Plaintiff has suffered no cognizable damage or other harm as a result of Defendant's alleged acts or omissions. FIFTEENTH AFFIRMATIVE DEFENSE (Failure to Plead Contract Terms) Plaintiff's claims fail in whole or in part because Plaintiff has failed to plead, with adequate specificity, the alleged agreement(s) and the terms thereof, which Plaintiff claims Defendant has breached. ANSWER TO COMPLAINT - CASE NO.: CGC-20-587602 49076t docx 1 SIXTEENTH AFFIRMATIVE DEFENSE (Pleading Uncertain) Plaintiffs claims are barred in whole or in part because the Complaint and allegations therein are uncertain, 5 SEVENTEENTH AFFIRMATIVE DEFENSE 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (Excused Performance) Plaintiff s claims are barred in whole or in part because Defendant is excused from performing any alleged obligations under the agreement(s), if any, as a result of Plaintiff's failure to perform her obligations under such agreement(s), if any. EIGHTEENTH AFFIRMATIVE DEFENSE (Lack of Consideration) Without admitting any facts pled by Plaintiff, each and every one of Plaintiff s causes of action against Defendant are barred in whole or in part due to the lack of consideration. NINETEENTH AFFIRMATIVE DEFENSE (Full Performance) Without admitting any facts pled by Plaintiff, each and every one of Plaintiff s causes of action against Defendant are barred in whole or in part because Defendant has fully performed the terms of the parties'greement(s), if any. TWENTIETH AFFIRMATIVE DEFENSE (Frustration of Purpose) Without admitting any facts pled by Plaintiff, each and every one of Plaintiff s causes of action against Defendant are barred in whole or in part because actions by Plaintiff and/or third parties due to the COVID-19 pandemic, frustrated the purpose of the agreement, if any. Therefore, Defendant's obligations under the agreement, if any, were excused. TWENTY-FIRST AFFIRMATIVE DEFENSE (Failure of Condition Precedent) Without admitting any facts pled by Plaintiff, Plaintiff s causes of action against ANSWER TO COMPLAINT - CASE NO.; CGC-20-587602 490761499 Defendant are barred in whole or in part because to the extent that Plaintiff alleges that Defendant has any contractual obligation or duty to which full performance has not been rendered or excused, not all conditions precedent to such obligations or duties have occurred. TWENTY-SECOND AFFIRMATIVE DEFENSE (Comparative Fault) Without admitting any facts pled by Plaintiff, each and every one of Plaintiff s causes of action against Defendant are barred in whole or in part because the incidents described in the Complaint, and whatever injuries or damages, if any, Plaintiff suffered as a result thereof, were proximately caused and/or were contributed to by the negligence, fault, breach, and/or 10 intentional misconduct of Plaintiff and/or its agents. Plaintiff s recovery, if any, must therefore 12 be diminished by the portion of Plaintiff s own negligence, fault, breach and/or intentional conduct. 13 14 TWENTY-THIRD AFFIRMATIVE DEFENSE (Unjust Enrichment) 15 16 17 18 Without admitting any facts pled by Plaintiff, each and every one of Plaintiff's causes of action against Defendant are barred in whole or in part because any and all damages and relief sought by Plaintiff, if any, will unjustly enrich Plaintiff and because an award of any such damages will contravene the principles of equity. 19 20 21 22 TWENTY-FOURTH AFFIRMATIVE DEFENSE (Actions due to COVID-19) Without admitting any facts pled by Plaintiff, each and every one of Plaintiff s causes of action against Defendant are barred in whole or in part because actions by Plaintiff and/or third 23 parties due to the COVID-19 pandemic, rendered impossible the purpose of the agreement, if 24 any. Therefore, Defendant's obligations under the agreement, if any, were excused 25 26 27 TWENTY-FIFTH AFFIRMATIVE DEFENSE (California Civil Code $ 1511) Without admitting any facts pled by Plaintiff, each and every one of the causes of action 28 ANSWER TO COMPLAINT - CASE NO.: CGC-20-587602 490761 doc@ 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 are barred in whole or in part by California Civil Code section 1511. TWENTY-SIXTH AFFIRMATIVE DEFENSE (Failure to Plead a Cause of Action Supporting Request for Attorney Fees) Without admitting any facts pled by Plaintiff, Plaintiff fails to state a cause of action supporting attorney fees. TWENTY-SEVENTH AFFIRMATIVE DEFENSE (Breach of Contract or Agreement) Plaintiff's claims fail in whole or in part because of Plaintiff s breach(es) of the contract(s) and/or agreement(s). TWENTY-EIGHTH AFFIRMATIVE DEFENSE (Breach of Covenant of Good Faith and Fair Dealing) Plaintiff's claims fail in whole or in part because of Plaintiff s breach(es) of the covenant of good faith and fair dealing between the parties. TWENTY-NINTH AFFIRMATIVE DEFENSE (All Pleaded Defenses) Without admitting any facts pled by Plaintiff, Defendant alleges that it is entitled to any and all affirmative defenses raised by any party named by Plaintiff, or named as a cross- defendant in any cross-complaint filed herein, and by reference said affirmative defenses that have been or may in the future be raised by pleadings filed herein, are by reference incorporated as if fully set forth herein. THIRTIETH AFFIRMATIVE DEFENSE (Doctrine of Merger) Without admitting any facts pled by Plaintiff, each and every one of the causes of action are barred by the doctrine of merger. ADDITIONAL AFFIRMATIVE DEFENSE (Additional Defense) Without admitting any facts pled by Plaintiff, Defendant affirmatively alleges, in the ANSWER TO COMPLAINT - CASE NO.: CGC-20-587602 d90761 doc* alternative, that Plaintiff had failed to adequately plead all relevant allegations, and therefore Defendant reserves the right to amend its Answer to assert additional affirmative defenses. WHEREFORE, Defendant prays for judgment against Plaintiff as follows: 1. That Plaintiff take nothing by their Complaint; 2. That Defendant be awarded its costs of suit, including reasonable attorneys'ees incurred herein; and 3. That Defendant be awarded such other and further relief as the Court may deem 10 11 12 proper. Date: January g, 2021 RANDICK O'DEA OLIATOS ENT, LLPVERMO T ' 13 14 15 By: ',.'' tD'llipO.l ermont 16 17 18 19 20 21 22 23 24 25 26 27 28 ANSWER TO COMPLAINT - CASE NO.; CGC-20-587602 49dddl doc@ PROOF OF SERVICE I, Sue Betti, declare: I am employed in Alameda County, State of California, am over the age of eighteen years, and not a party to the within action. My business address is 5000 Hopyard Road, Suite 225, Pleasanton, California 94588. I am readily familiar with the business practice for collection and processing of correspondence for mailing with the United States Postal Service and/or other overnight delivery. Under overnight delivery practice, all mailings are deposited in an authorized area for pick-up by an authorized express service courier the same day it is collected and processed in the ordinary course of business. On the date set forth below, I served the within: 9 10 11 12 ANSWER TO COMPLAINT on the parties in this action by placing a true copy thereof in a sealed envelope, and each envelope addressed as follows: Mark R. Meyer, Esq, Losch Ehrlich & Meyer 750 Battery Street, Suite 700 San Francisco, CA 94111 Phone: (415) 684-8885 Email: mm(klosch-ehrlich.corn Attorneyfor Plaintiff 13 14 15 16 17 18 19 20 21 22 23 [x] (By U.S. Mail) I caused each such envelope to be served by depositing same, with postage thereon fully prepaid, to be placed in the United States Postal Service in the ordinary course of business at Pleasanton, California. (By Facsimile) The above-referenced document(s) was transmitted by facsimile transmission to the number(s) shown and the transmission was reported as complete and without error. I caused the transmitting facsimile machine to issue properly a transmission report, a copy of which is attached to this Declaration. [ ] (By Overnight Delivery) I caused each such envelope to be served by depositing same in an authorized area for pick-up by an authorized express service courier (UPS Overnight) the same day it is collected and processed in the ordinary course of business . [ x ] (By E-SERVICE - through One-Legal) [x ] (By Electronic Service) The above-referenced document was served by electronically mailing a true and correct copy through Randick O'Dea Tooliatos Vermont & Sargent LLP's electronic mail system, to the email addresses set forth as listed above, and in accordance with Federal Rules of Civil Procedure, Rule 5(b). 24 25 26 27 I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on January 7, 2021, at Pleasanton, California. Sue Betti 28 PROOF OF SERVICE 490761 6694