defendant einstein and noah corp s answer to plaintiff 100 bush corpor

Cal. Super. - 1st Dist.May 13, 2021

ANSWER TO COMPLAINT; DEMAND FOR JURY TRIAL 124915810.3 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 Mark A. Neubauer (SBN 73728) Stephanie G. Chau (SBN 292699) CARLTON FIELDS, LLP 2029 Century Park East, Suite 1200 Los Angeles, CA 90067-2913 Telephone: (310) 843-6300 Facsimile: (310) 843-6301 Email: mneubauer@carltonfields.com Email: schau@carltonfields.com Attorneys for Defendant EINSTEIN AND NOAH CORP. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO 100 BUSH CORPORATION, a California corporation, Plaintiffs, vs. EINSTEIN AND NOAH CORP., A Delaware corporation, Defendant. Case No.: CGC-20-588576 DEFENDANT EINSTEIN AND NOAH CORP.’S ANSWER TO PLAINTIFF 100 BUSH CORPORATIONS’S COMPLAINT; DEMAND FOR JURY TRIAL Assigned to the Hon. Samuel K Feng, Dept. 206 Complaint filed: December 21, 2020 CMC Hearing: May 26, 2021 Trial Date: Not Set ELECTRONICALLY F I L E D Superior Court of California, County of San Francisco 02/19/2021 Clerk of the Court BY: EDWARD SANTOS Deputy Clerk 2 ANSWER TO COMPLAINT; DEMAND FOR JURY TRIAL 124915810.3 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 Defendant EINSTEIN AND NOAH CORP. (“Defendant”), for itself and itself alone, hereby answers the unverified Complaint (“Complaint”) of Plaintiff 100 BUSH CORPORATION (“Plaintiff”) as follows: GENERAL DENIAL Answering each and all of the allegations of the Complaint, pursuant to California Code of Civil Procedure § 431.30(d), Defendant denies, generally and specifically, each and every allegation in each and every paragraph of the Complaint and the whole thereof, and further denies that it has engaged in any wrongful conduct and that Plaintiff, as well as all those whom Plaintiff purports to represent, have been damaged, and deny that Plaintiff, as well as all those whom Plaintiff purports to represent, are entitled to the relief sought in the Complaint, or to any other relief whatsoever. AFFIRMATIVE DEFENSES Without admitting any of the facts alleged in the Complaint, Defendant hereby submits the following separate and additional defenses, without prejudice to Defendant’s right to argue that Plaintiff bears the burden of proof as to one or more of said defenses. Furthermore, all such defenses are pleaded in the alternative and do not constitute an admission of liability or an admission that Plaintiff and/or those she purports to represent are entitled to any relief whatsoever. Defendant may have additional affirmative defenses of which it is not currently fully aware and reserves the right to assert additional affirmative defenses after they are ascertained. FIRST AFFIRMATIVE DEFENSE (Failure to State a Claim) 1. The Complaint, and the purported cause of action alleged therein, fails to state facts sufficient to constitute any cause of action against Defendant. SECOND AFFIRMATIVE DEFENSE (Acts or Omissions of Plaintiff) 2. The Complaint, and the purported cause of action therein, is barred to the extent that injury, if any, resulted from the acts and/or omissions of Plaintiff. 3 ANSWER TO COMPLAINT; DEMAND FOR JURY TRIAL 124915810.3 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 THIRD AFFIRMATIVE DEFENSE (Intervening or Superseding Cause) 3. Defendant alleges that if Plaintiff suffered or sustained any loss, damage or injury as alleged in the Complaint, such loss, damage or injury was legally caused or contributed to by the negligence or wrongful conduct of other parties, persons or entities, and their negligence or wrongful conduct was an intervening and superseding cause of the loss, damage or injury of which Plaintiff complains. FOURTH AFFIRMATIVE DEFENSE (Justification/Excuse) 4. By virtue of the acts of Plaintiff, and/or the persons and/or entities acting on its behalf, the Complaint, and the purported cause of action asserted therein is barred because the acts and/or omissions alleged in the Complaint were justified and/or excused. FIFTH AFFIRMATIVE DEFENSE (Failure of Condition Precedent) 5. The Complaint, and the purported cause of action asserted therein is barred because Plaintiff did not comply with a specific term or condition of the contract which it was required to do before Defendant was required to perform. SIXTH AFFIRMATIVE DEFENSE (Ratification) 6. The Complaint, and the purported cause of action asserted therein is barred in whole or in part by the doctrine of ratification. SEVENTH AFFIRMATIVE DEFENSE (Release) 7. The Complaint, and the purported cause of action asserted therein is barred in whole or in part because Plaintiff has released Defendant from any all liability for Plaintiff’s alleged damages. 4 ANSWER TO COMPLAINT; DEMAND FOR JURY TRIAL 124915810.3 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 EIGHTH AFFIRMATIVE DEFENSE (Substantial Compliance) 8. The Complaint, and the purported cause of action asserted therein is barred in whole or in part because Defendant substantially complied with its obligations. NINTH AFFIRMATIVE DEFENSE (Waiver) 9. Plaintiff has waived any purported claims against Defendant by virtue of its conduct. TENTH AFFIRMATIVE DEFENSE (Unjust Enrichment) 10. Any relief to Plaintiff would unjustly enrich Plaintiff at the expense of Defendant. ELEVENTH AFFIRMATIVE DEFENSE (Consent) 11. The Complaint, and the purported cause of action alleged therein, is barred because Plaintiff consented to the conduct of Defendant as alleged in the Complaint. TWELFTH AFFIRMATIVE DEFENSE (Estoppel) 12. The Complaint, and the purported cause of action contained therein, is barred because Plaintiff is estopped from asserting any claims against Defendant by virtue of the restrictions on the property allowing full and unfettered use as contemplated under the lease. THIRTEENTH AFFIRMATIVE DEFENSE (Accord and Satisfaction) 13. Plaintiff engaged in conduct and actions to constitute an accord and satisfaction concerning the obligations, conduct, or acts at issue in the Complaint, barring recovery from Defendant. 5 ANSWER TO COMPLAINT; DEMAND FOR JURY TRIAL 124915810.3 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 FOURTEENTH AFFIRMATIVE DEFENSE (Frustration of Purpose) 14. The Complaint, and the purported cause of action contained therein, is barred, in whole or in part, because the contract cannot be enforced due to the doctrine of frustration of purpose. FIFTEENTH AFFIRMATIVE DEFENSE (Denial of Possession) 15. The Complaint, and the purported cause of action contained therein, is barred, in whole or in part, because Plaintiff denied Defendant full use and enjoyment of the property. SIXTEENTH AFFIRMATIVE DEFENSE (Force Majeure Clause) 16. The Complaint, and the purported cause of action contained therein, is barred because the acts and/or omissions alleged in the Complaint were justified and/or excused, including pursuant to the force majeure clause, paragraph 55, in the Lease. SEVENTEENTH AFFIRMATIVE DEFENSE (Denial of Permitted Use) 17. The Complaint, and the purported cause of action contained therein, is barred because Plaintiff materially breached the terms of the Lease by denying Defendant permitted use of the property. EIGHTEENTH AFFIRMATIVE DEFENSE (Reservation of Rights) 18. Defendant asserts that it has consistently reserved all rights and defenses that may be available at law or in equity and under the terms and provisions of the contract. PRAYER WHEREFORE, Defendant prays for judgment as follows: 1. That Plaintiff take nothing by reason of its Complaint; 6 ANSWER TO COMPLAINT; DEMAND FOR JURY TRIAL 124915810.3 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. That judgment be entered in favor of Defendant and against Plaintiff; 3. That the Complaint be dismissed with prejudice; 4. That Defendant be awarded its cost of suit, including reasonable attorneys’ fees; and 5. For such other relief as the Court deems just and proper. Dated: February 19, 2021 CARLTON FIELDS, LLP By: MARK A. NEUBAUER Attorneys for Defendant EINSTEIN AND NOAH CORP. 7 ANSWER TO COMPLAINT; DEMAND FOR JURY TRIAL 124915810.3 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 DEMAND FOR JURY TRIAL PLEASE TAKE NOTICT THAT Defendant hereby demands a trial by jury on the within matter. Dated: February 19, 2021 CARLTON FIELDS, LLP By: MARK A. NEUBAUER Attorneys for Defendant EINSTEIN AND NOAH CORP. 8 ANSWER TO COMPLAINT; DEMAND FOR JURY TRIAL 124915810.3 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 PROOF OF SERVICE F.R.C.P. 5 / C.C.P. § 1013a(3)/ Cal. R. Ct. R. 2.260 I am a resident of, or employed in, the County of Los Angeles. I am over the age of 18 and not a party to this action. My business address is: Carlton Fields, LLP, 2029 Century Park East, Suite 1200, Los Angeles, California 90067-2913. On February 19, 2021, I served the following listed document(s), by method indicated below, on the parties in this action: DEFENDANT EINSTEIN AND NOAH CORP.’S ANSWER TO PLAINTIFF 100 BUSH CORPORATIONS’S COMPLAINT; DEMAND FOR JURY TRIAL SEE ATTACHED SERVICE LIST BY ELECTRONIC SERVICE via electronic filing service provider By electronically transmitting the document(s) listed above to First Legal Support at firstlegal.com, an electronic filing service provider.. To my knowledge, the transmission was reported as complete and without error. See Cal. R. Ct. R. 2.253, 2.255, 2.260. I declare under penalty of perjury under the laws of the State of California and the United States of America that the above is true and correct. Executed on February 19, 2021 at Los Angeles, California. Maria Rodriguez Type or Print Name Signature 9 ANSWER TO COMPLAINT; DEMAND FOR JURY TRIAL 124915810.3 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 SERVICE LIST William A. Logan, Jr., Esq. Laura M. Mooney, Esq. LOGAN MOONEY LLP 100 Pine Street, Suite 1250 San Francisco, CA 94111 Tel. 415-738-0764 Fax: 415-376-0956 wlogan@loganmooneyllp.com lmooney@loganmooneyllp.com Attorneys for Plaintiff 100 Bush Corporation