Preview
1 Randolf Krbechek (SBN 143120) E-FILED
LAW OFFICES OF RANDOLF KRBECHEK 4/16/2021 11:08 AM
2 9477 N. Fort Washington Road, Suite 104 Superior Court of California
Fresno, California 93730 County of Fresno
3 Telephone: (559) 434-4500
Facsimile: (559) 434-4554 By: A. Ramos, Deputy
4 Email: randy@rk-legal.com
5 Attorneys for Defendants Fred Adams, Cliffton Adams, Jr.,
Nina Deshay Miller, and Marquis Deshay
6
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF FRESNO
10 *****
LAW OFFICES OF RANDOLF KRBECHEK
9477 N. Fort Washington Road, Suite 104
11 SALVADOR ESPINDOLA and ) Case No. 19 CE CG 04138
ROSA ESPINDOLA , )
12 ) ANSWER TO COMPLAINT
93730
Plaintiffs, )
13 )
vs. )
Fresno, California
14 )
JAMES D. BROOKS, FRED ADAMS, )
15 CLIFFTON ADAMS, JR ., aka Clifton )
Adams, Jr., NINA DESHAY MILLER , )
16 MARQUIS DESHAY , NORCAL GOLD, )
INC ., and SOLEDAD HERNANDEZ , )
17 and Does 1-20 inclusive, )
)
18 Defendants. )
_________________________________)
19
20 Defendants Fred Adams, Cliffton Adams, Jr., Nina Deshay Miller, and Marquis
21 Deshay answer the Complaint for Breach of Contract, Breach of Good Faith and Fair
22 Dealing, Reformation, Specific Performance, Negligence, Fraud, Professional
23 Negligence, and Declaratory Relief as follows.
24 ANSWER TO COMPLAINT
25 These answering defendants, in answer to the complaint and pursuant to the
26 provisions of Code of Civil Procedure section 431.30(d), deny, generally, each and every
27 allegation contained therein and the whole thereof, including each and every purported
28 cause of action contained in said complaint, and deny, further, that plaintiffs have
1
____________________
Answer to Complaint
1 sustained or will sustain damages in the sum or sums alleged, or any other sums, or at
2 all. These answering defendants further deny that plaintiffs have sustained any injury,
3 damage or loss by reason of any act, omission or omission to act on the part of
4 defendants.
5 PLEA IN ABATEMENT
6 These answering defendants, in answer to the complaint and pursuant to the
7 provisions of Code of Civil Procedure section 430.30(b), object to the complaint on the
8 ground that the persons who filed the pleading do not have the legal capacity to sue.
9 AFFIRMATIVE DEFENSES
10 First Affirmative Defense
LAW OFFICES OF RANDOLF KRBECHEK
9477 N. Fort Washington Road, Suite 104
11 1. As a first and separate affirmative defense, these answering defendants allege
12 that the complaint and each and every purported cause of action alleged therein fails to
93730
13 state a claim upon which any of the relief sought by plaintiffs can be granted against
Fresno, California
14 defendants in law or equity, including, without limitation, compensatory or punitive
15 damages, injunctive relief, attorneys’ fees or costs.
16 Second Affirmative Defense
17 2. As a second and separate affirmative defense, these answering defendants
18 allege that the complaint and each and every cause of action alleged in it are barred by
19 the statute of limitations as set forth in Code of Civil Procedure sections 337, 338, 339,
20 343, and other applicable sections.
21 Third Affirmative Defense
22 3. As a third and separate affirmative defense, these answering defendants allege
23 that plaintiffs knew, or should have known, of the purported facts supporting each
24 alleged cause of action for an unreasonably long period of time prior to the commence-
25 ment of this action, and did not give notice of the same to defendants, all to the
26 prejudice of these answering defendants, and as a result this action is barred by laches
27 and other similar provisions of statutory and common law.
28 ////
2
____________________
Answer to Complaint
1 Fourth Affirmative Defense
2 4. As a fourth and separate affirmative defense, these answering defendants
3 allege that, in and about the matters alleged in the complaint and in plaintiffs’ dealings
4 with defendants, plaintiffs and their agents, employees and representatives were guilty
5 of fraud and other tortious conduct, and are guilty of unclean hands in their conduct,
6 acts and omissions to act, relating to the matters alleged in the complaint.
7 Fifth Affirmative Defense
8 5. As a fifth and separate affirmative defense, these answering defendants allege
9 that plaintiffs, by their conduct, acts and omissions to act, and their agents’ conduct,
10 acts and omissions to act, are estopped from asserting the claims as alleged in the
LAW OFFICES OF RANDOLF KRBECHEK
9477 N. Fort Washington Road, Suite 104
11 complaint.
12 Sixth Affirmative Defense
93730
13 6. As a sixth and separate affirmative defense, these answering defendants allege
Fresno, California
14 that the complaint and each and every cause of action alleged in it are barred because
15 all of defendants’ actions alleged therein are and were absolutely and/or qualifiedly
16 privileged.
17 Seventh Affirmative Defense
18 7. As a seventh and separate affirmative defense, these answering defendants
19 allege that plaintiffs are barred from any recovery against defendant by reason of
20 plaintiffs’ actions and conduct, which constituted an intervening and superseding cause
21 of the damages, if any, which resulted to plaintiff.
22 Eighth Affirmative Defense
23 8. As an eighth and separate affirmative defense, these answering defendants
24 allege that plaintiffs and their agents, employees and representatives were negligent and
25 wrongful in and about the matters alleged in the complaint, and their negligence and
26 wrongful conduct was a proximate cause of plaintiffs’ injuries and damages, if any.
27 ////
28 ////
3
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Answer to Complaint
1 Ninth Affirmative Defense
2 9. As a ninth and separate affirmative defense, these answering defendants allege
3 that plaintiffs and their agents, employees and representatives were negligent and
4 wrongful in failing to mitigate, minimize or avoid the damages alleged, and defendant is
5 therefore entitled to have any sum to which plaintiffs are entitled reduced by such sums
6 as would have been mitigated, minimized or avoided.
7 Tenth Affirmative Defense
8 10. As a tenth and separate affirmative defense, defendants Cliffton Adams, Jr.,
9 Nina Deshay Miller, and Marquis Deshay allege that the complaint and each and every
10 cause of action alleged in it are barred by the statute of frauds codified at (i) Civil Code
LAW OFFICES OF RANDOLF KRBECHEK
9477 N. Fort Washington Road, Suite 104
11 sections 1091 and 1624, subd. (a)(1) and (3) and (ii) Code of Civil Procedure section
12 1971.
93730
13 Eleventh Affirmative Defense
Fresno, California
14 11. As an eleventh and separate affirmative defense, defendants Cliffton Adams,
15 Jr., Nina Deshay Miller, and Marquis Deshay allege that plaintiffs’ claims are barred
16 due to the lack of mutual assent between these defendants and plaintiffs.
17 Twelfth Affirmative Defense
18 12. As a twelfth and separate affirmative defense, these answering defendants
19 allege that there are persons and entities, both named and unnamed in the complaint,
20 who either are or may be legally and proximately responsible for plaintiffs’ alleged
21 damages, which damages are expressly denied, and defendants request that this court
22 determine the nature and extent of said fault by other parties and determine a proper
23 allocation of the same between these parties for the purpose of permitting equitable
24 contribution among these parties toward any judgment recovered by plaintiffs.
25 Thirteenth Affirmative Defense
26 13. As a thirteenth and separate affirmative defense, these answering defendants
27 allege that plaintiffs’ injuries and damages, which injuries and damages are expressly
28 denied, were directly and proximately caused by the negligence and wrongful conduct
4
____________________
Answer to Complaint
1 of third parties not associated with or under the control of defendants, and plaintiffs’
2 recovery, if any, should be reduced by an amount proportionate to the amount by
3 which the negligence and wrongful conduct of such third parties’ agents, employees and
4 representatives contributed to the damages complained of.
5 Fourteenth Affirmative Defense
6 14. As a fourteenth and separate affirmative defense, these answering
7 defendants allege that the injuries and damages complained of in the complaint, which
8 injuries and damages are expressly denied, were the result of and solely caused by
9 supervening fortuitous events.
10 Fifteenth Affirmative Defense
LAW OFFICES OF RANDOLF KRBECHEK
9477 N. Fort Washington Road, Suite 104
11 15. As a fifteenth and separate affirmative defense, these answering defendants
12 allege that the complaint and each and every cause of action alleged in it are barred
93730
13 because defendants took whatever actions may have been taken as alleged in the
Fresno, California
14 complaint based on business necessity and economic conditions forced on defendants
15 by others.
16 Sixteenth Affirmative Defense
17 16. As a sixteenth and separate affirmative defense, these answering defendants
18 allege that plaintiffs’ claims are barred due to the lack of a meeting of the minds
19 between defendants and plaintiffs.
20 Seventeenth Affirmative Defense
21 17. As a seventeen and separate affirmative defense, these answering defendants
22 allege that the real estate purchase contract described in the complaint is unenforceable
23 because the consent of defendant Fred Adams was obtained through mistake of
24 material fact, in that Fred Adams believed that possession and control of the property
25 could be readily delivered to plaintiffs, when in fact possession and control cannot be
26 delivered to plaintiffs without substantial efforts to oust the squatters from possession
27 of the property.
28 ////
5
____________________
Answer to Complaint
1 Eighteenth Affirmative Defense
2 18. As an eighteenth and separate affirmative defense, these answering defend
3 ants allege that plaintiffs' claims are barred due to the frustration of the purpose of the
4 alleged contract on which the complaint is based.
5 Nineteenth Affirmative Defense
6 19. As a nineteenth and separate affirmative defense, these answering defend
7 ants allege that to the extent plaintiffs are entitled to any damages against defendants,
8 which defendants expressly deny, all such damages are set off or extinguished under the
9 equitable doctrine of set off and under Code of Civil Procedure section 431.70.
10 WHEREFORE,Defendants Fred Adams, Cliffton Adams,Jr., Nina Deshay
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11 Miller, and Marquis Deshay pray for judgment as follows:
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12 1. That Plaintiffs take nothing by way of their complaint;
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5°I 14 3. For reasonable attorneys' fees as permitted by contract or statute; and
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15 4. For such other and further relief as the court deems just, equitable, and
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5£ DATED: April 16, 2021. Law Offices of Randolf Krbechek
18
19
20
R^tsuflolf Krbechek
21 Attorneys for Defendants Fred Adams,
Cliffton Adams,Jr., Nina Deshay
22 Miller, and Marquis Deshay
23
24
25
26
27
28
Answer to Complaint
PROOF OF SERVICE
2 STATE OF CALIFORNIA )
)ss,
3 COUNTY OF FRESNO )
I am employed in the County of Fresno, State of California, I am over the age of
18 and not a party to the within action; my business address is 9477 N. Fort
Washington Road, Suite 104, Fresno, California 93730.
On April 16, 2021,1 served the foregoing documents(s) described as Answer to
Complaint on the interested parties in this action by placing (X) a true copy(ies) or
7 ()the original(s) thereof enclosed in a sealed envelope addressed as follows:
8 David J, Weiland, Fsq
Coleman &: Horowitt, LLP
9 499 W.Shaw Avenue, Ste. 116
Fresno, CA 93704
10
(X) (BY MAIL) I am readily familiar with the firm's practice of collection and
lU o
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11 processing correspondence for mailing. Under that practice it would be
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deposited with the U.S. Postal Service on that same day with postage thereon
CD b 12 fully prepaid at Fresno, California, in the ordinary course of business, I am
5
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^m aware that on motion of the party served, service is presumed invalid if the
U. (U
u o cr^ 13 postal cancellation date or postage meter date is more than one day after the
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date of deposit for mailing in this affidavit,
14
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^ ci () (BY PERSONAL SERVICE) I caused such envelope to be delivered by hand to
IL ^
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18
(X) (STATE) I declare under penalty of perjury under the laws, State of
19 California that the foregoing is true and correct,
20 Executed on April 16, 2021, at Fresno, California,
21
22
Jaimbh^angeF'
23
24
25
26
27
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7
Answer to Complaint
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1 Randolf Krbechek (SBN 143120) E-FILED LAW OFFICES OF RANDOLF KRBECHEK 4/16/2021 11:08 AM 2 9477 N. Fort Washington Road, Suite 104 Superior Court of California Fresno, California 93730 County of Fresno 3 Telephone: (559) 434-4500 Facsimile: (559) 434-4554 By: A. Ramos, Deputy 4 Email: randy@rk-legal.com 5 Attorneys for Defendants Fred Adams, Cliffton Adams, Jr., Nina Deshay Miller, and Marquis Deshay 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF FRESNO 10 ***** LAW OFFICES OF RANDOLF KRBECHEK 9477 N. Fort Washington Road, Suite 104 11 SALVADOR ESPINDOLA and ) Case No. 19 CE CG 04138 ROSA ESPINDOLA , ) 12 ) ANSWER TO COMPLAINT 93730 Plaintiffs, ) 13 ) vs. ) Fresno, California 14 ) JAMES D. BROOKS, FRED ADAMS, ) 15 CLIFFTON ADAMS, JR ., aka Clifton ) Adams, Jr., NINA DESHAY MILLER , ) 16 MARQUIS DESHAY , NORCAL GOLD, ) INC ., and SOLEDAD HERNANDEZ , ) 17 and Does 1-20 inclusive, ) ) 18 Defendants. ) _________________________________) 19 20 Defendants Fred Adams, Cliffton Adams, Jr., Nina Deshay Miller, and Marquis 21 Deshay answer the Complaint for Breach of Contract, Breach of Good Faith and Fair 22 Dealing, Reformation, Specific Performance, Negligence, Fraud, Professional 23 Negligence, and Declaratory Relief as follows. 24 ANSWER TO COMPLAINT 25 These answering defendants, in answer to the complaint and pursuant to the 26 provisions of Code of Civil Procedure section 431.30(d), deny, generally, each and every 27 allegation contained therein and the whole thereof, including each and every purported 28 cause of action contained in said complaint, and deny, further, that plaintiffs have 1 ____________________ Answer to Complaint 1 sustained or will sustain damages in the sum or sums alleged, or any other sums, or at 2 all. These answering defendants further deny that plaintiffs have sustained any injury, 3 damage or loss by reason of any act, omission or omission to act on the part of 4 defendants. 5 PLEA IN ABATEMENT 6 These answering defendants, in answer to the complaint and pursuant to the 7 provisions of Code of Civil Procedure section 430.30(b), object to the complaint on the 8 ground that the persons who filed the pleading do not have the legal capacity to sue. 9 AFFIRMATIVE DEFENSES 10 First Affirmative Defense LAW OFFICES OF RANDOLF KRBECHEK 9477 N. Fort Washington Road, Suite 104 11 1. As a first and separate affirmative defense, these answering defendants allege 12 that the complaint and each and every purported cause of action alleged therein fails to 93730 13 state a claim upon which any of the relief sought by plaintiffs can be granted against Fresno, California 14 defendants in law or equity, including, without limitation, compensatory or punitive 15 damages, injunctive relief, attorneys’ fees or costs. 16 Second Affirmative Defense 17 2. As a second and separate affirmative defense, these answering defendants 18 allege that the complaint and each and every cause of action alleged in it are barred by 19 the statute of limitations as set forth in Code of Civil Procedure sections 337, 338, 339, 20 343, and other applicable sections. 21 Third Affirmative Defense 22 3. As a third and separate affirmative defense, these answering defendants allege 23 that plaintiffs knew, or should have known, of the purported facts supporting each 24 alleged cause of action for an unreasonably long period of time prior to the commence- 25 ment of this action, and did not give notice of the same to defendants, all to the 26 prejudice of these answering defendants, and as a result this action is barred by laches 27 and other similar provisions of statutory and common law. 28 //// 2 ____________________ Answer to Complaint 1 Fourth Affirmative Defense 2 4. As a fourth and separate affirmative defense, these answering defendants 3 allege that, in and about the matters alleged in the complaint and in plaintiffs’ dealings 4 with defendants, plaintiffs and their agents, employees and representatives were guilty 5 of fraud and other tortious conduct, and are guilty of unclean hands in their conduct, 6 acts and omissions to act, relating to the matters alleged in the complaint. 7 Fifth Affirmative Defense 8 5. As a fifth and separate affirmative defense, these answering defendants allege 9 that plaintiffs, by their conduct, acts and omissions to act, and their agents’ conduct, 10 acts and omissions to act, are estopped from asserting the claims as alleged in the LAW OFFICES OF RANDOLF KRBECHEK 9477 N. Fort Washington Road, Suite 104 11 complaint. 12 Sixth Affirmative Defense 93730 13 6. As a sixth and separate affirmative defense, these answering defendants allege Fresno, California 14 that the complaint and each and every cause of action alleged in it are barred because 15 all of defendants’ actions alleged therein are and were absolutely and/or qualifiedly 16 privileged. 17 Seventh Affirmative Defense 18 7. As a seventh and separate affirmative defense, these answering defendants 19 allege that plaintiffs are barred from any recovery against defendant by reason of 20 plaintiffs’ actions and conduct, which constituted an intervening and superseding cause 21 of the damages, if any, which resulted to plaintiff. 22 Eighth Affirmative Defense 23 8. As an eighth and separate affirmative defense, these answering defendants 24 allege that plaintiffs and their agents, employees and representatives were negligent and 25 wrongful in and about the matters alleged in the complaint, and their negligence and 26 wrongful conduct was a proximate cause of plaintiffs’ injuries and damages, if any. 27 //// 28 //// 3 ____________________ Answer to Complaint 1 Ninth Affirmative Defense 2 9. As a ninth and separate affirmative defense, these answering defendants allege 3 that plaintiffs and their agents, employees and representatives were negligent and 4 wrongful in failing to mitigate, minimize or avoid the damages alleged, and defendant is 5 therefore entitled to have any sum to which plaintiffs are entitled reduced by such sums 6 as would have been mitigated, minimized or avoided. 7 Tenth Affirmative Defense 8 10. As a tenth and separate affirmative defense, defendants Cliffton Adams, Jr., 9 Nina Deshay Miller, and Marquis Deshay allege that the complaint and each and every 10 cause of action alleged in it are barred by the statute of frauds codified at (i) Civil Code LAW OFFICES OF RANDOLF KRBECHEK 9477 N. Fort Washington Road, Suite 104 11 sections 1091 and 1624, subd. (a)(1) and (3) and (ii) Code of Civil Procedure section 12 1971. 93730 13 Eleventh Affirmative Defense Fresno, California 14 11. As an eleventh and separate affirmative defense, defendants Cliffton Adams, 15 Jr., Nina Deshay Miller, and Marquis Deshay allege that plaintiffs’ claims are barred 16 due to the lack of mutual assent between these defendants and plaintiffs. 17 Twelfth Affirmative Defense 18 12. As a twelfth and separate affirmative defense, these answering defendants 19 allege that there are persons and entities, both named and unnamed in the complaint, 20 who either are or may be legally and proximately responsible for plaintiffs’ alleged 21 damages, which damages are expressly denied, and defendants request that this court 22 determine the nature and extent of said fault by other parties and determine a proper 23 allocation of the same between these parties for the purpose of permitting equitable 24 contribution among these parties toward any judgment recovered by plaintiffs. 25 Thirteenth Affirmative Defense 26 13. As a thirteenth and separate affirmative defense, these answering defendants 27 allege that plaintiffs’ injuries and damages, which injuries and damages are expressly 28 denied, were directly and proximately caused by the negligence and wrongful conduct 4 ____________________ Answer to Complaint 1 of third parties not associated with or under the control of defendants, and plaintiffs’ 2 recovery, if any, should be reduced by an amount proportionate to the amount by 3 which the negligence and wrongful conduct of such third parties’ agents, employees and 4 representatives contributed to the damages complained of. 5 Fourteenth Affirmative Defense 6 14. As a fourteenth and separate affirmative defense, these answering 7 defendants allege that the injuries and damages complained of in the complaint, which 8 injuries and damages are expressly denied, were the result of and solely caused by 9 supervening fortuitous events. 10 Fifteenth Affirmative Defense LAW OFFICES OF RANDOLF KRBECHEK 9477 N. Fort Washington Road, Suite 104 11 15. As a fifteenth and separate affirmative defense, these answering defendants 12 allege that the complaint and each and every cause of action alleged in it are barred 93730 13 because defendants took whatever actions may have been taken as alleged in the Fresno, California 14 complaint based on business necessity and economic conditions forced on defendants 15 by others. 16 Sixteenth Affirmative Defense 17 16. As a sixteenth and separate affirmative defense, these answering defendants 18 allege that plaintiffs’ claims are barred due to the lack of a meeting of the minds 19 between defendants and plaintiffs. 20 Seventeenth Affirmative Defense 21 17. As a seventeen and separate affirmative defense, these answering defendants 22 allege that the real estate purchase contract described in the complaint is unenforceable 23 because the consent of defendant Fred Adams was obtained through mistake of 24 material fact, in that Fred Adams believed that possession and control of the property 25 could be readily delivered to plaintiffs, when in fact possession and control cannot be 26 delivered to plaintiffs without substantial efforts to oust the squatters from possession 27 of the property. 28 //// 5 ____________________ Answer to Complaint 1 Eighteenth Affirmative Defense 2 18. As an eighteenth and separate affirmative defense, these answering defend 3 ants allege that plaintiffs' claims are barred due to the frustration of the purpose of the 4 alleged contract on which the complaint is based. 5 Nineteenth Affirmative Defense 6 19. As a nineteenth and separate affirmative defense, these answering defend 7 ants allege that to the extent plaintiffs are entitled to any damages against defendants, 8 which defendants expressly deny, all such damages are set off or extinguished under the 9 equitable doctrine of set off and under Code of Civil Procedure section 431.70. 10 WHEREFORE,Defendants Fred Adams, Cliffton Adams,Jr., Nina Deshay UJ o I -H 11 Miller, and Marquis Deshay pray for judgment as follows: U Q) 111 4-J CO D C/) O 12 1. That Plaintiffs take nothing by way of their complaint; * T3 It ro -j o cr> 13 2. For costs of suit incurred herein; O a: _ Q c .2 5°I 14 3. For reasonable attorneys' fees as permitted by contract or statute; and g I"! It ^ S O W) CJ ro ^ 15 4. For such other and further relief as the court deems just, equitable, and u) 5 o Bt « 16 proper. a o£ It LJ- LL o^ 17 5£ DATED: April 16, 2021. Law Offices of Randolf Krbechek 18 19 20 R^tsuflolf Krbechek 21 Attorneys for Defendants Fred Adams, Cliffton Adams,Jr., Nina Deshay 22 Miller, and Marquis Deshay 23 24 25 26 27 28 Answer to Complaint PROOF OF SERVICE 2 STATE OF CALIFORNIA ) )ss, 3 COUNTY OF FRESNO ) I am employed in the County of Fresno, State of California, I am over the age of 18 and not a party to the within action; my business address is 9477 N. Fort Washington Road, Suite 104, Fresno, California 93730. On April 16, 2021,1 served the foregoing documents(s) described as Answer to Complaint on the interested parties in this action by placing (X) a true copy(ies) or 7 ()the original(s) thereof enclosed in a sealed envelope addressed as follows: 8 David J, Weiland, Fsq Coleman &: Horowitt, LLP 9 499 W.Shaw Avenue, Ste. 116 Fresno, CA 93704 10 (X) (BY MAIL) I am readily familiar with the firm's practice of collection and lU o I 'H 11 processing correspondence for mailing. Under that practice it would be U Q) UJ trl deposited with the U.S. Postal Service on that same day with postage thereon CD b 12 fully prepaid at Fresno, California, in the ordinary course of business, I am 5 * T3 ^m aware that on motion of the party served, service is presumed invalid if the U. (U u o cr^ 13 postal cancellation date or postage meter date is more than one day after the O a: Q _ c .2 date of deposit for mailing in this affidavit, 14 2-1 ^ ci () (BY PERSONAL SERVICE) I caused such envelope to be delivered by hand to IL ^ S w u 15 the above-referenced address, O to ^ w5o Bt ^ o « 18 (X) (STATE) I declare under penalty of perjury under the laws, State of 19 California that the foregoing is true and correct, 20 Executed on April 16, 2021, at Fresno, California, 21 22 Jaimbh^angeF' 23 24 25 26 27 28 7 Answer to Complaint