Preview
1 Randolf Krbechek (SBN 143120) E-FILED
LAW OFFICES OF RANDOLF KRBECHEK 7/23/2021 6:14 PM
2 9477 N. Fort Washington Road, Suite 104 Superior Court of California
Fresno, California 93730 County of Fresno
3 Telephone: (559) 434-4500 By: L Peterson, Deputy
Facsimile: (559) 434-4554
4 Email: randy@rk-legal.com
5 Attorneys for Defendants Fred Adams, Cliffton Adams, Jr.,
and Nina Deshay Miller
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 FIRST AMENDED
93730
Plaintiffs, ) COMPLAINT
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., and Nina Deshay Miller answer
21 the First Amended 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 First Amended 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 First Amended 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 First Amended 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 And Nina Deshay Miller allege that the complaint and each and every cause of action
10 alleged in it are barred by the statute of frauds codified at (i) Civil Code sections 1091
LAW OFFICES OF RANDOLF KRBECHEK
9477 N. Fort Washington Road, Suite 104
11 and 1624, subd. (a)(1) and (3) and (ii) Code of Civil Procedure section 1971.
12 Eleventh Affirmative Defense
93730
13 11. As an eleventh and separate affirmative defense, defendants Cliffton Adams,
Fresno, California
14 Jr. and Nina Deshay Miller allege that plaintiffs’ claims are barred due to the lack of
15 mutual assent between these defendants and plaintiffs.
16 Twelfth Affirmative Defense
17 12. As a twelfth and separate affirmative defense, these answering defendants
18 allege that there are persons and entities, both named and unnamed in the complaint,
19 who either are or may be legally and proximately responsible for plaintiffs’ alleged
20 damages, which damages are expressly denied, and defendants request that this court
21 determine the nature and extent of said fault by other parties and determine a proper
22 allocation of the same between these parties for the purpose of permitting equitable
23 contribution among these parties toward any judgment recovered by plaintiffs.
24 Thirteenth Affirmative Defense
25 13. As a thirteenth and separate affirmative defense, these answering defendants
26 allege that plaintiffs’ injuries and damages, which injuries and damages are expressly
27 denied, were directly and proximately caused by the negligence and wrongful conduct
28 of third parties not associated with or under the control of defendants, and plaintiffs’
4
_________________________
Answer to First Amended Complaint
1 recovery, if any, should be reduced by an amount proportionate to the amount by
2 which the negligence and wrongful conduct of such third parties’ agents, employees and
3 representatives contributed to the damages complained of.
4 Fourteenth Affirmative Defense
5 14. As a fourteenth and separate affirmative defense, these answering
6 defendants allege that the injuries and damages complained of in the complaint, which
7 injuries and damages are expressly denied, were the result of and solely caused by
8 supervening fortuitous events.
9 Fifteenth Affirmative Defense
10 15. As a fifteenth and separate affirmative defense, these answering defendants
LAW OFFICES OF RANDOLF KRBECHEK
9477 N. Fort Washington Road, Suite 104
11 allege that the complaint and each and every cause of action alleged in it are barred
12 because defendants took whatever actions may have been taken as alleged in the
93730
13 complaint based on business necessity and economic conditions forced on defendants
Fresno, California
14 by others.
15 Sixteenth Affirmative Defense
16 16. As a sixteenth and separate affirmative defense, these answering defendants
17 allege that plaintiffs’ claims are barred due to the lack of a meeting of the minds
18 between defendants and plaintiffs.
19 Seventeenth Affirmative Defense
20 17. As a seventeen and separate affirmative defense, these answering defendants
21 allege that the real estate purchase contract described in the complaint is unenforceable
22 because the consent of defendant Fred Adams was obtained through mistake of
23 material fact, in that Fred Adams believed that possession and control of the property
24 could be readily delivered to plaintiffs, when in fact possession and control cannot be
25 delivered to plaintiffs without substantial efforts to oust the squatters from possession
26 of the property.
27 ////
28 ////
5
_________________________
Answer to First Amended 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., and Nina Deshay
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11 Miller pray for judgment as follows:
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12 1. That Plaintiffs take nothing by way of their complaint;
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15 4. For such other and further relief as the court deems just, equitable, and
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So 2?
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DATED: July 23, 2021. Law Offices of Randolf Krbechek
18
19
20
RaAddlf KrbecHek
21 AttWieys for Defendants Fred Adams,
Cliffton Adams,Jr., and Nina Deshay
22 Miller
23
24
25
26
27
28
Answer to First Amended Complaint
1 PROOF OF SERVICE
2 STATE OF CALIFORNIA )
)ss.
3 COUNTY OF FRESNO )
4 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
5 Washington Roaa, Suite 104, Fresno, California 93730.
6 On July 23,2021,1 served the foregoing documents(s) described as Answer to
First Amended Complaint on the interested parties in this action by placing (X) a true
7 copy(ies) or() the original(s) thereof enclosed in a sealed envelope addressed as
follows:
8
David J. Weiland, Esq. Paul C. Franco, Esq.
9 Coleman & Horowitt, LLP 7473 N. Ingram Avenue, Ste. 106
499 W.Shaw Avenue, Ste. 116 Fresno, CA 93711
10 Fresno, CA 93704
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11 Natalie P. Vance, Esq.
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Q) Klinedinst PC
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12 801 "K" Street, Ste. 2100
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(X) (BY MAIL) I am readily familiar with the firm's practice of collection and
?°i 14 processing correspondence for mailing. Under that practice it would be
isi deposited with the U.S. Postal Service on that same day with postage thereon
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15 fully prepaid at Fresno, California, in the ordinary course of business. I am
«5 o aware that on motion of the party served, service is presumed invalid if the
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Preview
1 Randolf Krbechek (SBN 143120) E-FILED LAW OFFICES OF RANDOLF KRBECHEK 7/23/2021 6:14 PM 2 9477 N. Fort Washington Road, Suite 104 Superior Court of California Fresno, California 93730 County of Fresno 3 Telephone: (559) 434-4500 By: L Peterson, Deputy Facsimile: (559) 434-4554 4 Email: randy@rk-legal.com 5 Attorneys for Defendants Fred Adams, Cliffton Adams, Jr., and Nina Deshay Miller 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 FIRST AMENDED 93730 Plaintiffs, ) COMPLAINT 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., and Nina Deshay Miller answer 21 the First Amended 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 First Amended 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 First Amended 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 First Amended 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 And Nina Deshay Miller allege that the complaint and each and every cause of action 10 alleged in it are barred by the statute of frauds codified at (i) Civil Code sections 1091 LAW OFFICES OF RANDOLF KRBECHEK 9477 N. Fort Washington Road, Suite 104 11 and 1624, subd. (a)(1) and (3) and (ii) Code of Civil Procedure section 1971. 12 Eleventh Affirmative Defense 93730 13 11. As an eleventh and separate affirmative defense, defendants Cliffton Adams, Fresno, California 14 Jr. and Nina Deshay Miller allege that plaintiffs’ claims are barred due to the lack of 15 mutual assent between these defendants and plaintiffs. 16 Twelfth Affirmative Defense 17 12. As a twelfth and separate affirmative defense, these answering defendants 18 allege that there are persons and entities, both named and unnamed in the complaint, 19 who either are or may be legally and proximately responsible for plaintiffs’ alleged 20 damages, which damages are expressly denied, and defendants request that this court 21 determine the nature and extent of said fault by other parties and determine a proper 22 allocation of the same between these parties for the purpose of permitting equitable 23 contribution among these parties toward any judgment recovered by plaintiffs. 24 Thirteenth Affirmative Defense 25 13. As a thirteenth and separate affirmative defense, these answering defendants 26 allege that plaintiffs’ injuries and damages, which injuries and damages are expressly 27 denied, were directly and proximately caused by the negligence and wrongful conduct 28 of third parties not associated with or under the control of defendants, and plaintiffs’ 4 _________________________ Answer to First Amended Complaint 1 recovery, if any, should be reduced by an amount proportionate to the amount by 2 which the negligence and wrongful conduct of such third parties’ agents, employees and 3 representatives contributed to the damages complained of. 4 Fourteenth Affirmative Defense 5 14. As a fourteenth and separate affirmative defense, these answering 6 defendants allege that the injuries and damages complained of in the complaint, which 7 injuries and damages are expressly denied, were the result of and solely caused by 8 supervening fortuitous events. 9 Fifteenth Affirmative Defense 10 15. As a fifteenth and separate affirmative defense, these answering defendants LAW OFFICES OF RANDOLF KRBECHEK 9477 N. Fort Washington Road, Suite 104 11 allege that the complaint and each and every cause of action alleged in it are barred 12 because defendants took whatever actions may have been taken as alleged in the 93730 13 complaint based on business necessity and economic conditions forced on defendants Fresno, California 14 by others. 15 Sixteenth Affirmative Defense 16 16. As a sixteenth and separate affirmative defense, these answering defendants 17 allege that plaintiffs’ claims are barred due to the lack of a meeting of the minds 18 between defendants and plaintiffs. 19 Seventeenth Affirmative Defense 20 17. As a seventeen and separate affirmative defense, these answering defendants 21 allege that the real estate purchase contract described in the complaint is unenforceable 22 because the consent of defendant Fred Adams was obtained through mistake of 23 material fact, in that Fred Adams believed that possession and control of the property 24 could be readily delivered to plaintiffs, when in fact possession and control cannot be 25 delivered to plaintiffs without substantial efforts to oust the squatters from possession 26 of the property. 27 //// 28 //// 5 _________________________ Answer to First Amended 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., and Nina Deshay UJ o I 11 Miller pray for judgment as follows: u (u UJ ^ CQ D ^ t/) O 12 1. That Plaintiffs take nothing by way of their complaint; V ^ rn * -a iL (Tj ro -j o cn 13 2. For costs of suit incurred herein; Q c .2 52 E 14 3. For reasonable attorneys' fees as permitted by contract or statute; and IL O"" ^ WU fU ^ 15 4. For such other and further relief as the court deems just, equitable, and «)5 o HtS 16 proper. So 2? u- ll. • O^ 17 DATED: July 23, 2021. Law Offices of Randolf Krbechek 18 19 20 RaAddlf KrbecHek 21 AttWieys for Defendants Fred Adams, Cliffton Adams,Jr., and Nina Deshay 22 Miller 23 24 25 26 27 28 Answer to First Amended Complaint 1 PROOF OF SERVICE 2 STATE OF CALIFORNIA ) )ss. 3 COUNTY OF FRESNO ) 4 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 5 Washington Roaa, Suite 104, Fresno, California 93730. 6 On July 23,2021,1 served the foregoing documents(s) described as Answer to First Amended Complaint on the interested parties in this action by placing (X) a true 7 copy(ies) or() the original(s) thereof enclosed in a sealed envelope addressed as follows: 8 David J. Weiland, Esq. Paul C. Franco, Esq. 9 Coleman & Horowitt, LLP 7473 N. Ingram Avenue, Ste. 106 499 W.Shaw Avenue, Ste. 116 Fresno, CA 93711 10 Fresno, CA 93704 U O E 11 Natalie P. Vance, Esq. J II Q) Klinedinst PC E D Di: to o 12 801 "K" Street, Ste. 2100 ^ "D ^ ro Sacramento, CA 95814 1. ro ro j o at 13 0^ ^ a c -2 (X) (BY MAIL) I am readily familiar with the firm's practice of collection and ?°i 14 processing correspondence for mailing. Under that practice it would be isi deposited with the U.S. Postal Service on that same day with postage thereon , !c "J t a u) u <0 ^ 15 fully prepaid at Fresno, California, in the ordinary course of business. I am «5 o aware that on motion of the party served, service is presumed invalid if the "t S J O