Preview
1 Matthew S. Constantino: SBN 211916
mconstantino@clappmoroney.com
2 Alexandra P. Saddik: SBN 328058
ELECTRONICALLY
asaddik@clappmoroney.com
3 CLAPP, MORONEY, VUCINICH, BEEMAN+SCHELEY FILED
5860 Owens Drive, Suite 410 Superior Court of California,
County of San Francisco
4 Pleasanton, California 94588
Telephone: (925) 734-0990 01/05/2022
5 Facsimile: (925) 734-0888 Clerk of the Court
BY: EDWARD SANTOS
Deputy Clerk
6
Attorney for Defendant,
7 NAYOUNG SHEETMETAL CO., INC.
8 SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF SAN FRANCISCO
10 LUMINOUS ION, LLC, Case No.: CGC-20-585337
CLAPP, MORONEY, VUCINICH, BEEMAN+SCHELEY
11 Plaintiff,
NAYOUNG SHEETMETAL CO., INC.’S
12 v. ANSWER TO LUMINOUS ION LLC’S
FIRST AMENDED COMPLAINT FOR
PLEASANTON, CALIFORNIA 94588
5860 OWENS DRIVE, SUITE 410
13 VICKI CHIAO aka VICTORIA CHIAO, 367 DAMAGES
LIBERTY LLC, EASTWOOD
14 DEVELOPMENT INCORPORATED, LEE & Trial Date: None set
GEORGIOU INC. dba GEORGIOU CONST,
15 and DOES 1-100,
16 Defendants.
17
18 Defendant Nayoung Sheetmetal Co., Inc. (“Defendant”), in Answer to Plaintiff, Lee &
19 Georgiou Inc. dba Georgiou Const.’s (“Plaintiff”) unverified First Amended Complaint for Damages
20 (“Complaint”) herewith denies each and every, all and singular, the allegations of said unverified
21 Complaint, and each alleged cause of action thereof, and in that connection, said Defendant denies
22 that Plaintiff has been injured or damaged in any of the sums mentioned in the Complaint, or in any
23 other amount, or at all, by reason of any action or omission of said Defendant.
24 AFFIRMATIVE DEFENSES
25 Defendant further asserts each of the following separate and affirmative defenses to the
26 Complaint, and each alleged cause of action thereof.
27 ///
28 ///
1
NAYOUNG SHEETMETAL CO., INC.’S ANSWER TO LUMINOUS ION LLC’S FIRST AMENDED
COMPLAINT FOR DAMAGES
1 FIRST AFFIRMATIVE DEFENSE
2 AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT,
3 AND EACH ALLEGED CAUSE OF ACTION THEREOF, Defendant alleges that the Complaint,
4 and each cause of action thereof, does not state facts sufficient to constitute a cause of action against
5 Defendant.
6 SECOND AFFIRMATIVE DEFENSE
7 AS A SECOND, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT,
8 AND EACH ALLEGED CAUSE OF ACTION THEREOF, Defendant alleges that Plaintiff has
9 unreasonably delayed in bringing this action to the prejudice of Defendant and is therefore barred by
10 bringing this action by the Doctrine of Laches and/or California Commercial Code Section 2607.
CLAPP, MORONEY, VUCINICH, BEEMAN+SCHELEY
11 THIRD AFFIRMATIVE DEFENSE
12 AS A THIRD, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, AND
PLEASANTON, CALIFORNIA 94588
5860 OWENS DRIVE, SUITE 410
13 EACH ALLEGED CAUSE OF ACTION THEREOF, Defendant alleges that said Complaint, and each
14 cause of action thereof, is barred by the Statute of Limitations set forth in the California Code of Civil
15 Procedure beginning with Section 335 and continuing through 349.4, more particularly, but not limited
16 to, the following: Sections 337(1), 337.1, 337.15, 338, 339, 340 and 343; and by Sections 2607(3)(a),
17 2725(1)(2) of the California Commercial Code.
18 FOURTH AFFIRMATIVE DEFENSE
19 AS A FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT,
20 AND EACH ALLEGED CAUSE OF ACTION THEREOF, Defendant alleges that should Plaintiff
21 recover from Defendant, Defendant is entitled to indemnification, either in whole or in part, from all
22 persons or entities whose negligence and/or fault proximately contributed to Plaintiff’s damages, if
23 any there were.
24 FIFTH AFFIRMATIVE DEFENSE
25 AS A FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE CROSSOMPLAINT,
26 AND EACH ALLEGED CAUSE OF ACTION THEREOF, Defendant alleges that Plaintiff directed,
27 ordered, approved and ratified Defendant's conduct and Plaintiff is therefore estopped from asserting
28 any claim based thereon.
2
NAYOUNG SHEETMETAL CO., INC.’S ANSWER TO LUMINOUS ION LLC’S FIRST AMENDED
COMPLAINT FOR DAMAGES
1 SIXTH AFFIRMATIVE DEFENSE
2 AS A SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, AND
3 EACH ALLEGED CAUSE OF ACTION THEREOF, Defendant alleges that Plaintiff failed and
4 neglected to use reasonable care to minimize and mitigate the losses, injury and damages complained
5 of, if any there were.
6 SEVENTH AFFIRMATIVE DEFENSE
7 AS A SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT,
8 AND EACH ALLEGED CAUSE OF ACTION THEREOF, Defendant alleges that the Complaint is
9 barred by virtue of the Plaintiff’s conduct in causing the damages alleged under the Doctrine of
10 Unclean Hands.
CLAPP, MORONEY, VUCINICH, BEEMAN+SCHELEY
11 EIGHTH AFFIRMATIVE DEFENSE
12 AS AN EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT,
PLEASANTON, CALIFORNIA 94588
5860 OWENS DRIVE, SUITE 410
13 AND EACH ALLEGED CAUSE OF ACTION THEREOF, Defendant alleges that prior to the
14 commencement of this action, Defendant duly performed, satisfied and discharged all duties and
15 obligations that it may have owed to the Plaintiff arising out of any and all agreements, representations
16 or contracts made by it or on behalf of Defendant and this action is therefore barred by the provision
17 of California Civil Code Section 1473.
18 NINTH AFFIRMATIVE DEFENSE
19 AS A NINTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, AND
20 EACH ALLEGED CAUSE OF ACTION THEREOF, Defendant alleges that Plaintiff and others
21 unrelated to this Defendant modified, altered, abused and/or misused the materials and/or equipment
22 provided by this Defendant, and such conduct caused and contributed to the damages which are alleged
23 in this lawsuit.
24 ///
25 ///
26 ///
27 ///
28 ///
3
NAYOUNG SHEETMETAL CO., INC.’S ANSWER TO LUMINOUS ION LLC’S FIRST AMENDED
COMPLAINT FOR DAMAGES
1 TENTH AFFIRMATIVE DEFENSE
2 AS A TENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, AND
3 EACH ALLEGED CAUSE OF ACTION THEREOF, Defendant alleges that by the terms of its
4 contract, Defendant is not responsible for the method or means of construction used by other
5 subcontractors, nor is this Defendant responsible for other subcontractors’ failure to carry out the work
6 in accordance with their contract documents.
7 ELEVENTH AFFIRMATIVE DEFENSE
8 AS AN ELEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE
9 COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, Defendant alleges that
10 Plaintiff was negligent and careless in and about the matters and events referred to in the Complaint,
CLAPP, MORONEY, VUCINICH, BEEMAN+SCHELEY
11 which negligence and carelessness proximately caused and/or contributed to the liability, damages, or
12 injuries sustained by Plaintiff, if any there were or are. Said negligence and carelessness completely
PLEASANTON, CALIFORNIA 94588
5860 OWENS DRIVE, SUITE 410
13 bars and/or reduces to the proportional extent of said negligence and carelessness, any decision, verdict
14 or recovery to which Plaintiff may be entitled.
15 TWELFTH AFFIRMATIVE DEFENSE
16 AS A TWELFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT,
17 AND EACH ALLEGED CAUSE OF ACTION THEREOF, Defendant alleges that if Plaintiff in fact
18 sustained any damages or injuries by reason of any alleged act, omission or negligence on the part of
19 this Defendant, such acts, omissions or negligence were passive or secondary in nature, whereas the
20 Plaintiff was active and primary in character; as a result of which Plaintiff is not entitled to indemnity
21 from this Defendant.
22 THIRTEENTH AFFIRMATIVE DEFENSE
23 AS A THIRTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE
24 COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, Defendant is excused in
25 whole or in part, from any obligation, damage, loss, or liability as alleged as same was caused by
26 Plaintiff or its agents, employees, general contractors, subcontractors, independent contractors, or
27 consultants by virtue of their failure to follow Defendant's or manufacturer's recommendations, or
28 commonly accepted homeowner maintenance obligations.
4
NAYOUNG SHEETMETAL CO., INC.’S ANSWER TO LUMINOUS ION LLC’S FIRST AMENDED
COMPLAINT FOR DAMAGES
1 FOURTEENTH AFFIRMATIVE DEFENSE
2 AS A FOURTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE
3 COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, Defendant alleges that
4 Plaintiff’s alleged damages, if any, were caused solely by the unforeseeable and unusual conditions
5 not under the control of Defendant.
6 FIFTEENTH AFFIRMATIVE DEFENSE
7 AS A FIFTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT,
8 AND EACH ALLEGED CAUSE OF ACTION THEREOF, Defendant alleges that at all times
9 mentioned in the Complaint, Defendant fully complied with all obligations and/or duties imposed on
10 it by statute, contract, or any other source.
CLAPP, MORONEY, VUCINICH, BEEMAN+SCHELEY
11 SIXTEENTH AFFIRMATIVE DEFENSE
12 AS A SIXTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT,
PLEASANTON, CALIFORNIA 94588
5860 OWENS DRIVE, SUITE 410
13 AND EACH ALLEGED CAUSE OF ACTION THEREOF, Defendant alleges that the Complaint,
14 and each cause of action therein, is uncertain, ambiguous, and unintelligible as to this Defendant.
15 SEVENTEENTH AFFIRMATIVE DEFENSE
16 AS A SEVENTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE
17 COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, Defendant alleges that
18 some or all of Plaintiff’s claims are barred as a matter of law pursuant to Aas v. Superior Court (2000)
19 24 Cal. 4th 627, as no resulting damage has occurred from the conditions claimed by Plaintiff.
20 EIGHTEENTH AFFIRMATIVE DEFENSE
21 AS AN EIGHTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE
22 COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, Defendant alleges that
23 said Complaint, and each cause of action thereof, is barred by the Statute of Limitations set forth in
24 California Civil Code beginning with section 895 and continuing through section 945.5.
25 ///
26 ///
27 ///
28 ///
5
NAYOUNG SHEETMETAL CO., INC.’S ANSWER TO LUMINOUS ION LLC’S FIRST AMENDED
COMPLAINT FOR DAMAGES
1 NINETEENTH AFFIRMATIVE DEFENSE
2 AS A NINETEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE
3 COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, Defendant alleges that
4 said Complaint, and each cause of action thereof, is barred by the provisions contained in Civil Code
5 section 900.
6 TWENTIETH AFFIRMATIVE DEFENSE
7 AS A TWENTIETH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT,
8 AND EACH ALLEGED CAUSE OF ACTION THEREOF, Defendant alleges that said Complaint,
9 and each cause of action thereof, is barred by the provisions contained in Civil Code section 945.5.
10 FIFTEENTH AFFIRMATIVE DEFENSE
CLAPP, MORONEY, VUCINICH, BEEMAN+SCHELEY
11 AS A TWENTY-FIRST, SEPARATE AND AFFIRMATIVE DEFENSE TO THE
12 COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, Defendant alleges that
PLEASANTON, CALIFORNIA 94588
5860 OWENS DRIVE, SUITE 410
13 said Complaint, and each cause of action thereof, is subject to the provisions contained in Civil Code
14 sections 943 and 944.
15 SIXTEENTH AFFIRMATIVE DEFENSE
16 AS A TWENTY-SECOND, SEPARATE AND AFFIRMATIVE DEFENSE TO THE
17 COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, Defendant presently has
18 insufficient knowledge or information upon which to form a belief as to whether it may have
19 additional, as yet unstated, affirmative defenses. Defendant reserves herein the right to assert
20 additional affirmative defenses in the event discovery indicates that would be appropriate.
21 ///
22 ///
23 ///
24 ///
25 ///
26 ///
27 ///
28 ///
6
NAYOUNG SHEETMETAL CO., INC.’S ANSWER TO LUMINOUS ION LLC’S FIRST AMENDED
COMPLAINT FOR DAMAGES
1 WHEREFORE, this Defendant prays that Plaintiff takes nothing against it by way of its
2 unverified Complaint, and that Defendant have judgment for its costs of suit herein incurred, together
3 with such other and further relief as the Court deems just and reasonable.
4
5 Dated: January 5, 2021 CLAPP, MORONEY, VUCINICH,
BEEMAN+SCHELEY
6
7
8 By:
Matthew S. Constantino
9 Alexandra P. Saddik
Attorney for Defendant,
10 NAYOUNG SHEETMETAL CO., INC.
CLAPP, MORONEY, VUCINICH, BEEMAN+SCHELEY
11
12
PLEASANTON, CALIFORNIA 94588
5860 OWENS DRIVE, SUITE 410
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
7
NAYOUNG SHEETMETAL CO., INC.’S ANSWER TO LUMINOUS ION LLC’S FIRST AMENDED
COMPLAINT FOR DAMAGES
1 Luminous Ion LLC v. Chiao, Vicki aka Victoria Chiao, et al.
San Francisco County Superior Court Case No. CGC-20-585337
2
PROOF OF SERVICE
3 [Code of Civ. Proc. §§ 1011, 1013, 1031a, 2015.5]
4 METHOD OF SERVICE:
5 By Personal Service By Mail By Overnight Delivery
By Messenger Service By Facsimile By E-Mail/Electronic
6 Transmission
7 1. I am a citizen of the United States and am employed in the County of Alameda, State of
CALIFORNIA. I am over the age of 18 years and not a party to the within action.
8
2. My place of employment is 5860 Owens Drive, Suite 410, Pleasanton, California 94588.
9
3. On the date set forth below, I caused to be served a true and correct copy of the document
10 described as:
CLAPP, MORONEY, VUCINICH, BEEMAN+SCHELEY
11 NAYOUNG SHEETMETAL CO., INC.’S ANSWER TO LUMINOUS ION LLC’S
FIRST AMENDED COMPLAINT FOR DAMAGES
12
PLEASANTON, CALIFORNIA 94588
I served the documents on the persons below, as follows:
5860 OWENS DRIVE, SUITE 410
13
Please see attached service list.
14
4. The document(s) was served by the following means (specify):
15
a. BY PERSONAL SERVICE. I caused to be personally delivered the documents
16 to the persons at the addresses listed in item 4. (1) For a party represented by an
attorney, delivery was made to the attorney or at the attorney's office by leaving the
17 documents in an envelope or package clearly labeled to identify the attorney being
served with a receptionist or an individual in charge of the office. (2) For a party,
18 delivery was made to the party or by leaving the documents at the party's residence
with some person not less than 18 years of age between the hours of eight in the
19 morning and six in the evening.
20 b. BY UNITED STATES MAIL. I enclosed the documents in a sealed envelope
or package addressed to the persons at the addresses in item 4 and (specify one):
21
(1) deposited the sealed envelope with the United States Postal Services,
22 with the postage fully prepaid.
23 (2) placed the envelope for collection and mailing, following our ordinary
business practices. I am readily familiar with this business's practice for
24 collecting and processing correspondence for mailing. On the same day that
correspondence is placed for collection and mailing, it is deposited in the
25 ordinary course of business with the United States Postal Service, in a sealed
envelope with postage fully prepaid.
26
c. BY CERTIFIED MAIL/RETURN RECEIPT REQUESTED. I enclosed the
27 documents in a sealed envelope or package addressed to the persons at the addresses in
item 4 and (specify one):
28
8
NAYOUNG SHEETMETAL CO., INC.’S ANSWER TO LUMINOUS ION LLC’S FIRST AMENDED
COMPLAINT FOR DAMAGES
1 (1) placed the envelope for collection and mailing, following our ordinary
business practices. I am readily familiar with this business's practice for
2 collecting and processing correspondence for mailing. On the same day that
correspondence is placed for collection and mailing, it is deposited in the
3 ordinary course of business with the United States Postal Service, in a sealed
envelope with postage fully prepaid for said certified mail/return receipt
4 number (See attached copies of Certified Mail/Return Receipts Requested.)
5 I am a resident or employed in the County where the mailing occurred. The envelope
or package was placed in the mail at Pleasanton, California, County of Alameda.
6
d. BY OVERNIGHT DELIVERY. I enclosed the documents in an envelope or
7 package provided by an overnight delivery carrier and addressed to the persons at the
addresses in item 4. I place the envelope or package for collection and overnight
8 delivery at an office or a regularly utilized drop box of the overnight delivery carrier.
9 e. BY MESSENGER SERVICE. I served the documents by placing them in an
envelope or package addressed to the persons at the addresses listed in item 4 and
10 providing them to a professional messenger service for service.
CLAPP, MORONEY, VUCINICH, BEEMAN+SCHELEY
11 f. BY FAX TRANSMISSION. Based on an agreement of the parties to accept
service by fax transmission, I faxed the documents to the persons at the fax numbers
12 listed in item 4. No error was reported by the fax machine that I used.
PLEASANTON, CALIFORNIA 94588
5860 OWENS DRIVE, SUITE 410
13 g. BY E-MAIL OR ELECTRONIC TRANSMISSION. I caused all of the
above-entitled document(s) to be sent to the recipients listed by electronic mail only
14 based on the fact that during the Coronavirus (Covid-19) pandemic, this office will be
working remotely, not able to send physical mail as usual, and is therefore using only
15 electronic mail. No electronic message or other indication that the transmission was
unsuccessful was received within a reasonable time after the transmission.
16
(State) I declare under penalty of perjury under the laws of the State of California that
17 the foregoing is true and correct.
18 (Federal) declare that I am employed in the offices of a member of the bar of this court
at whose direction this service was made. I declare under penalty of perjury that the foregoing
19 is true and correct.
20 Executed on January 5, 2022 at Pleasanton, California.
21
22
Regina Chand
23
24 Proof of Service – Civil
[Code of Civ.Proc. §§ 1011, 1013, 1013a, 2015.5]
25
26
27
28
9
NAYOUNG SHEETMETAL CO., INC.’S ANSWER TO LUMINOUS ION LLC’S FIRST AMENDED
COMPLAINT FOR DAMAGES
Proof of Service List Attorneys for Defendant Amber Attorneys for Eastwood
1
Luminous Ion LLC v. Chiao, Vicki Flooring Development Inc.
aka Victoria Chiao, et al. Ralph Rhoades Darren Ebner
2
San Francisco County Superior Court PARTON & SELL Kathryn Kim
Case No. CGC-20-585337 523 Fourth Street, Suite 210 SPRINGEL & FINK LLP
3
Date: July 9, 2020 San Rafael, CA 94901 20377 SW Acacia Street, Suite 250
Our File No.: 9382\06474 (415) 258-9700 Newport Beach, CA 92660
4
Our Client: Nayoung Sheetmetal Co., rrhoades@partonsell.com; kkim@Springelfink.com;
Inc. debner@springelfink.com;
5
Preview
1 Matthew S. Constantino: SBN 211916 mconstantino@clappmoroney.com 2 Alexandra P. Saddik: SBN 328058 ELECTRONICALLY asaddik@clappmoroney.com 3 CLAPP, MORONEY, VUCINICH, BEEMAN+SCHELEY FILED 5860 Owens Drive, Suite 410 Superior Court of California, County of San Francisco 4 Pleasanton, California 94588 Telephone: (925) 734-0990 01/05/2022 5 Facsimile: (925) 734-0888 Clerk of the Court BY: EDWARD SANTOS Deputy Clerk 6 Attorney for Defendant, 7 NAYOUNG SHEETMETAL CO., INC. 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SAN FRANCISCO 10 LUMINOUS ION, LLC, Case No.: CGC-20-585337 CLAPP, MORONEY, VUCINICH, BEEMAN+SCHELEY 11 Plaintiff, NAYOUNG SHEETMETAL CO., INC.’S 12 v. ANSWER TO LUMINOUS ION LLC’S FIRST AMENDED COMPLAINT FOR PLEASANTON, CALIFORNIA 94588 5860 OWENS DRIVE, SUITE 410 13 VICKI CHIAO aka VICTORIA CHIAO, 367 DAMAGES LIBERTY LLC, EASTWOOD 14 DEVELOPMENT INCORPORATED, LEE & Trial Date: None set GEORGIOU INC. dba GEORGIOU CONST, 15 and DOES 1-100, 16 Defendants. 17 18 Defendant Nayoung Sheetmetal Co., Inc. (“Defendant”), in Answer to Plaintiff, Lee & 19 Georgiou Inc. dba Georgiou Const.’s (“Plaintiff”) unverified First Amended Complaint for Damages 20 (“Complaint”) herewith denies each and every, all and singular, the allegations of said unverified 21 Complaint, and each alleged cause of action thereof, and in that connection, said Defendant denies 22 that Plaintiff has been injured or damaged in any of the sums mentioned in the Complaint, or in any 23 other amount, or at all, by reason of any action or omission of said Defendant. 24 AFFIRMATIVE DEFENSES 25 Defendant further asserts each of the following separate and affirmative defenses to the 26 Complaint, and each alleged cause of action thereof. 27 /// 28 /// 1 NAYOUNG SHEETMETAL CO., INC.’S ANSWER TO LUMINOUS ION LLC’S FIRST AMENDED COMPLAINT FOR DAMAGES 1 FIRST AFFIRMATIVE DEFENSE 2 AS A FURTHER, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, 3 AND EACH ALLEGED CAUSE OF ACTION THEREOF, Defendant alleges that the Complaint, 4 and each cause of action thereof, does not state facts sufficient to constitute a cause of action against 5 Defendant. 6 SECOND AFFIRMATIVE DEFENSE 7 AS A SECOND, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, 8 AND EACH ALLEGED CAUSE OF ACTION THEREOF, Defendant alleges that Plaintiff has 9 unreasonably delayed in bringing this action to the prejudice of Defendant and is therefore barred by 10 bringing this action by the Doctrine of Laches and/or California Commercial Code Section 2607. CLAPP, MORONEY, VUCINICH, BEEMAN+SCHELEY 11 THIRD AFFIRMATIVE DEFENSE 12 AS A THIRD, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, AND PLEASANTON, CALIFORNIA 94588 5860 OWENS DRIVE, SUITE 410 13 EACH ALLEGED CAUSE OF ACTION THEREOF, Defendant alleges that said Complaint, and each 14 cause of action thereof, is barred by the Statute of Limitations set forth in the California Code of Civil 15 Procedure beginning with Section 335 and continuing through 349.4, more particularly, but not limited 16 to, the following: Sections 337(1), 337.1, 337.15, 338, 339, 340 and 343; and by Sections 2607(3)(a), 17 2725(1)(2) of the California Commercial Code. 18 FOURTH AFFIRMATIVE DEFENSE 19 AS A FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, 20 AND EACH ALLEGED CAUSE OF ACTION THEREOF, Defendant alleges that should Plaintiff 21 recover from Defendant, Defendant is entitled to indemnification, either in whole or in part, from all 22 persons or entities whose negligence and/or fault proximately contributed to Plaintiff’s damages, if 23 any there were. 24 FIFTH AFFIRMATIVE DEFENSE 25 AS A FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE CROSSOMPLAINT, 26 AND EACH ALLEGED CAUSE OF ACTION THEREOF, Defendant alleges that Plaintiff directed, 27 ordered, approved and ratified Defendant's conduct and Plaintiff is therefore estopped from asserting 28 any claim based thereon. 2 NAYOUNG SHEETMETAL CO., INC.’S ANSWER TO LUMINOUS ION LLC’S FIRST AMENDED COMPLAINT FOR DAMAGES 1 SIXTH AFFIRMATIVE DEFENSE 2 AS A SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, AND 3 EACH ALLEGED CAUSE OF ACTION THEREOF, Defendant alleges that Plaintiff failed and 4 neglected to use reasonable care to minimize and mitigate the losses, injury and damages complained 5 of, if any there were. 6 SEVENTH AFFIRMATIVE DEFENSE 7 AS A SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, 8 AND EACH ALLEGED CAUSE OF ACTION THEREOF, Defendant alleges that the Complaint is 9 barred by virtue of the Plaintiff’s conduct in causing the damages alleged under the Doctrine of 10 Unclean Hands. CLAPP, MORONEY, VUCINICH, BEEMAN+SCHELEY 11 EIGHTH AFFIRMATIVE DEFENSE 12 AS AN EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, PLEASANTON, CALIFORNIA 94588 5860 OWENS DRIVE, SUITE 410 13 AND EACH ALLEGED CAUSE OF ACTION THEREOF, Defendant alleges that prior to the 14 commencement of this action, Defendant duly performed, satisfied and discharged all duties and 15 obligations that it may have owed to the Plaintiff arising out of any and all agreements, representations 16 or contracts made by it or on behalf of Defendant and this action is therefore barred by the provision 17 of California Civil Code Section 1473. 18 NINTH AFFIRMATIVE DEFENSE 19 AS A NINTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, AND 20 EACH ALLEGED CAUSE OF ACTION THEREOF, Defendant alleges that Plaintiff and others 21 unrelated to this Defendant modified, altered, abused and/or misused the materials and/or equipment 22 provided by this Defendant, and such conduct caused and contributed to the damages which are alleged 23 in this lawsuit. 24 /// 25 /// 26 /// 27 /// 28 /// 3 NAYOUNG SHEETMETAL CO., INC.’S ANSWER TO LUMINOUS ION LLC’S FIRST AMENDED COMPLAINT FOR DAMAGES 1 TENTH AFFIRMATIVE DEFENSE 2 AS A TENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, AND 3 EACH ALLEGED CAUSE OF ACTION THEREOF, Defendant alleges that by the terms of its 4 contract, Defendant is not responsible for the method or means of construction used by other 5 subcontractors, nor is this Defendant responsible for other subcontractors’ failure to carry out the work 6 in accordance with their contract documents. 7 ELEVENTH AFFIRMATIVE DEFENSE 8 AS AN ELEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE 9 COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, Defendant alleges that 10 Plaintiff was negligent and careless in and about the matters and events referred to in the Complaint, CLAPP, MORONEY, VUCINICH, BEEMAN+SCHELEY 11 which negligence and carelessness proximately caused and/or contributed to the liability, damages, or 12 injuries sustained by Plaintiff, if any there were or are. Said negligence and carelessness completely PLEASANTON, CALIFORNIA 94588 5860 OWENS DRIVE, SUITE 410 13 bars and/or reduces to the proportional extent of said negligence and carelessness, any decision, verdict 14 or recovery to which Plaintiff may be entitled. 15 TWELFTH AFFIRMATIVE DEFENSE 16 AS A TWELFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, 17 AND EACH ALLEGED CAUSE OF ACTION THEREOF, Defendant alleges that if Plaintiff in fact 18 sustained any damages or injuries by reason of any alleged act, omission or negligence on the part of 19 this Defendant, such acts, omissions or negligence were passive or secondary in nature, whereas the 20 Plaintiff was active and primary in character; as a result of which Plaintiff is not entitled to indemnity 21 from this Defendant. 22 THIRTEENTH AFFIRMATIVE DEFENSE 23 AS A THIRTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE 24 COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, Defendant is excused in 25 whole or in part, from any obligation, damage, loss, or liability as alleged as same was caused by 26 Plaintiff or its agents, employees, general contractors, subcontractors, independent contractors, or 27 consultants by virtue of their failure to follow Defendant's or manufacturer's recommendations, or 28 commonly accepted homeowner maintenance obligations. 4 NAYOUNG SHEETMETAL CO., INC.’S ANSWER TO LUMINOUS ION LLC’S FIRST AMENDED COMPLAINT FOR DAMAGES 1 FOURTEENTH AFFIRMATIVE DEFENSE 2 AS A FOURTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE 3 COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, Defendant alleges that 4 Plaintiff’s alleged damages, if any, were caused solely by the unforeseeable and unusual conditions 5 not under the control of Defendant. 6 FIFTEENTH AFFIRMATIVE DEFENSE 7 AS A FIFTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, 8 AND EACH ALLEGED CAUSE OF ACTION THEREOF, Defendant alleges that at all times 9 mentioned in the Complaint, Defendant fully complied with all obligations and/or duties imposed on 10 it by statute, contract, or any other source. CLAPP, MORONEY, VUCINICH, BEEMAN+SCHELEY 11 SIXTEENTH AFFIRMATIVE DEFENSE 12 AS A SIXTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, PLEASANTON, CALIFORNIA 94588 5860 OWENS DRIVE, SUITE 410 13 AND EACH ALLEGED CAUSE OF ACTION THEREOF, Defendant alleges that the Complaint, 14 and each cause of action therein, is uncertain, ambiguous, and unintelligible as to this Defendant. 15 SEVENTEENTH AFFIRMATIVE DEFENSE 16 AS A SEVENTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE 17 COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, Defendant alleges that 18 some or all of Plaintiff’s claims are barred as a matter of law pursuant to Aas v. Superior Court (2000) 19 24 Cal. 4th 627, as no resulting damage has occurred from the conditions claimed by Plaintiff. 20 EIGHTEENTH AFFIRMATIVE DEFENSE 21 AS AN EIGHTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE 22 COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, Defendant alleges that 23 said Complaint, and each cause of action thereof, is barred by the Statute of Limitations set forth in 24 California Civil Code beginning with section 895 and continuing through section 945.5. 25 /// 26 /// 27 /// 28 /// 5 NAYOUNG SHEETMETAL CO., INC.’S ANSWER TO LUMINOUS ION LLC’S FIRST AMENDED COMPLAINT FOR DAMAGES 1 NINETEENTH AFFIRMATIVE DEFENSE 2 AS A NINETEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE 3 COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, Defendant alleges that 4 said Complaint, and each cause of action thereof, is barred by the provisions contained in Civil Code 5 section 900. 6 TWENTIETH AFFIRMATIVE DEFENSE 7 AS A TWENTIETH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, 8 AND EACH ALLEGED CAUSE OF ACTION THEREOF, Defendant alleges that said Complaint, 9 and each cause of action thereof, is barred by the provisions contained in Civil Code section 945.5. 10 FIFTEENTH AFFIRMATIVE DEFENSE CLAPP, MORONEY, VUCINICH, BEEMAN+SCHELEY 11 AS A TWENTY-FIRST, SEPARATE AND AFFIRMATIVE DEFENSE TO THE 12 COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, Defendant alleges that PLEASANTON, CALIFORNIA 94588 5860 OWENS DRIVE, SUITE 410 13 said Complaint, and each cause of action thereof, is subject to the provisions contained in Civil Code 14 sections 943 and 944. 15 SIXTEENTH AFFIRMATIVE DEFENSE 16 AS A TWENTY-SECOND, SEPARATE AND AFFIRMATIVE DEFENSE TO THE 17 COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, Defendant presently has 18 insufficient knowledge or information upon which to form a belief as to whether it may have 19 additional, as yet unstated, affirmative defenses. Defendant reserves herein the right to assert 20 additional affirmative defenses in the event discovery indicates that would be appropriate. 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 6 NAYOUNG SHEETMETAL CO., INC.’S ANSWER TO LUMINOUS ION LLC’S FIRST AMENDED COMPLAINT FOR DAMAGES 1 WHEREFORE, this Defendant prays that Plaintiff takes nothing against it by way of its 2 unverified Complaint, and that Defendant have judgment for its costs of suit herein incurred, together 3 with such other and further relief as the Court deems just and reasonable. 4 5 Dated: January 5, 2021 CLAPP, MORONEY, VUCINICH, BEEMAN+SCHELEY 6 7 8 By: Matthew S. Constantino 9 Alexandra P. Saddik Attorney for Defendant, 10 NAYOUNG SHEETMETAL CO., INC. CLAPP, MORONEY, VUCINICH, BEEMAN+SCHELEY 11 12 PLEASANTON, CALIFORNIA 94588 5860 OWENS DRIVE, SUITE 410 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 NAYOUNG SHEETMETAL CO., INC.’S ANSWER TO LUMINOUS ION LLC’S FIRST AMENDED COMPLAINT FOR DAMAGES 1 Luminous Ion LLC v. Chiao, Vicki aka Victoria Chiao, et al. San Francisco County Superior Court Case No. CGC-20-585337 2 PROOF OF SERVICE 3 [Code of Civ. Proc. §§ 1011, 1013, 1031a, 2015.5] 4 METHOD OF SERVICE: 5 By Personal Service By Mail By Overnight Delivery By Messenger Service By Facsimile By E-Mail/Electronic 6 Transmission 7 1. I am a citizen of the United States and am employed in the County of Alameda, State of CALIFORNIA. I am over the age of 18 years and not a party to the within action. 8 2. My place of employment is 5860 Owens Drive, Suite 410, Pleasanton, California 94588. 9 3. On the date set forth below, I caused to be served a true and correct copy of the document 10 described as: CLAPP, MORONEY, VUCINICH, BEEMAN+SCHELEY 11 NAYOUNG SHEETMETAL CO., INC.’S ANSWER TO LUMINOUS ION LLC’S FIRST AMENDED COMPLAINT FOR DAMAGES 12 PLEASANTON, CALIFORNIA 94588 I served the documents on the persons below, as follows: 5860 OWENS DRIVE, SUITE 410 13 Please see attached service list. 14 4. The document(s) was served by the following means (specify): 15 a. BY PERSONAL SERVICE. I caused to be personally delivered the documents 16 to the persons at the addresses listed in item 4. (1) For a party represented by an attorney, delivery was made to the attorney or at the attorney's office by leaving the 17 documents in an envelope or package clearly labeled to identify the attorney being served with a receptionist or an individual in charge of the office. (2) For a party, 18 delivery was made to the party or by leaving the documents at the party's residence with some person not less than 18 years of age between the hours of eight in the 19 morning and six in the evening. 20 b. BY UNITED STATES MAIL. I enclosed the documents in a sealed envelope or package addressed to the persons at the addresses in item 4 and (specify one): 21 (1) deposited the sealed envelope with the United States Postal Services, 22 with the postage fully prepaid. 23 (2) placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with this business's practice for 24 collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the 25 ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. 26 c. BY CERTIFIED MAIL/RETURN RECEIPT REQUESTED. I enclosed the 27 documents in a sealed envelope or package addressed to the persons at the addresses in item 4 and (specify one): 28 8 NAYOUNG SHEETMETAL CO., INC.’S ANSWER TO LUMINOUS ION LLC’S FIRST AMENDED COMPLAINT FOR DAMAGES 1 (1) placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with this business's practice for 2 collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the 3 ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid for said certified mail/return receipt 4 number (See attached copies of Certified Mail/Return Receipts Requested.) 5 I am a resident or employed in the County where the mailing occurred. The envelope or package was placed in the mail at Pleasanton, California, County of Alameda. 6 d. BY OVERNIGHT DELIVERY. I enclosed the documents in an envelope or 7 package provided by an overnight delivery carrier and addressed to the persons at the addresses in item 4. I place the envelope or package for collection and overnight 8 delivery at an office or a regularly utilized drop box of the overnight delivery carrier. 9 e. BY MESSENGER SERVICE. I served the documents by placing them in an envelope or package addressed to the persons at the addresses listed in item 4 and 10 providing them to a professional messenger service for service. CLAPP, MORONEY, VUCINICH, BEEMAN+SCHELEY 11 f. BY FAX TRANSMISSION. Based on an agreement of the parties to accept service by fax transmission, I faxed the documents to the persons at the fax numbers 12 listed in item 4. No error was reported by the fax machine that I used. PLEASANTON, CALIFORNIA 94588 5860 OWENS DRIVE, SUITE 410 13 g. BY E-MAIL OR ELECTRONIC TRANSMISSION. I caused all of the above-entitled document(s) to be sent to the recipients listed by electronic mail only 14 based on the fact that during the Coronavirus (Covid-19) pandemic, this office will be working remotely, not able to send physical mail as usual, and is therefore using only 15 electronic mail. No electronic message or other indication that the transmission was unsuccessful was received within a reasonable time after the transmission. 16 (State) I declare under penalty of perjury under the laws of the State of California that 17 the foregoing is true and correct. 18 (Federal) declare that I am employed in the offices of a member of the bar of this court at whose direction this service was made. I declare under penalty of perjury that the foregoing 19 is true and correct. 20 Executed on January 5, 2022 at Pleasanton, California. 21 22 Regina Chand 23 24 Proof of Service – Civil [Code of Civ.Proc. §§ 1011, 1013, 1013a, 2015.5] 25 26 27 28 9 NAYOUNG SHEETMETAL CO., INC.’S ANSWER TO LUMINOUS ION LLC’S FIRST AMENDED COMPLAINT FOR DAMAGES Proof of Service List Attorneys for Defendant Amber Attorneys for Eastwood 1 Luminous Ion LLC v. Chiao, Vicki Flooring Development Inc. aka Victoria Chiao, et al. Ralph Rhoades Darren Ebner 2 San Francisco County Superior Court PARTON & SELL Kathryn Kim Case No. CGC-20-585337 523 Fourth Street, Suite 210 SPRINGEL & FINK LLP 3 Date: July 9, 2020 San Rafael, CA 94901 20377 SW Acacia Street, Suite 250 Our File No.: 9382\06474 (415) 258-9700 Newport Beach, CA 92660 4 Our Client: Nayoung Sheetmetal Co., rrhoades@partonsell.com; kkim@Springelfink.com; Inc. debner@springelfink.com; 5