Preview
Electronically FILED by Superior Court of California, County of Los Angeles on 08/10/2022 06:18 PM Sherri R. Carter, Executive Officer/Clerk of Court, by S. Bolden,Deputy Clerk
1 Bennett J. Lee (Bar No. 230482)
Garrett E. Dillon (Bar No. 216811)
2 Daniel Sakaguchi (Bar No. 222722)
VARELA, LEE, METZ & GUARINO, LLP
3 333 Bush Street, Suite 1500
San Francisco, California 94104
4 Telephone: 415-623-7000
Facsimile: 415-623-7001
5 E-Mail: blee@vlmglaw.com
gdillon@vlmglaw.com
6 dsakaguchi@vlmglaw.com
7 Attorneys for Defendant
FIDELITY AND DEPOSIT COMPANY OF MARYLAND
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF LOS ANGELES – CENTRAL DISTRICT
11
RETROLOCK CORP., a California corporation, Case No. 21STCV07384
12
Plaintiff,
13 ANSWER AND AFFIRMATIVE
v. DEFENSES OF FIDELITY AND
14 DEPOSIT COMPANY OF MARYLAND
NEXT CENTURY PARTNERS, LLC, a TO RETROLOCK CORP.’S SECOND
15 AMENDED COMPLAINT
Delaware limited liability company; WEBCOR
16 CONSTRUCTION, LP, D.B.A. WEBCOR
Assigned for all purposes to
BUILDERS, a California limited liability Department 61, Hon. Gregory Keosian
17 partnership; JP MORGAN CHASE BANK,
NATIONAL ASSOCIATION, a national
18
association bank; FIDELITY AND DEPOSIT Action Filed: February 24, 2021
19 COMPANY OF MARYLAND, a Maryland
corporation; and DOES ONE (1) through
20 TWENTY (20), inclusive,
21 Defendant.
22
NEXT CENTURY PARTNERS, LLC, a Delaware
23 Limited Liability Company,
24 Cross-Complainant,
v.
25
WEBCOR CONSTRUCTION L.P., a California
26 Limited Partnership; RETROLOCK CORP., a
California corporation; and ROES 1 through 25,
27 inclusive,
28 Cross-Defendant.
FIDELITY’S ANSWER TO RETROLOCK’S SAC
1 Defendant FIDELITY AND DEPOSIT COMPANY OF MARYLAND (“Defendant” or
2 “FIDELITY”) answers the Second Amended Complaint (“SAC”) of Plaintiff RETROLOCK
3 CORP. (“Plaintiff” or “RETROLOCK”) as follows:
4
GENERAL DENIAL
5
6 Under California Code of Civil Procedure Section 431.30(d), Defendant files this general
7 denial to the SAC. Defendant denies, generally and specifically, each and every allegation in the
8 SAC and denies that Plaintiff has sustained or will sustain injuries or damages in the sum or sums
9 alleged, or in any other sum, or at all, by reason of any act, omission, or fault on the part of
10 Defendant, their agents, servants, or employees. Defendant further denies engaging in any wrongful
11 conduct whatsoever.
12 AFFIRMATIVE DEFENSES
13 As separate and independent defenses, Defendant alleges as follows:
14 FIRST AFFIRMATIVE DEFENSE
15 (Failure to State a Cause of Action)
16 Defendant is informed and believes, and thereon alleges, that the SAC, and each purported
17 cause of action therein contained, individually and collectively, fails to state a cause of action upon
18 which relief can be granted.
19 SECOND AFFIRMATIVE DEFENSE
20 (Waiver)
21 Defendant is informed and believes, and thereon alleges, that Plaintiff’s SAC has waived
22 any and all claims that it may have or have had against Defendant, or others, arising from the
23 transactions and occurrences set forth in the SAC.
24 THIRD AFFIRMATIVE DEFENSE
25 (Estoppel)
26 Defendant is informed and believes, and thereon alleges, that Plaintiff is estopped by its
27 own conduct from asserting any and all claims it has or may have had against Defendant, or others,
28 arising from the transactions and occurrences set forth in the SAC.
2
FIDELITY’S ANSWER TO RETROLOCK’S SAC
1 FOURTH AFFIRMATIVE DEFENSE
2 (Setoff)
3 Defendant is informed and believes, and thereon alleges, that Plaintiff’s recovery, if any,
4 must be reduced by an amount equal to any setoff, backcharge, or other form of recoupment that
5 Defendant is entitled to assert against the claims of Plaintiff.
6 FIFTH AFFIRMATIVE DEFENSE
7 (Conditions Precedent/Antecedent)
8 Defendant is informed and believes, and thereon alleges, that any alleged agreements set
9 forth in the SAC were subject to conditions precedent and/or antecedent and that such conditions
10 have occurred or have failed to occur, thereby extinguishing or precluding liability of Defendant,
11 in whole or in part.
12 SIXTH AFFIRMATIVE DEFENSE
13 (Contractual Claims and Notice Requirements)
14 Defendant is informed and believes, and thereon alleges, that Plaintiff failed to comply with
15 contractual claim presentation and notice requirements, and therefore all claims and causes of
16 action set forth in the SAC are barred as a matter of law.
17 SEVENTH AFFIRMATIVE DEFENSE
18 (Parol Evidence Rule)
19 Defendant is informed and believes, and thereon alleges, that Plaintiff’s SAC includes
20 references to alleged agreements made outside the written contract, which violates the parol
21 evidence rule.
22 EIGHTH AFFIRMATIVE DEFENSE
23 (Material Breaches of Contract; Failure of Consideration)
24 Defendant is informed and believes, and thereon alleges, that the material and substantial
25 breaches of the contract by Plaintiff and/or others have relieved Defendant of the purported
26 obligations that Plaintiff alleges have not been satisfied.
27 //
28 //
3
FIDELITY’S ANSWER TO RETROLOCK’S SAC
1 NINTH AFFIRMATIVE DEFENSE
2 (Excused Performance)
3 Defendant is informed and believes, and thereon alleges, that any agreement, contract, or
4 other obligation as alleged in the SAC was breached by Plaintiff’s failure to fulfill its contractual
5 and/or other responsibilities, and this failure has excused any obligation of performance or further
6 performance on the part of Defendant.
7 TENTH AFFIRMATIVE DEFENSE
8 (Economic Loss)
9 Defendant is informed and believes, and thereon alleges, that the damages sought in
10 Plaintiff’s SAC are barred, in whole or in part, by the economic loss rule.
11 ELEVENTH AFFIRMATIVE DEFENSE
12 (No Independent Duty)
13 Defendant is informed and believes, and thereon alleges, that Plaintiff’s claims are barred,
14 in whole or in part, for failing to allege and/or establish a duty owed by Defendant independent of
15 a contractual obligation owed by Defendant to Plaintiff, if any.
16 TWELFTH AFFIRMATIVE DEFENSE
17 (Lack of Standing)
18 Defendant is informed and believes, and thereon alleges, that Plaintiff’s claims are barred
19 because Plaintiff lacks standing to bring the causes of action asserted in the SAC.
20 THIRTEENTH AFFIRMATIVE DEFENSE
21 (Statutory and Procedural Requirements)
22 Defendant is informed and believes, and thereon alleges, that Plaintiff has not complied
23 with the necessary statutory and/or procedural requirements that would permit Plaintiff to assert
24 the claims alleged in Plaintiff’s SAC.
25 //
26 //
27 //
28 //
4
FIDELITY’S ANSWER TO RETROLOCK’S SAC
1 FOURTEENTH AFFIRMATIVE DEFENSE
2 (Improper Damages)
3 Defendant is informed and believes, and thereon alleges that Plaintiff’s alleged damages,
4 including, but not limited to, Plaintiff’s requests for attorneys’ fees and costs, are not recoverable
5 damages.
6 FIFTEENTH AFFIRMATIVE DEFENSE
7 (Defective Labor)
8 Defendant is informed and believes, and thereon alleges that Plaintiff is barred from
9 recovery as any labor in fact supplied by Plaintiff was unsatisfactory and/or unnecessary and not
10 pursuant to the requirement for such labor.
11 SIXTEENTH AFFIRMATIVE DEFENSE
12 (Defective Material or Equipment)
13 Defendant is informed and believes, and thereon alleges that Plaintiff is barred from
14 recovery as to any material supplied by Plaintiff that was defective and not in conformance with
15 the requirements for such material.
16 SEVENTEENTH AFFIRMATIVE DEFENSE
17 (Statute of Limitations and/or Repose)
18 Defendant is informed and believes, and thereon alleges, that Plaintiff has failed to
19 commence this action in a timely fashion, and as such, it is barred by any and all applicable statutes
20 of limitations and/or repose, including without limitation, those contained in California Code of
21 Civil Procedure sections 337(1), 337(2), 337(3), 337.1(a), 337.1(b), 337.15(a), 338(a), 338(b),
22 338(d), 339(1), 339(3), 340, and 343; California Civil Code sections 900, 941, 945.5, 8610, and
23 9558; and California Commercial Code section 2725.
24 EIGHTEENTH AFFIRMATIVE DEFENSE
25 (Laches)
26 Defendant is informed and believes, and thereon alleges, that any relief sought by Plaintiff
27 is barred under the equitable doctrine of laches.
28
5
FIDELITY’S ANSWER TO RETROLOCK’S SAC
1 NINETEENTH AFFIRMATIVE DEFENSE
2 (Statute of Frauds)
3 Defendant is informed and believes, and thereon alleges, that Plaintiff’s claims are barred
4 by the applicable statute of frauds.
5 TWENTIETH AFFIRMATIVE DEFENSE
6 (Failure to Mitigate)
7 Defendant is informed and believes, and thereon alleges, that Plaintiff, although under a
8 duty to do so, failed to mitigate its damages, if any.
9 TWENTY-FIRST AFFIRMATIVE DEFENSE
10 (Unclean Hands)
11 Defendant is informed and believes, and thereon alleges, that Plaintiff’s unclean hands bar
12 each and every cause of action alleged in Plaintiff’s SAC.
13 TWENTY-SECOND AFFIRMATIVE DEFENSE
14 (Volunteer)
15 Defendant is informed and believes, and thereon alleges, that Plaintiff acted as a volunteer
16 or in a gratuitous manner with respect to the costs that it alleges it suffered as damages, and thus
17 has no reasonable expectation to recover some or all of its alleged damages, if any.
18 TWENTY-THIRD AFFIRMATIVE DEFENSE
19 (Release)
20 Defendant is informed and believes, and thereon alleges, that Plaintiff’s claims alleged in
21 the SAC have been released, in whole or in part.
22 TWENTY-FOURTH AFFIRMATIVE DEFENSE
23 (Accord and Satisfaction)
24 Defendant is informed and believes, and thereon alleges, that some or all of Plaintiff’s
25 claims are barred under the doctrine of accord and satisfaction.
26 //
27 //
28 //
6
FIDELITY’S ANSWER TO RETROLOCK’S SAC
1 TWENTY-FIFTH AFFIRMATIVE DEFENSE
2 (Obligation Extinguished by Performance)
3 Defendant is informed and believes, and thereon alleges, that Plaintiff is barred, in whole
4 or in part, from the relief requested in the SAC because, before the commencement of this action,
5 Defendant duly performed, satisfied, and discharged all duties and obligations that it may have
6 owed to Plaintiff arising out of any and all agreements, representations or contracts relating to the
7 SAC.
8 TWENTY-SIXTH AFFIRMATIVE DEFENSE
9 (Negligent and/or Wrongful Conduct)
10 Defendant is informed and believes, and thereon alleges, that Plaintiff’s damages, if any,
11 were proximately caused and/or contributed to by the negligence and/or otherwise wrongful or
12 unlawful conduct of Plaintiff and/or persons whose conduct is imputable to it, parties to this action
13 other than Defendant or third parties, which precludes recovery by Plaintiff under the SAC, in
14 whole or in part.
15 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
16 (Secondary Liability)
17 Defendant is informed and believes, and thereon alleges, that in the event Defendant is held
18 liable to Plaintiff, which liability is expressly denied, the liability of Defendant would be passive,
19 imputed, or secondary, while Plaintiff and/or other parties or third parties would be actively or
20 primarily liable for Plaintiff’s alleged injuries and damages.
21 TWENTY-EIGHTH AFFIRMATIVE DEFENSE
22 (Failure to Join Necessary and/or Indispensable Parties)
23 Defendant is informed and believes, and thereon alleges, that Plaintiff has failed to join all
24 necessary and/or indispensable parties to the SAC.
25 TWENTY-NINTH AFFIRMATIVE DEFENSE
26 (Licensure)
27 Defendant is informed and believes, and thereon alleges, that Plaintiff’s claims are barred,
28 in whole or in part, due to Plaintiff’s failure to maintain proper licensure, entitling Defendant to all
7
FIDELITY’S ANSWER TO RETROLOCK’S SAC
1 rights and remedies under applicable law, including, but not limited to, those afforded by California
2 Business and Professions Code Section 7031.
3 THIRTIETH AFFIRMATIVE DEFENSE
4 (Incorporation of Principal’s Defenses)
5 Defendant is informed and believes, and thereon alleges, that Defendant’s liability is
6 premised on the bonds at issue in this litigation and, as a result, Defendant is entitled to assert all
7 of the defenses available to its principal(s) and Defendant hereby incorporates by reference all
8 defenses raised, or that could have been raised, by its principal(s), regardless of whether such
9 defenses are actually asserted by the bond principal(s).
10 THIRTY-FIRST AFFIRMATIVE DEFENSE
11 (Bond Conditions)
12 Defendant is informed and believes, and thereon alleges, that Plaintiff has failed to comply
13 with conditions precedent to Plaintiff’s right to recover on the bonds sued upon herein, and has
14 failed, neglected, and refused to give appropriate notice pursuant to the provisions of the bonds.
15 THIRTY-SECOND AFFIRMATIVE DEFENSE
16 (Principal’s Performance)
17 Defendant is informed and believes, and thereon alleges, that Defendant’s principal(s)
18 performed all of its/their obligations under all applicable agreements alleged in the SAC, which
19 thereby exonerates and/or discharges any obligation of Surety Defendant to Plaintiff under any and
20 all bonds at issue in this litigation.
21 THIRTY-THIRD AFFIRMATIVE DEFENSE
22 (Limitation to Penal Sum)
23 In accordance with applicable law, the bonds at issue, and/or Code of Civil Procedure
24 section 996.470, Defendant’s liability, if any, under any given bond at issue in this litigation, shall
25 not exceed the penal sum of the bond.
26 //
27 //
28 //
8
FIDELITY’S ANSWER TO RETROLOCK’S SAC
1 THIRTY-FOURTH AFFIRMATIVE DEFENSE
2 (Additional Defenses)
3 Defendant is presently unaware whether they may have additional, as yet unstated,
4 affirmative defenses, and may seek leave of court at a later time to assert such further defenses, if
5 any.
6 PRAYER
7 WHEREFORE, Defendant prays:
8 1. That Plaintiff’s Second Amended Complaint be dismissed with prejudice;
9 2. That Plaintiff take nothing by this action;
10 3. For costs of suit incurred herein, including reasonable attorneys’ fees as allowed by
11 contract or statute; and
12 4. For such other and further relief as the Court may deem just and proper.
13
14 Dated: August 10, 2022 VARELA, LEE, METZ & GUARINO, LLP
15
16 By:
Bennett J. Lee
17 Garrett Dillon
Daniel Sakaguchi
18 Attorneys for
FIDELITY AND DEPOSIT COMPANY OF
19 MARYLAND
20
21
22
23
24
25
26
27
28
9
FIDELITY’S ANSWER TO RETROLOCK’S SAC
1 PROOF OF SERVICE
Retrolock Corp. vs. Next Century Partners, LLC, et al.
2 Los Angeles Superior Court – Central District Case No. 21STCV07384
3 I am employed in the County of San Francisco, State of California. I am over the age of 18
4 and not a party to the within action; my business address is 333 Bush Street, Suite 1500, San
Francisco, California 94104. On the date set forth below, I served the following document:
5
ANSWER AND AFFIRMATIVE DEFENSES OF FIDELITY AND DEPOSIT COMPANY
6 OF MARYLAND TO RETROLOCK CORP.’S SECOND AMENDED COMPLAINT
7 on the following parties:
8 Farhad Novian, Esq. Peter Sheridan, Esq.
Sean Bozarth, Esq. Alexander Suarez, Esq.
9 Brian Nguyen, Esq. Glaser Weil
Novian & Novian LLP 10250 Constellation Blvd., 19th Floor
10 1801 Century Park East, #1201 Los Angeles, CA 90067
Los Angeles, CA 90067 Tel: (310) 553-3000
11 Tel: (310) 553-1222 Email: psheridan@glaserweil.com
Email: farhad@novianlaw.com asuarez@glaserweil.com
12 seanb@novianlaw.com Attorneys for Defendant/Cross-Defendant
briann@novianlaw.com Next Century Partners, LLC
13 cynthiag@novianlaw.com
Attorneys for Plaintiff
14 Retrolock Corp.
15
16 BY EMAIL, by transmitting a true copy via e-mail to the person(s) at the e-mail address(es)
☒ set forth above.
17
I declare under penalty of perjury under the laws of the State of California that the foregoing
18 is true and correct. Executed on August 10, 2022, at San Francisco, California.
19
20
21 Aurora Cantrell
22
23
24
25
26
27
28
PROOF OF SERVICE
Preview
Electronically FILED by Superior Court of California, County of Los Angeles on 08/10/2022 06:18 PM Sherri R. Carter, Executive Officer/Clerk of Court, by S. Bolden,Deputy Clerk 1 Bennett J. Lee (Bar No. 230482) Garrett E. Dillon (Bar No. 216811) 2 Daniel Sakaguchi (Bar No. 222722) VARELA, LEE, METZ & GUARINO, LLP 3 333 Bush Street, Suite 1500 San Francisco, California 94104 4 Telephone: 415-623-7000 Facsimile: 415-623-7001 5 E-Mail: blee@vlmglaw.com gdillon@vlmglaw.com 6 dsakaguchi@vlmglaw.com 7 Attorneys for Defendant FIDELITY AND DEPOSIT COMPANY OF MARYLAND 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF LOS ANGELES – CENTRAL DISTRICT 11 RETROLOCK CORP., a California corporation, Case No. 21STCV07384 12 Plaintiff, 13 ANSWER AND AFFIRMATIVE v. DEFENSES OF FIDELITY AND 14 DEPOSIT COMPANY OF MARYLAND NEXT CENTURY PARTNERS, LLC, a TO RETROLOCK CORP.’S SECOND 15 AMENDED COMPLAINT Delaware limited liability company; WEBCOR 16 CONSTRUCTION, LP, D.B.A. WEBCOR Assigned for all purposes to BUILDERS, a California limited liability Department 61, Hon. Gregory Keosian 17 partnership; JP MORGAN CHASE BANK, NATIONAL ASSOCIATION, a national 18 association bank; FIDELITY AND DEPOSIT Action Filed: February 24, 2021 19 COMPANY OF MARYLAND, a Maryland corporation; and DOES ONE (1) through 20 TWENTY (20), inclusive, 21 Defendant. 22 NEXT CENTURY PARTNERS, LLC, a Delaware 23 Limited Liability Company, 24 Cross-Complainant, v. 25 WEBCOR CONSTRUCTION L.P., a California 26 Limited Partnership; RETROLOCK CORP., a California corporation; and ROES 1 through 25, 27 inclusive, 28 Cross-Defendant. FIDELITY’S ANSWER TO RETROLOCK’S SAC 1 Defendant FIDELITY AND DEPOSIT COMPANY OF MARYLAND (“Defendant” or 2 “FIDELITY”) answers the Second Amended Complaint (“SAC”) of Plaintiff RETROLOCK 3 CORP. (“Plaintiff” or “RETROLOCK”) as follows: 4 GENERAL DENIAL 5 6 Under California Code of Civil Procedure Section 431.30(d), Defendant files this general 7 denial to the SAC. Defendant denies, generally and specifically, each and every allegation in the 8 SAC and denies that Plaintiff has sustained or will sustain injuries or damages in the sum or sums 9 alleged, or in any other sum, or at all, by reason of any act, omission, or fault on the part of 10 Defendant, their agents, servants, or employees. Defendant further denies engaging in any wrongful 11 conduct whatsoever. 12 AFFIRMATIVE DEFENSES 13 As separate and independent defenses, Defendant alleges as follows: 14 FIRST AFFIRMATIVE DEFENSE 15 (Failure to State a Cause of Action) 16 Defendant is informed and believes, and thereon alleges, that the SAC, and each purported 17 cause of action therein contained, individually and collectively, fails to state a cause of action upon 18 which relief can be granted. 19 SECOND AFFIRMATIVE DEFENSE 20 (Waiver) 21 Defendant is informed and believes, and thereon alleges, that Plaintiff’s SAC has waived 22 any and all claims that it may have or have had against Defendant, or others, arising from the 23 transactions and occurrences set forth in the SAC. 24 THIRD AFFIRMATIVE DEFENSE 25 (Estoppel) 26 Defendant is informed and believes, and thereon alleges, that Plaintiff is estopped by its 27 own conduct from asserting any and all claims it has or may have had against Defendant, or others, 28 arising from the transactions and occurrences set forth in the SAC. 2 FIDELITY’S ANSWER TO RETROLOCK’S SAC 1 FOURTH AFFIRMATIVE DEFENSE 2 (Setoff) 3 Defendant is informed and believes, and thereon alleges, that Plaintiff’s recovery, if any, 4 must be reduced by an amount equal to any setoff, backcharge, or other form of recoupment that 5 Defendant is entitled to assert against the claims of Plaintiff. 6 FIFTH AFFIRMATIVE DEFENSE 7 (Conditions Precedent/Antecedent) 8 Defendant is informed and believes, and thereon alleges, that any alleged agreements set 9 forth in the SAC were subject to conditions precedent and/or antecedent and that such conditions 10 have occurred or have failed to occur, thereby extinguishing or precluding liability of Defendant, 11 in whole or in part. 12 SIXTH AFFIRMATIVE DEFENSE 13 (Contractual Claims and Notice Requirements) 14 Defendant is informed and believes, and thereon alleges, that Plaintiff failed to comply with 15 contractual claim presentation and notice requirements, and therefore all claims and causes of 16 action set forth in the SAC are barred as a matter of law. 17 SEVENTH AFFIRMATIVE DEFENSE 18 (Parol Evidence Rule) 19 Defendant is informed and believes, and thereon alleges, that Plaintiff’s SAC includes 20 references to alleged agreements made outside the written contract, which violates the parol 21 evidence rule. 22 EIGHTH AFFIRMATIVE DEFENSE 23 (Material Breaches of Contract; Failure of Consideration) 24 Defendant is informed and believes, and thereon alleges, that the material and substantial 25 breaches of the contract by Plaintiff and/or others have relieved Defendant of the purported 26 obligations that Plaintiff alleges have not been satisfied. 27 // 28 // 3 FIDELITY’S ANSWER TO RETROLOCK’S SAC 1 NINTH AFFIRMATIVE DEFENSE 2 (Excused Performance) 3 Defendant is informed and believes, and thereon alleges, that any agreement, contract, or 4 other obligation as alleged in the SAC was breached by Plaintiff’s failure to fulfill its contractual 5 and/or other responsibilities, and this failure has excused any obligation of performance or further 6 performance on the part of Defendant. 7 TENTH AFFIRMATIVE DEFENSE 8 (Economic Loss) 9 Defendant is informed and believes, and thereon alleges, that the damages sought in 10 Plaintiff’s SAC are barred, in whole or in part, by the economic loss rule. 11 ELEVENTH AFFIRMATIVE DEFENSE 12 (No Independent Duty) 13 Defendant is informed and believes, and thereon alleges, that Plaintiff’s claims are barred, 14 in whole or in part, for failing to allege and/or establish a duty owed by Defendant independent of 15 a contractual obligation owed by Defendant to Plaintiff, if any. 16 TWELFTH AFFIRMATIVE DEFENSE 17 (Lack of Standing) 18 Defendant is informed and believes, and thereon alleges, that Plaintiff’s claims are barred 19 because Plaintiff lacks standing to bring the causes of action asserted in the SAC. 20 THIRTEENTH AFFIRMATIVE DEFENSE 21 (Statutory and Procedural Requirements) 22 Defendant is informed and believes, and thereon alleges, that Plaintiff has not complied 23 with the necessary statutory and/or procedural requirements that would permit Plaintiff to assert 24 the claims alleged in Plaintiff’s SAC. 25 // 26 // 27 // 28 // 4 FIDELITY’S ANSWER TO RETROLOCK’S SAC 1 FOURTEENTH AFFIRMATIVE DEFENSE 2 (Improper Damages) 3 Defendant is informed and believes, and thereon alleges that Plaintiff’s alleged damages, 4 including, but not limited to, Plaintiff’s requests for attorneys’ fees and costs, are not recoverable 5 damages. 6 FIFTEENTH AFFIRMATIVE DEFENSE 7 (Defective Labor) 8 Defendant is informed and believes, and thereon alleges that Plaintiff is barred from 9 recovery as any labor in fact supplied by Plaintiff was unsatisfactory and/or unnecessary and not 10 pursuant to the requirement for such labor. 11 SIXTEENTH AFFIRMATIVE DEFENSE 12 (Defective Material or Equipment) 13 Defendant is informed and believes, and thereon alleges that Plaintiff is barred from 14 recovery as to any material supplied by Plaintiff that was defective and not in conformance with 15 the requirements for such material. 16 SEVENTEENTH AFFIRMATIVE DEFENSE 17 (Statute of Limitations and/or Repose) 18 Defendant is informed and believes, and thereon alleges, that Plaintiff has failed to 19 commence this action in a timely fashion, and as such, it is barred by any and all applicable statutes 20 of limitations and/or repose, including without limitation, those contained in California Code of 21 Civil Procedure sections 337(1), 337(2), 337(3), 337.1(a), 337.1(b), 337.15(a), 338(a), 338(b), 22 338(d), 339(1), 339(3), 340, and 343; California Civil Code sections 900, 941, 945.5, 8610, and 23 9558; and California Commercial Code section 2725. 24 EIGHTEENTH AFFIRMATIVE DEFENSE 25 (Laches) 26 Defendant is informed and believes, and thereon alleges, that any relief sought by Plaintiff 27 is barred under the equitable doctrine of laches. 28 5 FIDELITY’S ANSWER TO RETROLOCK’S SAC 1 NINETEENTH AFFIRMATIVE DEFENSE 2 (Statute of Frauds) 3 Defendant is informed and believes, and thereon alleges, that Plaintiff’s claims are barred 4 by the applicable statute of frauds. 5 TWENTIETH AFFIRMATIVE DEFENSE 6 (Failure to Mitigate) 7 Defendant is informed and believes, and thereon alleges, that Plaintiff, although under a 8 duty to do so, failed to mitigate its damages, if any. 9 TWENTY-FIRST AFFIRMATIVE DEFENSE 10 (Unclean Hands) 11 Defendant is informed and believes, and thereon alleges, that Plaintiff’s unclean hands bar 12 each and every cause of action alleged in Plaintiff’s SAC. 13 TWENTY-SECOND AFFIRMATIVE DEFENSE 14 (Volunteer) 15 Defendant is informed and believes, and thereon alleges, that Plaintiff acted as a volunteer 16 or in a gratuitous manner with respect to the costs that it alleges it suffered as damages, and thus 17 has no reasonable expectation to recover some or all of its alleged damages, if any. 18 TWENTY-THIRD AFFIRMATIVE DEFENSE 19 (Release) 20 Defendant is informed and believes, and thereon alleges, that Plaintiff’s claims alleged in 21 the SAC have been released, in whole or in part. 22 TWENTY-FOURTH AFFIRMATIVE DEFENSE 23 (Accord and Satisfaction) 24 Defendant is informed and believes, and thereon alleges, that some or all of Plaintiff’s 25 claims are barred under the doctrine of accord and satisfaction. 26 // 27 // 28 // 6 FIDELITY’S ANSWER TO RETROLOCK’S SAC 1 TWENTY-FIFTH AFFIRMATIVE DEFENSE 2 (Obligation Extinguished by Performance) 3 Defendant is informed and believes, and thereon alleges, that Plaintiff is barred, in whole 4 or in part, from the relief requested in the SAC because, before the commencement of this action, 5 Defendant duly performed, satisfied, and discharged all duties and obligations that it may have 6 owed to Plaintiff arising out of any and all agreements, representations or contracts relating to the 7 SAC. 8 TWENTY-SIXTH AFFIRMATIVE DEFENSE 9 (Negligent and/or Wrongful Conduct) 10 Defendant is informed and believes, and thereon alleges, that Plaintiff’s damages, if any, 11 were proximately caused and/or contributed to by the negligence and/or otherwise wrongful or 12 unlawful conduct of Plaintiff and/or persons whose conduct is imputable to it, parties to this action 13 other than Defendant or third parties, which precludes recovery by Plaintiff under the SAC, in 14 whole or in part. 15 TWENTY-SEVENTH AFFIRMATIVE DEFENSE 16 (Secondary Liability) 17 Defendant is informed and believes, and thereon alleges, that in the event Defendant is held 18 liable to Plaintiff, which liability is expressly denied, the liability of Defendant would be passive, 19 imputed, or secondary, while Plaintiff and/or other parties or third parties would be actively or 20 primarily liable for Plaintiff’s alleged injuries and damages. 21 TWENTY-EIGHTH AFFIRMATIVE DEFENSE 22 (Failure to Join Necessary and/or Indispensable Parties) 23 Defendant is informed and believes, and thereon alleges, that Plaintiff has failed to join all 24 necessary and/or indispensable parties to the SAC. 25 TWENTY-NINTH AFFIRMATIVE DEFENSE 26 (Licensure) 27 Defendant is informed and believes, and thereon alleges, that Plaintiff’s claims are barred, 28 in whole or in part, due to Plaintiff’s failure to maintain proper licensure, entitling Defendant to all 7 FIDELITY’S ANSWER TO RETROLOCK’S SAC 1 rights and remedies under applicable law, including, but not limited to, those afforded by California 2 Business and Professions Code Section 7031. 3 THIRTIETH AFFIRMATIVE DEFENSE 4 (Incorporation of Principal’s Defenses) 5 Defendant is informed and believes, and thereon alleges, that Defendant’s liability is 6 premised on the bonds at issue in this litigation and, as a result, Defendant is entitled to assert all 7 of the defenses available to its principal(s) and Defendant hereby incorporates by reference all 8 defenses raised, or that could have been raised, by its principal(s), regardless of whether such 9 defenses are actually asserted by the bond principal(s). 10 THIRTY-FIRST AFFIRMATIVE DEFENSE 11 (Bond Conditions) 12 Defendant is informed and believes, and thereon alleges, that Plaintiff has failed to comply 13 with conditions precedent to Plaintiff’s right to recover on the bonds sued upon herein, and has 14 failed, neglected, and refused to give appropriate notice pursuant to the provisions of the bonds. 15 THIRTY-SECOND AFFIRMATIVE DEFENSE 16 (Principal’s Performance) 17 Defendant is informed and believes, and thereon alleges, that Defendant’s principal(s) 18 performed all of its/their obligations under all applicable agreements alleged in the SAC, which 19 thereby exonerates and/or discharges any obligation of Surety Defendant to Plaintiff under any and 20 all bonds at issue in this litigation. 21 THIRTY-THIRD AFFIRMATIVE DEFENSE 22 (Limitation to Penal Sum) 23 In accordance with applicable law, the bonds at issue, and/or Code of Civil Procedure 24 section 996.470, Defendant’s liability, if any, under any given bond at issue in this litigation, shall 25 not exceed the penal sum of the bond. 26 // 27 // 28 // 8 FIDELITY’S ANSWER TO RETROLOCK’S SAC 1 THIRTY-FOURTH AFFIRMATIVE DEFENSE 2 (Additional Defenses) 3 Defendant is presently unaware whether they may have additional, as yet unstated, 4 affirmative defenses, and may seek leave of court at a later time to assert such further defenses, if 5 any. 6 PRAYER 7 WHEREFORE, Defendant prays: 8 1. That Plaintiff’s Second Amended Complaint be dismissed with prejudice; 9 2. That Plaintiff take nothing by this action; 10 3. For costs of suit incurred herein, including reasonable attorneys’ fees as allowed by 11 contract or statute; and 12 4. For such other and further relief as the Court may deem just and proper. 13 14 Dated: August 10, 2022 VARELA, LEE, METZ & GUARINO, LLP 15 16 By: Bennett J. Lee 17 Garrett Dillon Daniel Sakaguchi 18 Attorneys for FIDELITY AND DEPOSIT COMPANY OF 19 MARYLAND 20 21 22 23 24 25 26 27 28 9 FIDELITY’S ANSWER TO RETROLOCK’S SAC 1 PROOF OF SERVICE Retrolock Corp. vs. Next Century Partners, LLC, et al. 2 Los Angeles Superior Court – Central District Case No. 21STCV07384 3 I am employed in the County of San Francisco, State of California. I am over the age of 18 4 and not a party to the within action; my business address is 333 Bush Street, Suite 1500, San Francisco, California 94104. On the date set forth below, I served the following document: 5 ANSWER AND AFFIRMATIVE DEFENSES OF FIDELITY AND DEPOSIT COMPANY 6 OF MARYLAND TO RETROLOCK CORP.’S SECOND AMENDED COMPLAINT 7 on the following parties: 8 Farhad Novian, Esq. Peter Sheridan, Esq. Sean Bozarth, Esq. Alexander Suarez, Esq. 9 Brian Nguyen, Esq. Glaser Weil Novian & Novian LLP 10250 Constellation Blvd., 19th Floor 10 1801 Century Park East, #1201 Los Angeles, CA 90067 Los Angeles, CA 90067 Tel: (310) 553-3000 11 Tel: (310) 553-1222 Email: psheridan@glaserweil.com Email: farhad@novianlaw.com asuarez@glaserweil.com 12 seanb@novianlaw.com Attorneys for Defendant/Cross-Defendant briann@novianlaw.com Next Century Partners, LLC 13 cynthiag@novianlaw.com Attorneys for Plaintiff 14 Retrolock Corp. 15 16 BY EMAIL, by transmitting a true copy via e-mail to the person(s) at the e-mail address(es) ☒ set forth above. 17 I declare under penalty of perjury under the laws of the State of California that the foregoing 18 is true and correct. Executed on August 10, 2022, at San Francisco, California. 19 20 21 Aurora Cantrell 22 23 24 25 26 27 28 PROOF OF SERVICE