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R. MICHAEL LIEBERMAN (SBN 120831)
LAW OFFICES OF R. MICHAEL LIEBERMAN
2 1398 POST STREET
SAN FRANCISCO, CALIFORNIA 94109 ELECTRONICALLY
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TELEPHONE: (415) 929-3197 F I L E D
Superior Court of California,
4 FAX: (415) 929-3476 County of San Francisco
Email: mi~hael@s.park84.eom
5 07/14/2020
Clerk of the Court
Attorneys for Defendants BY: EDWARD SANTOS
6 Deputy Clerk
CARROLL HENRY and CHARLES MCMACKIN
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SUPERIOR COURT- STATE OF CALIFORNIA
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COUNTY OF SAN FRANCISCO - LIMITED JURISDICTION
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TIMOTHY A. BONNICI, an individual NO. CGC 17-557688
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Plaintiff, ANSWER OF CHARLES MCMACKIN
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TO THIRD AMENDED COMPLAINT
13 vs. BY TIMOTHY BONNICI
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CHARLES MCMACKIN, an individual, 0 URY TRIAL DEMANDED]
15 CARROLL HENRY, an individual, and
DOES I TO 200, inclusive,
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17 Defendants.
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1/ ANSWER OF CHARLES MCMACKIN TO THIRD AMENDED COMPLAINT BY
TIMOTHY BONNICI
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Defendant CHARLES MCMACKIN ("defendant") answers the unverified
Third Amended Complaint by plaintiff TIMOTHY BONNICI ("plaintiff") ("the
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Third Amended Complaint") as follows: Defendant denies each and every
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allegation contained in the Third Amended Complaint, each and every part
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thereof, the whole thereof and each and every assumption, premise and
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conclusion upon which the request for relief from this answering party is based
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and additionally denies that plaintiff has been damaged in any sum whatsoever
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by reason of any act or omission of this answering party.
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AFFIRMATIVE DEFENSES
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Without waiving the foregoing, and as further, separate and additional
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defenses to the allegations contained in the Third Amended Complaint, this
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answering party answers as follows:
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FIRST AFFIRMATIVE DEFENSE: The Third Amended Complaint fails to
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state a claim upon which relief can be granted.
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SECOND AFFIRMATIVE DEFENSE: Plaintiff has failed to perform all
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conditions, covenants and promises required by plaintiff to be performed in
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accordance with the terms and conditions of the contract(s)/agreement(s)
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referred to in the Third Amended Complaint.
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THIRD AFFIRMATIVE DEFENSE: This answering party is excused from its
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alleged obligations and duties by virtue of the material breach of the
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obligations and duties of plaintiff to this answering party.
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FOURTH AFFIRMATIVE DEFENSE: Further performance of the
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agreement(s)/contract(s) by this answering party is excused by virtue of
21 ANSWER OF CHARLES MCMACKIN TO THIRD AMENDED COMPLAINT BY
TIMOTHY BONNICI
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plaintiff's prior breach or repudiation of the contract(s)/agreement(s) referred
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to in the Third Amended Complaint, plaintiff's failure to perform plaintiff's
obligations pursuant to those contract(s)/agreement(s), and/or plaintiff's
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failure to provide adequate assurances that plaintiff would perform in
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accordance with the terms of those contract(s)/agreement(s).
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FIFTH AFFIRMATIVE DEFENSE: This answering party's want of
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performance or delay, if any, was excused by the terms of the
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contract(s)/agreement(s) or by the law.
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SIXTH AFFIRMATIVE DEFENSE: This answering party's want of
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performance or delay, if any, was the result of failure of conditions precedent.
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SEVENTH AFFIRMATIVE DEFENSE: Performance of the
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agreement(s)/contract(s) by this answering party is excused by virtue of
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plaintiff's breach of warranties in connection with their performance
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obligations to deal fairly and in good faith with this answering party. Any
17 breach of this answering party was caused by plaintiff's bad faith conduct.
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19 EIGHTH AFFIRMATIVE DEFENSE: Performance of the
20 agreement(s)/contract(s) by this answering party is excused by virtue of
21 plaintiff's breach of the implied and express covenants.
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23 NINTH AFFIRMATIVE DEFENSE: Plaintiff has not been injured in any way
24 or in any manner as a result of any act or omission of this answering party.
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26 TENTH AFFIRMATIVE DEFENSE: Plaintiff's claims are barred by the
27 applicable statute of limitations, including, but not limited to, Code of Civil
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3/ ANSWER OF CHARLES MCMACKIN TO THIRD AMENDED COMPLAINT BY
TIMOTHY BONNICI
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Procedure Sections 337 et seq., 338 et seq. 339 et. seq. and 340 et seq. and
Government Code Sections 12940, 12960 and 12965.
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ELEVENTH AFFIRMATIVE DEFENSE: All of the alleged acts or omissions of
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this answering party were lawful and/or privileged and/or justified in every
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respect under applicable state and federal laws.
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TWELFTH AFFIRMATIVE DEFENSE: Plaintiff's claims are barred in whole
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or in part by the equitable doctrines of waiver, acquiescence, laches,
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ratification, participation, estoppel and/or unclean hands.
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THIRTEENTH AFFIRMATIVE DEFENSE: This answering party's want of
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performance or delay, if any, was the result of impossibility or frustration.
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FOURTEENTH AFFIRMATIVE DEFENSE: Plaintiff has failed to take
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reasonable or adequate steps to mitigate, alter, reduce or otherwise diminish
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the damages, if any, suffered by plaintiff. By reason of the foregoing, plaintiff's
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claims for relief are barred and plaintiff is barred from any recovery for such
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damage, if any.
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FIFTEENTH AFFIRMATIVE DEFENSE: This answering party's obligations to
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plaintiff pursuant to the contract(s)/agreement(s), if any do exist, were excused
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by plaintiff's willful failure to perform their part of the agreement, in
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accordance with the applicable provisions of the law.
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SIXTEENTH AFFIRMATIVE DEFENSE: This answering party's obligations to
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plaintiff, if any ever existed, were exonerated and discharged.
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4/ ANSWER OF CHARLES MCMACKIN TO THIRD AMENDED COMPLAINT BY
TIMOTHY BONNICI
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SEVENTEENTH AFFIRMATIVE DEFENSE: The Court lacks subject matter
jurisdiction over plaintiff's claims, including the action as a whole and
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plaintiff's pendant claims.
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EIGHTEENTH AFFIRMATIVE DEFENSE: Plaintiff acted with full knowledge
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of all the facts and circumstances surrounding plaintiff's alleged injury and
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acknowledged and voluntarily assumed the risk of the matters causing their
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alleged injury and that said matters of which plaintiff assumed the risk
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proximately contributed to and proximately caused their alleged injury, if any,
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and as such, said assumption of risk bars recovery for the damages alleged in
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the Third Amended Complaint.
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NINETEENTH AFFIRMATIVE DEFENSE: Plaintiff is negligent in or about the
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matters alleged in their claims, in that plaintiff's own negligence proximately
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caused and contributed to the damages and injuries alleged by them, if any
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such damage or injury occurred at all, and plaintiffs recovery, if any, in this
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action should be barred or reduced to the extent that any damage or injury was
17 caused or contributed to by their negligence according to the doctrine of
18 comparative negligence.
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2o TWENTIETH AFFIRMATIVE DEFENSE: The sole proximate and/or partial
21 proximate cause of the damages claimed was due to the negligence and/or
22 wrongful acts of other persons or parties, and this answering party is not
23 responsible for the acts of said other persons and parties.
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25 TWENTY-FIRST AFFIRMATNE DEFENSE: The incidents described in the
26 Third Amended Complaint and any damages allegedly sustained by plaintiff
27 were proximately caused in whole or in part by plaintiff in that plaintiff failed
28 to exercise ordinary reasonable case; wherefore, any recovery obtained by
5/ ANSWER OF CHARLES MCMACKIN TO THIRD AMENDED COMPLAINT BY
TIMOTHY BONNICI
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plaintiff should be reduced according to the doctrine of comparative
negligence.
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TWENTY-SECOND AFFIRMATIVE DEFENSE: Plaintiff failed and neglected to
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use reasonable care to protect plaintiff and to minimize plaintiff's losses and
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damages complained of, if any there were.
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TWENTY-THIRD AFFIRMATIVE DEFENSE: Plaintiff's claims for relief are
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barred by the doctrines of res judicata and collateral estoppel.
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TWENTY-FOURTH AFFIRMATIVE DEFENSE: The injuries and damages
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complained of by plaintiff, if any there were, were either wholly or in part
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directly and proximately caused by the negligence or fault of persons or
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entities other than this answering party, and said negligence or fault is either
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imputed to plaintiff by reason of the relationship between plaintiff and said
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persons or entities, or comparatively reduces the proportion of negligence or
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fault and corresponding liability of this answering party.
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18 TWENTY-FIFTH AFFIRMATIVE DEFENSE: Plaintiff's Third Amended
19 Complaint and each purported cause of action stated therein, are barred as a
20 result of plaintiff's failure to exhaust plaintiff's remedies against others before
21 seeking recovery from this answering party.
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23 TWENTY-SIXTH AFFIRMATIVE DEFENSE: Plaintiff is barred from asserting
24 any claim or demand against this answering party because plaintiff is not in
25 privity with this answering party.
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6/ ANSWER OF CHARLES MCMACKIN TO THIRD AMENDED COMPLAINT BY
TIMOTHY BONNICI
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TWENTY-SEVENTH AFFIRMATIVE DEFENSE: If the allegations of the Third
Amended Complaint are true, plaintiff and this answering party are in pari
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delicto.
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TWENTY-EIGHTH AFFIRMATIVE DEFENSE: Plaintiff lacks standing to assert
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the claims for relief.
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TWENTY-NINTH AFFIRMATIVE DEFENSE: There has been a full accord and
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satisfaction.
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THIRTIETH AFFIRMATIVE DEFENSE: If this answering party is liable to
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plaintiff, this answering party is liable to plaintiff jointly with other parties.
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THIRTY-FIRST AFFIRMATIVE DEFENSE: The liability of this answering
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party, if any, is limited by contract.
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THIRTY-SECOND AFFIRMATIVE DEFENSE: This answering party did not
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engage in any schemes or artifice to defraud or harass or defame or interfere
18 with economic relations and at all times acted without scienter or any intention
19 to defraud or harass or defame or interfere with economic relations.
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21 THIRTY-THIRD AFFIRMATIVE DEFENSE: Representations, if any, made by
22 this answering party were merely unactionable statements of opinion.
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THIRTY-FOURTH AFFIRMATIVE DEFENSE: Plaintiff, in filing this action,
25 has committed a fraud upon defendants herein.
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27 THIRTY-FIFTH AFFIRMATIVE DEFENSE: Plaintiff released the Claims upon
2B which plaintiffs Third Amended Complaint is based.
7I ANSWER OF CHARLES MCMACKIN TO THIRD AMENDED COMPLAINT BY
TIMOTHY BONNICI
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THIRTY-SIXTH AFFIRMATIVE DEFENSE: All of the alleged acts and conduct
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of defendants of which plaintiff complains were privileged under California
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Civil Code §47, California Government Code §12940 et s~., 42 U.S.C. § 2000e
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et seg. and the First Amendment of the United States Constitution.
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THIRTY-SEVENTH AFFIRMATIVE DEFENSE: Any and all acts, occurrences
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and damages alleged or referred to in the Third Amended Complaint were
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proximately caused by the bad faith of plaintiff in that plaintiff failed to deal
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fairly, honestly and reasonably with defendants; therefore, the comparative bad
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faith of plaintiff reduces plaintiffs right to recovery, if any, in the amount by
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which plaintiffs bad faith contributed to the damages alleged.
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THIRTY-EIGHTH AFFIRMATIVE DEFENSE: Plaintiff has failed to state a
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claim for punitive damages.
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THIRTY-NINTH AFFIRMATIVE DEFENSE: Plaintiffs claim for punitive
17 damages is unconstitutional under Article I, Section I, Section 10, Article IV,
18 Section 2, and the First, Fifth, Sixth, Eighth and Fourteenth Amendments to the
19 United States Constitution and Articles I and IV of the California Constitution.
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21 FORTIETH AFFIRMATIVE DEFENSE: Plaintiff claim for punitive damages
22 fails because this a nswering party acted in good faith.
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24 FORTY-FIRST AFFIRMATIVE DEFENSE: Plaintiffs Third Amended
25 Complaint fails to state facts or plead a ca use of action sufficient to justify any
26 recovery of attorneys' fees by plaintiff.
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8/ ANSWER OF CHARLES MCMACKIN TO THIRD AMENDED COMPLAINT BY
TIMOTHY BONNICI
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FORTY-SECOND AFFIRMATIVE DEFENSE: Plaintiff's claims are barred
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because any conduct or statements attributable to this answering party were
ratified by plaintiff.
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FORTY-THIRD AFFIRMATIVE DEFENSE: Plaintiff claims are barred because
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plaintiff consented to any conduct and/or statements that are attributable to
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defendants on which plaintiffs claims are based.
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FORTY-FOURTH: Any conduct, actions and/or omissions attributable to
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defendants were at all times justified, fair and reasonable under the
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circumstances.
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FORTY-FIFTH AFFIRMATIVE DEFENSE: Plaintiffs causes of action are
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barred in whole or in part by the equitable doctrine of unjust enrichment.
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FORTY-SIXTH AFFIRMATIVE DEFENSE: The alleged damages claimed by
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plaintiff could not reasonably be foreseen and were not foreseen by defendants
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to be reasonable, probably consequences of any alleged act or statement
18 attributable to it.
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20 REQUEST FOR COSTS AND ATTORNEYS' FEES
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22 Plaintiff knew or should have known that plaintiffs claims are without
23 any reasonable basis in law and equity and cannot be supported by a good
24 faith argument for extension, modification or reversal of existing law. As a
25 result of plaintiffs filing of this lawsuit, defendant has been required to obtain
26 the services of the undersigned attorneys and have and will continue to incur
27 substantial costs and attorneys' fees, expenses and costs incurred in defense of
28 this frivolous case. Defendant is therefore entitled to recover reasonable
9/ ANSWER OF CHARLES MCMACKIN TO THIRD AMENDED COMPLAINT BY
TIMOTHY BONNICI
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attorneys' fees, expenses and costs incurred by and through this action in
accordance with California Code of Civil Procedure Sections 128.5 and/or
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128.7.
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WHEREFORE, having fully answered, this answering party prays as
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follows:
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A. That plaintiff is not entitled to the relief prayed for from this
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answering party in the Third Amended Complaint, or any other relief;
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B. That the Third Amended Complaint should be dismissed with
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prejudice;
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c. That the Court should enter judgment for this answering party
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with costs, interest, reasonable attorneys' fees, expenses and such other relief
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as the Court deems just and proper.
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DATE: July 14, 2020
LAW OFFICESI6F R.
/ MIC AEL LIEBERMAN
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20 BY: -+++----------'~~ ·-····
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If.fMichael Lieberman
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22 Attorneys for Defendants
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10/ ANSWER OF CHARLES MCMACKIN TO THIRD AMENDED COMPLAINT BY
TIMOTHY BONNICI
1 PROOF OF SERVICE
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I, MONICA TAURIELLO, declare:
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4 I am over the age of eighteen years, not a party to this ac tion and am
5 employed in the City and County of San Francisco at 1398 Post Street, San
Francisco, California 94109.
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On july 14, 2020, I served the \-Vithin documen t(s) entitled:
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ANSWER OF CHARLES MCMACKIN TO THIRD AMENDED COMPLAINT BY
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TIMOTHY BONNICI
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11 by email and by placing in the United States Mail a true a nd correct copy
thereof in a sealed e nvelope, with postage thereon fully prepaid, addressed
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to:
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14 TARA MACOMBER
OPEN DOOR LEGAL
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60 OCEAN AVENUE
16 SAN FRANCISCO, CA 94112
tara@opendoorlegal,or.g
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I declare under penalty of perjury under the laws of the State of
19 California that the foregoing is true and correcy ;/
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DATED: july 14, 2020 ~ 1/'
23 I ..Jf-A~~LO
24 /"
(\.__.....
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11/ ANSWER OF CHARLES MCMACKIN TO THIRD AMENDED COMPLAINT BY
TIMOTHY BONNICI
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1 R. MICHAEL LIEBERMAN (SBN 120831) LAW OFFICES OF R. MICHAEL LIEBERMAN 2 1398 POST STREET SAN FRANCISCO, CALIFORNIA 94109 ELECTRONICALLY 3 TELEPHONE: (415) 929-3197 F I L E D Superior Court of California, 4 FAX: (415) 929-3476 County of San Francisco Email: mi~hael@s.park84.eom 5 07/14/2020 Clerk of the Court Attorneys for Defendants BY: EDWARD SANTOS 6 Deputy Clerk CARROLL HENRY and CHARLES MCMACKIN 7 8 SUPERIOR COURT- STATE OF CALIFORNIA 9 COUNTY OF SAN FRANCISCO - LIMITED JURISDICTION 10 TIMOTHY A. BONNICI, an individual NO. CGC 17-557688 11 Plaintiff, ANSWER OF CHARLES MCMACKIN 12 TO THIRD AMENDED COMPLAINT 13 vs. BY TIMOTHY BONNICI 14 CHARLES MCMACKIN, an individual, 0 URY TRIAL DEMANDED] 15 CARROLL HENRY, an individual, and DOES I TO 200, inclusive, 16 17 Defendants. 18 19 20 21 22 23 24 25 26 27 28 1/ ANSWER OF CHARLES MCMACKIN TO THIRD AMENDED COMPLAINT BY TIMOTHY BONNICI 1 Defendant CHARLES MCMACKIN ("defendant") answers the unverified Third Amended Complaint by plaintiff TIMOTHY BONNICI ("plaintiff") ("the 2 Third Amended Complaint") as follows: Defendant denies each and every 3 allegation contained in the Third Amended Complaint, each and every part 4 thereof, the whole thereof and each and every assumption, premise and 5 conclusion upon which the request for relief from this answering party is based 6 and additionally denies that plaintiff has been damaged in any sum whatsoever 7 by reason of any act or omission of this answering party. 8 9 AFFIRMATIVE DEFENSES 10 11 Without waiving the foregoing, and as further, separate and additional 12 defenses to the allegations contained in the Third Amended Complaint, this 13 answering party answers as follows: 14 15 16 FIRST AFFIRMATIVE DEFENSE: The Third Amended Complaint fails to 17 state a claim upon which relief can be granted. 18 SECOND AFFIRMATIVE DEFENSE: Plaintiff has failed to perform all 19 conditions, covenants and promises required by plaintiff to be performed in 20 accordance with the terms and conditions of the contract(s)/agreement(s) 21 referred to in the Third Amended Complaint. 22 23 THIRD AFFIRMATIVE DEFENSE: This answering party is excused from its 24 alleged obligations and duties by virtue of the material breach of the 25 obligations and duties of plaintiff to this answering party. 26 27 FOURTH AFFIRMATIVE DEFENSE: Further performance of the 28 agreement(s)/contract(s) by this answering party is excused by virtue of 21 ANSWER OF CHARLES MCMACKIN TO THIRD AMENDED COMPLAINT BY TIMOTHY BONNICI 1 plaintiff's prior breach or repudiation of the contract(s)/agreement(s) referred 2 to in the Third Amended Complaint, plaintiff's failure to perform plaintiff's obligations pursuant to those contract(s)/agreement(s), and/or plaintiff's 3 failure to provide adequate assurances that plaintiff would perform in 4 accordance with the terms of those contract(s)/agreement(s). 5 6 FIFTH AFFIRMATIVE DEFENSE: This answering party's want of 7 performance or delay, if any, was excused by the terms of the 8 contract(s)/agreement(s) or by the law. 9 10 SIXTH AFFIRMATIVE DEFENSE: This answering party's want of 11 performance or delay, if any, was the result of failure of conditions precedent. 12 13 SEVENTH AFFIRMATIVE DEFENSE: Performance of the 14 agreement(s)/contract(s) by this answering party is excused by virtue of 15 plaintiff's breach of warranties in connection with their performance 16 obligations to deal fairly and in good faith with this answering party. Any 17 breach of this answering party was caused by plaintiff's bad faith conduct. 18 19 EIGHTH AFFIRMATIVE DEFENSE: Performance of the 20 agreement(s)/contract(s) by this answering party is excused by virtue of 21 plaintiff's breach of the implied and express covenants. 22 23 NINTH AFFIRMATIVE DEFENSE: Plaintiff has not been injured in any way 24 or in any manner as a result of any act or omission of this answering party. 25 26 TENTH AFFIRMATIVE DEFENSE: Plaintiff's claims are barred by the 27 applicable statute of limitations, including, but not limited to, Code of Civil 28 3/ ANSWER OF CHARLES MCMACKIN TO THIRD AMENDED COMPLAINT BY TIMOTHY BONNICI 1 Procedure Sections 337 et seq., 338 et seq. 339 et. seq. and 340 et seq. and Government Code Sections 12940, 12960 and 12965. 2 3 ELEVENTH AFFIRMATIVE DEFENSE: All of the alleged acts or omissions of 4 this answering party were lawful and/or privileged and/or justified in every 5 respect under applicable state and federal laws. 6 7 TWELFTH AFFIRMATIVE DEFENSE: Plaintiff's claims are barred in whole 8 or in part by the equitable doctrines of waiver, acquiescence, laches, 9 ratification, participation, estoppel and/or unclean hands. 10 11 THIRTEENTH AFFIRMATIVE DEFENSE: This answering party's want of 12 performance or delay, if any, was the result of impossibility or frustration. 13 14 FOURTEENTH AFFIRMATIVE DEFENSE: Plaintiff has failed to take 15 reasonable or adequate steps to mitigate, alter, reduce or otherwise diminish 16 the damages, if any, suffered by plaintiff. By reason of the foregoing, plaintiff's 17 claims for relief are barred and plaintiff is barred from any recovery for such 18 damage, if any. 19 20 FIFTEENTH AFFIRMATIVE DEFENSE: This answering party's obligations to 21 plaintiff pursuant to the contract(s)/agreement(s), if any do exist, were excused 22 by plaintiff's willful failure to perform their part of the agreement, in 23 accordance with the applicable provisions of the law. 24 25 SIXTEENTH AFFIRMATIVE DEFENSE: This answering party's obligations to 26 plaintiff, if any ever existed, were exonerated and discharged. 27 28 4/ ANSWER OF CHARLES MCMACKIN TO THIRD AMENDED COMPLAINT BY TIMOTHY BONNICI 1 SEVENTEENTH AFFIRMATIVE DEFENSE: The Court lacks subject matter jurisdiction over plaintiff's claims, including the action as a whole and 2 plaintiff's pendant claims. 3 EIGHTEENTH AFFIRMATIVE DEFENSE: Plaintiff acted with full knowledge 5 of all the facts and circumstances surrounding plaintiff's alleged injury and 6 acknowledged and voluntarily assumed the risk of the matters causing their 7 alleged injury and that said matters of which plaintiff assumed the risk 8 proximately contributed to and proximately caused their alleged injury, if any, 9 and as such, said assumption of risk bars recovery for the damages alleged in 10 the Third Amended Complaint. 11 12 NINETEENTH AFFIRMATIVE DEFENSE: Plaintiff is negligent in or about the 13 matters alleged in their claims, in that plaintiff's own negligence proximately 14 caused and contributed to the damages and injuries alleged by them, if any 15 such damage or injury occurred at all, and plaintiffs recovery, if any, in this 16 action should be barred or reduced to the extent that any damage or injury was 17 caused or contributed to by their negligence according to the doctrine of 18 comparative negligence. 19 2o TWENTIETH AFFIRMATIVE DEFENSE: The sole proximate and/or partial 21 proximate cause of the damages claimed was due to the negligence and/or 22 wrongful acts of other persons or parties, and this answering party is not 23 responsible for the acts of said other persons and parties. 24 25 TWENTY-FIRST AFFIRMATNE DEFENSE: The incidents described in the 26 Third Amended Complaint and any damages allegedly sustained by plaintiff 27 were proximately caused in whole or in part by plaintiff in that plaintiff failed 28 to exercise ordinary reasonable case; wherefore, any recovery obtained by 5/ ANSWER OF CHARLES MCMACKIN TO THIRD AMENDED COMPLAINT BY TIMOTHY BONNICI 1 plaintiff should be reduced according to the doctrine of comparative negligence. 2 3 TWENTY-SECOND AFFIRMATIVE DEFENSE: Plaintiff failed and neglected to 4 use reasonable care to protect plaintiff and to minimize plaintiff's losses and 5 damages complained of, if any there were. 6 7 TWENTY-THIRD AFFIRMATIVE DEFENSE: Plaintiff's claims for relief are 8 barred by the doctrines of res judicata and collateral estoppel. 9 10 TWENTY-FOURTH AFFIRMATIVE DEFENSE: The injuries and damages 11 complained of by plaintiff, if any there were, were either wholly or in part 12 directly and proximately caused by the negligence or fault of persons or 13 entities other than this answering party, and said negligence or fault is either 14 imputed to plaintiff by reason of the relationship between plaintiff and said 15 persons or entities, or comparatively reduces the proportion of negligence or 16 fault and corresponding liability of this answering party. 17 18 TWENTY-FIFTH AFFIRMATIVE DEFENSE: Plaintiff's Third Amended 19 Complaint and each purported cause of action stated therein, are barred as a 20 result of plaintiff's failure to exhaust plaintiff's remedies against others before 21 seeking recovery from this answering party. 22 23 TWENTY-SIXTH AFFIRMATIVE DEFENSE: Plaintiff is barred from asserting 24 any claim or demand against this answering party because plaintiff is not in 25 privity with this answering party. 26 27 28 6/ ANSWER OF CHARLES MCMACKIN TO THIRD AMENDED COMPLAINT BY TIMOTHY BONNICI 1 TWENTY-SEVENTH AFFIRMATIVE DEFENSE: If the allegations of the Third Amended Complaint are true, plaintiff and this answering party are in pari 2 delicto. 3 4 TWENTY-EIGHTH AFFIRMATIVE DEFENSE: Plaintiff lacks standing to assert 5 the claims for relief. 6 7 TWENTY-NINTH AFFIRMATIVE DEFENSE: There has been a full accord and 8 satisfaction. 9 10 THIRTIETH AFFIRMATIVE DEFENSE: If this answering party is liable to 11 plaintiff, this answering party is liable to plaintiff jointly with other parties. 12 13 THIRTY-FIRST AFFIRMATIVE DEFENSE: The liability of this answering 14 party, if any, is limited by contract. l5 16 THIRTY-SECOND AFFIRMATIVE DEFENSE: This answering party did not 17 engage in any schemes or artifice to defraud or harass or defame or interfere 18 with economic relations and at all times acted without scienter or any intention 19 to defraud or harass or defame or interfere with economic relations. 20 21 THIRTY-THIRD AFFIRMATIVE DEFENSE: Representations, if any, made by 22 this answering party were merely unactionable statements of opinion. 23 24 THIRTY-FOURTH AFFIRMATIVE DEFENSE: Plaintiff, in filing this action, 25 has committed a fraud upon defendants herein. 26 27 THIRTY-FIFTH AFFIRMATIVE DEFENSE: Plaintiff released the Claims upon 2B which plaintiffs Third Amended Complaint is based. 7I ANSWER OF CHARLES MCMACKIN TO THIRD AMENDED COMPLAINT BY TIMOTHY BONNICI 1 THIRTY-SIXTH AFFIRMATIVE DEFENSE: All of the alleged acts and conduct 2 of defendants of which plaintiff complains were privileged under California 3 Civil Code §47, California Government Code §12940 et s~., 42 U.S.C. § 2000e 4 et seg. and the First Amendment of the United States Constitution. 5 6 THIRTY-SEVENTH AFFIRMATIVE DEFENSE: Any and all acts, occurrences 7 and damages alleged or referred to in the Third Amended Complaint were B proximately caused by the bad faith of plaintiff in that plaintiff failed to deal 9 fairly, honestly and reasonably with defendants; therefore, the comparative bad 10 faith of plaintiff reduces plaintiffs right to recovery, if any, in the amount by ll which plaintiffs bad faith contributed to the damages alleged. 12 13 THIRTY-EIGHTH AFFIRMATIVE DEFENSE: Plaintiff has failed to state a 14 claim for punitive damages. 15 16 THIRTY-NINTH AFFIRMATIVE DEFENSE: Plaintiffs claim for punitive 17 damages is unconstitutional under Article I, Section I, Section 10, Article IV, 18 Section 2, and the First, Fifth, Sixth, Eighth and Fourteenth Amendments to the 19 United States Constitution and Articles I and IV of the California Constitution. 20 21 FORTIETH AFFIRMATIVE DEFENSE: Plaintiff claim for punitive damages 22 fails because this a nswering party acted in good faith. 23 24 FORTY-FIRST AFFIRMATIVE DEFENSE: Plaintiffs Third Amended 25 Complaint fails to state facts or plead a ca use of action sufficient to justify any 26 recovery of attorneys' fees by plaintiff. 27 28 8/ ANSWER OF CHARLES MCMACKIN TO THIRD AMENDED COMPLAINT BY TIMOTHY BONNICI 1 FORTY-SECOND AFFIRMATIVE DEFENSE: Plaintiff's claims are barred 2 because any conduct or statements attributable to this answering party were ratified by plaintiff. 3 4 FORTY-THIRD AFFIRMATIVE DEFENSE: Plaintiff claims are barred because 5 plaintiff consented to any conduct and/or statements that are attributable to 6 defendants on which plaintiffs claims are based. 7 8 FORTY-FOURTH: Any conduct, actions and/or omissions attributable to 9 defendants were at all times justified, fair and reasonable under the 10 circumstances. 11 12 FORTY-FIFTH AFFIRMATIVE DEFENSE: Plaintiffs causes of action are 13 barred in whole or in part by the equitable doctrine of unjust enrichment. 14 15 FORTY-SIXTH AFFIRMATIVE DEFENSE: The alleged damages claimed by 16 plaintiff could not reasonably be foreseen and were not foreseen by defendants 17 to be reasonable, probably consequences of any alleged act or statement 18 attributable to it. 19 20 REQUEST FOR COSTS AND ATTORNEYS' FEES 21 22 Plaintiff knew or should have known that plaintiffs claims are without 23 any reasonable basis in law and equity and cannot be supported by a good 24 faith argument for extension, modification or reversal of existing law. As a 25 result of plaintiffs filing of this lawsuit, defendant has been required to obtain 26 the services of the undersigned attorneys and have and will continue to incur 27 substantial costs and attorneys' fees, expenses and costs incurred in defense of 28 this frivolous case. Defendant is therefore entitled to recover reasonable 9/ ANSWER OF CHARLES MCMACKIN TO THIRD AMENDED COMPLAINT BY TIMOTHY BONNICI 1 attorneys' fees, expenses and costs incurred by and through this action in accordance with California Code of Civil Procedure Sections 128.5 and/or 2 128.7. 3 4 WHEREFORE, having fully answered, this answering party prays as 5 follows: 6 7 A. That plaintiff is not entitled to the relief prayed for from this 8 answering party in the Third Amended Complaint, or any other relief; 9 10 B. That the Third Amended Complaint should be dismissed with 11 prejudice; 12 13 c. That the Court should enter judgment for this answering party 14 with costs, interest, reasonable attorneys' fees, expenses and such other relief 15 as the Court deems just and proper. 16 17 18 DATE: July 14, 2020 LAW OFFICESI6F R. / MIC AEL LIEBERMAN I 19 J I 20 BY: -+++----------'~~ ·-···· 21 If.fMichael Lieberman I 22 Attorneys for Defendants 23 24 25 26 27 28 10/ ANSWER OF CHARLES MCMACKIN TO THIRD AMENDED COMPLAINT BY TIMOTHY BONNICI 1 PROOF OF SERVICE 2 I, MONICA TAURIELLO, declare: 3 4 I am over the age of eighteen years, not a party to this ac tion and am 5 employed in the City and County of San Francisco at 1398 Post Street, San Francisco, California 94109. 6 7 On july 14, 2020, I served the \-Vithin documen t(s) entitled: 8 ANSWER OF CHARLES MCMACKIN TO THIRD AMENDED COMPLAINT BY 9 TIMOTHY BONNICI 10 11 by email and by placing in the United States Mail a true a nd correct copy thereof in a sealed e nvelope, with postage thereon fully prepaid, addressed 12 to: 13 14 TARA MACOMBER OPEN DOOR LEGAL 15 60 OCEAN AVENUE 16 SAN FRANCISCO, CA 94112 tara@opendoorlegal,or.g 17 18 I declare under penalty of perjury under the laws of the State of 19 California that the foregoing is true and correcy ;/ 20 21 22 DATED: july 14, 2020 ~ 1/' 23 I ..Jf-A~~LO 24 /" (\.__..... 25 26 27 28 11/ ANSWER OF CHARLES MCMACKIN TO THIRD AMENDED COMPLAINT BY TIMOTHY BONNICI