Preview
E-FILED
1 P. GERHARDT ZACHER (SBN: 043184) 9/20/2019 8:31 AM
gzacher@grsm.com
Superior Court of California
THOMAS J. TOBIN (SBN: 187062)
ttobin@grsm.com County of Fresno
KARA PERSSON (SBN: 210582) By: L Peterson, Deputy
kpersson@grsm.com
Gordon Rees Scully Mansukhani, LLP
101 W. Broadway Suite 2000
San Diego, CA 92101
Telephone: (619) 230-7743
Facsimile: (619) 696-7124
Attorneys for Defendant
SYNGENTA SEEDS, LLC
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 FOR THE COUNTY OF FRESNO
11 VIRGINIA SARABIAN dba SARABIAN Case No. 18CECG02994
FARMS,
gs 12 Plaintiffs, SYNGENTA SEEDS, LLC’S
2a.
2s ANSWER TO PLAINTIFF’S
SBEx
aa 13 UNVERIFIED FOURTH AMENDED
gan COMPLAINT
> =
sU 14
SYNGENTA SEEDS, LLC, a limited DEMAND FOR JURY TRIAL
BS
AES 15 liabilit com y; TS&L SEED
nm AO 0 , and Does 1 through 50, Judge: Hon. Rosemary McGuire
a 16 inclusive, Dept.: 403
ex
gr Defendants.
17
18
19 Defendant SYNGENTA SEEDS, LLC (“Defendant”), for itself and no others, answers
20 the unverified Fourth Amended Complaint (the “Complaint”) of Plaintiff, and for each and every
21 cause of action allegedly set forth therein, denies, and alleges as follows:
22 1 Pursuant to California Code of Civil Procedure § 431.30, Defendant denies each
23 and every allegation of said Complaint and denies that Plaintiff has been damaged in any sum, or
24 at all, by reason of any act or omission on the part of Defendant.
25 2 Further answering said Complaint, and each and every cause of action allegedly
26 set forth therein, Defendant denies that it is liable in any respect whatsoever, as alleged therein,
27 or at all.
///
1143029/47108766.1
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SYNGENTA SEEDS, LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED FOURTH AMENDED COMPLAINT;
DEMAND FOR JURY TRIAL
AFFIRMATIVE DEFENSES
This answering Defendant alleges the following separate affirmative defenses.
FIRST AFFIRMATIVE DEFENSE
As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges
that the Complaint, and each purported cause of action therein, fails to state facts sufficientto
constitute a cause of action.
SECOND AFFIRMATIVE DEFENSE
As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges
that, by its acts and conduct, Plaintiff has waived the claims asserted against Defendant.
10 THIRD AFFIRMATIVE DEFENSE
11 As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges
2 2 that by virtueof its own inequitable conduct, Plaintiff is barred from seeking
the relief requested,
2s
gg 13 in the Complaint
by the doctrines oflegal and equitable estoppel.
0 14 FOURTH AFFIRMATIVE DEFENSE
A115 As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges
25 16 that the Complaint, and each purported cause of action therein, is barred by the applicable
17 Stabute(s) of Limitations, including, but not limited to, the provisions of Califomia Code of Civil
18 Procedure sections 337 et seq., 338 et seq., 339 et seq., 343 et seq., Civil Code section 1791.1,
19 Commercial Code section 2725, as well as relevant provisions of the Food & Agricultural Code
20 and the Califomia Code of Regulations.
21 FIFTH AFFIRMATIVE DEFENSE
As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges
that Plaintiff has failed to exhaust required administrative remedies as proscribed by the Food &
24 Agricultural Code and the Califomia Code of Regulations and, as a result of that failure, some or|
25 all of Plaintiff's causesof action
are barred.
26 SIXTH AFFIRMATIVE DEFENSE
27 As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges
that Defendant is not legally responsible in any fashion for the damages claimed by Plaintiff;
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SYNGENTA SEEDS, LLC’S ANSWER
TO PLAINTIFF’ S UNVERIFIED FOURTH AMENDED COMPLAINT;
DEMAND FORJURY TRIAL
however, if Defendant was to be found legally responsible, then Defendant alleges that it was not
the sole legal cause of Plaintiff’ s alleged damages, that other parties, persons and/or entities were
proximately liable for causing Plaintiff's alleged damages, and that the damages awarded to
Plaintiff, if any, should be apportioned according to the respective fault and legal responsibility
of all parties, persons
and entities, or their agents, servants and employees who contributedto
and/or caused the subject incident, according to proof presented at the time of trial.
SEVENTH AFFIRMATIVE DEFENSE
As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges
that the allegations assert obligations that are or were non-existent, not contracted for, and/or
10 outside any agreement or relationship of the parties.
11 EIGHTH AFFIRMATIVE DEFENSE
2 2 As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges
2s
gg 13 that, if there are any defects or inadequacies in the conduct of Defendant, which Defendant
0 14 denies, Plaintiff failed to timely notify Defendant of such, and failed to give Defendant timely
A115 opportunity to cure, or to mitigate the damage, if any, resulting therefrom. Such conduct by
25 16 Plaintiff bars it from any relief from Defendant herein.
17 NINTH AFFIRMATIVE DEFENSE
18 As and for a separate, distinct affirmative defense to the Complaint, Defendant asserts
19 that any purported action on the part of Defendant in relation to the events described in the
20 Complaint was justified and reasonable under the circumstances and in no way constitutes any
21 actionable conduct.
TENTH AFFIRMATIVE DEFENSE
As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges
24 that the Complaint fails to state facts sufficient to recover attomey’s fees against Defendant;
25 provided, however, if and to the extent a basis for a claim of attomey’s fees exists, Defendant
26 alleges it is entitled to recover from Plaintiff all of its attomey’ s fees incurred in this action.
27 //1
//1
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SYNGENTA SEEDS, LLC’S ANSWER
TO PLAINTIFF’ S UNVERIFIED FOURTH AMENDED COMPLAINT;
DEMAND FORJURY TRIAL
ELEVENTH AFFIRMATIVE DEFENSE
As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges
that Plaintiff's claims, and each of them, are barred and/or diminished as a result of failure of|
Plaintiff to exercise reasonable care in mitigating its claimed damages.
TWELFTH AFFIRMATIVE DEFENSE
As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges
that there is no express, oral, or implied agreement, covenant, or contract to support Plaintiff’s
Claims based thereon, such that these claims are insufficient and fail as a matter
of law.
THIRTEENTH AFFIRMATIVE DEFENSE
10 As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges
11 that, to the extent an actionable agreement, covenant, or contract exists or is established, Plaintiff
2 2 is barred from recovery herein by virtue of the fact that others failed to perform certain
2s
gg 13 conditions
of the agreement, covenant or contract in issue which were on Plaintiff's part to be
0 14 performed, whereas Defendant reasonably performed all of the duties it was required to perform,
A115 such that Defendant is not liable for breachof any agreement, covenant, or contract.
25 16 FOURTEENTH AFFIRMATIVE DEFENSE
17 As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges
18 that, to the extent an actionable agreement, covenant, or contract exists or is established, Plaintiff
19 is barred from recovery herein by virtue of the fact that certain conditions precedent to the
20 maturation of contractual duties allegedly owed by others, including Defendant, did not occur,
21 relieving Defendant from the duty to perform.
FIFTEENTH AFFIRMATIVE DEFENSE
As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges
24 that, to the extent an actionable agreement, covenant, or contract exists or is established, Plaintiff
25 breached its contract with Defendant in that it did not comply with all of the conditions,
26 covenants, or provisions of said contract, agreement or covenant. Said covenant, condition
27 and/or provision acted as a condition precedent to any obligation of Defendant. Said actions by
Plaintiff work as a complete bar to any recovery against this answering Defendant.
-4-
SYNGENTA SEEDS, LLC’S ANSWER
TO PLAINTIFF’ S UNVERIFIED FOURTH AMENDED COMPLAINT;
DEMAND FORJURY TRIAL
SIXTEENTH AFFIRMATIVE DEFENSE
As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges
that, to the extent an actionable agreement, covenant, or contract exists or is established,
Defendant alleges that any duty or performance of Defendant is or was excused
by reason of
failure of consideration, waiver, breach of condition precedent, failure of condition precedent,
breach by Plaintiff, impossibility of performance, prevention by Plaintiff, frustration of purpose,
anticipatory breach, and/or acceptance by Plaintiff.
SEVENTEENTH AFFIRMATIVE DEFENSE
As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges
10 that, to the extent an actionable agreement, covenant, or contract exists or is established,
11 Defendant performed each and every condition of the contract, agreement, or covenant between
2 2 the parties. Said actions on the part of Defendant work as a complete bar to any recovery against
2s
gg 13 this answering Defendant.
0 14 EIGHTEENTH AFFIRMATIVE DEFENSE
A115 As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges
25 16 that the Complaint, and each purported cause of action therein, is barred by the Statute of Frauds.
17 NINETEENTH AFFIRMATIVE DEFENSE
18 As and for a separate, distinct and affirmative defense to the Complaint, Defendant
19 alleges that if Plaintiff sustained damages as a result of the incident as alleged, such damages, if
20 any, were caused and contributed to by the negligence or other wrongful conduct
of Plaintiff and)
21 such negligence or other wrongful conduct constitutes a barto any recovery or, in the altemative,
any recovery obtained by Plaintiff should be reduced to the extent such negligence or other
wrongful conduct was a cause of claimed damages.
24 TWENTIETH AFFIRMATIVE DEFENSE
25 As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges
26 that, at all times herein-mentioned, Plaintiff, with full knowledge
of all risks attendant thereto,
27 voluntarily
and knowingly assumed all risks attendant
upon said conduct and all purported
//1
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SYNGENTA SEEDS, LLC’S ANSWER
TO PLAINTIFF’ S UNVERIFIED FOURTH AMENDED COMPLAINT;
DEMAND FORJURY TRIAL
damages alleged to be related thereto and proximately and substantially caused thereby, barring
recovery by Plaintiff against this answering Defendant.
TWENTY-FIRST AFFIRMATIVE DEFENSE
As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges
that, if Plaintiff sustained any damages as a result of the incident as alleged, that such damages, if
any, were caused and contributed to by the negligence or other wrongful conduct of those
persons whose conduct on their part is imputed to Plaintiff and constitutes a bar to any recovery
by said Plaintiff, or in the altemative, the recovery, if any, obtained by said Plaintiff, should be
reduced in proportion to the extent that the negligence of said other persons or parties
was a
10 cause of the damages,
if any.
11 TTWENTY-SECOND AFFIRMATIVE DEFENSE
2 2 As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges
2s
gg 13 that, if there is any negligence
or liability of any of the parties named herein, it is the sole and
0 14 exclusive liability of other entities or individuals, and not of Defendant, such that Defendant
A115 bears no liability for Plaintiff’ s alleged damages.
25 16 TWENTY-THIRD AFFIRMATIVE DEFENSE
17 As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges
18 that the Complaint and each cause of action therein is barred due to the misuse, abuse and/or
19 alteration of the product(s) for which Defendant is alleged to be responsible.
20 TWENTY-FOURTH AFFIRMATIVE DEFENSE
21 As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges
that to the extent, if any, that it supplied any product which is alleged to have caused damages,
Plaintiff and other entities or individuals by their manner and method of use misused or made
24 unintended use of those products and failed to act in accordance with the labels and directions
25 provided by Defendant or others and Plaintiff is therefore barred from recovery of damages from
26 Defendant.
27 //1
//1
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SYNGENTA SEEDS, LLC’S ANSWER
TO PLAINTIFF’ S UNVERIFIED FOURTH AMENDED COMPLAINT;
DEMAND FORJURY TRIAL
TWENTY-FIFTH AFFIRMATIVE DEFENSE
As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges
that the injuries and damages of which Plaintiff complains and for which Plaintiff seeks
recovery, if any, were the result of causes independent of any purported acts, omissions or
breaches of duty on the part of this answering Defendant, which causes operated as intervening
and superseding causes, thereby cutting off any liability on the part of Defendant.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges
that Plaintiff and others failed to preserve the physical condition and integrity of evidence
10 essential to the adequate and proper defense of Defendant, including
but not limited to the
11 products identified in the Complaint and the packaging and documentation accompanying those
2 2 products, that such spoliation of evidence has damaged Defendant and that such conduct on the
2s
gg 13 part of Plaintiff and others precludes recovery of damages from Defendant.
0 14 TWENTY-SEVENTH AFFIRMATIVE DEFENSE
A115 As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges
25 16 that all products for which Defendant is alleged to be responsible were and are designed,
17 manufactured, distributed and supplied in accordance with the stated scientific and technical
18 knowledge available to the manufacturer or supplier at the time the products were placed on the
19 market and in accordance with the customary designs, methods, standards
and techniques of
20 designing, manufacturing, inspecting and testing of other manufacturers or suppliers of similar
21 products.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges
24 that Plaintiff is precluded from recovering any consequential, special, indirect or incidental
25 damages, if any, from Defendant by the disclaimer and/or limitation of liability language on the
26 label(s) of the product(s) for which Defendant is alleged to be responsible.
27 //1
//1
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SYNGENTA SEEDS, LLC’S ANSWER
TO PLAINTIFF’ S UNVERIFIED FOURTH AMENDED COMPLAINT;
DEMAND FORJURY TRIAL
TWENTY-NINTH AFFIRMATIVE DEFENSE
As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges
that Plaintiff is precluded from recovering any damages other than the cost of the seed at issue
from Defendant by virtue of the disclaimer and/or limitation of liability language on the label(s),
covenant(s), provision(s), and/or agreement(s) relatingto the product(s) for which Defendant is
alleged to be responsible.
THIRTIETH AFFIRMATIVE DEFENSE
As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges
that the complaint and each cause of action therein fail to state facts sufficientto constitutea
10 cause of action against Defendant.
11 THIRTY-FIRST AFFIRMATIVE DEFENSE
2 2 As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges
2s
gg 13 that it complied with all governmental standards and regulations in the manufacture, sale,
0 14 registration, and labeling of the product.
A115 THIRTY-SECOND AFFIRMATIVE DEFENSE
25 16 As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges
17 that, if Plaintiff sustained damages or incurred the expenses alleged, the same was caused,in
18 whole orin part, by an operation of nature or act of God and are not the result of Defendant’ s
19 conduct, relieving Defendant of liability for the alleged damages or expenses.
20 THIRTY-THIRD AFFIRMATIVE DEFENSE
21 As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges
that the products referred to in the Complaint
were misused, abused, or altered
after leaving
Defendant’ s possession, which misuse, abuse, or alteration proximately caused any loss, injury,
24 or damages that Plaintiff incurred, such that Defendant is not liable for Plaintiff’ s alleged
25 damages.
26 THIRTY-FOURTH AFFIRMATIVE DEFENSE
27 As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges
that it did not have a duty to wam Plaintiff of the risks, if any, attendantto the use of its
-8-
SYNGENTA SEEDS, LLC’S ANSWER
TO PLAINTIFF’ S UNVERIFIED FOURTH AMENDED COMPLAINT;
DEMAND FORJURY TRIAL
product(s), because Defendant is entitled to rely upon knowledgeable, leamed and sophisticated
market intermediaries, suppliers, and used applicators with respect to necessary wamings, if any.
THIRTY-FIFTH AFFIRMATIVE DEFENSE
As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges
that Plaintiff is precluded from recovering any consequential, special, indirect or incidental
damages, if any, from this answering Defendant by the disclaimer and/or limitation of liability
language on the label(s) of the product(s) for which this answering Defendant is alleged to be
responsible.
THIRTY-SIXTH AFFIRMATIVE DEFENSE
10 As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges
11 that at no time mentioned herein did Plaintiff, its agents, servants, representatives, or
2 2 predecessors ininterest, rely on any promises, warranties, expressed or implied, or
2s
gg 13 representations
which may have been made by this answering Defendant in connection with the
0 14 services which it allegedly performed under the terms of the alleged contract or otherwise.
A115 THIRTY-SEVENTH AFFIRMATIVE DEFENSE
25 16 As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges
17 that by virtue of Plaintiff’s unlawful, immoral, careless, negligent and other wrongful conduct,
18 Plaintiff shouldbe barred from recovering against this answering Defendant
by the equitable
19 doctrine
of unclean hands.
20 THIRTY-EIGHTH AFFIRMATIVE DEFENSE
21 As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges
that the conditions and defects set forth in the Complaint had no resultant damages related
thereto, thereby barring either partially ortotally Plaintiff's claimed damages.
24 THIRTY-NINTH AFFIRMATIVE DEFENSE
25 As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges
26 that the damages
and injuries of which Plaintiff complains are not the direct and proximate result
27 of any act or omission on the part of this answering Defendant.
//1
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SYNGENTA SEEDS, LLC’S ANSWER
TO PLAINTIFF’ S UNVERIFIED FOURTH AMENDED COMPLAINT;
DEMAND FORJURY TRIAL
FORTIETH AFFIRMATIVE DEFENSE
As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges
that the damages and injuries of which Plaintiff complains are economic losses for which.
Defendant does not and cannot be held liable pursuant to any tort cause of action.
FORTY-FIRST AFFIRMATIVE DEFENSE
As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges
that Defendant presently has insufficient knowledge or information upon which to forma belief
as to whetherit may have additional, as yet unstated, affirmative defenses available. Defendant
therefore reserves the right to assert additional affirmative defenses in the event that discovery
10 indicates that they are appropriate, at any time prior to the time of trial.
11 DEMAND FOR JURY TRIAL
2 2 Defendant
hereby demands atrial by jury in the above-entitled
action.
2s
gg 13 WHEREFORE, this answering defendant prays for judgment as follows:
0 14 1. That the Complaint be dismissed with prejudice and that Plaintiff take nothing by
A115 virtue
of the Complaint;
25 16 2. Foran award to Defendant
of its attomeys’ fees and costs of suit incurred herein; and
17 3. All other relief as this court deems just and proper.
18 Dated: September
20, 2019 GORDON REES SCULLY MANSUKHANI, LLP
19
By: Ko: [MALT
20 P. Gerhardt Zacher
ThomasJ. Tobin
21 Kara Persson
Attol for Defendant
SYNGENTA SEEDS, LLC
24
25
26
27
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SYNGENTA SEEDS, LLC’S ANSWER
TO PLAINTIFF’ S UNVERIFIED FOURTH AMENDED COMPLAINT;
DEMAND FORJURY TRIAL
Virginia Sarabian dba Sarabian Farms v. Syngenta Seeds, LLC, et al.
Fresno County Superior Court Case No. 18CECG02994
PROOF OF SERVICE
I am a resident of the State of California, over the age of eighteen years, and not a party
to the within action. My business address is: Gordon Rees Scully Mansukhani, LLP, 101 W.
Broadway, Suite 2000, San Diego, CA 92101. My email address is wdoolittle@grsm.com. On
September 20, 2019, I served the within documents:
SYNGENTA SEEDS, LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED
FOURTH AMENDED COMPLAINT; DEMAND FOR JURY TRIAL
MAIL: By placing the document(s) listed above in a sealed envelope with postage
thereon fully prepaid, at a station designated for collection and processing of
envelopes and packages for delivery via U.S. mail as part of the ordinary business
practices of GORDON REES SCULLY MANSUKHANI, LLP described below.
10 oO OVERNIGHT: By placing a true copy thereof enclosed in a sealed envelope, at a
station designated for collection and processing of envelopes and packages for
11 overnight delivery by FedEx (or other overnight service) as part of the ordinary
business practices of GORDON REES SCULLY MANSUKHANI, LLP described
gs 12 below, addressed as follows:
2a.
2s
SBEx
aa 13
gan
Theodore W. Hoppe Andrew MacKay
> =
sU 14 Adam Benkoski, DONAHUE FITZGERALD LLP
BS HOPPE LAW GROUP 1999 Harrison St., 25'" Floor
AES 15 A PROFESSIONAL LAW OFFICE Oakland, CA 94612
nm AO
680 W. Shaw Avenue, Suite 207 Telephone: (510) 451-3300
a 16 Fresno, California 93704 Facsimile: (510) 451-1527
ex
gr Telephone (559) 241-7070 Email: amackay@donahue.com
17 Facsimile (559) 241-7212
Attorneys for Defendant TIMOTHY
18 Attorneys for Plaintiff STEWART & LEOKS SEED COMPANY
dba T&SL SEED COMPANY AND TSL
19
Iam readily familiar with the firm’s practice of collection and processing correspondence
20
for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same
21
day with postage thereon fully prepaid in the ordinary course of business. I am aware that on
22
motion of the party served, service is presumed invalid if postal cancellation date or postage
23
meter date is more than one day after the date of deposit for mailing in affidavit.
24
I declare under penalty of perjury under the laws of the State of California that the above
25
is true and correct. Executed on September 20, 2019, at San Diego, California.
26
27 Deed, Dslus®
28 Woody Doolittle
-ll-
PROOF OF SERVICE
Preview
E-FILED 1 P. GERHARDT ZACHER (SBN: 043184) 9/20/2019 8:31 AM gzacher@grsm.com Superior Court of California THOMAS J. TOBIN (SBN: 187062) ttobin@grsm.com County of Fresno KARA PERSSON (SBN: 210582) By: L Peterson, Deputy kpersson@grsm.com Gordon Rees Scully Mansukhani, LLP 101 W. Broadway Suite 2000 San Diego, CA 92101 Telephone: (619) 230-7743 Facsimile: (619) 696-7124 Attorneys for Defendant SYNGENTA SEEDS, LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 FOR THE COUNTY OF FRESNO 11 VIRGINIA SARABIAN dba SARABIAN Case No. 18CECG02994 FARMS, gs 12 Plaintiffs, SYNGENTA SEEDS, LLC’S 2a. 2s ANSWER TO PLAINTIFF’S SBEx aa 13 UNVERIFIED FOURTH AMENDED gan COMPLAINT > = sU 14 SYNGENTA SEEDS, LLC, a limited DEMAND FOR JURY TRIAL BS AES 15 liabilit com y; TS&L SEED nm AO 0 , and Does 1 through 50, Judge: Hon. Rosemary McGuire a 16 inclusive, Dept.: 403 ex gr Defendants. 17 18 19 Defendant SYNGENTA SEEDS, LLC (“Defendant”), for itself and no others, answers 20 the unverified Fourth Amended Complaint (the “Complaint”) of Plaintiff, and for each and every 21 cause of action allegedly set forth therein, denies, and alleges as follows: 22 1 Pursuant to California Code of Civil Procedure § 431.30, Defendant denies each 23 and every allegation of said Complaint and denies that Plaintiff has been damaged in any sum, or 24 at all, by reason of any act or omission on the part of Defendant. 25 2 Further answering said Complaint, and each and every cause of action allegedly 26 set forth therein, Defendant denies that it is liable in any respect whatsoever, as alleged therein, 27 or at all. /// 1143029/47108766.1 -1- SYNGENTA SEEDS, LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED FOURTH AMENDED COMPLAINT; DEMAND FOR JURY TRIAL AFFIRMATIVE DEFENSES This answering Defendant alleges the following separate affirmative defenses. FIRST AFFIRMATIVE DEFENSE As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges that the Complaint, and each purported cause of action therein, fails to state facts sufficientto constitute a cause of action. SECOND AFFIRMATIVE DEFENSE As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges that, by its acts and conduct, Plaintiff has waived the claims asserted against Defendant. 10 THIRD AFFIRMATIVE DEFENSE 11 As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges 2 2 that by virtueof its own inequitable conduct, Plaintiff is barred from seeking the relief requested, 2s gg 13 in the Complaint by the doctrines oflegal and equitable estoppel. 0 14 FOURTH AFFIRMATIVE DEFENSE A115 As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges 25 16 that the Complaint, and each purported cause of action therein, is barred by the applicable 17 Stabute(s) of Limitations, including, but not limited to, the provisions of Califomia Code of Civil 18 Procedure sections 337 et seq., 338 et seq., 339 et seq., 343 et seq., Civil Code section 1791.1, 19 Commercial Code section 2725, as well as relevant provisions of the Food & Agricultural Code 20 and the Califomia Code of Regulations. 21 FIFTH AFFIRMATIVE DEFENSE As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges that Plaintiff has failed to exhaust required administrative remedies as proscribed by the Food & 24 Agricultural Code and the Califomia Code of Regulations and, as a result of that failure, some or| 25 all of Plaintiff's causesof action are barred. 26 SIXTH AFFIRMATIVE DEFENSE 27 As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges that Defendant is not legally responsible in any fashion for the damages claimed by Plaintiff; -2- SYNGENTA SEEDS, LLC’S ANSWER TO PLAINTIFF’ S UNVERIFIED FOURTH AMENDED COMPLAINT; DEMAND FORJURY TRIAL however, if Defendant was to be found legally responsible, then Defendant alleges that it was not the sole legal cause of Plaintiff’ s alleged damages, that other parties, persons and/or entities were proximately liable for causing Plaintiff's alleged damages, and that the damages awarded to Plaintiff, if any, should be apportioned according to the respective fault and legal responsibility of all parties, persons and entities, or their agents, servants and employees who contributedto and/or caused the subject incident, according to proof presented at the time of trial. SEVENTH AFFIRMATIVE DEFENSE As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges that the allegations assert obligations that are or were non-existent, not contracted for, and/or 10 outside any agreement or relationship of the parties. 11 EIGHTH AFFIRMATIVE DEFENSE 2 2 As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges 2s gg 13 that, if there are any defects or inadequacies in the conduct of Defendant, which Defendant 0 14 denies, Plaintiff failed to timely notify Defendant of such, and failed to give Defendant timely A115 opportunity to cure, or to mitigate the damage, if any, resulting therefrom. Such conduct by 25 16 Plaintiff bars it from any relief from Defendant herein. 17 NINTH AFFIRMATIVE DEFENSE 18 As and for a separate, distinct affirmative defense to the Complaint, Defendant asserts 19 that any purported action on the part of Defendant in relation to the events described in the 20 Complaint was justified and reasonable under the circumstances and in no way constitutes any 21 actionable conduct. TENTH AFFIRMATIVE DEFENSE As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges 24 that the Complaint fails to state facts sufficient to recover attomey’s fees against Defendant; 25 provided, however, if and to the extent a basis for a claim of attomey’s fees exists, Defendant 26 alleges it is entitled to recover from Plaintiff all of its attomey’ s fees incurred in this action. 27 //1 //1 -3- SYNGENTA SEEDS, LLC’S ANSWER TO PLAINTIFF’ S UNVERIFIED FOURTH AMENDED COMPLAINT; DEMAND FORJURY TRIAL ELEVENTH AFFIRMATIVE DEFENSE As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges that Plaintiff's claims, and each of them, are barred and/or diminished as a result of failure of| Plaintiff to exercise reasonable care in mitigating its claimed damages. TWELFTH AFFIRMATIVE DEFENSE As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges that there is no express, oral, or implied agreement, covenant, or contract to support Plaintiff’s Claims based thereon, such that these claims are insufficient and fail as a matter of law. THIRTEENTH AFFIRMATIVE DEFENSE 10 As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges 11 that, to the extent an actionable agreement, covenant, or contract exists or is established, Plaintiff 2 2 is barred from recovery herein by virtue of the fact that others failed to perform certain 2s gg 13 conditions of the agreement, covenant or contract in issue which were on Plaintiff's part to be 0 14 performed, whereas Defendant reasonably performed all of the duties it was required to perform, A115 such that Defendant is not liable for breachof any agreement, covenant, or contract. 25 16 FOURTEENTH AFFIRMATIVE DEFENSE 17 As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges 18 that, to the extent an actionable agreement, covenant, or contract exists or is established, Plaintiff 19 is barred from recovery herein by virtue of the fact that certain conditions precedent to the 20 maturation of contractual duties allegedly owed by others, including Defendant, did not occur, 21 relieving Defendant from the duty to perform. FIFTEENTH AFFIRMATIVE DEFENSE As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges 24 that, to the extent an actionable agreement, covenant, or contract exists or is established, Plaintiff 25 breached its contract with Defendant in that it did not comply with all of the conditions, 26 covenants, or provisions of said contract, agreement or covenant. Said covenant, condition 27 and/or provision acted as a condition precedent to any obligation of Defendant. Said actions by Plaintiff work as a complete bar to any recovery against this answering Defendant. -4- SYNGENTA SEEDS, LLC’S ANSWER TO PLAINTIFF’ S UNVERIFIED FOURTH AMENDED COMPLAINT; DEMAND FORJURY TRIAL SIXTEENTH AFFIRMATIVE DEFENSE As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges that, to the extent an actionable agreement, covenant, or contract exists or is established, Defendant alleges that any duty or performance of Defendant is or was excused by reason of failure of consideration, waiver, breach of condition precedent, failure of condition precedent, breach by Plaintiff, impossibility of performance, prevention by Plaintiff, frustration of purpose, anticipatory breach, and/or acceptance by Plaintiff. SEVENTEENTH AFFIRMATIVE DEFENSE As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges 10 that, to the extent an actionable agreement, covenant, or contract exists or is established, 11 Defendant performed each and every condition of the contract, agreement, or covenant between 2 2 the parties. Said actions on the part of Defendant work as a complete bar to any recovery against 2s gg 13 this answering Defendant. 0 14 EIGHTEENTH AFFIRMATIVE DEFENSE A115 As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges 25 16 that the Complaint, and each purported cause of action therein, is barred by the Statute of Frauds. 17 NINETEENTH AFFIRMATIVE DEFENSE 18 As and for a separate, distinct and affirmative defense to the Complaint, Defendant 19 alleges that if Plaintiff sustained damages as a result of the incident as alleged, such damages, if 20 any, were caused and contributed to by the negligence or other wrongful conduct of Plaintiff and) 21 such negligence or other wrongful conduct constitutes a barto any recovery or, in the altemative, any recovery obtained by Plaintiff should be reduced to the extent such negligence or other wrongful conduct was a cause of claimed damages. 24 TWENTIETH AFFIRMATIVE DEFENSE 25 As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges 26 that, at all times herein-mentioned, Plaintiff, with full knowledge of all risks attendant thereto, 27 voluntarily and knowingly assumed all risks attendant upon said conduct and all purported //1 -5- SYNGENTA SEEDS, LLC’S ANSWER TO PLAINTIFF’ S UNVERIFIED FOURTH AMENDED COMPLAINT; DEMAND FORJURY TRIAL damages alleged to be related thereto and proximately and substantially caused thereby, barring recovery by Plaintiff against this answering Defendant. TWENTY-FIRST AFFIRMATIVE DEFENSE As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges that, if Plaintiff sustained any damages as a result of the incident as alleged, that such damages, if any, were caused and contributed to by the negligence or other wrongful conduct of those persons whose conduct on their part is imputed to Plaintiff and constitutes a bar to any recovery by said Plaintiff, or in the altemative, the recovery, if any, obtained by said Plaintiff, should be reduced in proportion to the extent that the negligence of said other persons or parties was a 10 cause of the damages, if any. 11 TTWENTY-SECOND AFFIRMATIVE DEFENSE 2 2 As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges 2s gg 13 that, if there is any negligence or liability of any of the parties named herein, it is the sole and 0 14 exclusive liability of other entities or individuals, and not of Defendant, such that Defendant A115 bears no liability for Plaintiff’ s alleged damages. 25 16 TWENTY-THIRD AFFIRMATIVE DEFENSE 17 As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges 18 that the Complaint and each cause of action therein is barred due to the misuse, abuse and/or 19 alteration of the product(s) for which Defendant is alleged to be responsible. 20 TWENTY-FOURTH AFFIRMATIVE DEFENSE 21 As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges that to the extent, if any, that it supplied any product which is alleged to have caused damages, Plaintiff and other entities or individuals by their manner and method of use misused or made 24 unintended use of those products and failed to act in accordance with the labels and directions 25 provided by Defendant or others and Plaintiff is therefore barred from recovery of damages from 26 Defendant. 27 //1 //1 -6- SYNGENTA SEEDS, LLC’S ANSWER TO PLAINTIFF’ S UNVERIFIED FOURTH AMENDED COMPLAINT; DEMAND FORJURY TRIAL TWENTY-FIFTH AFFIRMATIVE DEFENSE As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges that the injuries and damages of which Plaintiff complains and for which Plaintiff seeks recovery, if any, were the result of causes independent of any purported acts, omissions or breaches of duty on the part of this answering Defendant, which causes operated as intervening and superseding causes, thereby cutting off any liability on the part of Defendant. TWENTY-SIXTH AFFIRMATIVE DEFENSE As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges that Plaintiff and others failed to preserve the physical condition and integrity of evidence 10 essential to the adequate and proper defense of Defendant, including but not limited to the 11 products identified in the Complaint and the packaging and documentation accompanying those 2 2 products, that such spoliation of evidence has damaged Defendant and that such conduct on the 2s gg 13 part of Plaintiff and others precludes recovery of damages from Defendant. 0 14 TWENTY-SEVENTH AFFIRMATIVE DEFENSE A115 As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges 25 16 that all products for which Defendant is alleged to be responsible were and are designed, 17 manufactured, distributed and supplied in accordance with the stated scientific and technical 18 knowledge available to the manufacturer or supplier at the time the products were placed on the 19 market and in accordance with the customary designs, methods, standards and techniques of 20 designing, manufacturing, inspecting and testing of other manufacturers or suppliers of similar 21 products. TWENTY-EIGHTH AFFIRMATIVE DEFENSE As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges 24 that Plaintiff is precluded from recovering any consequential, special, indirect or incidental 25 damages, if any, from Defendant by the disclaimer and/or limitation of liability language on the 26 label(s) of the product(s) for which Defendant is alleged to be responsible. 27 //1 //1 -7- SYNGENTA SEEDS, LLC’S ANSWER TO PLAINTIFF’ S UNVERIFIED FOURTH AMENDED COMPLAINT; DEMAND FORJURY TRIAL TWENTY-NINTH AFFIRMATIVE DEFENSE As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges that Plaintiff is precluded from recovering any damages other than the cost of the seed at issue from Defendant by virtue of the disclaimer and/or limitation of liability language on the label(s), covenant(s), provision(s), and/or agreement(s) relatingto the product(s) for which Defendant is alleged to be responsible. THIRTIETH AFFIRMATIVE DEFENSE As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges that the complaint and each cause of action therein fail to state facts sufficientto constitutea 10 cause of action against Defendant. 11 THIRTY-FIRST AFFIRMATIVE DEFENSE 2 2 As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges 2s gg 13 that it complied with all governmental standards and regulations in the manufacture, sale, 0 14 registration, and labeling of the product. A115 THIRTY-SECOND AFFIRMATIVE DEFENSE 25 16 As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges 17 that, if Plaintiff sustained damages or incurred the expenses alleged, the same was caused,in 18 whole orin part, by an operation of nature or act of God and are not the result of Defendant’ s 19 conduct, relieving Defendant of liability for the alleged damages or expenses. 20 THIRTY-THIRD AFFIRMATIVE DEFENSE 21 As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges that the products referred to in the Complaint were misused, abused, or altered after leaving Defendant’ s possession, which misuse, abuse, or alteration proximately caused any loss, injury, 24 or damages that Plaintiff incurred, such that Defendant is not liable for Plaintiff’ s alleged 25 damages. 26 THIRTY-FOURTH AFFIRMATIVE DEFENSE 27 As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges that it did not have a duty to wam Plaintiff of the risks, if any, attendantto the use of its -8- SYNGENTA SEEDS, LLC’S ANSWER TO PLAINTIFF’ S UNVERIFIED FOURTH AMENDED COMPLAINT; DEMAND FORJURY TRIAL product(s), because Defendant is entitled to rely upon knowledgeable, leamed and sophisticated market intermediaries, suppliers, and used applicators with respect to necessary wamings, if any. THIRTY-FIFTH AFFIRMATIVE DEFENSE As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges that Plaintiff is precluded from recovering any consequential, special, indirect or incidental damages, if any, from this answering Defendant by the disclaimer and/or limitation of liability language on the label(s) of the product(s) for which this answering Defendant is alleged to be responsible. THIRTY-SIXTH AFFIRMATIVE DEFENSE 10 As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges 11 that at no time mentioned herein did Plaintiff, its agents, servants, representatives, or 2 2 predecessors ininterest, rely on any promises, warranties, expressed or implied, or 2s gg 13 representations which may have been made by this answering Defendant in connection with the 0 14 services which it allegedly performed under the terms of the alleged contract or otherwise. A115 THIRTY-SEVENTH AFFIRMATIVE DEFENSE 25 16 As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges 17 that by virtue of Plaintiff’s unlawful, immoral, careless, negligent and other wrongful conduct, 18 Plaintiff shouldbe barred from recovering against this answering Defendant by the equitable 19 doctrine of unclean hands. 20 THIRTY-EIGHTH AFFIRMATIVE DEFENSE 21 As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges that the conditions and defects set forth in the Complaint had no resultant damages related thereto, thereby barring either partially ortotally Plaintiff's claimed damages. 24 THIRTY-NINTH AFFIRMATIVE DEFENSE 25 As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges 26 that the damages and injuries of which Plaintiff complains are not the direct and proximate result 27 of any act or omission on the part of this answering Defendant. //1 -9- SYNGENTA SEEDS, LLC’S ANSWER TO PLAINTIFF’ S UNVERIFIED FOURTH AMENDED COMPLAINT; DEMAND FORJURY TRIAL FORTIETH AFFIRMATIVE DEFENSE As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges that the damages and injuries of which Plaintiff complains are economic losses for which. Defendant does not and cannot be held liable pursuant to any tort cause of action. FORTY-FIRST AFFIRMATIVE DEFENSE As and for a separate, distinct affirmative defense to the Complaint, Defendant alleges that Defendant presently has insufficient knowledge or information upon which to forma belief as to whetherit may have additional, as yet unstated, affirmative defenses available. Defendant therefore reserves the right to assert additional affirmative defenses in the event that discovery 10 indicates that they are appropriate, at any time prior to the time of trial. 11 DEMAND FOR JURY TRIAL 2 2 Defendant hereby demands atrial by jury in the above-entitled action. 2s gg 13 WHEREFORE, this answering defendant prays for judgment as follows: 0 14 1. That the Complaint be dismissed with prejudice and that Plaintiff take nothing by A115 virtue of the Complaint; 25 16 2. Foran award to Defendant of its attomeys’ fees and costs of suit incurred herein; and 17 3. All other relief as this court deems just and proper. 18 Dated: September 20, 2019 GORDON REES SCULLY MANSUKHANI, LLP 19 By: Ko: [MALT 20 P. Gerhardt Zacher ThomasJ. Tobin 21 Kara Persson Attol for Defendant SYNGENTA SEEDS, LLC 24 25 26 27 -10- SYNGENTA SEEDS, LLC’S ANSWER TO PLAINTIFF’ S UNVERIFIED FOURTH AMENDED COMPLAINT; DEMAND FORJURY TRIAL Virginia Sarabian dba Sarabian Farms v. Syngenta Seeds, LLC, et al. Fresno County Superior Court Case No. 18CECG02994 PROOF OF SERVICE I am a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is: Gordon Rees Scully Mansukhani, LLP, 101 W. Broadway, Suite 2000, San Diego, CA 92101. My email address is wdoolittle@grsm.com. On September 20, 2019, I served the within documents: SYNGENTA SEEDS, LLC’S ANSWER TO PLAINTIFF’S UNVERIFIED FOURTH AMENDED COMPLAINT; DEMAND FOR JURY TRIAL MAIL: By placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, at a station designated for collection and processing of envelopes and packages for delivery via U.S. mail as part of the ordinary business practices of GORDON REES SCULLY MANSUKHANI, LLP described below. 10 oO OVERNIGHT: By placing a true copy thereof enclosed in a sealed envelope, at a station designated for collection and processing of envelopes and packages for 11 overnight delivery by FedEx (or other overnight service) as part of the ordinary business practices of GORDON REES SCULLY MANSUKHANI, LLP described gs 12 below, addressed as follows: 2a. 2s SBEx aa 13 gan Theodore W. Hoppe Andrew MacKay > = sU 14 Adam Benkoski, DONAHUE FITZGERALD LLP BS HOPPE LAW GROUP 1999 Harrison St., 25'" Floor AES 15 A PROFESSIONAL LAW OFFICE Oakland, CA 94612 nm AO 680 W. Shaw Avenue, Suite 207 Telephone: (510) 451-3300 a 16 Fresno, California 93704 Facsimile: (510) 451-1527 ex gr Telephone (559) 241-7070 Email: amackay@donahue.com 17 Facsimile (559) 241-7212 Attorneys for Defendant TIMOTHY 18 Attorneys for Plaintiff STEWART & LEOKS SEED COMPANY dba T&SL SEED COMPANY AND TSL 19 Iam readily familiar with the firm’s practice of collection and processing correspondence 20 for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same 21 day with postage thereon fully prepaid in the ordinary course of business. I am aware that on 22 motion of the party served, service is presumed invalid if postal cancellation date or postage 23 meter date is more than one day after the date of deposit for mailing in affidavit. 24 I declare under penalty of perjury under the laws of the State of California that the above 25 is true and correct. Executed on September 20, 2019, at San Diego, California. 26 27 Deed, Dslus® 28 Woody Doolittle -ll- PROOF OF SERVICE