Preview
MARK SMITH (in Pro per)
8549 Willow Valley Place
Granite Bay, CA 95746
Telephone: (916)439-0489 SEP 29 2009
By: T. CALAUSTTOUX
Cletk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SACRAMENTO
RODNEY ABBOTT and FLORENTINE ABBOTT, Case No. 07AS04450
Plaintiffs, ANSWER OF MARK SMITH,
INDIVIDUALLY, AND
DOING BUSINESS AS
vs. GROUNDBREAKERS TO
COMPLAINT OF RODNEY
ABBOTT AND FLORENTINE
RONALD PAUL BRITSCHGI, individually ABBOTT
And doing business as BRITSCHGI
CONSTRUCTION; RICHARD KIRK RUYBALID,
Individually and doing business as CA
CONSTRUCTION; MARK SMITH, individually
and doing business as GROUNDBREAKERS;
CONSTRUCTION & ENGINEERING, INC.;
And DOES 3 through 20, inclusive,
Defendants.
and related cross-actions
Defendant Mark Smith, individually, and doing business as
GROUNDBREAKERS ("Defendants") hereby answer the amended complaint filed in
the above captioned matter on or about July 23,2009 ("the Complaint") by Rodney
Abbott and Florentine Abbott ("Plaintiffs") as follows:
ANSWER OF MARK SMITH, DBA GROUNDBREAKERS TO COMPLAINT
GENERAL DENIAL
Pursuant to Section 431.30(d) of the California Code of Civil Procedure,
Defendants deny, generally and specifically, each and every allegation contained in
Plaintiffs' Complaint, and each cause of action thereof, and deny that Plaintiffs have
sustained damages in any sum alleged, or any other sum, or at all, by reason of any act,
breach or omission by these answering Defendants, and further deny that Plaintiffs are
entitled to any relief whether requested hi the Complaint or otherwise.
AFFIRMATIVE DEFENSES
As and for separate affirmative defenses to the Complaint, and to each cause of
action thereof, Defendants assert the following:
FIRST AFFIRMATIVE DEFENSE
(Failure to State Cause of Action)
Plaintiffs' Complaint herein, and each cause of action thereof, fails to state facts
sufficient to constitute a cause of action against Defendants.
SECOND AFFIRMATIVE DEFENSE
(Statutes of Limitation)
Defendants allege on information and belief that the Complaint and each and
every cause of action therein, are barred by limitations periods pursuant to Section 339.1
of the California Code of Civil Procedure.
THIRD AFFD2MATIVE DEFENSE
(Waiver, Excuse, and Release)
Defendants allege on information and belief that any obligation on the part of
Defendants alleged by Plaintiffs have been waived, excused, or released expressly or
impliedly, by reason of Plaintiffs' actions or omissions while knowing facts, or having
means of knowing facts, which allegedly support Plaintiffs' claims.
-2-
ANSWER OF MARK SMITH, DBA GROUNDBREAKERS TO COMPLAINT
FOURTH AFFIRMATIVE DEFENSE
(Failure to Mitigate Damages)
Defendants allege on information and belief that some or all of Plaintiffs' claims
are barred by the fact that Plaintiffs failed to mitigate damages.
FIFTH AFFIRMATIVE DEFENSE
(Laches)
Defendants allege that to the extent that Plaintiffs seek relief in the Complaint
based on equitable principles, the relief sought is time barred under doctrine of laches.
SIXTH AFFIRMATIVE DEFENSE
(Unjust Enrichment)
Defendants allege on information and belief that Plaintiffs would be unjustly
enriched if allowed to recover anything from Defendants.
SEVENTH AFFIRMATIVE DEFENSE
(Unclean Hands)
Defendants allege on information and belief that Plaintiffs' claims are barred by
the doctrine of unclean hands.
EIGHTH AFFIRMATIVE DEFENSE
(Estoppel)
Defendants allege on information and belief that Plaintiffs' claims are barred by
doctrine of estoppel.
NINTH AFFIRMATIVE DEFENSE
(Substantial Performance)
Defendants allege on information and belief that Plaintiffs' claims are barred, in
whole or in part, on the grounds that Defendants substantially performed their obligations
under any alleged agreement.
-3-
ANSWER OF MARK SMITH, DBA GROUNDBREAKERS TO COMPLAINT
TENTH AFFIRMATIVE DEFENSE
(Plaintiffs' Acts, Errors, and/or Omissions)
Defendants allege on information and belief that Plaintiffs' claims are barred, in
whole or hi part, because Plaintiffs' acts, errors, and/or omissions proximately caused any
damages alleged hi the Complaint, which damages are denied herein, and Defendants
have no liability to Plaintiffs for any portion of fault attributable to Plaintiffs.
ELEVENTH AFFIRATIVE DEFENSE
(Acts, Errors, and/or Omissions by Third Parties)
Defendants allege on information and belief that Plaintiffs' claims are barred, in
whole or hi part, to the extent that Plaintiffs' damages, if any, were caused by
superseding acts, errors, omissions, or failures of third parties or intervening acts.
TWELFTH AFFIRMATIVE DEFENSE
(Indemnity)
Defendants allege on information and belief that Defendants are entitled to be
indemnified and held harmless by Plaintiffs' and third parties' acts, errors, and/or
omissions.
THIRTEENTH AFFIRMATIVE DEFENSE
(Additional Defenses)
Defendants have not yet completed a thorough investigation and/or complete
discovery of all the facts and circumstances of the subject matter of the Complaint and,
accordingly, reserve the right to amend, modify, revise, or supplement this Answer, and
to plead such further defenses and take such further action as they may deem proper and
necessary hi their defense upon the completion of said investigation and study.
WHEREFORE, Defendants pray that judgment be entered as follows:
1. That Plaintiffs take nothing by their Complaint in this action;
2. That Plaintiffs' Complaint be entirely dismissed with prejudice;
3. That Defendants be awarded attorneys' fees and cost of suit; and
4. For other and further relief as is fair, just and equitable.
ANSWER OF MARK SMITH, DBA GROUNDBREAKERS TO COMPLAINT
Dated: September 21,2009 MARK SMITH, INDIVIDUALLY, and
doing business as: GROUNDBREAKERS
BY;
MARK SMITH Proper
-5-
ANSWER OF MARK SMITH, DBA GROUNDBREAKERS TO COMPLAINT
For Court Use Only
SUPERIOR COURT OF CALIFORNIA
County of Sacramento
720 Ninth Street, Room 102
Sacramento, CA 95814-1380
(916) 874-5522—Website www.saccourt.com
Attorney or Party Without Attorney (Name and Address):
Telephone No.
'^J
Plaintiff: Case Number:
Defendant:
J_
Proof of Service
I served a copy of the following documents (list the title of each document served):
OP
On (person served):
[ ] By personally delivering copies to the person served, as follows:
Date:
Time:
Address:
By mailing, copies to the person served, as follows:
Date: 3 / ^ 3 f O < ?
Place of mailing (address):
At the time of service I was at least 18 years of age and not a party to this cause.
I declare under penalty of perjury, under the laws of the State of California, that the
foregoing is true and correct.
Date:
Type or Print Name and Address Signature
Proof of Service
CV\E-118(Rev9.1.2006) Page 1 of 1
Preview
MARK SMITH (in Pro per) 8549 Willow Valley Place Granite Bay, CA 95746 Telephone: (916)439-0489 SEP 29 2009 By: T. CALAUSTTOUX Cletk SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SACRAMENTO RODNEY ABBOTT and FLORENTINE ABBOTT, Case No. 07AS04450 Plaintiffs, ANSWER OF MARK SMITH, INDIVIDUALLY, AND DOING BUSINESS AS vs. GROUNDBREAKERS TO COMPLAINT OF RODNEY ABBOTT AND FLORENTINE RONALD PAUL BRITSCHGI, individually ABBOTT And doing business as BRITSCHGI CONSTRUCTION; RICHARD KIRK RUYBALID, Individually and doing business as CA CONSTRUCTION; MARK SMITH, individually and doing business as GROUNDBREAKERS; CONSTRUCTION & ENGINEERING, INC.; And DOES 3 through 20, inclusive, Defendants. and related cross-actions Defendant Mark Smith, individually, and doing business as GROUNDBREAKERS ("Defendants") hereby answer the amended complaint filed in the above captioned matter on or about July 23,2009 ("the Complaint") by Rodney Abbott and Florentine Abbott ("Plaintiffs") as follows: ANSWER OF MARK SMITH, DBA GROUNDBREAKERS TO COMPLAINT GENERAL DENIAL Pursuant to Section 431.30(d) of the California Code of Civil Procedure, Defendants deny, generally and specifically, each and every allegation contained in Plaintiffs' Complaint, and each cause of action thereof, and deny that Plaintiffs have sustained damages in any sum alleged, or any other sum, or at all, by reason of any act, breach or omission by these answering Defendants, and further deny that Plaintiffs are entitled to any relief whether requested hi the Complaint or otherwise. AFFIRMATIVE DEFENSES As and for separate affirmative defenses to the Complaint, and to each cause of action thereof, Defendants assert the following: FIRST AFFIRMATIVE DEFENSE (Failure to State Cause of Action) Plaintiffs' Complaint herein, and each cause of action thereof, fails to state facts sufficient to constitute a cause of action against Defendants. SECOND AFFIRMATIVE DEFENSE (Statutes of Limitation) Defendants allege on information and belief that the Complaint and each and every cause of action therein, are barred by limitations periods pursuant to Section 339.1 of the California Code of Civil Procedure. THIRD AFFD2MATIVE DEFENSE (Waiver, Excuse, and Release) Defendants allege on information and belief that any obligation on the part of Defendants alleged by Plaintiffs have been waived, excused, or released expressly or impliedly, by reason of Plaintiffs' actions or omissions while knowing facts, or having means of knowing facts, which allegedly support Plaintiffs' claims. -2- ANSWER OF MARK SMITH, DBA GROUNDBREAKERS TO COMPLAINT FOURTH AFFIRMATIVE DEFENSE (Failure to Mitigate Damages) Defendants allege on information and belief that some or all of Plaintiffs' claims are barred by the fact that Plaintiffs failed to mitigate damages. FIFTH AFFIRMATIVE DEFENSE (Laches) Defendants allege that to the extent that Plaintiffs seek relief in the Complaint based on equitable principles, the relief sought is time barred under doctrine of laches. SIXTH AFFIRMATIVE DEFENSE (Unjust Enrichment) Defendants allege on information and belief that Plaintiffs would be unjustly enriched if allowed to recover anything from Defendants. SEVENTH AFFIRMATIVE DEFENSE (Unclean Hands) Defendants allege on information and belief that Plaintiffs' claims are barred by the doctrine of unclean hands. EIGHTH AFFIRMATIVE DEFENSE (Estoppel) Defendants allege on information and belief that Plaintiffs' claims are barred by doctrine of estoppel. NINTH AFFIRMATIVE DEFENSE (Substantial Performance) Defendants allege on information and belief that Plaintiffs' claims are barred, in whole or in part, on the grounds that Defendants substantially performed their obligations under any alleged agreement. -3- ANSWER OF MARK SMITH, DBA GROUNDBREAKERS TO COMPLAINT TENTH AFFIRMATIVE DEFENSE (Plaintiffs' Acts, Errors, and/or Omissions) Defendants allege on information and belief that Plaintiffs' claims are barred, in whole or hi part, because Plaintiffs' acts, errors, and/or omissions proximately caused any damages alleged hi the Complaint, which damages are denied herein, and Defendants have no liability to Plaintiffs for any portion of fault attributable to Plaintiffs. ELEVENTH AFFIRATIVE DEFENSE (Acts, Errors, and/or Omissions by Third Parties) Defendants allege on information and belief that Plaintiffs' claims are barred, in whole or hi part, to the extent that Plaintiffs' damages, if any, were caused by superseding acts, errors, omissions, or failures of third parties or intervening acts. TWELFTH AFFIRMATIVE DEFENSE (Indemnity) Defendants allege on information and belief that Defendants are entitled to be indemnified and held harmless by Plaintiffs' and third parties' acts, errors, and/or omissions. THIRTEENTH AFFIRMATIVE DEFENSE (Additional Defenses) Defendants have not yet completed a thorough investigation and/or complete discovery of all the facts and circumstances of the subject matter of the Complaint and, accordingly, reserve the right to amend, modify, revise, or supplement this Answer, and to plead such further defenses and take such further action as they may deem proper and necessary hi their defense upon the completion of said investigation and study. WHEREFORE, Defendants pray that judgment be entered as follows: 1. That Plaintiffs take nothing by their Complaint in this action; 2. That Plaintiffs' Complaint be entirely dismissed with prejudice; 3. That Defendants be awarded attorneys' fees and cost of suit; and 4. For other and further relief as is fair, just and equitable. ANSWER OF MARK SMITH, DBA GROUNDBREAKERS TO COMPLAINT Dated: September 21,2009 MARK SMITH, INDIVIDUALLY, and doing business as: GROUNDBREAKERS BY; MARK SMITH Proper -5- ANSWER OF MARK SMITH, DBA GROUNDBREAKERS TO COMPLAINT For Court Use Only SUPERIOR COURT OF CALIFORNIA County of Sacramento 720 Ninth Street, Room 102 Sacramento, CA 95814-1380 (916) 874-5522—Website www.saccourt.com Attorney or Party Without Attorney (Name and Address): Telephone No. '^J Plaintiff: Case Number: Defendant: J_ Proof of Service I served a copy of the following documents (list the title of each document served): OP On (person served): [ ] By personally delivering copies to the person served, as follows: Date: Time: Address: By mailing, copies to the person served, as follows: Date: 3 / ^ 3 f O < ? Place of mailing (address): At the time of service I was at least 18 years of age and not a party to this cause. I declare under penalty of perjury, under the laws of the State of California, that the foregoing is true and correct. Date: Type or Print Name and Address Signature Proof of Service CV\E-118(Rev9.1.2006) Page 1 of 1