Preview
1 Bradley J. Jameson – 213052
MYERS, JAMESON & MYERS, LLP
2 1835 First Street
Napa, CA 94559
3 Telephone: (707) 257-1185
4 Attorneys for Defendant and Cross-Complainant
David Marcil
5
6
SUPERIOR COURT OF THE STATE OF CALIFORNIA
7
COUNTY OF NAPA
8
) CASE NO: 23CV001635
9 CONSOLIDATED ELECTRICAL )
DISTRIBUTORS, INC., a Delaware )
10 corporation, dba GREENTECH )
RENEWABLES, )
11 ) DEFENDANT DAVID MARCIL’S
Plaintiff, ) ANSWER TO COMPLAINT FOR
12 ) DAMAGES
)
vs.
13 )
DEVINE SOLAR SOLUTIONS LLC, a )
14
California limited liability company; DAVID )
15 MARCIL, an individual; BRANDON )
OTTOSEN, an individual; DRASELLE HAHN )
16 MUSCATINE, as Trustee of the 2020 )
DRASELLE HAHN MUSCATINE
)
17 REVOCABLE TRUST; OLD REPUBLIC
SURETY COMPANY, a Wisconsin )
18 corporation; and DOES 1-50, inclusive, )
)
19 Defendants. )
______________________________________
20 )
DAVID MARCIL, an individual, )
21 )
Cross-Complainant, )
22
)
vs.
23 )
DEVINE SOLAR SOLUTIONS LLC, a )
24 California limited liability company; )
BRANDON OTTOSEN, an individual; and )
25 ROES 1-10, inclusive,
)
26 Cross-Defendants. )
)
27
28
1
DEFENDANT DAVID MARCIL’S ANSWER TO COMPLAINT FOR DAMAGES
1 COMES NOW Defendant DAVID MARCIL, individually, and in answer to the unverified
2 complaint (“Complaint”) of Plaintiff CONSOLIDATED ELECTRICAL DISTRIBUTORS, INC., a
3 Delaware corporation, dba GREENTECH RENEWABLES (“Plaintiff”), on file herein and every
4 cause of action thereof, deny each and every, all and singular, generally and specifically the
5 allegations therein contained and further deny that Plaintiff was damaged and/or injured in any
6 sum or at all.
7 AS AND FOR A SEPARATE, DISTINCT AND FIRST AFFIRMATIVE DEFENSE, this
8 answering Defendant alleges that the Complaint and each purported cause of action thereof fails
9 to state facts sufficient to state a cause of action against this answering Defendant.
10 AS AND FOR A FURTHER SEPARATE, DISTINCT AND SECOND AFFIRMATIVE
11 DEFENSE to the Complaint and each and every cause of action thereof, this answering
12 Defendant alleges that Plaintiff was negligent and careless in and about the matters referred to in
13 Plaintiff’s Complaint on file herein and that said negligence and carelessness contributed to and
14 proximately caused that damage and/or injuries alleged, if any.
15 AS AND FOR A FURTHER SEPARATE, DISTINCT AND THIRD AFFIRMATIVE
16 DEFENSE to the Complaint and each and every cause of action thereof, this answering
17 Defendant alleges if there was any negligence and carelessness contributing to the damages
18 and/or injuries, it was the negligence and carelessness of some entity or individual other than this
19 answering Defendant.
20 AS AND FOR A FURTHER SEPARATE, DISTINCT AND FOURTH AFFIRMATIVE
21 DEFENSE to the Complaint and each and every cause of action thereof, this answering
22 Defendant alleges that Plaintiff’s Complaint and each purported cause of action thereunder is
23 barred by one or more of the applicable statutes of limitations, including, but not limited to, Code
24 of Civil Procedure § 335.1, 337, 338, 339, 340, 343, 3439.09, et seq.
25 AS AND FOR A FURTHER SEPARATE, DISTINCT AND FIFTH AFFIRMATIVE
26 DEFENSE to the Complaint and each and every cause of action thereof, this answering
27 Defendant alleges that any and all conduct of which Plaintiff complains, and which is attributed to
28 this answering Defendant is protected by the “Business Judgment Rule” and was a just and
2
DEFENDANT DAVID MARCIL’S ANSWER TO COMPLAINT FOR DAMAGES
1 proper exercise of management discretion on the part of this answering Defendant, undertaken
2 for a fair and honest reason and regulated by good faith under the circumstances then existing.
3 AS AND FOR A FURTHER SEPARATE, DISTINCT AND SIXTH AFFIRMATIVE
4 DEFENSE to the Complaint and each and every cause of action thereof, this answering
5 Defendant alleges that Defendant is entitled to a percentage contribution of the total liability from
6 persons, firms, corporations or entities other than Defendant in accordance with the principles of
7 equitable indemnity and comparative contribution.
8 AS AND FOR A FURTHER SEPARATE, DISTINCT AND SEVENTH AFFIRMATIVE
9 DEFENSE to the Complaint and each and every cause of action thereof, this answering
10 Defendant alleges that the statements and actions of Defendant, if any, were not the cause of
11 Plaintiff’s damages; and further, the statements of Defendant, if any, were, in fact, true.
12 AS AND FOR A FURTHER SEPARATE, DISTINCT AND EIGHTH AFFIRMATIVE
13 DEFENSE to the Complaint and each and every cause of action thereof, this answering
14 Defendant alleges Plaintiff lacks standing to bring the instant Complaint.
15 AS AND FOR A FURTHER SEPARATE, DISTINCT AND NINTH AFFIRMATIVE
16 DEFENSE to the Complaint and each and every cause of action thereof, this answering
17 Defendant alleges that the actions complained of were made without malice or wrongful intent on
18 the part of Defendant and in a reasonable and good faith belief of his legal rights to perform the
19 actions complained of.
20 AS AND FOR A FURTHER SEPARATE, DISTINCT AND TENTH AFFIRMATIVE
21 DEFENSE to the Complaint and each and every cause of action thereof, this answering
22 Defendant alleges that Plaintiff’s injuries, loss, and/or damages, if any there be, were aggravated
23 by Plaintiff’s failure to use reasonable diligence to mitigate the same.
24 AS AND FOR A FURTHER SEPARATE, DISTINCT AND ELEVENTH AFFIRMATIVE
25 DEFENSE to the Complaint and each and every cause of action thereof, this answering
26 Defendant alleges that Plaintiff is barred from asserting any causes of action by virtue of its
27 consent to the alleged acts or conditions.
28
3
DEFENDANT DAVID MARCIL’S ANSWER TO COMPLAINT FOR DAMAGES
1 AS AND FOR A FURTHER SEPARATE, DISTINCT AND TWELFTH AFFIRMATIVE
2 DEFENSE to the Complaint and each and every cause of action thereof, this answering
3 Defendant alleges that Plaintiff has waived and/or released its right to maintain the action filed in
4 this case.
5 AS AND FOR A FURTHER SEPARATE, DISTINCT AND THIRTEENTH AFFIRMATIVE
6 DEFENSE to the Complaint and each and every cause of action thereof, this answering
7 Defendant alleges that Plaintiff is estopped by action of law or by conduct from maintaining the
8 action filed in this case, including, but not limited to the doctrines of res judicata and collateral
9 estoppel.
10 AS AND FOR A FURTHER SEPARATE, DISTINCT AND FOURTEENTH AFFIRMATIVE
11 DEFENSE to the Complaint and each and every cause of action thereof, this answering
12 Defendant alleges that the action filed in this case is not maintainable under the equitable doctrine
13 of laches.
14 AS AND FOR A FURTHER SEPARATE, DISTINCT AND FIFTEENTH AFFIRMATIVE
15 DEFENSE to the Complaint and each and every cause of action thereof, this answering
16 Defendant alleges that Plaintiff is barred from recovery in this case under the doctrine of unclean
17 hands.
18 AS AND FOR A FURTHER SEPARATE, DISTINCT AND SIXTEENTH AFFIRMATIVE
19 DEFENSE to the Complaint and each and every cause of action thereof, this answering
20 Defendant alleges that prior to the commencement of this action, these answering Defendants
21 duly performed, satisfied and discharged all duties and obligations owed to Plaintiff, if any, arising
22 out of any and all alleged agreements, representations, or contracts made by or on behalf of this
23 answering Defendant and this action is therefore barred by the provisions of California Civil Code
24 Section 1473.
25 AS AND FOR A FURTHER SEPARATE, DISTINCT AND SEVENTEENTH AFFIRMATIVE
26 DEFENSE to the Complaint and each and every cause of action thereof, this answering
27 Defendant alleges that Plaintiff has failed to state a claim upon which attorneys’ fees can be
28 awarded.
4
DEFENDANT DAVID MARCIL’S ANSWER TO COMPLAINT FOR DAMAGES
1 AS AND FOR A FURTHER SEPARATE, DISTINCT AND EIGHTEENTH AFFIRMATIVE
2 DEFENSE to the Complaint and each and every cause of action thereof, this answering
3 Defendant alleges that Plaintiff has failed to promptly give notice of rescission, and restore or offer
4 to restore everything of value received under the contract pursuant to Civ. Code § 1691, thereby
5 terminating and extinguishing the right of rescission to which Plaintiff might otherwise be entitled.
6 AS AND FOR A FURTHER SEPARATE, DISTINCT AND NINETEENTH AFFIRMATIVE
7 DEFENSE to the Complaint and each and every cause of action thereof this answering Defendant
8 alleges that Plaintiff waived the right to rescind by words or actions indicating an affirmance of the
9 contract after learning of the facts entitling it to rescind.
10 AS AND FOR A FURTHER SEPARATE, DISTINCT AND TWENTIETH AFFIRMATIVE
11 DEFENSE to the Complaint and each and every cause of action thereof this answering Defendant
12 alleges that Plaintiff knew, or in the exercise of reasonable care, should have known of the risks
13 and hazards involved in the undertaking in which it engaged, but nevertheless and with full
14 knowledge of these things, did fully and voluntarily consent to assume the risks and hazards
15 involved in the undertaking.
16 AS AND FOR A FURTHER SEPARATE, DISTINCT AND TWENTY-FIRST AFFIRMATIVE
17 DEFENSE to the Complaint and each and every cause of action thereof, this answering
18 Defendant alleges that if any damages are awarded to Plaintiff, the amount of damages should be
19 offset by the amounts, if any, owed to or paid by Defendant pursuant to the terms of the
20 agreement and/or enforcement of the same.
21 AS AND FOR A FURTHER SEPARATE, DISTINCT AND TWENTY-SECOND
22 AFFIRMATIVE DEFENSE to the Complaint and each and every cause of action thereof, this
23 answering Defendant alleges that presently Defendant has insufficient knowledge or information
24 on which to form a belief as to whether Defendant may have additional, as yet unstated, defenses
25 available. This answering Defendant reserves herein the right to assert additional defenses in the
26 event discovery indicates that they would be appropriate.
27 WHEREFORE, this answering Defendant prays for judgment against Plaintiff as follows:
28 1. For Dismissal of this action with prejudice;
5
DEFENDANT DAVID MARCIL’S ANSWER TO COMPLAINT FOR DAMAGES
1 2. For attorneys’ fees, costs and expert witness fees incurred in defense of this
2 action; and
3 3. For such other, further relief, as this Court may deem proper.
4
5 Dated: April 17, 2024 MYERS, JAMESON & MYERS LLP
6
By: __________________________
7 Bradley J. Jameson
Attorneys for Defendant and Cross-
8
Complainant DAVID MARCIL
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6
DEFENDANT DAVID MARCIL’S ANSWER TO COMPLAINT FOR DAMAGES
Preview
1 Bradley J. Jameson – 213052 MYERS, JAMESON & MYERS, LLP 2 1835 First Street Napa, CA 94559 3 Telephone: (707) 257-1185 4 Attorneys for Defendant and Cross-Complainant David Marcil 5 6 SUPERIOR COURT OF THE STATE OF CALIFORNIA 7 COUNTY OF NAPA 8 ) CASE NO: 23CV001635 9 CONSOLIDATED ELECTRICAL ) DISTRIBUTORS, INC., a Delaware ) 10 corporation, dba GREENTECH ) RENEWABLES, ) 11 ) DEFENDANT DAVID MARCIL’S Plaintiff, ) ANSWER TO COMPLAINT FOR 12 ) DAMAGES ) vs. 13 ) DEVINE SOLAR SOLUTIONS LLC, a ) 14 California limited liability company; DAVID ) 15 MARCIL, an individual; BRANDON ) OTTOSEN, an individual; DRASELLE HAHN ) 16 MUSCATINE, as Trustee of the 2020 ) DRASELLE HAHN MUSCATINE ) 17 REVOCABLE TRUST; OLD REPUBLIC SURETY COMPANY, a Wisconsin ) 18 corporation; and DOES 1-50, inclusive, ) ) 19 Defendants. ) ______________________________________ 20 ) DAVID MARCIL, an individual, ) 21 ) Cross-Complainant, ) 22 ) vs. 23 ) DEVINE SOLAR SOLUTIONS LLC, a ) 24 California limited liability company; ) BRANDON OTTOSEN, an individual; and ) 25 ROES 1-10, inclusive, ) 26 Cross-Defendants. ) ) 27 28 1 DEFENDANT DAVID MARCIL’S ANSWER TO COMPLAINT FOR DAMAGES 1 COMES NOW Defendant DAVID MARCIL, individually, and in answer to the unverified 2 complaint (“Complaint”) of Plaintiff CONSOLIDATED ELECTRICAL DISTRIBUTORS, INC., a 3 Delaware corporation, dba GREENTECH RENEWABLES (“Plaintiff”), on file herein and every 4 cause of action thereof, deny each and every, all and singular, generally and specifically the 5 allegations therein contained and further deny that Plaintiff was damaged and/or injured in any 6 sum or at all. 7 AS AND FOR A SEPARATE, DISTINCT AND FIRST AFFIRMATIVE DEFENSE, this 8 answering Defendant alleges that the Complaint and each purported cause of action thereof fails 9 to state facts sufficient to state a cause of action against this answering Defendant. 10 AS AND FOR A FURTHER SEPARATE, DISTINCT AND SECOND AFFIRMATIVE 11 DEFENSE to the Complaint and each and every cause of action thereof, this answering 12 Defendant alleges that Plaintiff was negligent and careless in and about the matters referred to in 13 Plaintiff’s Complaint on file herein and that said negligence and carelessness contributed to and 14 proximately caused that damage and/or injuries alleged, if any. 15 AS AND FOR A FURTHER SEPARATE, DISTINCT AND THIRD AFFIRMATIVE 16 DEFENSE to the Complaint and each and every cause of action thereof, this answering 17 Defendant alleges if there was any negligence and carelessness contributing to the damages 18 and/or injuries, it was the negligence and carelessness of some entity or individual other than this 19 answering Defendant. 20 AS AND FOR A FURTHER SEPARATE, DISTINCT AND FOURTH AFFIRMATIVE 21 DEFENSE to the Complaint and each and every cause of action thereof, this answering 22 Defendant alleges that Plaintiff’s Complaint and each purported cause of action thereunder is 23 barred by one or more of the applicable statutes of limitations, including, but not limited to, Code 24 of Civil Procedure § 335.1, 337, 338, 339, 340, 343, 3439.09, et seq. 25 AS AND FOR A FURTHER SEPARATE, DISTINCT AND FIFTH AFFIRMATIVE 26 DEFENSE to the Complaint and each and every cause of action thereof, this answering 27 Defendant alleges that any and all conduct of which Plaintiff complains, and which is attributed to 28 this answering Defendant is protected by the “Business Judgment Rule” and was a just and 2 DEFENDANT DAVID MARCIL’S ANSWER TO COMPLAINT FOR DAMAGES 1 proper exercise of management discretion on the part of this answering Defendant, undertaken 2 for a fair and honest reason and regulated by good faith under the circumstances then existing. 3 AS AND FOR A FURTHER SEPARATE, DISTINCT AND SIXTH AFFIRMATIVE 4 DEFENSE to the Complaint and each and every cause of action thereof, this answering 5 Defendant alleges that Defendant is entitled to a percentage contribution of the total liability from 6 persons, firms, corporations or entities other than Defendant in accordance with the principles of 7 equitable indemnity and comparative contribution. 8 AS AND FOR A FURTHER SEPARATE, DISTINCT AND SEVENTH AFFIRMATIVE 9 DEFENSE to the Complaint and each and every cause of action thereof, this answering 10 Defendant alleges that the statements and actions of Defendant, if any, were not the cause of 11 Plaintiff’s damages; and further, the statements of Defendant, if any, were, in fact, true. 12 AS AND FOR A FURTHER SEPARATE, DISTINCT AND EIGHTH AFFIRMATIVE 13 DEFENSE to the Complaint and each and every cause of action thereof, this answering 14 Defendant alleges Plaintiff lacks standing to bring the instant Complaint. 15 AS AND FOR A FURTHER SEPARATE, DISTINCT AND NINTH AFFIRMATIVE 16 DEFENSE to the Complaint and each and every cause of action thereof, this answering 17 Defendant alleges that the actions complained of were made without malice or wrongful intent on 18 the part of Defendant and in a reasonable and good faith belief of his legal rights to perform the 19 actions complained of. 20 AS AND FOR A FURTHER SEPARATE, DISTINCT AND TENTH AFFIRMATIVE 21 DEFENSE to the Complaint and each and every cause of action thereof, this answering 22 Defendant alleges that Plaintiff’s injuries, loss, and/or damages, if any there be, were aggravated 23 by Plaintiff’s failure to use reasonable diligence to mitigate the same. 24 AS AND FOR A FURTHER SEPARATE, DISTINCT AND ELEVENTH AFFIRMATIVE 25 DEFENSE to the Complaint and each and every cause of action thereof, this answering 26 Defendant alleges that Plaintiff is barred from asserting any causes of action by virtue of its 27 consent to the alleged acts or conditions. 28 3 DEFENDANT DAVID MARCIL’S ANSWER TO COMPLAINT FOR DAMAGES 1 AS AND FOR A FURTHER SEPARATE, DISTINCT AND TWELFTH AFFIRMATIVE 2 DEFENSE to the Complaint and each and every cause of action thereof, this answering 3 Defendant alleges that Plaintiff has waived and/or released its right to maintain the action filed in 4 this case. 5 AS AND FOR A FURTHER SEPARATE, DISTINCT AND THIRTEENTH AFFIRMATIVE 6 DEFENSE to the Complaint and each and every cause of action thereof, this answering 7 Defendant alleges that Plaintiff is estopped by action of law or by conduct from maintaining the 8 action filed in this case, including, but not limited to the doctrines of res judicata and collateral 9 estoppel. 10 AS AND FOR A FURTHER SEPARATE, DISTINCT AND FOURTEENTH AFFIRMATIVE 11 DEFENSE to the Complaint and each and every cause of action thereof, this answering 12 Defendant alleges that the action filed in this case is not maintainable under the equitable doctrine 13 of laches. 14 AS AND FOR A FURTHER SEPARATE, DISTINCT AND FIFTEENTH AFFIRMATIVE 15 DEFENSE to the Complaint and each and every cause of action thereof, this answering 16 Defendant alleges that Plaintiff is barred from recovery in this case under the doctrine of unclean 17 hands. 18 AS AND FOR A FURTHER SEPARATE, DISTINCT AND SIXTEENTH AFFIRMATIVE 19 DEFENSE to the Complaint and each and every cause of action thereof, this answering 20 Defendant alleges that prior to the commencement of this action, these answering Defendants 21 duly performed, satisfied and discharged all duties and obligations owed to Plaintiff, if any, arising 22 out of any and all alleged agreements, representations, or contracts made by or on behalf of this 23 answering Defendant and this action is therefore barred by the provisions of California Civil Code 24 Section 1473. 25 AS AND FOR A FURTHER SEPARATE, DISTINCT AND SEVENTEENTH AFFIRMATIVE 26 DEFENSE to the Complaint and each and every cause of action thereof, this answering 27 Defendant alleges that Plaintiff has failed to state a claim upon which attorneys’ fees can be 28 awarded. 4 DEFENDANT DAVID MARCIL’S ANSWER TO COMPLAINT FOR DAMAGES 1 AS AND FOR A FURTHER SEPARATE, DISTINCT AND EIGHTEENTH AFFIRMATIVE 2 DEFENSE to the Complaint and each and every cause of action thereof, this answering 3 Defendant alleges that Plaintiff has failed to promptly give notice of rescission, and restore or offer 4 to restore everything of value received under the contract pursuant to Civ. Code § 1691, thereby 5 terminating and extinguishing the right of rescission to which Plaintiff might otherwise be entitled. 6 AS AND FOR A FURTHER SEPARATE, DISTINCT AND NINETEENTH AFFIRMATIVE 7 DEFENSE to the Complaint and each and every cause of action thereof this answering Defendant 8 alleges that Plaintiff waived the right to rescind by words or actions indicating an affirmance of the 9 contract after learning of the facts entitling it to rescind. 10 AS AND FOR A FURTHER SEPARATE, DISTINCT AND TWENTIETH AFFIRMATIVE 11 DEFENSE to the Complaint and each and every cause of action thereof this answering Defendant 12 alleges that Plaintiff knew, or in the exercise of reasonable care, should have known of the risks 13 and hazards involved in the undertaking in which it engaged, but nevertheless and with full 14 knowledge of these things, did fully and voluntarily consent to assume the risks and hazards 15 involved in the undertaking. 16 AS AND FOR A FURTHER SEPARATE, DISTINCT AND TWENTY-FIRST AFFIRMATIVE 17 DEFENSE to the Complaint and each and every cause of action thereof, this answering 18 Defendant alleges that if any damages are awarded to Plaintiff, the amount of damages should be 19 offset by the amounts, if any, owed to or paid by Defendant pursuant to the terms of the 20 agreement and/or enforcement of the same. 21 AS AND FOR A FURTHER SEPARATE, DISTINCT AND TWENTY-SECOND 22 AFFIRMATIVE DEFENSE to the Complaint and each and every cause of action thereof, this 23 answering Defendant alleges that presently Defendant has insufficient knowledge or information 24 on which to form a belief as to whether Defendant may have additional, as yet unstated, defenses 25 available. This answering Defendant reserves herein the right to assert additional defenses in the 26 event discovery indicates that they would be appropriate. 27 WHEREFORE, this answering Defendant prays for judgment against Plaintiff as follows: 28 1. For Dismissal of this action with prejudice; 5 DEFENDANT DAVID MARCIL’S ANSWER TO COMPLAINT FOR DAMAGES 1 2. For attorneys’ fees, costs and expert witness fees incurred in defense of this 2 action; and 3 3. For such other, further relief, as this Court may deem proper. 4 5 Dated: April 17, 2024 MYERS, JAMESON & MYERS LLP 6 By: __________________________ 7 Bradley J. Jameson Attorneys for Defendant and Cross- 8 Complainant DAVID MARCIL 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 DEFENDANT DAVID MARCIL’S ANSWER TO COMPLAINT FOR DAMAGES