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1 KIRTON McCONKIE
Christopher S. Hill (Cal. Bar No. 205738)
2 50 East South Temple, Suite 400
Salt Lake City, Utah 84111
3 Telephone: (801) 328-3600
Facsimile: (801) 321-4893
4 chill@kmclaw.com
5 Attorneys for Plaintiff
Amy Beaudine
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7 SUPERIOR COURT OF THE STATE OF CALIFORNIA
8 COUNTY OF NAPA
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AMY BEAUDINE, an individual; CASE NO.: 23CV001690
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Plaintiff, CROSS-DEFENDANT AMY BEAUDINE’S
11 ANSWER TO CROSS-COMPLAINT
vs.
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DARIO VIVAN, an individual and HEIDI Complaint Filed: 12/27/2023
13 VIVAN, an individual;
Cross-Complaint Filed: 3/22/2024
14 Defendants;
Department: Courtroom A
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AND RELATED CROSS-COMPLAINT Assigned to: Cynthia P. Smith
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18 Plaintiff/Cross-Defendant Amy Beaudine (“Cross-Defendant”) answers Defendants/Cross-
19 Complainants’ Dario Vivan and Heidi Vivan’s (“Cross-Complainants”) Cross-Complaint for Damages
20 (“Cross-Complaint”), as follows:
21 GENERAL DENIAL
22 Pursuant to the provisions of California Code of Civil Procedure Section 431.30, this Cross-
23 Defendant denies generally each and every allegation and each purported cause of action contained in
24 Cross- Complainants’ Cross-Complaint, and without limiting the generality of the foregoing, deny that
25 Cross- Complainants have been damaged in any amount, or at all, by reason of any acts or omissions of
26 this Cross-Defendant.
27 In further answer to the Cross-Complaint, and as defenses to the purported causes of action set
28 forth in the Cross-Complaint, Cross-Defendant alleges as follows:
1 _________________________________
ANSWER TO CROSS-COMPLAINT
1 AFFIRMATIVE DEFENSES
2 As separate and distinct affirmative defenses to the Cross-Complaint and the causes of action
3 alleged therein, Cross-Defendant alleges as follows:
4 FIRST AFFIRMATIVE DEFENSE
5 (Failure to State a Claim)
6 Neither the Cross-Complaint, nor any cause of action contained therein, sets forth facts
7 sufficient to constitute a cause of action against Cross-Defendant.
8 SECOND AFFIRMATIVE DEFENSE
9 (Laches)
10 Cross- Complainants’ causes of action, and each of them, are barred, in whole or in part, by the
11 doctrine of laches.
12 THIRD AFFIRMATIVE DEFENSE
13 (Estoppel)
14 Cross- Complainants’ causes of action, and each of them, are barred, in whole or in part, by the
15 doctrine of estoppel.
16 FOURTH AFFIRMATIVE DEFENSE
17 (Unclean Hands)
18 Cross- Complainants’ causes of action, and each of them, are barred, in whole or in part, by the
19 doctrine of unclean hands.
20 FIFTH AFFIRMATIVE DEFENSE
21 (Waiver)
22 Cross- Complainants’ causes of action, and each of them, are barred, in whole or in part, by the
23 doctrine of waiver.
24 SIXTH AFFIRMATIVE DEFENSE
25 (Lack of Standing)
26 Cross- Complainants’ claims are barred to the extent Plaintiff lacks the standing to assert them.
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2 _________________________________
ANSWER TO CROSS-COMPLAINT
1 SEVENTH AFFIRMATIVE DEFENSE
2 (Failure to Comply with California Civil Code Section 1950.5)
3 Cross- Complainants’ claims against the Defendants are barred by the applicable provisions of
4 California Civil Code Section 1950.5, including but not limited to Cross-Complainants’ failure to notify
5 Cross-Defendant in writing of her option to request an initial inspection, failure to participate in an
6 inspection when requested, deprivation of Cross-Defendant’s right to remedy identified deficiencies,
7 failure to timely deliver by personal delivery of first-class mail a copy of an itemized statement
8 indicating the basis for, and the amount of, any security received and the disposition of the security,
9 failure to timely deliver required documents showing charges incurred and deducted and/or failure to
10 describe the work performed,
11 EIGHTH AFFIRMATIVE DEFENSE
12 (Comparative Negligence)
13 Cross- Complainants’ claims arise in whole or in part due to the Cross-Complainant’s own
14 conduct and are limited and/or barred by the doctrine of comparative negligence.
15 NINTH AFFIRMATIVE DEFENSE
16 (Offset or Credit)
17 Cross-Defendant is entitled to an offset or credit for the full amount of all monies held and
18 received by Cross-Complainant, and/or the amount of damages to which Cross-Complainants are
19 obligated to Cross-Defendant.
20 TENTH AFFIRMATIVE DEFENSE
21 (Mitigation of Losses)
22 Cross-Complainants, though under a duty to do so, failed and neglected to use reasonable care
23 to minimize and mitigate the losses, injuries, and damages of which they complain and therefore cannot
24 recover against Cross-Defendant whether as alleged or otherwise.
25 ELEVENTH AFFIRMATIVE DEFENSE
26 (Reservation of Rights)
27 Cross-Defendant has or may have additional defenses that cannot be articulated due to Cross-
28 Complainants’ failure to particularize their claims and due to Cross-Complainants’ failure to provide
3 _________________________________
ANSWER TO CROSS-COMPLAINT
1 more specific information concerning the nature of the damage claims and claims for certain costs for
2 which Cross-Complainants alleges that Cross-Defendant may have some responsibility. Therefore,
3 Cross-Defendant reserves the right to assert additional defenses upon further particularization or
4 clarification of Cross-Complainants’ claims, upon examination of the documents provided, upon
5 discovery of information concerning the alleged damage claims and claims for costs, and upon the
6 development of other pertinent information.
7 PRAYER FOR RELIEF
8 WHEREFORE, Cross-Defendant prays for relief as follows:
9 1. That Cross-Complainants recover nothing by way of their Cross-Complaint, and that
10 said Cross-Complaint be dismissed with prejudice;
11 2. That Cross-Defendant be awarded all of her costs, including attorneys’ fees, incurred
12 herein; and
13 3. That the Court award such other and further relief as it deems just and equitable.
14 DATED this 22nd day of April, 2024.
15 KIRTON MCCONKIE
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17 By:
Christopher S. Hill
18 Attorneys for Plaintiff
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4 _________________________________
ANSWER TO CROSS-COMPLAINT
1 PROOF OF SERVICE
2 STATE OF UTAH )
) ss
3 COUNTY OF SALT LAKE )
4 I am a resident of the State of Utah, over the age of eighteen years, and not a party to the within
action. My business address is Kirton McConkie, 36 South State Street, Suite 1900, Salt Lake City, UT
5 84111. On April 22, 2024, I served the within document:
6 ANSWER TO CROSS-COMPLAINT
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BY OVERNIGHT DELIVERY VIA FEDERAL EXPRESS
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I am familiar with the office practice of Kirton McConkie for collecting and
9 processing documents for mailing with Federal Express. Under that practice,
documents are deposited with the Kirton & McConkie personnel responsible for
10 depositing documents with Federal Express, such documents are delivered to the
Federal Express on that same day in the ordinary course of business, with postage
11 thereon fully prepaid. I deposited in Kirton & McConkie’s interoffice Federal
Express box pick up a sealed envelope or package containing the above-described
12 document and addressed as set forth below in accordance with the office practice of
Kirton & McConkie for collecting and processing documents for sending by Federal
13 Express. The envelopes were addressed as follows:
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15 by placing the document(s) listed above in a sealed envelope with postage thereon
fully prepaid, in the United States mail at Salt Lake City, Utah, addressed as set forth
16 below.
Vincent M. Spohn
17 Law Offices of Vincent M. Spohn
1475 Fourth Street
18 Napa, CA 94559
PO Box 5748
19 Napa, CA 94581-0748
By personal service. I personally caused to be delivered the documents to the entity
20 at the addresses listed below. Delivery was made to the party or by leaving the
documents at the party's residence with some person not younger than 18 years of age
21 between the hours of eight in the morning and eight in the evening.
22 by transmitting the document(s) listed above on behalf of LBOW, LLC, electronically,
via the e-mail address set forth below:
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vms@vspohnlaw.com; admin@vspohnlaw.com
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I declare under penalty of perjury under the laws of the State of Utah that the above is true and
26 correct.
27 //
//
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5 _________________________________
ANSWER TO CROSS-COMPLAINT
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2 Executed at Salt Lake City, Utah, on April 22, 2024.
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ANSWER TO CROSS-COMPLAINT
4873-3147-1288
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1 KIRTON McCONKIE Christopher S. Hill (Cal. Bar No. 205738) 2 50 East South Temple, Suite 400 Salt Lake City, Utah 84111 3 Telephone: (801) 328-3600 Facsimile: (801) 321-4893 4 chill@kmclaw.com 5 Attorneys for Plaintiff Amy Beaudine 6 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 COUNTY OF NAPA 9 AMY BEAUDINE, an individual; CASE NO.: 23CV001690 10 Plaintiff, CROSS-DEFENDANT AMY BEAUDINE’S 11 ANSWER TO CROSS-COMPLAINT vs. 12 DARIO VIVAN, an individual and HEIDI Complaint Filed: 12/27/2023 13 VIVAN, an individual; Cross-Complaint Filed: 3/22/2024 14 Defendants; Department: Courtroom A 15 AND RELATED CROSS-COMPLAINT Assigned to: Cynthia P. Smith 16 17 18 Plaintiff/Cross-Defendant Amy Beaudine (“Cross-Defendant”) answers Defendants/Cross- 19 Complainants’ Dario Vivan and Heidi Vivan’s (“Cross-Complainants”) Cross-Complaint for Damages 20 (“Cross-Complaint”), as follows: 21 GENERAL DENIAL 22 Pursuant to the provisions of California Code of Civil Procedure Section 431.30, this Cross- 23 Defendant denies generally each and every allegation and each purported cause of action contained in 24 Cross- Complainants’ Cross-Complaint, and without limiting the generality of the foregoing, deny that 25 Cross- Complainants have been damaged in any amount, or at all, by reason of any acts or omissions of 26 this Cross-Defendant. 27 In further answer to the Cross-Complaint, and as defenses to the purported causes of action set 28 forth in the Cross-Complaint, Cross-Defendant alleges as follows: 1 _________________________________ ANSWER TO CROSS-COMPLAINT 1 AFFIRMATIVE DEFENSES 2 As separate and distinct affirmative defenses to the Cross-Complaint and the causes of action 3 alleged therein, Cross-Defendant alleges as follows: 4 FIRST AFFIRMATIVE DEFENSE 5 (Failure to State a Claim) 6 Neither the Cross-Complaint, nor any cause of action contained therein, sets forth facts 7 sufficient to constitute a cause of action against Cross-Defendant. 8 SECOND AFFIRMATIVE DEFENSE 9 (Laches) 10 Cross- Complainants’ causes of action, and each of them, are barred, in whole or in part, by the 11 doctrine of laches. 12 THIRD AFFIRMATIVE DEFENSE 13 (Estoppel) 14 Cross- Complainants’ causes of action, and each of them, are barred, in whole or in part, by the 15 doctrine of estoppel. 16 FOURTH AFFIRMATIVE DEFENSE 17 (Unclean Hands) 18 Cross- Complainants’ causes of action, and each of them, are barred, in whole or in part, by the 19 doctrine of unclean hands. 20 FIFTH AFFIRMATIVE DEFENSE 21 (Waiver) 22 Cross- Complainants’ causes of action, and each of them, are barred, in whole or in part, by the 23 doctrine of waiver. 24 SIXTH AFFIRMATIVE DEFENSE 25 (Lack of Standing) 26 Cross- Complainants’ claims are barred to the extent Plaintiff lacks the standing to assert them. 27 28 2 _________________________________ ANSWER TO CROSS-COMPLAINT 1 SEVENTH AFFIRMATIVE DEFENSE 2 (Failure to Comply with California Civil Code Section 1950.5) 3 Cross- Complainants’ claims against the Defendants are barred by the applicable provisions of 4 California Civil Code Section 1950.5, including but not limited to Cross-Complainants’ failure to notify 5 Cross-Defendant in writing of her option to request an initial inspection, failure to participate in an 6 inspection when requested, deprivation of Cross-Defendant’s right to remedy identified deficiencies, 7 failure to timely deliver by personal delivery of first-class mail a copy of an itemized statement 8 indicating the basis for, and the amount of, any security received and the disposition of the security, 9 failure to timely deliver required documents showing charges incurred and deducted and/or failure to 10 describe the work performed, 11 EIGHTH AFFIRMATIVE DEFENSE 12 (Comparative Negligence) 13 Cross- Complainants’ claims arise in whole or in part due to the Cross-Complainant’s own 14 conduct and are limited and/or barred by the doctrine of comparative negligence. 15 NINTH AFFIRMATIVE DEFENSE 16 (Offset or Credit) 17 Cross-Defendant is entitled to an offset or credit for the full amount of all monies held and 18 received by Cross-Complainant, and/or the amount of damages to which Cross-Complainants are 19 obligated to Cross-Defendant. 20 TENTH AFFIRMATIVE DEFENSE 21 (Mitigation of Losses) 22 Cross-Complainants, though under a duty to do so, failed and neglected to use reasonable care 23 to minimize and mitigate the losses, injuries, and damages of which they complain and therefore cannot 24 recover against Cross-Defendant whether as alleged or otherwise. 25 ELEVENTH AFFIRMATIVE DEFENSE 26 (Reservation of Rights) 27 Cross-Defendant has or may have additional defenses that cannot be articulated due to Cross- 28 Complainants’ failure to particularize their claims and due to Cross-Complainants’ failure to provide 3 _________________________________ ANSWER TO CROSS-COMPLAINT 1 more specific information concerning the nature of the damage claims and claims for certain costs for 2 which Cross-Complainants alleges that Cross-Defendant may have some responsibility. Therefore, 3 Cross-Defendant reserves the right to assert additional defenses upon further particularization or 4 clarification of Cross-Complainants’ claims, upon examination of the documents provided, upon 5 discovery of information concerning the alleged damage claims and claims for costs, and upon the 6 development of other pertinent information. 7 PRAYER FOR RELIEF 8 WHEREFORE, Cross-Defendant prays for relief as follows: 9 1. That Cross-Complainants recover nothing by way of their Cross-Complaint, and that 10 said Cross-Complaint be dismissed with prejudice; 11 2. That Cross-Defendant be awarded all of her costs, including attorneys’ fees, incurred 12 herein; and 13 3. That the Court award such other and further relief as it deems just and equitable. 14 DATED this 22nd day of April, 2024. 15 KIRTON MCCONKIE 16 17 By: Christopher S. Hill 18 Attorneys for Plaintiff 19 20 21 22 23 24 25 26 27 28 4 _________________________________ ANSWER TO CROSS-COMPLAINT 1 PROOF OF SERVICE 2 STATE OF UTAH ) ) ss 3 COUNTY OF SALT LAKE ) 4 I am a resident of the State of Utah, over the age of eighteen years, and not a party to the within action. My business address is Kirton McConkie, 36 South State Street, Suite 1900, Salt Lake City, UT 5 84111. On April 22, 2024, I served the within document: 6 ANSWER TO CROSS-COMPLAINT 7 BY OVERNIGHT DELIVERY VIA FEDERAL EXPRESS 8 I am familiar with the office practice of Kirton McConkie for collecting and 9 processing documents for mailing with Federal Express. Under that practice, documents are deposited with the Kirton & McConkie personnel responsible for 10 depositing documents with Federal Express, such documents are delivered to the Federal Express on that same day in the ordinary course of business, with postage 11 thereon fully prepaid. I deposited in Kirton & McConkie’s interoffice Federal Express box pick up a sealed envelope or package containing the above-described 12 document and addressed as set forth below in accordance with the office practice of Kirton & McConkie for collecting and processing documents for sending by Federal 13 Express. The envelopes were addressed as follows: 14 15 by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at Salt Lake City, Utah, addressed as set forth 16 below. Vincent M. Spohn 17 Law Offices of Vincent M. Spohn 1475 Fourth Street 18 Napa, CA 94559 PO Box 5748 19 Napa, CA 94581-0748 By personal service. I personally caused to be delivered the documents to the entity 20 at the addresses listed below. Delivery was made to the party or by leaving the documents at the party's residence with some person not younger than 18 years of age 21 between the hours of eight in the morning and eight in the evening. 22 by transmitting the document(s) listed above on behalf of LBOW, LLC, electronically, via the e-mail address set forth below: 23 vms@vspohnlaw.com; admin@vspohnlaw.com 24 25 I declare under penalty of perjury under the laws of the State of Utah that the above is true and 26 correct. 27 // // 28 // 5 _________________________________ ANSWER TO CROSS-COMPLAINT 1 // 2 Executed at Salt Lake City, Utah, on April 22, 2024. 3 4 5 4 4873-3147-1288, v. 1 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 _________________________________ ANSWER TO CROSS-COMPLAINT 4873-3147-1288