Preview
1 Yvonne V. Jorgensen (SBN 136264)
VAN DE POEL, LEVY, THOMAS LLP
2 1600 South Main Plaza, Suite 325
Walnut Creek, California 94596
3 Telephone: (925) 934-6102
Facsimile: (925) 934-6060
4 Email: yjorgensen@vanlevylaw.com
5
Attorney for Defendant,
6 DAVID BRIAN MARCAN
7
8 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 IN AND FOR THE COUNTY OF SAN MATEO
10
11 YEKATERINA DERROUGH AND CASE NO.: 24-CIV-00123
JOSEPH DERROUGH, a married couple,
12
Plaintiffs, DEFENDANT DAVID BRIAN
13 MARCAN’S ANSWER TO
vs. PLAINTIFF’S COMPLAINT
14
LEVEL UP BUILDERS, INC., a California
15 corporation; xxxxx xxxxxxxxxx Complaint Filed: January 5, 2024
xxxxxxxx, an individual; DAVID BRIAN
16 MARCAN, an individual; xxxxxx
xxxxxxx-xxxxx, an individual; ALBERT
17 SALMANI, an individual; and DOES 1
through 50, inclusive,
18
Defendants.
19
20 Defendant DAVID BRIAN MARCAN (hereinafter “Defendant”), through his attorneys Van
21 De Poel, Levy, Thomas LLP, for no others, hereby answers the 2nd, 6th and 7th Causes of Action in
22 the Complaint filed by Plaintiffs YEKATERINA DERROUGH and JOSEPH DERROUGH, a married
23 couple (hereinafter collectively referred to as “Plaintiffs”).
24 GENERAL DENIAL
25 Pursuant to the provisions of Code of Civil Procedure §431.30, this answering Defendant
26 denies generally and specifically each and every allegation contained in each cause of action of the
27 Complaint and further denies that Plaintiffs have been damaged or will be damaged in any sum or
28 sums whatsoever, or at all.
VAN DE POEL, LEVY,
THOMAS LLP
ATTORNEYS AT LAW
1
1600 South Main Plaza
Suite 325
Walnut Creek, CA 94596
Telephone: (925) 934-6102 DEFENDANT DAVID BRIAN MARCAN’S ANSWER TO PLAINTIFF’S COMPLAINT
Facsimile: (925) 934-6060
4864-3727-0454, v. 1
1 FIRST AFFIRMATIVE DEFENSE
2 1. The Complaint in its entirety and each and every cause of action therein, fails to allege
3 facts sufficient to constitute a cause of action against this answering Defendant.
4 SECOND AFFIRMATIVE DEFENSE
5 2. As a further and separate affirmative defense to the Complaint, this answering
6 Defendant alleges that any damage or injury allegedly suffered by Plaintiffs was proximately caused
7 or contributed to by the negligence or fault of Plaintiffs, Plaintiffs’ agents, representatives and/or
8 employees or plaintiff hired contractors or designers; and this answering Defendant is informed and
9 believes and thereon alleges that said party was careless and negligent. Thus, if Plaintiffs are entitled
10 to recover at all for any damages alleged, such recovery must be diminished to the extent that said
11 damages are attributable to the negligence of Plaintiffs, Plaintiffs’ agents, representatives and/or
12 employees or plaintiff hired contractors or designers .
13 THIRD AFFIRMATIVE DEFENSE
14 3. As a further and separate affirmative defense to the Complaint, this answering
15 Defendant alleges that any injuries and damages suffered by Plaintiffs, other parties, or any of them,
16 were caused or contributed to by the negligence or fault of persons or entities other than these
17 answering Defendant, thereby entitling this answering Defendant to an appropriate proration of
18 damages in accordance with the provisions of California law.
19 FOURTH AFFIRMATIVE DEFENSE
20 4. As a further and separate affirmative defense to the Complaint, this answering
21 Defendant alleges that the alleged injuries and damages for which Plaintiffs seeks recovery were the
22 result of causes independent of any acts or omissions by this answering Defendant .
23 FIFTH AFFIRMATIVE DEFENSE
24 5. As a further and separate affirmative defense to the Complaint, this answering
25 Defendant alleges that any and all of the injuries and damages asserted by Plaintiffs were caused or
26 contributed to, in whole or in part, by the negligence or fault of Plaintiffs or others, and said acts and
27 omissions entitle this answering Defendant to contribution from said individuals and entities, and each
28 of them.
VAN DE POEL, LEVY,
THOMAS LLP
ATTORNEYS AT LAW
2
1600 South Main Plaza
Suite 325
Walnut Creek, CA 94596
Telephone: (925) 934-6102 DEFENDANT DAVID BRIAN MARCAN’S ANSWER TO PLAINTIFF’S COMPLAINT
Facsimile: (925) 934-6060
4864-3727-0454, v. 1
1 SIXTH AFFIRMATIVE DEFENSE
2 6. As a further and separate affirmative defense to the Complaint, this answering
3 Defendant alleges that if this answering Defendant is found to have been negligent or liable in any
4 manner, such conduct was passive and secondary, while the negligence of Plaintiffs or others was
5 active and primary, and such conduct bars, in whole or in part, the recovery requested or any recovery
6 at all against this answering Defendant.
7 SEVENTH AFFIRMATIVE DEFENSE
8 7. As a further and separate affirmative defense to the Complaint, this answering
9 Defendant alleges that the negligence of Plaintiffs or other parties or entities constitutes an intervening
10 and superseding cause of injuries and damages, if any, thereby barring or reducing Plaintiffs’ recovery
11 herein.
12 EIGHTH AFFIRMATIVE DEFENSE
13 8. As a further and separate affirmative defense to the Complaint, this answering
14 Defendant alleges that the Complaint is barred in whole or in part by reason of Plaintiffs’ equitable
15 conduct and/or unclean hands, and the court should not give Plaintiffs relief based upon the facts
16 alleged.
17 NINTH AFFIRMATIVE DEFENSE
18 9. As a further and separate affirmative defense to the Complaint, this answering
19 Defendant alleges that the Complaint and each purported cause of action stated therein are barred
20 under the doctrines of waiver and release.
21 TENTH AFFIRMATIVE DEFENSE
22 10. As a further and separate affirmative defense to the Complaint, this answering
23 Defendant alleges that the Complaint and each purported cause of action stated therein are barred by
24 the doctrine of laches.
25 ELEVENTH AFFIRMATIVE DEFENSE
26 11. As a further and separate affirmative defense to the Complaint, this answering
27 Defendant alleges that the Complaint and each purported cause of action stated therein are barred by
28 the doctrine of estoppel.
VAN DE POEL, LEVY,
THOMAS LLP
ATTORNEYS AT LAW
3
1600 South Main Plaza
Suite 325
Walnut Creek, CA 94596
Telephone: (925) 934-6102 DEFENDANT DAVID BRIAN MARCAN’S ANSWER TO PLAINTIFF’S COMPLAINT
Facsimile: (925) 934-6060
4864-3727-0454, v. 1
1 TWELFTH AFFIRMATIVE DEFENSE
2 12. As a further and separate affirmative defense to the Complaint, this answering
3 Defendant alleges that the Complaint and each purported cause of action stated therein are barred as a
4 result of the Plaintiffs’ failure to mitigate their damages, if any were suffered, and by its gratuitously
5 incurring unjustified expense.
6 THIRTEENTH AFFIRMATIVE DEFENSE
7 13. As a further and separate affirmative defense to the Complaint, this answering
8 Defendant alleges by way of a plea of comparative negligence that the Plaintiffs were negligent in and
9 about the matters and activities alleged in the Complaint, and that said negligence contributed to and
10 was a proximate cause of Plaintiffs’ alleged injuries and damages, if any. If the Plaintiffs are entitled
11 to recover damages against this answering Defendant, their recovery should be diminished in
12 proportion to the Plaintiffs’ own fault.
13 FOURTEENTH AFFIRMATIVE DEFENSE
14 14. As a further and separate affirmative defense to the Complaint, this answering
15 Defendant is informed and believes, and therefore alleges, that this answering Defendant is entitled to
16 indemnification by apportionment against all other parties and persons whose negligence contributed
17 to the alleged damages.
18 FIFTEENTH AFFIRMATIVE DEFENSE
19 15. As a further and separate affirmative defense to the Complaint, this answering
20 Defendant is informed and believes, and therefore alleges, that this answering Defendant is not
21 vicariously liable for any damages caused by the acts or omissions of the other Defendants.
22 SIXTEENTH AFFIRMATIVE DEFENSE
23 16. As a further and separate affirmative defense to the Complaint, this answering
24 Defendant is informed and believes and therefore alleges, that the injuries and damages complained
25 of by the Plaintiffs, if there were any, are properly attributable to a modification, alteration, or other
26 change to the work and/or material. Accordingly, any recovery against this answering Defendant
27 should be barred or otherwise diminished.
28 ///
VAN DE POEL, LEVY,
THOMAS LLP
ATTORNEYS AT LAW
4
1600 South Main Plaza
Suite 325
Walnut Creek, CA 94596
Telephone: (925) 934-6102 DEFENDANT DAVID BRIAN MARCAN’S ANSWER TO PLAINTIFF’S COMPLAINT
Facsimile: (925) 934-6060
4864-3727-0454, v. 1
1 SEVENTEENTH AFFIRMATIVE DEFENSE
2 17. As a further and separate affirmative defense to the Complaint, this answering
3 Defendant is informed and believes, and therefore alleges, that the Complaint is barred by the
4 applicable statute of limitations contained in Code of Civil Procedure §§337(1), 337(3), 337.1, 337.15,
5 338(a), 338(b), 338(c), 338(d), 339, 340 and 343, among others.
6 EIGHTEENTH AFFIRMATIVE DEFENSE
7 18. As a further and separate affirmative defense to the Complaint, this answering
8 Defendant is informed and believe, and therefore alleges, that the alleged misrepresentation was not
9 material to the construction work performed on this project.
10 NINETEENTH AFFIRMATIVE DEFENSE
11 19. As a further and separate affirmative defense to the Complaint, this answering
12 Defendant is informed and believes, and therefore alleges, that the alleged misrepresentation was a
13 misunderstanding.
14 TWENTIETH AFFIRMATIVE DEFENSE
15 20. This answering Defendant has not knowingly or intentionally waived any applicable
16 affirmative defenses and reserves the right to assert and rely on such other applicable affirmative
17 defenses as may come available or apparent during discovery proceedings and further reserves the
18 right to amend its answer and defenses accordingly and to delete defenses it determines is not
19 applicable.
20 WHEREFORE, this answering Defendant pray as follows:
21 1. That Plaintiffs take nothing by reason of their Complaint;
22 2. Attorney fees and costs;
23 3. For costs of suit incurred herein; and
24 4. For such other and further relief as the Court may deem just and proper.
25 DATED: May 20, 2024 VAN DE POEL, LEVY, THOMAS LLP
26
By:
27 YVONNE V. JORGENSEN
Attorney for Defendant,
28 DAVID BRIAN MACRAN
VAN DE POEL, LEVY,
THOMAS LLP
ATTORNEYS AT LAW
5
1600 South Main Plaza
Suite 325
Walnut Creek, CA 94596
Telephone: (925) 934-6102 DEFENDANT DAVID BRIAN MARCAN’S ANSWER TO PLAINTIFF’S COMPLAINT
Facsimile: (925) 934-6060
4864-3727-0454, v. 1
1 PROOF OF SERVICE
I am employed in the County of Contra Costa, State of California. I am over the age of 18
2 and am not a party to the within action. My business address is at Van De Poel, Levy, Thomas LLP,
1600 South Main Plaza, Suite 325, Walnut Creek, CA 94596.
3
On May 20, 2024, I served the foregoing document(s) described as:
4
DEFENDANT DAVID BRIAN MARCAN’S ANSWER TO PLAINTIFF’S COMPLAINT
5
on all other parties and/or their attorney(s) of record to this action as follows:
6
*** SEE ATTACHED SERVICE LIST ***
7
8 [ ] By United States Postal Service: I am a resident of, or employed in, the county where
the mailing occurs; I am over the age of 18 years and am not a party to the cause. I am
9 readily familiar with the business' practice for collection and processing of
correspondence for mailing with the United States Postal Service. The envelope was
10 placed for deposit in the United States Postal Service at Van De Poel, Levy, Thomas
LLP, in Walnut Creek, California on May 20, 2024. The envelope was sealed and placed
11 for collection and mailing with first-class prepaid postage on that date following ordinary
business practices. Service made pursuant to CCP § 1013a(3), upon motion of a party
12 served, shall be presumed invalid if the postal cancellation date or postage meter date on
the envelope is more than one day after the date of deposit for mailing contained in the
13 affidavit.
14 [ x] By Electronic Service: My electronic business address is ldesilva@vanlevylaw.com
and I caused such documents (s) to be electronically served by e-mailing the attached
15 document(s) to the person(s) at the e-mail address(es) listed below on April 26, 2021,
pursuant to Code of Civil Procedure § 1010.6 (e). No electronic message or other
16 indication that the transmission was unsuccessful was received within a reasonable time
after the transmission."
17
18 [ ] By Facsimile: By faxing a copy of the above-referenced document(s) to the addressee
at the number set forth beneath their above-listed address. At the completion of the
19 transmission, a Transmission Report was generated, confirming transmission and receipt
by the addresse(es).
20
[ ] By Personal Delivery: By personally delivering a true copy thereof to the person(s) and
21 at the address(es) set forth below.
22 [ ] By Overnight Delivery: At the address(es) listed herein above.
23
I declare under penalty of perjury under the laws of the State of California that the foregoing
24 is true and correct to the best of my knowledge.
25 Executed on May 20, 2024, at Walnut Creek, Contra Costa County, California.
26
27 Lisa S. DeSilva
28
VAN DE POEL, LEVY,
THOMAS LLP
ATTORNEYS AT LAW
6
1600 South Main Plaza
Suite 325
Walnut Creek, CA 94596
Telephone: (925) 934-6102 DEFENDANT DAVID BRIAN MARCAN’S ANSWER TO PLAINTIFF’S COMPLAINT
Facsimile: (925) 934-6060
4864-3727-0454, v. 1
SERVICE LIST
1
Case: Derrough, Yekaterina, et al. v. Level Up Builders, Inc., et al.
2 Court: San Mateo County Superior Court Case Number: 24-CIV-00123
Represent: Level Up Builders, Inc.; xxxxx xxxxxxxxxx xxxxxxxx
3
William F. Stanger, Esq.
4 LAW OFFICE OF WILLIAM STANGER
541 W. Capitol Expy #157
5 San Jose, CA 95136
Phone: (408) 357-0035
6 Email: bill@williamstanger.com
7
Attorney for Plaintiff,
8 YEKATERINA DERROUGH
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VAN DE POEL, LEVY,
THOMAS LLP
ATTORNEYS AT LAW
7
1600 South Main Plaza
Suite 325
Walnut Creek, CA 94596
Telephone: (925) 934-6102 DEFENDANT DAVID BRIAN MARCAN’S ANSWER TO PLAINTIFF’S COMPLAINT
Facsimile: (925) 934-6060
4864-3727-0454, v. 1
Preview
1 Yvonne V. Jorgensen (SBN 136264) VAN DE POEL, LEVY, THOMAS LLP 2 1600 South Main Plaza, Suite 325 Walnut Creek, California 94596 3 Telephone: (925) 934-6102 Facsimile: (925) 934-6060 4 Email: yjorgensen@vanlevylaw.com 5 Attorney for Defendant, 6 DAVID BRIAN MARCAN 7 8 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF SAN MATEO 10 11 YEKATERINA DERROUGH AND CASE NO.: 24-CIV-00123 JOSEPH DERROUGH, a married couple, 12 Plaintiffs, DEFENDANT DAVID BRIAN 13 MARCAN’S ANSWER TO vs. PLAINTIFF’S COMPLAINT 14 LEVEL UP BUILDERS, INC., a California 15 corporation; xxxxx xxxxxxxxxx Complaint Filed: January 5, 2024 xxxxxxxx, an individual; DAVID BRIAN 16 MARCAN, an individual; xxxxxx xxxxxxx-xxxxx, an individual; ALBERT 17 SALMANI, an individual; and DOES 1 through 50, inclusive, 18 Defendants. 19 20 Defendant DAVID BRIAN MARCAN (hereinafter “Defendant”), through his attorneys Van 21 De Poel, Levy, Thomas LLP, for no others, hereby answers the 2nd, 6th and 7th Causes of Action in 22 the Complaint filed by Plaintiffs YEKATERINA DERROUGH and JOSEPH DERROUGH, a married 23 couple (hereinafter collectively referred to as “Plaintiffs”). 24 GENERAL DENIAL 25 Pursuant to the provisions of Code of Civil Procedure §431.30, this answering Defendant 26 denies generally and specifically each and every allegation contained in each cause of action of the 27 Complaint and further denies that Plaintiffs have been damaged or will be damaged in any sum or 28 sums whatsoever, or at all. VAN DE POEL, LEVY, THOMAS LLP ATTORNEYS AT LAW 1 1600 South Main Plaza Suite 325 Walnut Creek, CA 94596 Telephone: (925) 934-6102 DEFENDANT DAVID BRIAN MARCAN’S ANSWER TO PLAINTIFF’S COMPLAINT Facsimile: (925) 934-6060 4864-3727-0454, v. 1 1 FIRST AFFIRMATIVE DEFENSE 2 1. The Complaint in its entirety and each and every cause of action therein, fails to allege 3 facts sufficient to constitute a cause of action against this answering Defendant. 4 SECOND AFFIRMATIVE DEFENSE 5 2. As a further and separate affirmative defense to the Complaint, this answering 6 Defendant alleges that any damage or injury allegedly suffered by Plaintiffs was proximately caused 7 or contributed to by the negligence or fault of Plaintiffs, Plaintiffs’ agents, representatives and/or 8 employees or plaintiff hired contractors or designers; and this answering Defendant is informed and 9 believes and thereon alleges that said party was careless and negligent. Thus, if Plaintiffs are entitled 10 to recover at all for any damages alleged, such recovery must be diminished to the extent that said 11 damages are attributable to the negligence of Plaintiffs, Plaintiffs’ agents, representatives and/or 12 employees or plaintiff hired contractors or designers . 13 THIRD AFFIRMATIVE DEFENSE 14 3. As a further and separate affirmative defense to the Complaint, this answering 15 Defendant alleges that any injuries and damages suffered by Plaintiffs, other parties, or any of them, 16 were caused or contributed to by the negligence or fault of persons or entities other than these 17 answering Defendant, thereby entitling this answering Defendant to an appropriate proration of 18 damages in accordance with the provisions of California law. 19 FOURTH AFFIRMATIVE DEFENSE 20 4. As a further and separate affirmative defense to the Complaint, this answering 21 Defendant alleges that the alleged injuries and damages for which Plaintiffs seeks recovery were the 22 result of causes independent of any acts or omissions by this answering Defendant . 23 FIFTH AFFIRMATIVE DEFENSE 24 5. As a further and separate affirmative defense to the Complaint, this answering 25 Defendant alleges that any and all of the injuries and damages asserted by Plaintiffs were caused or 26 contributed to, in whole or in part, by the negligence or fault of Plaintiffs or others, and said acts and 27 omissions entitle this answering Defendant to contribution from said individuals and entities, and each 28 of them. VAN DE POEL, LEVY, THOMAS LLP ATTORNEYS AT LAW 2 1600 South Main Plaza Suite 325 Walnut Creek, CA 94596 Telephone: (925) 934-6102 DEFENDANT DAVID BRIAN MARCAN’S ANSWER TO PLAINTIFF’S COMPLAINT Facsimile: (925) 934-6060 4864-3727-0454, v. 1 1 SIXTH AFFIRMATIVE DEFENSE 2 6. As a further and separate affirmative defense to the Complaint, this answering 3 Defendant alleges that if this answering Defendant is found to have been negligent or liable in any 4 manner, such conduct was passive and secondary, while the negligence of Plaintiffs or others was 5 active and primary, and such conduct bars, in whole or in part, the recovery requested or any recovery 6 at all against this answering Defendant. 7 SEVENTH AFFIRMATIVE DEFENSE 8 7. As a further and separate affirmative defense to the Complaint, this answering 9 Defendant alleges that the negligence of Plaintiffs or other parties or entities constitutes an intervening 10 and superseding cause of injuries and damages, if any, thereby barring or reducing Plaintiffs’ recovery 11 herein. 12 EIGHTH AFFIRMATIVE DEFENSE 13 8. As a further and separate affirmative defense to the Complaint, this answering 14 Defendant alleges that the Complaint is barred in whole or in part by reason of Plaintiffs’ equitable 15 conduct and/or unclean hands, and the court should not give Plaintiffs relief based upon the facts 16 alleged. 17 NINTH AFFIRMATIVE DEFENSE 18 9. As a further and separate affirmative defense to the Complaint, this answering 19 Defendant alleges that the Complaint and each purported cause of action stated therein are barred 20 under the doctrines of waiver and release. 21 TENTH AFFIRMATIVE DEFENSE 22 10. As a further and separate affirmative defense to the Complaint, this answering 23 Defendant alleges that the Complaint and each purported cause of action stated therein are barred by 24 the doctrine of laches. 25 ELEVENTH AFFIRMATIVE DEFENSE 26 11. As a further and separate affirmative defense to the Complaint, this answering 27 Defendant alleges that the Complaint and each purported cause of action stated therein are barred by 28 the doctrine of estoppel. VAN DE POEL, LEVY, THOMAS LLP ATTORNEYS AT LAW 3 1600 South Main Plaza Suite 325 Walnut Creek, CA 94596 Telephone: (925) 934-6102 DEFENDANT DAVID BRIAN MARCAN’S ANSWER TO PLAINTIFF’S COMPLAINT Facsimile: (925) 934-6060 4864-3727-0454, v. 1 1 TWELFTH AFFIRMATIVE DEFENSE 2 12. As a further and separate affirmative defense to the Complaint, this answering 3 Defendant alleges that the Complaint and each purported cause of action stated therein are barred as a 4 result of the Plaintiffs’ failure to mitigate their damages, if any were suffered, and by its gratuitously 5 incurring unjustified expense. 6 THIRTEENTH AFFIRMATIVE DEFENSE 7 13. As a further and separate affirmative defense to the Complaint, this answering 8 Defendant alleges by way of a plea of comparative negligence that the Plaintiffs were negligent in and 9 about the matters and activities alleged in the Complaint, and that said negligence contributed to and 10 was a proximate cause of Plaintiffs’ alleged injuries and damages, if any. If the Plaintiffs are entitled 11 to recover damages against this answering Defendant, their recovery should be diminished in 12 proportion to the Plaintiffs’ own fault. 13 FOURTEENTH AFFIRMATIVE DEFENSE 14 14. As a further and separate affirmative defense to the Complaint, this answering 15 Defendant is informed and believes, and therefore alleges, that this answering Defendant is entitled to 16 indemnification by apportionment against all other parties and persons whose negligence contributed 17 to the alleged damages. 18 FIFTEENTH AFFIRMATIVE DEFENSE 19 15. As a further and separate affirmative defense to the Complaint, this answering 20 Defendant is informed and believes, and therefore alleges, that this answering Defendant is not 21 vicariously liable for any damages caused by the acts or omissions of the other Defendants. 22 SIXTEENTH AFFIRMATIVE DEFENSE 23 16. As a further and separate affirmative defense to the Complaint, this answering 24 Defendant is informed and believes and therefore alleges, that the injuries and damages complained 25 of by the Plaintiffs, if there were any, are properly attributable to a modification, alteration, or other 26 change to the work and/or material. Accordingly, any recovery against this answering Defendant 27 should be barred or otherwise diminished. 28 /// VAN DE POEL, LEVY, THOMAS LLP ATTORNEYS AT LAW 4 1600 South Main Plaza Suite 325 Walnut Creek, CA 94596 Telephone: (925) 934-6102 DEFENDANT DAVID BRIAN MARCAN’S ANSWER TO PLAINTIFF’S COMPLAINT Facsimile: (925) 934-6060 4864-3727-0454, v. 1 1 SEVENTEENTH AFFIRMATIVE DEFENSE 2 17. As a further and separate affirmative defense to the Complaint, this answering 3 Defendant is informed and believes, and therefore alleges, that the Complaint is barred by the 4 applicable statute of limitations contained in Code of Civil Procedure §§337(1), 337(3), 337.1, 337.15, 5 338(a), 338(b), 338(c), 338(d), 339, 340 and 343, among others. 6 EIGHTEENTH AFFIRMATIVE DEFENSE 7 18. As a further and separate affirmative defense to the Complaint, this answering 8 Defendant is informed and believe, and therefore alleges, that the alleged misrepresentation was not 9 material to the construction work performed on this project. 10 NINETEENTH AFFIRMATIVE DEFENSE 11 19. As a further and separate affirmative defense to the Complaint, this answering 12 Defendant is informed and believes, and therefore alleges, that the alleged misrepresentation was a 13 misunderstanding. 14 TWENTIETH AFFIRMATIVE DEFENSE 15 20. This answering Defendant has not knowingly or intentionally waived any applicable 16 affirmative defenses and reserves the right to assert and rely on such other applicable affirmative 17 defenses as may come available or apparent during discovery proceedings and further reserves the 18 right to amend its answer and defenses accordingly and to delete defenses it determines is not 19 applicable. 20 WHEREFORE, this answering Defendant pray as follows: 21 1. That Plaintiffs take nothing by reason of their Complaint; 22 2. Attorney fees and costs; 23 3. For costs of suit incurred herein; and 24 4. For such other and further relief as the Court may deem just and proper. 25 DATED: May 20, 2024 VAN DE POEL, LEVY, THOMAS LLP 26 By: 27 YVONNE V. JORGENSEN Attorney for Defendant, 28 DAVID BRIAN MACRAN VAN DE POEL, LEVY, THOMAS LLP ATTORNEYS AT LAW 5 1600 South Main Plaza Suite 325 Walnut Creek, CA 94596 Telephone: (925) 934-6102 DEFENDANT DAVID BRIAN MARCAN’S ANSWER TO PLAINTIFF’S COMPLAINT Facsimile: (925) 934-6060 4864-3727-0454, v. 1 1 PROOF OF SERVICE I am employed in the County of Contra Costa, State of California. I am over the age of 18 2 and am not a party to the within action. My business address is at Van De Poel, Levy, Thomas LLP, 1600 South Main Plaza, Suite 325, Walnut Creek, CA 94596. 3 On May 20, 2024, I served the foregoing document(s) described as: 4 DEFENDANT DAVID BRIAN MARCAN’S ANSWER TO PLAINTIFF’S COMPLAINT 5 on all other parties and/or their attorney(s) of record to this action as follows: 6 *** SEE ATTACHED SERVICE LIST *** 7 8 [ ] By United States Postal Service: I am a resident of, or employed in, the county where the mailing occurs; I am over the age of 18 years and am not a party to the cause. I am 9 readily familiar with the business' practice for collection and processing of correspondence for mailing with the United States Postal Service. The envelope was 10 placed for deposit in the United States Postal Service at Van De Poel, Levy, Thomas LLP, in Walnut Creek, California on May 20, 2024. The envelope was sealed and placed 11 for collection and mailing with first-class prepaid postage on that date following ordinary business practices. Service made pursuant to CCP § 1013a(3), upon motion of a party 12 served, shall be presumed invalid if the postal cancellation date or postage meter date on the envelope is more than one day after the date of deposit for mailing contained in the 13 affidavit. 14 [ x] By Electronic Service: My electronic business address is ldesilva@vanlevylaw.com and I caused such documents (s) to be electronically served by e-mailing the attached 15 document(s) to the person(s) at the e-mail address(es) listed below on April 26, 2021, pursuant to Code of Civil Procedure § 1010.6 (e). No electronic message or other 16 indication that the transmission was unsuccessful was received within a reasonable time after the transmission." 17 18 [ ] By Facsimile: By faxing a copy of the above-referenced document(s) to the addressee at the number set forth beneath their above-listed address. At the completion of the 19 transmission, a Transmission Report was generated, confirming transmission and receipt by the addresse(es). 20 [ ] By Personal Delivery: By personally delivering a true copy thereof to the person(s) and 21 at the address(es) set forth below. 22 [ ] By Overnight Delivery: At the address(es) listed herein above. 23 I declare under penalty of perjury under the laws of the State of California that the foregoing 24 is true and correct to the best of my knowledge. 25 Executed on May 20, 2024, at Walnut Creek, Contra Costa County, California. 26 27 Lisa S. DeSilva 28 VAN DE POEL, LEVY, THOMAS LLP ATTORNEYS AT LAW 6 1600 South Main Plaza Suite 325 Walnut Creek, CA 94596 Telephone: (925) 934-6102 DEFENDANT DAVID BRIAN MARCAN’S ANSWER TO PLAINTIFF’S COMPLAINT Facsimile: (925) 934-6060 4864-3727-0454, v. 1 SERVICE LIST 1 Case: Derrough, Yekaterina, et al. v. Level Up Builders, Inc., et al. 2 Court: San Mateo County Superior Court Case Number: 24-CIV-00123 Represent: Level Up Builders, Inc.; xxxxx xxxxxxxxxx xxxxxxxx 3 William F. Stanger, Esq. 4 LAW OFFICE OF WILLIAM STANGER 541 W. Capitol Expy #157 5 San Jose, CA 95136 Phone: (408) 357-0035 6 Email: bill@williamstanger.com 7 Attorney for Plaintiff, 8 YEKATERINA DERROUGH 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VAN DE POEL, LEVY, THOMAS LLP ATTORNEYS AT LAW 7 1600 South Main Plaza Suite 325 Walnut Creek, CA 94596 Telephone: (925) 934-6102 DEFENDANT DAVID BRIAN MARCAN’S ANSWER TO PLAINTIFF’S COMPLAINT Facsimile: (925) 934-6060 4864-3727-0454, v. 1