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BRIANT. BONNEY, ESQ.
VUCINICH, BEEMAN+ SCHELEY
2 A Professional Corporation
5860 Owens Drive, Suite 410
CA 94588
(925) 734-0990
4 Facsimile: (925) 734-0888
Attorneys for Defendants
& IRENE M. MCBRIDE FAMILY TRUST
dba MANCHESTER GARDENS (erroneously sued herein as
MC BRIDE KENNETH D. & IRENE M TRS)
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF FRESNO
COLEMAN, MIRIAM DIAZ,)
ANITA GARCIA, DARLENE LEE,) DEFENDANTS' ANSWER
FREDERICK BERNARD
PERRY PALMER, JOSEFINA DIAZ,)
STRICKLAND, KAREN
ORFELINA ANDERSON, STEPHANIE)
JACKSON, AARON PEOPLES, ERICA)
MEGANOVA LP, and MC BRIDE)
19 KENNETH D. M TRS, et al. and)
DOES 1-50, inclusive,
COME NOW Defendants, KENNETH D. and IRENE M. MCBRIDE FAMILY TRUST
dba MANCHESTER GARDENS (erroneously sued herein as MC BRIDE KENNETH D.
IRENE M TRS) in answer to the unverified Complaint
26 LASONYA SMITH, VIVIAN MIRIAM DIAZ, ANITA GARCIA, DARLENE LEE,
27 FREDERICK BERNARD BOWLING, PERRY PALMER, JOSEFINA DIAZ, TIMOTHY
DEFENDANTS' ANSWER TO COMPLAINT
ELRIDGE, MCHAEL STRICKLAND, KAREN WARREN, ORFELINA ANDERSON,
2 STEPHANIE JACKSON, AARON PEOPLES, ERICA BRADLEY, RITA SONIERS, an
individual, herewith denies each and every, all and singular, the allegations said unverified
Complaint, and each alleged cause action thereof, and in that connection, said Defendant denies
that Plaintiffs have been injured or damaged in any the sums mentioned in the First Amended
Complaint, or in any other amount, or at all, by reason any action or omission.
AFFIRMATIVE DEFENSES
AS A FIRST, SEPARATE AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF,
Defendants allege that said Complaint, and each alleged cause action thereof, fails to state facts
sufficient to constitute a cause action against these answering Defendants.
AS A SECOND, SEPARATE AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF,
16 Defendants allege that Plaintiffs were careless and negligent in and about the matters alleged in the
Complaint, and each alleged cause action thereof, and that said carelessness and negligence on
said Plaintiffs' own part proximately contributed to the happening the loss and damages
any there were. Under the doctrine comparative negligence, Plaintiffs' own
comparative negligence shall reduce any and all damages sustained by said Plaintiffs.
AS A TIDRD, SEPARATE AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF,
24 Defendants allege that said damages sustained by Plaintiffs were either wholly or in part the fault
others, whether that fault be the proximate result negligence, strict liability, breach
warranty, breach contract or any other type fault caused by persons, corporations, or
DEFENDANTS' ANSWER TO COMPLAINT
entities other than these answering Defendants and said negligence or fault comparatively reduces
2 the percentage fault or negligence, any, by these answering Defendants.
AS A FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF,
Defendants allege that Plaintiffs failed to mitigate their damages.
AS A FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, these answering
Defendants allege that the Complaint and each alleged cause action thereof, fails to state facts
sufficient to constitute a cause action in that said Complaint, and each cause action thereof, is
barred by the statute limitations as stated in Part Two, Title II, Chapter 3, the California Code
Civil Procedure, beginning with Section 335, and continuing through Section 349.4 and, more
particularly, but not to Sections 337, 337.1, 337.15, 337.5, 338, 339, 340 and 343.
AS A SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF,
Defendants allege that the provisions the "Fair Responsibility Act 1986" (commonly known
as Proposition 51, Civil Code Sections 1430, 1431, 1431.1, 1431.2, 1431.3, 1431.4, 1431.5 and
1432) are applicable to this action to the extent Plaintiffs' injuries and damages, any there were
or are, were proximately caused or contributed to by the carelessness, negligence or fault
persons or entities other than answering Defendants.
AS A SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, these answering
25 Defendants are informed and believe and thereon allege that Plaintiffs, with full appreciation
particular risks involved, nevertheless knowingly and voluntarily assumed the risks and hazards
the activity complained and the damages, any, resulting therefrom.
DEFENDANTS' ANSWER TO COMPLAINT
AS AN EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, answering
Defendants are informed and believe and thereon allege that no contract was created between any
of the Plaintiffs and any the Defendants due to unilateral mistake
AS A NINTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, answering
Defendants are informed and believe and thereon allege that no contract was created between any
of the Plaintiffs and any the Defendants due to bilateral mistake of fact.
AS A TENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, answering
Defendants are informed and believe and thereon allege that no contract was ever created between
the Plaintiffs and any of the Defendants because Defendants' consent was obtained by
AS AN ELEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO
COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, answering
Defendants are informed and believe and thereon allege that Defendants did not have to perform
under the alleged contract because Plaintiffs' waived any and all rights under any and all contracts
between the parties.
AS A TWELFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE
23 COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, answering
24 Defendants are informed and believe and thereon allege that the original lease contract cannot be
25 enforced because the parties substituted a new and different contract for the original.
AS A TIDRTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO
COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, answering
DEFENDANTS' ANSWER TO COMPLAINT
Defendants are informed and believe and thereon allege that Plaintiffs failed to provide actual or
2 constructive notice the allegedly uninhabitable conditions.
AS A FOURTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, answering
Defendants are informed and believe and thereon allege that Defendants did not have an
opportunity to cure the conditions alleged in Plaintiffs' Complaint.
AS A FIFTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, answering
Defendants are informed and believe and thereon allege that Plaintiffs offset all and/or too much
AS A SIXTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, answering
Defendants are informed and believe and thereon allege that Plaintiffs failed to make rent
AS A SEVENTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, answering
Defendants are informed and believe and thereon allege that Plaintiffs breached numerous lease
AS AN EIGHTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE
23 COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, answering
24 Defendants are informed and believe and thereon allege that Plaintiffs violated their Tenant's
25 obligations and Cal. Civ. Code 1941.2 absolves Defendants of any duty to repair.
AS A NINETEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, answering
DEFENDANTS' ANSWER TO COMPLAINT
Defendants are informed and believe and thereon allege that Plaintiffs are estopped by their
2 conduct from asserting each the causes action upon which they seek relief.
AS A TWENTIETH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, answenng
Defendants are informed and believe and thereon allege that Plaintiffs have not suffered any losses
and Defendants have not been unjustly enriched as result of any action or inaction by Defendants
or their agents. Plaintiffs, therefore, are not entitled to any disgorgement or restitution.
9 AS A TWENTY SEP ARA AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, answering
Defendants are informed and believe and thereon allege that Plaintiffs are not entitled to treble or
punitive damages in this claim.
AS A TWENTY SECOND, SEPARATE AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, answering
Defendants are informed and believe and thereon allege that Plaintiffs are not entitled to attorney's
7 fees or costs in this claim.
AS A TWENTY THIRD, SEPARATE AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, answering
Defendants presently have insufficient knowledge or information upon which to form a belief as to
whether they may have additional, as yet unstated, affirmative defenses. Answering Defendants
23 reserve herein the right to assert additional affirmative defenses in the event discovery indicates
these answering Defendants pray the Plaintiffs take nothing by way
their Unverified Complaint, that Defendants have judgment for costs suit incurred herein,
such other and further as the court may deem and proper.
CLAPP, MORONEY, VUCINICH,
Attorneys for Defendants
KENNETH D. IRENE M. MCBRIDE FAMILY
TRUSTdba MANCHESTER GARDENS
DEFENDANTS' ANSWER TO COMPLAINT
et al v. Mer:anova LP et al
Fresno County Superior Court Case No.: 19CECG01970
PROOF OF SERVICE BY MAIL
I, the undersigned, hereby declare that I am over the age eighteen years and not a party to
the within action. My business address is 5860 Owens Drive, Suite 410, Pleasanton, California
On the date indicated below, I served by mail a true copy the following documents:
DEFENDANTS' ANSWER TO COMPLAINT
I am readily familiar with the practice this business for collection and processing of
documents for mailing with the United States Postal Service. Documents so collected and processed
are placed for collection and deposit with the United States Postal Service that same day in the
ordinary course business. The above-referenced document(s) were placed in (a) sealed
envelope( s) with postage thereon fully prepaid, addressed to each the below listed parties and such
envelope(s) was (were) placed for collection and deposit with the United States Postal Service on
the date listed below at 5860 Owens Drive, Suite 410, Pleasanton, California 94588.
for Plaintiff
Margaret A. Elder, Esq.
Chandra Gehri Spencer, Esq.
SPENCER, LLP
8050 N. Palm Avenue, Suite 300
Fresno, CA 93711
Tel: (559) 317-1008
Fax: (888) 422-8027
Email: info@elderspencer.com
Executed on 15, 2019, at Pleas ton, California. declare under penalty
under the laws the State California that foregoing is true and correct.
mail.wpd
Preview
BRIANT. BONNEY, ESQ. VUCINICH, BEEMAN+ SCHELEY 2 A Professional Corporation 5860 Owens Drive, Suite 410 CA 94588 (925) 734-0990 4 Facsimile: (925) 734-0888 Attorneys for Defendants & IRENE M. MCBRIDE FAMILY TRUST dba MANCHESTER GARDENS (erroneously sued herein as MC BRIDE KENNETH D. & IRENE M TRS) SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF FRESNO COLEMAN, MIRIAM DIAZ,) ANITA GARCIA, DARLENE LEE,) DEFENDANTS' ANSWER FREDERICK BERNARD PERRY PALMER, JOSEFINA DIAZ,) STRICKLAND, KAREN ORFELINA ANDERSON, STEPHANIE) JACKSON, AARON PEOPLES, ERICA) MEGANOVA LP, and MC BRIDE) 19 KENNETH D. M TRS, et al. and) DOES 1-50, inclusive, COME NOW Defendants, KENNETH D. and IRENE M. MCBRIDE FAMILY TRUST dba MANCHESTER GARDENS (erroneously sued herein as MC BRIDE KENNETH D. IRENE M TRS) in answer to the unverified Complaint 26 LASONYA SMITH, VIVIAN MIRIAM DIAZ, ANITA GARCIA, DARLENE LEE, 27 FREDERICK BERNARD BOWLING, PERRY PALMER, JOSEFINA DIAZ, TIMOTHY DEFENDANTS' ANSWER TO COMPLAINT ELRIDGE, MCHAEL STRICKLAND, KAREN WARREN, ORFELINA ANDERSON, 2 STEPHANIE JACKSON, AARON PEOPLES, ERICA BRADLEY, RITA SONIERS, an individual, herewith denies each and every, all and singular, the allegations said unverified Complaint, and each alleged cause action thereof, and in that connection, said Defendant denies that Plaintiffs have been injured or damaged in any the sums mentioned in the First Amended Complaint, or in any other amount, or at all, by reason any action or omission. AFFIRMATIVE DEFENSES AS A FIRST, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, Defendants allege that said Complaint, and each alleged cause action thereof, fails to state facts sufficient to constitute a cause action against these answering Defendants. AS A SECOND, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, 16 Defendants allege that Plaintiffs were careless and negligent in and about the matters alleged in the Complaint, and each alleged cause action thereof, and that said carelessness and negligence on said Plaintiffs' own part proximately contributed to the happening the loss and damages any there were. Under the doctrine comparative negligence, Plaintiffs' own comparative negligence shall reduce any and all damages sustained by said Plaintiffs. AS A TIDRD, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, 24 Defendants allege that said damages sustained by Plaintiffs were either wholly or in part the fault others, whether that fault be the proximate result negligence, strict liability, breach warranty, breach contract or any other type fault caused by persons, corporations, or DEFENDANTS' ANSWER TO COMPLAINT entities other than these answering Defendants and said negligence or fault comparatively reduces 2 the percentage fault or negligence, any, by these answering Defendants. AS A FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, Defendants allege that Plaintiffs failed to mitigate their damages. AS A FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, these answering Defendants allege that the Complaint and each alleged cause action thereof, fails to state facts sufficient to constitute a cause action in that said Complaint, and each cause action thereof, is barred by the statute limitations as stated in Part Two, Title II, Chapter 3, the California Code Civil Procedure, beginning with Section 335, and continuing through Section 349.4 and, more particularly, but not to Sections 337, 337.1, 337.15, 337.5, 338, 339, 340 and 343. AS A SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, Defendants allege that the provisions the "Fair Responsibility Act 1986" (commonly known as Proposition 51, Civil Code Sections 1430, 1431, 1431.1, 1431.2, 1431.3, 1431.4, 1431.5 and 1432) are applicable to this action to the extent Plaintiffs' injuries and damages, any there were or are, were proximately caused or contributed to by the carelessness, negligence or fault persons or entities other than answering Defendants. AS A SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, these answering 25 Defendants are informed and believe and thereon allege that Plaintiffs, with full appreciation particular risks involved, nevertheless knowingly and voluntarily assumed the risks and hazards the activity complained and the damages, any, resulting therefrom. DEFENDANTS' ANSWER TO COMPLAINT AS AN EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, answering Defendants are informed and believe and thereon allege that no contract was created between any of the Plaintiffs and any the Defendants due to unilateral mistake AS A NINTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, answering Defendants are informed and believe and thereon allege that no contract was created between any of the Plaintiffs and any the Defendants due to bilateral mistake of fact. AS A TENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, answering Defendants are informed and believe and thereon allege that no contract was ever created between the Plaintiffs and any of the Defendants because Defendants' consent was obtained by AS AN ELEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, answering Defendants are informed and believe and thereon allege that Defendants did not have to perform under the alleged contract because Plaintiffs' waived any and all rights under any and all contracts between the parties. AS A TWELFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE 23 COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, answering 24 Defendants are informed and believe and thereon allege that the original lease contract cannot be 25 enforced because the parties substituted a new and different contract for the original. AS A TIDRTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, answering DEFENDANTS' ANSWER TO COMPLAINT Defendants are informed and believe and thereon allege that Plaintiffs failed to provide actual or 2 constructive notice the allegedly uninhabitable conditions. AS A FOURTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, answering Defendants are informed and believe and thereon allege that Defendants did not have an opportunity to cure the conditions alleged in Plaintiffs' Complaint. AS A FIFTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, answering Defendants are informed and believe and thereon allege that Plaintiffs offset all and/or too much AS A SIXTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, answering Defendants are informed and believe and thereon allege that Plaintiffs failed to make rent AS A SEVENTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, answering Defendants are informed and believe and thereon allege that Plaintiffs breached numerous lease AS AN EIGHTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE 23 COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, answering 24 Defendants are informed and believe and thereon allege that Plaintiffs violated their Tenant's 25 obligations and Cal. Civ. Code 1941.2 absolves Defendants of any duty to repair. AS A NINETEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, answering DEFENDANTS' ANSWER TO COMPLAINT Defendants are informed and believe and thereon allege that Plaintiffs are estopped by their 2 conduct from asserting each the causes action upon which they seek relief. AS A TWENTIETH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, answenng Defendants are informed and believe and thereon allege that Plaintiffs have not suffered any losses and Defendants have not been unjustly enriched as result of any action or inaction by Defendants or their agents. Plaintiffs, therefore, are not entitled to any disgorgement or restitution. 9 AS A TWENTY SEP ARA AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, answering Defendants are informed and believe and thereon allege that Plaintiffs are not entitled to treble or punitive damages in this claim. AS A TWENTY SECOND, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, answering Defendants are informed and believe and thereon allege that Plaintiffs are not entitled to attorney's 7 fees or costs in this claim. AS A TWENTY THIRD, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT, AND EACH ALLEGED CAUSE OF ACTION THEREOF, answering Defendants presently have insufficient knowledge or information upon which to form a belief as to whether they may have additional, as yet unstated, affirmative defenses. Answering Defendants 23 reserve herein the right to assert additional affirmative defenses in the event discovery indicates these answering Defendants pray the Plaintiffs take nothing by way their Unverified Complaint, that Defendants have judgment for costs suit incurred herein, such other and further as the court may deem and proper. CLAPP, MORONEY, VUCINICH, Attorneys for Defendants KENNETH D. IRENE M. MCBRIDE FAMILY TRUSTdba MANCHESTER GARDENS DEFENDANTS' ANSWER TO COMPLAINT et al v. Mer:anova LP et al Fresno County Superior Court Case No.: 19CECG01970 PROOF OF SERVICE BY MAIL I, the undersigned, hereby declare that I am over the age eighteen years and not a party to the within action. My business address is 5860 Owens Drive, Suite 410, Pleasanton, California On the date indicated below, I served by mail a true copy the following documents: DEFENDANTS' ANSWER TO COMPLAINT I am readily familiar with the practice this business for collection and processing of documents for mailing with the United States Postal Service. Documents so collected and processed are placed for collection and deposit with the United States Postal Service that same day in the ordinary course business. The above-referenced document(s) were placed in (a) sealed envelope( s) with postage thereon fully prepaid, addressed to each the below listed parties and such envelope(s) was (were) placed for collection and deposit with the United States Postal Service on the date listed below at 5860 Owens Drive, Suite 410, Pleasanton, California 94588. for Plaintiff Margaret A. Elder, Esq. Chandra Gehri Spencer, Esq. SPENCER, LLP 8050 N. Palm Avenue, Suite 300 Fresno, CA 93711 Tel: (559) 317-1008 Fax: (888) 422-8027 Email: info@elderspencer.com Executed on 15, 2019, at Pleas ton, California. declare under penalty under the laws the State California that foregoing is true and correct. mail.wpd