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John F. Cove, Jr. (CABN 212213)
Daniel H. R. Laguardia (CABN 314654)
Mikael A. Abye (CABN 233458)
Jonah P. Ross (CABN 305076)
SHEARMAN & STERLING LLP
535 Mission Street, 25th Floor
San Francisco, CA 94105-2997
Telephone: 415.616.1100
Facsimile: 415.616.1199
Emails: john.cove@shearman.com
daniel. laguardia@shearman.com
mikael.abye@shearman.com
jonah.ross@shearman.com
Attorneys for Defendant Renewable Energy
Trust Capital, Inc.
ELECTRONICALLY
FILED
Superior Court of California,
County of San Francisco
08/14/2017
Clerk of the Court
BY: EDNALEEN ALEGRE
Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
PV2 ENERGY, LLC, a California Limited
Liability Company; and DER ACQUISITION,
LLC, a Delaware Limited Liability Company,
Plaintiffs,
v.
RENEWABLE ENERGY TRUST CAPITAL,
INC., a Delaware Corporation, and Does |
through 25, inclusive,
Defendants,
and
PANOCHE HOLDINGS, LLC, a Delaware
Limited Liability Company,
Defendant/Necessary Party
Defendant.
Case No.: CGC-16-553135
ANSWER OF DEFENDANT
RENEWABLE ENERGY TRUST
CAPITAL, INC.’S TO THE SECOND
AMENDED COMPLAINT
Date Action Filed: July 20, 2016
Trial Date: None set
ANSWER OF DEF. RETC TO
PLTFS’ SECOND AM. COMPLAINT
Case No.: CGC-16-553135Defendant Renewable Energy Trust Capital, Inc. (“RETC”) hereby answers Plaintiffs PV2
Energy, LLC (“PV2”) and DER Acquisition LLC (“DERA,” and, together, “Plaintiffs”) Second
Amended Complaint (“SAC”).
GENERAL DENIAL
Pursuant to California Code of Civil Procedure § 431.30(d), RETC generally denies each
and every purported allegation and cause of action in the SAC. RETC further denies that Plaintiffs
have been damaged or injured in any manner or sum whatsoever, and denies that Plaintiffs are
entitled to any recovery or remedy of any type whatsoever.
AFFIRMATIVE DEFENSES
Without assuming any burden that they would not otherwise bear, RETC further asserts the
separate and distinct affirmative defenses stated below to each and every claim and cause of action
in the SAC.
FIRST AFFIRMATIVE DEFENSE
The Court lacks jurisdiction over this action.
SECOND AFFIRMATIVE DEFENSE
~~
jaintiffs have not alleged that RETC made a knowingly false statement.
THIRD AFFIRMATIVE DEFENSE
Plaintiffs’ claims are barred, in whole or in part, because Plaintiffs did not reasonably rely
on any alleged misrepresentation.
FOURTH AFFIRMATIVE DEFENSE
Plaintiffs’ claims are barred, in whole or in part, because they contradict the contracts on
which they rely.
FIFTH AFFIRMATIVE DEFENSE
RETC is not liable to Plaintiffs because Plaintiffs would have executed the contract at issue
even with full knowledge of the facts that they now allege were misrepresented.
ANSWER OF DEF. RETC TO 2 Case No.: CGC-16-553135
PLTFS’ SECOND AM. COMPLAINTSIXTH AFFIRMATIVE DEFENSE
RETC is not liable to Plaintiffs because Plaintiffs executed the contracts at issue with actual
or constructive knowledge of the risks involved in the contracts, and thus assumed any risks from
which they allege they have been harmed.
SEVENTH AFFIRMATIVE DEFENSE
Plaintiffs’ claims are barred, in whole or in part, because they allege harm from a contract
not at issue in this litigation and over which this Court has no jurisdiction.
EIGHTH AFFIRMATIVE DEFENSE
Plaintiffs’ claims are barred, in whole or in part, because the alleged harm — to the extent
any exists — was not caused by RETC’s alleged wrong-doing, but by RETC exercising a bargained-
for contractual right.
NINTH AFFIRMATIVE DEFENSE
Plaintiffs’ claims are barred, in whole or in part, because Plaintiffs have accepted benefits
and asserted rights under the contract at issue in this litigation.
TENTH AFFIRMATIVE DEFENSE
Plaintiffs’ claims are barred, in whole or in part, because Plaintiffs were not deprived of any
consideration to which they were entitled under the contracts at issue.
ELEVENTH AFFIRMATIVE DEFENSE
Plaintiffs’ claims are barred, in whole or in part, because RETC satisfied all obligations
under the Collateral Transfer Agreement (the “CTA”), including but not limited to forgoing default
and providing Plaintiffs with model(s) due under the Earn-Out Side Letter.
TWELFTH AFFIRMATIVE DEFENSE
Plaintiffs’ claims are barred, in whole or in part, because they have suffered no damages.
THIRTEENTH AFFIRMATIVE DEFENSE
Plaintiffs’ claims are barred, in whole or in part, because Plaintiffs have failed to mitigate
any damages they allege they have suffered.
ANSWER OF DEF. RETC TO 3 Case No.: CGC-16-553135
PLTFS’ SECOND AM. COMPLAINTFOURTEENTH AFFIRMATIVE DEFENSE
Plaintiffs’ claims are barred, in whole or in part, because all necessary payments and
deposits due and owing under the Project Agreements have been made.
FIFTEENTH AFFIRMATIVE DEFENSE
Plaintiffs’ claims are barred, in whole or in part, because the alleged damages, if any, are
speculative and impossible to ascertain or allocate.
SIXTEENTH AFFIRMATIVE DEFENSE
Plaintiffs’ claims are barred, in whole or in part, because they were released in the CTA and
related agreements.
SEVENTEENTH AFFIRMATIVE DEFENSE
u
aintiffs’ claims are barred, in whole or in part, because RETC lacked any duty or
relationship of trust with Plaintiffs.
EIGHTEENTH AFFIRMATIVE DEFENSE
Plaintiffs are barred from alleging, seeking to prove, or proving any contract or contractual
provisions at variance with the written contracts of the parties, in that any such allegation or proof
violates the parol evidence rule codified in and by Code of Civil Procedure § 1856(a) and
Commercial Code § 2202.
NINETEENTH AFFIRMATIVE DEFENSE
Plaintiffs are barred from alleging, seeking to prove, or proving any contract or contractual
provisions at variance with the written contracts of the parties, in that any such allegation or proof
violates the statute of frauds codified in and by Civil Code § 1624.
TWENTIETH AFFIRMATIVE DEFENSE
Plaintiffs are barred from alleging, seeking to prove or proving any contract or contractual
provisions that constitute attempted oral modifications of a written contract or contractual
provisions as violations of Civil Code §§ 1625, 1639, 1698(b)-(c) and Code of Civil Procedure
§§ 1856(a)-(h).
ANSWER OF DEF. RETC TO 4 Case No.: CGC-16-553135
PLTFS’ SECOND AM. COMPLAINTTWENTY-FIRST AFFIRMATIVE DEFENSE
Plaintiffs’ claims are barred, in whole or in part, by their laches in failing to make any timely
claim or timely file suit or otherwise take timely steps to enforce their alleged rights, the existence
of any such rights being otherwise denied.
TWENTY-SECOND AFFIRMATIVE DEFENSE
Plaintiffs’ claims are barred, in whole or in part, because Plaintiffs are barred from pursuing
the present action and each and every cause of action thereof by one or more of the statutes of
limitation under the Code of Civil Procedure and other applicable statutory common law provisions.
TWENTY-THIRD AFFIRMATIVE DEFENSE
Plaintiffs’ claims are estopped by reason of their inequitable conduct in connection with
their actions relative to the subject of the Complaint and the SAC.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
Plaintiffs’ claims are barred, in whole or in part, because Plaintiffs engaged in inequitable
conduct with reference to the subjects alleged that bars Plaintiffs by the Doctrine of Unclean Hands
and forfeits their right to pursue such cause of action thereof, or to seek any relief thereunder.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
Plaintiffs’ claims are barred because they are offset and eliminated in whole or in part and/or
in fact are exceeded by those urged by RETC in its complaint pending in the Supreme Court for the
State of New York.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
Plaintiffs’ claims are barred, in whole or in part, because Plaintiffs are guilty of misfeasance;
and to the extent they are at fault in the matters alleged in the SAC, the fault of Plaintiffs should be
compared as against and evaluated along with that of RETC, and Plaintiffs’ recovery, if any,
eliminated or diminished accordingly.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
Plaintiffs’ claims are barred, in whole or in part, because Plaintiffs lack standing to recover
for such claims.
ANSWER OF DEF. RETC TO 5 Case No.: CGC-16-553135
PLTFS’ SECOND AM. COMPLAINTTWENTY-EIGHTH AFFIRMATIVE DEFENSE
The Seventh Cause of Action of the SAC fails to state a claim upon which relief may be
granted. On July 10, 2017, the Court sustained RETC’s demurrer, without leave to amend, to this
cause of action.
TWENTY-NINTH AFFIRMATIVE DEFENSE
7
aintiffs’ claims are barred, in whole or in part, because the transaction at issue was not a
securities transaction within the purview of Cal. Corp. Code §§ 25401 and 25501.
THIRTIETH AFFIRMATIVE DEFENSE
Plaintiffs’ claim for rescission is barred because Plaintiffs cannot show that no adequate
remedy of law exits.
THIRTY-FIRST AFFIRMATIVE DEFENSE
~~
aintiffs’ claim for rescission is barred because the parties cannot be substantially restored
to their status quo ante positions.
THIRTY-SECOND AFFIRMATIVE DEFENSE
~v
aintiffs’ claim for unjust enrichment is barred because no such cause of action exists.
THIRTY-THIRD AFFIRMATIVE DEFENSE
Plaintiffs’ claim for unjust enrichment is barred because a valid and enforceable written
contract governing the subject matter exists between the parties.
THIRTY-FOURTH AFFIRMATIVE DEFENSE
Plaintiffs are not entitled to recover attorneys’ fees, accountants’ or experts’ fees or other
costs and disbursements.
THIRTY-FIFTH AFFIRMATIVE DEFENSE
RETC adopts by reference any applicable defense pleaded by any other defendant not
expressly set forth herein.
RETC reserves the right to modify, clarify, amend, or supplement these affirmative
defenses, of which they may become aware through discovery or other investigation, as may be
appropriate at a later time.
ANSWER OF DEF. RETC TO 6 Case No.: CGC-16-553135
PLTFS’ SECOND AM. COMPLAINTPRAYER
WHEREFORE, RETC prays for judgment as follows:
1. That the SAC be dismissed with prejudice and Plaintiffs take nothing by their SAC;
2. That RETC be awarded its costs and attorneys’ fees, to the extent provided for by
law in connection with this action; and
3. That RETC be awarded such other and further relief as the Court deems just and
proper.
Dated: August 14, 2017
SHEARMAN & STERLING LLP
By: _/s/ John F. Cove, Jr.
John F. Cove, Jr.
John F. Cove, Jr. (CABN 212213)
Daniel H. R. Laguardia (CABN 314654)
Mikael A. Abye (CABN 233458)
Jonah P. Ross (CABN 305076)
535 Mission Street, 25th Floor
San Francisco, CA 94105-2997
Telephone: 415.616.1100
Facsimile: 415.616.1199
Attorneys for Defendant Renewable Energy
Trust Capital, Inc.
ANSWER OF DEF. RETC TO
PLTFS’ SECOND AM. COMPLAINT
7 Case No.: CGC-16-553135
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John F. Cove, Jr. (CABN 212213) Daniel H. R. Laguardia (CABN 314654) Mikael A. Abye (CABN 233458) Jonah P. Ross (CABN 305076) SHEARMAN & STERLING LLP 535 Mission Street, 25th Floor San Francisco, CA 94105-2997 Telephone: 415.616.1100 Facsimile: 415.616.1199 Emails: john.cove@shearman.com daniel. laguardia@shearman.com mikael.abye@shearman.com jonah.ross@shearman.com Attorneys for Defendant Renewable Energy Trust Capital, Inc. ELECTRONICALLY FILED Superior Court of California, County of San Francisco 08/14/2017 Clerk of the Court BY: EDNALEEN ALEGRE Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO PV2 ENERGY, LLC, a California Limited Liability Company; and DER ACQUISITION, LLC, a Delaware Limited Liability Company, Plaintiffs, v. RENEWABLE ENERGY TRUST CAPITAL, INC., a Delaware Corporation, and Does | through 25, inclusive, Defendants, and PANOCHE HOLDINGS, LLC, a Delaware Limited Liability Company, Defendant/Necessary Party Defendant. Case No.: CGC-16-553135 ANSWER OF DEFENDANT RENEWABLE ENERGY TRUST CAPITAL, INC.’S TO THE SECOND AMENDED COMPLAINT Date Action Filed: July 20, 2016 Trial Date: None set ANSWER OF DEF. RETC TO PLTFS’ SECOND AM. COMPLAINT Case No.: CGC-16-553135Defendant Renewable Energy Trust Capital, Inc. (“RETC”) hereby answers Plaintiffs PV2 Energy, LLC (“PV2”) and DER Acquisition LLC (“DERA,” and, together, “Plaintiffs”) Second Amended Complaint (“SAC”). GENERAL DENIAL Pursuant to California Code of Civil Procedure § 431.30(d), RETC generally denies each and every purported allegation and cause of action in the SAC. RETC further denies that Plaintiffs have been damaged or injured in any manner or sum whatsoever, and denies that Plaintiffs are entitled to any recovery or remedy of any type whatsoever. AFFIRMATIVE DEFENSES Without assuming any burden that they would not otherwise bear, RETC further asserts the separate and distinct affirmative defenses stated below to each and every claim and cause of action in the SAC. FIRST AFFIRMATIVE DEFENSE The Court lacks jurisdiction over this action. SECOND AFFIRMATIVE DEFENSE ~~ jaintiffs have not alleged that RETC made a knowingly false statement. THIRD AFFIRMATIVE DEFENSE Plaintiffs’ claims are barred, in whole or in part, because Plaintiffs did not reasonably rely on any alleged misrepresentation. FOURTH AFFIRMATIVE DEFENSE Plaintiffs’ claims are barred, in whole or in part, because they contradict the contracts on which they rely. FIFTH AFFIRMATIVE DEFENSE RETC is not liable to Plaintiffs because Plaintiffs would have executed the contract at issue even with full knowledge of the facts that they now allege were misrepresented. ANSWER OF DEF. RETC TO 2 Case No.: CGC-16-553135 PLTFS’ SECOND AM. COMPLAINTSIXTH AFFIRMATIVE DEFENSE RETC is not liable to Plaintiffs because Plaintiffs executed the contracts at issue with actual or constructive knowledge of the risks involved in the contracts, and thus assumed any risks from which they allege they have been harmed. SEVENTH AFFIRMATIVE DEFENSE Plaintiffs’ claims are barred, in whole or in part, because they allege harm from a contract not at issue in this litigation and over which this Court has no jurisdiction. EIGHTH AFFIRMATIVE DEFENSE Plaintiffs’ claims are barred, in whole or in part, because the alleged harm — to the extent any exists — was not caused by RETC’s alleged wrong-doing, but by RETC exercising a bargained- for contractual right. NINTH AFFIRMATIVE DEFENSE Plaintiffs’ claims are barred, in whole or in part, because Plaintiffs have accepted benefits and asserted rights under the contract at issue in this litigation. TENTH AFFIRMATIVE DEFENSE Plaintiffs’ claims are barred, in whole or in part, because Plaintiffs were not deprived of any consideration to which they were entitled under the contracts at issue. ELEVENTH AFFIRMATIVE DEFENSE Plaintiffs’ claims are barred, in whole or in part, because RETC satisfied all obligations under the Collateral Transfer Agreement (the “CTA”), including but not limited to forgoing default and providing Plaintiffs with model(s) due under the Earn-Out Side Letter. TWELFTH AFFIRMATIVE DEFENSE Plaintiffs’ claims are barred, in whole or in part, because they have suffered no damages. THIRTEENTH AFFIRMATIVE DEFENSE Plaintiffs’ claims are barred, in whole or in part, because Plaintiffs have failed to mitigate any damages they allege they have suffered. ANSWER OF DEF. RETC TO 3 Case No.: CGC-16-553135 PLTFS’ SECOND AM. COMPLAINTFOURTEENTH AFFIRMATIVE DEFENSE Plaintiffs’ claims are barred, in whole or in part, because all necessary payments and deposits due and owing under the Project Agreements have been made. FIFTEENTH AFFIRMATIVE DEFENSE Plaintiffs’ claims are barred, in whole or in part, because the alleged damages, if any, are speculative and impossible to ascertain or allocate. SIXTEENTH AFFIRMATIVE DEFENSE Plaintiffs’ claims are barred, in whole or in part, because they were released in the CTA and related agreements. SEVENTEENTH AFFIRMATIVE DEFENSE u aintiffs’ claims are barred, in whole or in part, because RETC lacked any duty or relationship of trust with Plaintiffs. EIGHTEENTH AFFIRMATIVE DEFENSE Plaintiffs are barred from alleging, seeking to prove, or proving any contract or contractual provisions at variance with the written contracts of the parties, in that any such allegation or proof violates the parol evidence rule codified in and by Code of Civil Procedure § 1856(a) and Commercial Code § 2202. NINETEENTH AFFIRMATIVE DEFENSE Plaintiffs are barred from alleging, seeking to prove, or proving any contract or contractual provisions at variance with the written contracts of the parties, in that any such allegation or proof violates the statute of frauds codified in and by Civil Code § 1624. TWENTIETH AFFIRMATIVE DEFENSE Plaintiffs are barred from alleging, seeking to prove or proving any contract or contractual provisions that constitute attempted oral modifications of a written contract or contractual provisions as violations of Civil Code §§ 1625, 1639, 1698(b)-(c) and Code of Civil Procedure §§ 1856(a)-(h). ANSWER OF DEF. RETC TO 4 Case No.: CGC-16-553135 PLTFS’ SECOND AM. COMPLAINTTWENTY-FIRST AFFIRMATIVE DEFENSE Plaintiffs’ claims are barred, in whole or in part, by their laches in failing to make any timely claim or timely file suit or otherwise take timely steps to enforce their alleged rights, the existence of any such rights being otherwise denied. TWENTY-SECOND AFFIRMATIVE DEFENSE Plaintiffs’ claims are barred, in whole or in part, because Plaintiffs are barred from pursuing the present action and each and every cause of action thereof by one or more of the statutes of limitation under the Code of Civil Procedure and other applicable statutory common law provisions. TWENTY-THIRD AFFIRMATIVE DEFENSE Plaintiffs’ claims are estopped by reason of their inequitable conduct in connection with their actions relative to the subject of the Complaint and the SAC. TWENTY-FOURTH AFFIRMATIVE DEFENSE Plaintiffs’ claims are barred, in whole or in part, because Plaintiffs engaged in inequitable conduct with reference to the subjects alleged that bars Plaintiffs by the Doctrine of Unclean Hands and forfeits their right to pursue such cause of action thereof, or to seek any relief thereunder. TWENTY-FIFTH AFFIRMATIVE DEFENSE Plaintiffs’ claims are barred because they are offset and eliminated in whole or in part and/or in fact are exceeded by those urged by RETC in its complaint pending in the Supreme Court for the State of New York. TWENTY-SIXTH AFFIRMATIVE DEFENSE Plaintiffs’ claims are barred, in whole or in part, because Plaintiffs are guilty of misfeasance; and to the extent they are at fault in the matters alleged in the SAC, the fault of Plaintiffs should be compared as against and evaluated along with that of RETC, and Plaintiffs’ recovery, if any, eliminated or diminished accordingly. TWENTY-SEVENTH AFFIRMATIVE DEFENSE Plaintiffs’ claims are barred, in whole or in part, because Plaintiffs lack standing to recover for such claims. ANSWER OF DEF. RETC TO 5 Case No.: CGC-16-553135 PLTFS’ SECOND AM. COMPLAINTTWENTY-EIGHTH AFFIRMATIVE DEFENSE The Seventh Cause of Action of the SAC fails to state a claim upon which relief may be granted. On July 10, 2017, the Court sustained RETC’s demurrer, without leave to amend, to this cause of action. TWENTY-NINTH AFFIRMATIVE DEFENSE 7 aintiffs’ claims are barred, in whole or in part, because the transaction at issue was not a securities transaction within the purview of Cal. Corp. Code §§ 25401 and 25501. THIRTIETH AFFIRMATIVE DEFENSE Plaintiffs’ claim for rescission is barred because Plaintiffs cannot show that no adequate remedy of law exits. THIRTY-FIRST AFFIRMATIVE DEFENSE ~~ aintiffs’ claim for rescission is barred because the parties cannot be substantially restored to their status quo ante positions. THIRTY-SECOND AFFIRMATIVE DEFENSE ~v aintiffs’ claim for unjust enrichment is barred because no such cause of action exists. THIRTY-THIRD AFFIRMATIVE DEFENSE Plaintiffs’ claim for unjust enrichment is barred because a valid and enforceable written contract governing the subject matter exists between the parties. THIRTY-FOURTH AFFIRMATIVE DEFENSE Plaintiffs are not entitled to recover attorneys’ fees, accountants’ or experts’ fees or other costs and disbursements. THIRTY-FIFTH AFFIRMATIVE DEFENSE RETC adopts by reference any applicable defense pleaded by any other defendant not expressly set forth herein. RETC reserves the right to modify, clarify, amend, or supplement these affirmative defenses, of which they may become aware through discovery or other investigation, as may be appropriate at a later time. ANSWER OF DEF. RETC TO 6 Case No.: CGC-16-553135 PLTFS’ SECOND AM. COMPLAINTPRAYER WHEREFORE, RETC prays for judgment as follows: 1. That the SAC be dismissed with prejudice and Plaintiffs take nothing by their SAC; 2. That RETC be awarded its costs and attorneys’ fees, to the extent provided for by law in connection with this action; and 3. That RETC be awarded such other and further relief as the Court deems just and proper. Dated: August 14, 2017 SHEARMAN & STERLING LLP By: _/s/ John F. Cove, Jr. John F. Cove, Jr. John F. Cove, Jr. (CABN 212213) Daniel H. R. Laguardia (CABN 314654) Mikael A. Abye (CABN 233458) Jonah P. Ross (CABN 305076) 535 Mission Street, 25th Floor San Francisco, CA 94105-2997 Telephone: 415.616.1100 Facsimile: 415.616.1199 Attorneys for Defendant Renewable Energy Trust Capital, Inc. ANSWER OF DEF. RETC TO PLTFS’ SECOND AM. COMPLAINT 7 Case No.: CGC-16-553135