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1 John P. McGill, Esq. (Bar No. 190510)
jmcgill@mcgill-lawfirm.com
2 McGill Law Firm APC
P.O. Box 6472 ELECTRONICALLY
3 Napa, CA 94581 FILED
Telephone: (707) 337-1932 Superior Court of California,
4 County of San Francisco
Attorneys for Defendants 05/26/2020
5 DAVID DEDIA (previously aka David Clerk of the Court
Khevsurishvili); OLGA JELKOVSKY DEDIA BY: MADONNA CARANTO
6 (previously aka Olga Jelkovsky Khevsurishvili) Deputy Clerk
7
8 SAN FRANCISCO SUPERIOR COURT
9 UNLIMITED JURISDICTION
10
ARKADY BERGER and NELLY CASE NO.: CGC 20 584176
11 MERZHERITSKY,
DEFENDANT OLGA JELKOVSKY DEDIA
12 PLAINTIFFS, (previously aka Olga Jelkovsky Khevsurishvili)
ANSWER TO COMPLAINT
13 v.
14 DAVID DEDIA (previously aka David
Khevsurishvili), dba TLG Filed: 4/17/20
15 CONSTRUCTION INC.; OLGA Trial Judge:
JELKOVSKY DEDIA (previously aka Olga
16 Jelkovsky Khevsurishvili), dba TLG
CONSTRUCTION INC.; TLG
17 CONSTRUCTION INC., a California
corporation, and DOES 1-100 INCLUSIVE
18
DEFENDANTS.
19
20
21
22
Defendant OLGA JELKOVSKY DEDIA (previously aka Olga Jelkovsky Khevsurishvili)
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(hereinafter “Olga Dedia”), on behalf of himself and for no other Defendant answers the
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Complaint (hereinafter “Complaint”) of ARKADY BERGER and NELLY MERZHERITSKY
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(“Plaintiffs”) on file herein as follows:
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1 GENERAL DENIAL
2 Olga Dedia denies each and every allegation of the Complaint on file herein, and further
3 denies that Plaintiffs sustained any damages in the sum or sums alleged, or in any other sum or
4 sums whatsoever, or at all, and further denies that Plaintiffs are entitled to any damages by way of
5 this action in any amount whatsoever.
6 FIRST AFFIRMATIVE DEFENSE
7 (Failure to State a Cause of Action)
8 The Complaint on file herein fails to state facts sufficient to state a claim upon which
9 relief can be granted.
10 SECOND AFFIRMATIVE DEFENSE
11 (Contributory Negligence)
12 Plaintiffs were themselves careless and negligent and Plaintiffs own carelessness and
13 negligence proximately caused and contributed to the injuries and damages Plaintiffs complain of,
14 if any there were. Plaintiffs’ own carelessness and negligence account for one hundred percent of
15 the total carelessness and negligence relating to Plaintiffs injuries and damages, if any.
16 THIRD AFFIRMATIVE DEFENSE
17 (Negligence of Others)
18 The negligence, carelessness and other acts and omissions of other persons and entities
19 not parties to this lawsuit, proximately caused or contributed to Plaintiffs injuries and damages, if
20 any. The negligence, carelessness and other acts or omissions of the other persons and entities
21 not parties to this lawsuit, account for one hundred percent of the injuries and damages, if any,
22 and/or constitute supervening and/or intervening causes of Plaintiffs injuries and damages, if any.
23 FOURTH AFFIRMATIVE DEFENSE
24 (Assumption of the Risk- Failure to Mitigate Damage)
25 Plaintiffs are barred from asserting any claim against Olga Dedia by reason of Plaintiffs
26 knowing assumption of the risk for any alleged construction defects because they failed and
27 continue to fail to protect the building structure at issue in this Complaint.
28 2
Olga Dedia Answer
1 FIFTH AFFIRMATIVE DEFENSE
2 (Failure to Document Conditions- Speculation)
3 AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, Olga Dedia alleges that
4 Plaintiffs failed and continue to fail to document any damage specifically caused and/or resulting
5 from his or any other Defendants acts or actions as alleged in the Complaint. The property at
6 issue had been under construction since at least 2007 and Plaintiffs have sued all prior contractors
7 for the same or similar damages and work they now sue these defendants. Plaintiffs have no
8 documentation or evidence of what damage if any was caused by Olga Dedia and/or these
9 Defendants and the claims alleged are speculation, not fact.
10 SIXTH AFFIRMATIVE DEFENSE
11 (Spoliation of Evidence)
12 AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, Olga Dedia alleges that
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Plaintiff has failed to maintain and preserve the property which is the subject of his/her Complaint,
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that such evidence was necessary and essential to the preparation and presentation of defendant's
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defense of the issues in this case, and that such spoliation of evidence by plaintiff has and will result
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17 in severe prejudice to defendants, including Olga Dedia.
18 SEVENTH AFFIRMATIVE DEFENSE
19 (Time-Barred Claims)
20 AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, Olga Dedia alleges that the
21 Complaint is barred by the provisions of C.C.P. Sections 335.1, 337, 337.1, 337.15, 338, 339, 340
22 and 343.
23 EIGHTH AFFIRMATIVE DEFENSE
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(Doctrine of Unclean Hands)
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AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, Olga Dedia alleges that
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Plaintiffs are barred from relief on the grounds that they acted with unclean hands.
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Olga Dedia Answer
1 NINTH AFFIRMATIVE DEFENSE
2 (No Alter Ego)
3
AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, Olga Dedia avers that at no
4
time before, during, and/or after the time referenced in the Complaint did she act or conduct
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himself in any way as the alter ego of TLG Construction Inc. All activities were conducted as an
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7 employee and/or officer director of the corporation and as required by law.
8
TENTH AFFIRMATIVE DEFENSE
9
(No Improper Use Of TLG)
10
AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, Olga Dedia avers that at no
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time before, during, and/or after the time referenced in the Complaint did she improperly use
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funds or improperly engage in activities of TLG Construction Inc. for her own use.
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ELEVENTH AFFIRMATIVE DEFENSE
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(No Personal Benefit from TLG Bankruptcy)
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AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, Olga Dedia avers that at no
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time before, during, and/or after the time referenced in the Complaint did she personally benefit
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in any way from the TLG Construction Inc. bankruptcy nor was the TLG Construction Inc.
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bankruptcy an effort by this answering defendant to avoid personal liability. This answering
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Defendant denies TLG Construction Inc. was a “mere conduit for [her] own business purposes.”
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TWELFTH AFFIRMATIVE DEFENSE
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(No Taking of Assets From TLG)
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AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, Olga Dedia avers that at no
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time before, during, and/or after the time referenced in the Complaint did she take or use assets of
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TLG Construction Inc. and/or render TLG insolvent by such alleged conduct.
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Olga Dedia Answer
1 THIRTEENTH AFFIRMATIVE DEFENSE
2 (Employee/ Officer Director Only)
3 AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, Olga Dedia avers that she
4 was a director and officer of TLG Construction Inc.
5 FOURTEENTH AFFIRMATIVE DEFENSE
6 (Incomplete, Inaccurate, Improper Plans)
7 AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, Olga Dedia alleges the
8 plans and specifications for the construction project alleged in this Complaint were incomplete,
9 inaccurate and improper for the work bid and attempted to be performed by TLG Construction
10 Inc. Plaintiffs had the obligation and duty to provide a proper and buildable set of plans and
11 specifications and they did not.
12 FIFTEENTH AFFIRMATIVE DEFENSE
13 (Mechanics Lien Allegations – Multiple Mechanics Liens On Project)
14 AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, Olga Dedia alleges there
15 were multiple Mechanics Liens recorded against the Project by others and at the same time as the
16 TLG Construction Inc. lien was recorded.
17 SIXTEENTH AFFIRMATIVE DEFENSE
18 (Failure to Mitigate Any Alleged Interference by Mechanics Liens)
19 AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, Olga Dedia alleges there
20 were multiple Mechanics Liens recorded against the Project by others and at the same time as the
21 TLG Construction Inc. lien was recorded and Plaintiffs failed to bond around the Liens and/or
22 pursue any other mitigation of any alleged interference and/or damage by any Mechanics Lien.
23 SEVENTEENTH AFFIRMATIVE DEFENSE
24 (TLG Mechanics Lien Was In TLG Bankruptcy Estate)
25 AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, Olga Dedia alleges that to
26 the extent the Complaint alleges this answering defendant had obligations related to the
27 Mechanics Lien recorded by TLG on the property at issue, the Bankruptcy estate and its trustee
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Olga Dedia Answer
1 controlled the Mechanics Lien and this answering Defendant could not do release the Mechanics
2 Lien or cause TLG to do anything with the Mechanics Lien.
3 EIGHTEENTH AFFIRMATIVE DEFENSE
4 (Termination Of TLG By Plaintiffs)
5 AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, Olga Dedia avers that
6 Plaintiffs, in particular Alex Berger, ordered TLG off the project at issue and terminated the
7 contract. TLG Construction Inc. did not abandon the project but was terminated by Plaintiff.
8 NINETEENTH AFFIRMATIVE DEFENSE
9 (Breach of Contract By Plaintiffs)
10 AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, Olga Dedia alleges that
11 Plaintiffs breached the contract with TLG Construction Inc. by interfering with the performance
12 of the work, delaying the work, failing to provide proper plans, failing to provide change orders
13 and drawings for the changed conditions wanted, failing to allow additional time for the work
14 after interfering and/or making changes, and failing to make payments as required for the work
15 performed. Plaintiffs terminated the contract and directed TLG employees to leave the project.
16 TWENTIETH AFFIRMATIVE DEFENSE
17 (Setoff)
18 AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, Olga Dedia alleges to the
19 extent that any amount may be awarded to Plaintiff in this matter, Defendants are entitled to a
20 setoff/offset in the amount still owed, due and payable to TLG from Plaintiffs as well as a setoff
21 and offset for any and all other payments and/or settlement from other litigations related to this
22 same property and project but involving other contractors, individuals and entities and this
23 Plaintiff, as a matter of proof.
24 TWENTY FIRST AFFIRMATIVE DEFENSE
25 (No Violation of B&P 17200)
26 AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, Olga Dedia alleges that
27 there is no violation of Business & Professions Code section 17200 by this answering Defendant.
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Olga Dedia Answer
1 To the contrary, the violation is by Plaintiffs who have engaged in repeated litigations with all
2 other contractors who have worked on this property in order to avoid paying for work performed.
3 Furthermore, Plaintiffs lack any standing to make a B&P 17200 claim in this litigation.
4 TWENTY SECOND AFFIRMATIVE DEFENSE
5 (No Fraud by Defendant)
6 AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, Olga Dedia avers there was
7 no fraud by this answering Defendant. To the contrary, the fraud is by Plaintiffs who represented
8 they would pay for TLG’s construction services, represented they would provide proper and
9 complete plans and specifications, represented they would issue timely and appropriate change
10 orders and payments, and represented they would not interfere with the performance of the work.
11 Plaintiffs did not intend to do any of those things, they expected Defendants to rely on the
12 representations though, Defendants did, and Plaintiffs thereafter failed to do anything they
13 promised. Defendants performed, Plaintiffs did not. There is no fraud by Defendants; there is
14 fraud by Plaintiff.
15 TWENTY THIRD AFFIRMATIVE DEFENSE
16 (No Negligence)
17 AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, Plaintiff fails to state a
18 cause of action for negligence. (Erlich v. Menezes (1999) 21 Cal.4th 543)
19 TWENTY FOURTH AFFIRMATIVE DEFENSE
20 (No Punitive Damages)
21 AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, Olga Dedia avers there is
22 no entitlement to exemplary damages under the circumstances. The actions taken by Defendants
23 were proper under the law and the facts.
24 TWENTY FIFTH AFFIRMATIVE DEFENSE
25 (For Leave To Set Forth Further Affirmative Defenses)
26 Olga Dedia alleges that she presently has insufficient knowledge or information on which
27 to form a belief as to whether she may have additional, as yet unstated, defenses available. Olga
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Olga Dedia Answer
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1 John P. McGill, Esq. (Bar No. 190510) jmcgill@mcgill-lawfirm.com 2 McGill Law Firm APC P.O. Box 6472 ELECTRONICALLY 3 Napa, CA 94581 FILED Telephone: (707) 337-1932 Superior Court of California, 4 County of San Francisco Attorneys for Defendants 05/26/2020 5 DAVID DEDIA (previously aka David Clerk of the Court Khevsurishvili); OLGA JELKOVSKY DEDIA BY: MADONNA CARANTO 6 (previously aka Olga Jelkovsky Khevsurishvili) Deputy Clerk 7 8 SAN FRANCISCO SUPERIOR COURT 9 UNLIMITED JURISDICTION 10 ARKADY BERGER and NELLY CASE NO.: CGC 20 584176 11 MERZHERITSKY, DEFENDANT OLGA JELKOVSKY DEDIA 12 PLAINTIFFS, (previously aka Olga Jelkovsky Khevsurishvili) ANSWER TO COMPLAINT 13 v. 14 DAVID DEDIA (previously aka David Khevsurishvili), dba TLG Filed: 4/17/20 15 CONSTRUCTION INC.; OLGA Trial Judge: JELKOVSKY DEDIA (previously aka Olga 16 Jelkovsky Khevsurishvili), dba TLG CONSTRUCTION INC.; TLG 17 CONSTRUCTION INC., a California corporation, and DOES 1-100 INCLUSIVE 18 DEFENDANTS. 19 20 21 22 Defendant OLGA JELKOVSKY DEDIA (previously aka Olga Jelkovsky Khevsurishvili) 23 (hereinafter “Olga Dedia”), on behalf of himself and for no other Defendant answers the 24 Complaint (hereinafter “Complaint”) of ARKADY BERGER and NELLY MERZHERITSKY 25 (“Plaintiffs”) on file herein as follows: 26 27 28 1 GENERAL DENIAL 2 Olga Dedia denies each and every allegation of the Complaint on file herein, and further 3 denies that Plaintiffs sustained any damages in the sum or sums alleged, or in any other sum or 4 sums whatsoever, or at all, and further denies that Plaintiffs are entitled to any damages by way of 5 this action in any amount whatsoever. 6 FIRST AFFIRMATIVE DEFENSE 7 (Failure to State a Cause of Action) 8 The Complaint on file herein fails to state facts sufficient to state a claim upon which 9 relief can be granted. 10 SECOND AFFIRMATIVE DEFENSE 11 (Contributory Negligence) 12 Plaintiffs were themselves careless and negligent and Plaintiffs own carelessness and 13 negligence proximately caused and contributed to the injuries and damages Plaintiffs complain of, 14 if any there were. Plaintiffs’ own carelessness and negligence account for one hundred percent of 15 the total carelessness and negligence relating to Plaintiffs injuries and damages, if any. 16 THIRD AFFIRMATIVE DEFENSE 17 (Negligence of Others) 18 The negligence, carelessness and other acts and omissions of other persons and entities 19 not parties to this lawsuit, proximately caused or contributed to Plaintiffs injuries and damages, if 20 any. The negligence, carelessness and other acts or omissions of the other persons and entities 21 not parties to this lawsuit, account for one hundred percent of the injuries and damages, if any, 22 and/or constitute supervening and/or intervening causes of Plaintiffs injuries and damages, if any. 23 FOURTH AFFIRMATIVE DEFENSE 24 (Assumption of the Risk- Failure to Mitigate Damage) 25 Plaintiffs are barred from asserting any claim against Olga Dedia by reason of Plaintiffs 26 knowing assumption of the risk for any alleged construction defects because they failed and 27 continue to fail to protect the building structure at issue in this Complaint. 28 2 Olga Dedia Answer 1 FIFTH AFFIRMATIVE DEFENSE 2 (Failure to Document Conditions- Speculation) 3 AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, Olga Dedia alleges that 4 Plaintiffs failed and continue to fail to document any damage specifically caused and/or resulting 5 from his or any other Defendants acts or actions as alleged in the Complaint. The property at 6 issue had been under construction since at least 2007 and Plaintiffs have sued all prior contractors 7 for the same or similar damages and work they now sue these defendants. Plaintiffs have no 8 documentation or evidence of what damage if any was caused by Olga Dedia and/or these 9 Defendants and the claims alleged are speculation, not fact. 10 SIXTH AFFIRMATIVE DEFENSE 11 (Spoliation of Evidence) 12 AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, Olga Dedia alleges that 13 Plaintiff has failed to maintain and preserve the property which is the subject of his/her Complaint, 14 that such evidence was necessary and essential to the preparation and presentation of defendant's 15 defense of the issues in this case, and that such spoliation of evidence by plaintiff has and will result 16 17 in severe prejudice to defendants, including Olga Dedia. 18 SEVENTH AFFIRMATIVE DEFENSE 19 (Time-Barred Claims) 20 AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, Olga Dedia alleges that the 21 Complaint is barred by the provisions of C.C.P. Sections 335.1, 337, 337.1, 337.15, 338, 339, 340 22 and 343. 23 EIGHTH AFFIRMATIVE DEFENSE 24 (Doctrine of Unclean Hands) 25 AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, Olga Dedia alleges that 26 Plaintiffs are barred from relief on the grounds that they acted with unclean hands. 27 28 3 Olga Dedia Answer 1 NINTH AFFIRMATIVE DEFENSE 2 (No Alter Ego) 3 AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, Olga Dedia avers that at no 4 time before, during, and/or after the time referenced in the Complaint did she act or conduct 5 himself in any way as the alter ego of TLG Construction Inc. All activities were conducted as an 6 7 employee and/or officer director of the corporation and as required by law. 8 TENTH AFFIRMATIVE DEFENSE 9 (No Improper Use Of TLG) 10 AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, Olga Dedia avers that at no 11 time before, during, and/or after the time referenced in the Complaint did she improperly use 12 funds or improperly engage in activities of TLG Construction Inc. for her own use. 13 ELEVENTH AFFIRMATIVE DEFENSE 14 (No Personal Benefit from TLG Bankruptcy) 15 AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, Olga Dedia avers that at no 16 time before, during, and/or after the time referenced in the Complaint did she personally benefit 17 in any way from the TLG Construction Inc. bankruptcy nor was the TLG Construction Inc. 18 bankruptcy an effort by this answering defendant to avoid personal liability. This answering 19 Defendant denies TLG Construction Inc. was a “mere conduit for [her] own business purposes.” 20 TWELFTH AFFIRMATIVE DEFENSE 21 (No Taking of Assets From TLG) 22 AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, Olga Dedia avers that at no 23 time before, during, and/or after the time referenced in the Complaint did she take or use assets of 24 TLG Construction Inc. and/or render TLG insolvent by such alleged conduct. 25 26 27 28 4 Olga Dedia Answer 1 THIRTEENTH AFFIRMATIVE DEFENSE 2 (Employee/ Officer Director Only) 3 AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, Olga Dedia avers that she 4 was a director and officer of TLG Construction Inc. 5 FOURTEENTH AFFIRMATIVE DEFENSE 6 (Incomplete, Inaccurate, Improper Plans) 7 AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, Olga Dedia alleges the 8 plans and specifications for the construction project alleged in this Complaint were incomplete, 9 inaccurate and improper for the work bid and attempted to be performed by TLG Construction 10 Inc. Plaintiffs had the obligation and duty to provide a proper and buildable set of plans and 11 specifications and they did not. 12 FIFTEENTH AFFIRMATIVE DEFENSE 13 (Mechanics Lien Allegations – Multiple Mechanics Liens On Project) 14 AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, Olga Dedia alleges there 15 were multiple Mechanics Liens recorded against the Project by others and at the same time as the 16 TLG Construction Inc. lien was recorded. 17 SIXTEENTH AFFIRMATIVE DEFENSE 18 (Failure to Mitigate Any Alleged Interference by Mechanics Liens) 19 AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, Olga Dedia alleges there 20 were multiple Mechanics Liens recorded against the Project by others and at the same time as the 21 TLG Construction Inc. lien was recorded and Plaintiffs failed to bond around the Liens and/or 22 pursue any other mitigation of any alleged interference and/or damage by any Mechanics Lien. 23 SEVENTEENTH AFFIRMATIVE DEFENSE 24 (TLG Mechanics Lien Was In TLG Bankruptcy Estate) 25 AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, Olga Dedia alleges that to 26 the extent the Complaint alleges this answering defendant had obligations related to the 27 Mechanics Lien recorded by TLG on the property at issue, the Bankruptcy estate and its trustee 28 5 Olga Dedia Answer 1 controlled the Mechanics Lien and this answering Defendant could not do release the Mechanics 2 Lien or cause TLG to do anything with the Mechanics Lien. 3 EIGHTEENTH AFFIRMATIVE DEFENSE 4 (Termination Of TLG By Plaintiffs) 5 AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, Olga Dedia avers that 6 Plaintiffs, in particular Alex Berger, ordered TLG off the project at issue and terminated the 7 contract. TLG Construction Inc. did not abandon the project but was terminated by Plaintiff. 8 NINETEENTH AFFIRMATIVE DEFENSE 9 (Breach of Contract By Plaintiffs) 10 AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, Olga Dedia alleges that 11 Plaintiffs breached the contract with TLG Construction Inc. by interfering with the performance 12 of the work, delaying the work, failing to provide proper plans, failing to provide change orders 13 and drawings for the changed conditions wanted, failing to allow additional time for the work 14 after interfering and/or making changes, and failing to make payments as required for the work 15 performed. Plaintiffs terminated the contract and directed TLG employees to leave the project. 16 TWENTIETH AFFIRMATIVE DEFENSE 17 (Setoff) 18 AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, Olga Dedia alleges to the 19 extent that any amount may be awarded to Plaintiff in this matter, Defendants are entitled to a 20 setoff/offset in the amount still owed, due and payable to TLG from Plaintiffs as well as a setoff 21 and offset for any and all other payments and/or settlement from other litigations related to this 22 same property and project but involving other contractors, individuals and entities and this 23 Plaintiff, as a matter of proof. 24 TWENTY FIRST AFFIRMATIVE DEFENSE 25 (No Violation of B&P 17200) 26 AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, Olga Dedia alleges that 27 there is no violation of Business & Professions Code section 17200 by this answering Defendant. 28 6 Olga Dedia Answer 1 To the contrary, the violation is by Plaintiffs who have engaged in repeated litigations with all 2 other contractors who have worked on this property in order to avoid paying for work performed. 3 Furthermore, Plaintiffs lack any standing to make a B&P 17200 claim in this litigation. 4 TWENTY SECOND AFFIRMATIVE DEFENSE 5 (No Fraud by Defendant) 6 AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, Olga Dedia avers there was 7 no fraud by this answering Defendant. To the contrary, the fraud is by Plaintiffs who represented 8 they would pay for TLG’s construction services, represented they would provide proper and 9 complete plans and specifications, represented they would issue timely and appropriate change 10 orders and payments, and represented they would not interfere with the performance of the work. 11 Plaintiffs did not intend to do any of those things, they expected Defendants to rely on the 12 representations though, Defendants did, and Plaintiffs thereafter failed to do anything they 13 promised. Defendants performed, Plaintiffs did not. There is no fraud by Defendants; there is 14 fraud by Plaintiff. 15 TWENTY THIRD AFFIRMATIVE DEFENSE 16 (No Negligence) 17 AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, Plaintiff fails to state a 18 cause of action for negligence. (Erlich v. Menezes (1999) 21 Cal.4th 543) 19 TWENTY FOURTH AFFIRMATIVE DEFENSE 20 (No Punitive Damages) 21 AS A FURTHER, SEPARATE, AFFIRMATIVE DEFENSE, Olga Dedia avers there is 22 no entitlement to exemplary damages under the circumstances. The actions taken by Defendants 23 were proper under the law and the facts. 24 TWENTY FIFTH AFFIRMATIVE DEFENSE 25 (For Leave To Set Forth Further Affirmative Defenses) 26 Olga Dedia alleges that she presently has insufficient knowledge or information on which 27 to form a belief as to whether she may have additional, as yet unstated, defenses available. Olga 28 7 Olga Dedia Answer