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ANTHONY F. PINELLI (CA Bar No. 111968)
GINA D. HUETTEL (CA Bar No. 157165)
WILLIAM H. COKE (CA Bar No. 195515)
WILLIAMS, PINELLI & CULLEN, LLP
1960 The Alameda, Suite 195
San Jose, California 95126
Telephone: (408) 288-3868
Facsimile: (408) 288-3860
Attorneys for Defendants,
John R. Skalisky and Deborah Dworkin
(incorrectly sued as Debra Skalisky)
IN THE SUPERIOR COURT THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SANTA CLARA - UNLIMITED
Mark Thomasee, CASE NO. 19CV353511
Plaintiff, SECOND AMENDED ANSWER TO
COMPLAINT BY DEBORAH
Vv. DWORKIN
John R. Skalisky, Deborah Dworkin
(incorrectly sued as Debra Skalisky); and
DOES 1 - 30, inclusive,
Defendants.
COMES NOW defendant, Deborah Dworkin, who incorrectly answered as Deborah
Dworking and corrects her name to Deborah Dworkin and answering the complaint on file
herein, admits, denies, and alleges as follows:
These answering defendant deny each and every, all and singular, generally and
specifically, the allegations in said complaint. Further answering said complaint, these
answering defendants deny that plaintiff have sustained damages in any sum or sums, or
otherwise, or at all, due to any act or omission on the part of these answering defendants.
AS A FIRST, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT
AND TO EACH CAUSE OF ACTION THEREIN, these answering defendant alleges that
plaintiff's complaint, and each cause of action therein are barred by the provisions of the Statute
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SECOND AMENDED ANSWER TO COMPLAINT BY DEBORAH DWORKINSO Oe RD DW FWY we
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of Limitations, in particular but not restricted to, CCP §335.1 and each and every subdivision
thereof.
AS A SECOND, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE COMPLAINT,
this answering defendant alleges that plaintiff's complaint, and each cause of action therein are
barred by the provisions of the Statute of Limitations, in particular but not restricted to, C.C.P.
§337 and each and every subdivision thereof.
AS A THIRD, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE COMPLAINT,
this answering defendant allege that plaintiff's complaint, and each cause of action therein are
barred by the provisions of the Statute of Limitations, in particular but not restricted to, CCP
§337.2 and each and every subdivision thereof.
AS A FOURTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO THECOMPLAINT,
this answering defendant alleges that plaintiff's complaint, and each cause of action therein are
barred by the provisions of the Statute of Limitations, in particular but not restricted to,
CCP§338 and each and every subdivision thereof.
AS A FIFTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE COMPLAINT,
this answering defendant allege that plaintiffs complaint, and each cause of action therein are
barred by the provisions of the Statute of Limitations, in particular but not restricted to, CCP
§340 and each and every subdivision thereof.
AS A SIXTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE COMPLAINT,
this answering defendant allege that plaintiff's complaint, and each cause of action therein are
barred by the provisions of the Statute of Limitations, in particular but not restricted to, CCP
§343 and each and every subdivision thereof.
AS A SEVENTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, this answering defendant alleges that plaintiff's complaint, and each cause of
action therein, fails to state facts sufficient to constitute a cause of action against these answering
defendants.
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SECOND AMENDED ANSWER TO COMPLAINT BY DEBORAH DWORKINAS AN EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT
AND TO EACH CAUSE OF ACTION THEREIN, this answering defendant alleges that
plaintiff's complaint, and each cause of action therein, fails to state facts sufficient to constitute
a cause of action upon which punitive damages may be sought as against these answering
defendants.
AS A NINTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE COMPLAINT,
this answering defendant alleges that plaintiff was himself careless and negligent in and about
the matters alleged in the complaint, and that said carelessness and negligence proximately
contributed to the injuries, loss, and damages complained of, if any there were.
AS A TENTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE COMPLAINT,
this answering defendant alleges that the sole and/or partial proximate cause of the incident was
due to the negligence, strict liability, and fraud of other persons and other parties, for whose
conduct these answering defendants are not responsible and these answering defendants request
that the court or trier of fact apportion comparative fault among those responsible persons and
parties under the principles of American Motorcycle Association vs. Superior Court of Los
Angeles, (1978) 20 C. 3d 578.
AS AN ELEVENTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, this answering defendant alleges that plaintiffhas failed to mitigate his damages,
if any there were, and that plaintiff's failure has proximately and concurrently contributed to the
happening of the events referred to in plaintiffs complaint and the damages alleged, if any there
were.
AS A TWELFTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, plaintiff's complaint is barred by the Doctrine of Waiver.
AS A THIRTEENTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, plaintiff's complaint is barred by the Doctrine of Estoppel.
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SECOND AMENDED ANSWER TO COMPLAINT BY DEBORAH DWORKIN0 ON DW BF WY
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AS A FOURTEENTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, plaintiff's complaint is barred by the Doctrine of Laches.
AS A FIFTEENTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, this answering defendant alleges that plaintiff lacked clean hands with respect
to the transaction or transactions alleged in the complaint and are therefore not entitled to invoke
the equity jurisdiction of this court.
AS A SIXTEENTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, this answering defendant alleges that plaintiff fails to uphold their obligations
pursuant to Civil Code §1941.2 and each subdivision thereof.
AS A SEVENTEENTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, this answering defendant alleges that plaintiff's complaint is governed by Civil
Code §1942 and each subdivision thereof.
AS AN EIGHTEENTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, this answering defendant alleges that plaintiff's complaint is governed by Civil
Code §3482.
AS A NINETEENTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, this answering defendant alleges that plaintiff's complaint is barred by the failure
and/or lack of consideration and California Civil Code §1541.
AS A TWENTIETH, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, this answering defendant alleges that the complaint is barred because of mutual
and unilateral mistakes.
AS A TWENTY-FIRST, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, this answering defendant alleges that the complaint is barred because defendant
fully performed all conditions and covenants required to be performed by them unless and until
prevented from doing so by plaintiff.
Il
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SECOND AMENDED ANSWER TO COMPLAINT BY DEBORAH DWORKINCo eo It DW FF WN
AS A TWENTY-SECOND, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, this answering defendant alleges that the complaint is barred by the principals
of accord and satisfaction and by California Civil Code §§1521 - 1524 inclusive.
AS A TWENTY-THIRD, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, this answering defendant alleges that the complaint is barred by the failure of
a condition precedent to be performed by the plaintiff.
AS A TWENTY-FOURTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, this answering defendant alleges that any performance under the contract, if
required, was excused and plaintiff's claim is barred by the Doctrine of Commercial Frustration
in that defendant was not required to perform the contract, if any, under the conditions that
existed at the time for performance, if any.
AS A TWENTY-FIFTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, this answering defendant alleges that prior to the commencement of this action,
these answering defendants duly performed, satisfied and discharged all duties and obligations
they may have owed to the plaintiff arising out of any and all agreements, representations or
contracts made by her on behalf of these answering defendants and this action is therefore barred
by the provisions of the Civil Code §§1473 - 1477, inclusive.
AS A TWENTY-SIXTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, this answering defendant alleges that defendants performed each of the
obligations to plaintiff, pursuant to any and all contracts and agreements described in the
complaint, and pursuant to the novations reach between defendants and plaintiff herein (Civil
Code § 1530).
AS A TWENTY-SEVENTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, this answering defendant alleges that plaintiffs’ complaint is barred by Civil
Code §430.10(g).
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SECOND AMENDED ANSWER TO COMPLAINT BY DEBORAH DWORKINSoS Oo we NIN DH BF WwW Ww
AS A TWENTY-EIGHTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, this answering defendant alleges that to the degree that plaintiffs claims are
predicated on breach of warranty, such claims are barred by plaintiff's failure to give timely or
proper notice thereof.
AS A TWENTY-NINTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, this answering defendant alleges that damages claimed by plaintiff, if any, will
be subject to set off and proration based on acts and/or omissions of the plaintiff.
AS A THIRTIETH, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, this answering defendant alleges that no privy of contract exists between the
plaintiff and these answering defendants.
AS A THIRTY-FIRST, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, this answering defendant alleges that plaintiff has no legal proper standing to
pursue their allegations herein, barring recovery. Defendants complied with all applicable
requirements of City of Santa Clara Municipal Codes.
AS A THIRTY-SECOND, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, this answering defendant alleges that the complaint fails to state a cause of action
sufficient to allege a cause of action between defendants and any alleged third party beneficiary,
including plaintiff herein, pursuant to California Civil Code §1559.
AS A THIRTY-THIRD, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT e that the complaint, and each cause of action therein, is barred by the applicable
Statute of Frauds including but not limited to California Civil Code §1624.
AS A THIRTY-FOURTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, these answering defendants allege that the complaint and each cause of action
therein, is barred by California Code of Civil Procedure §1908 and the Doctrine and Res
Judicata.
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SECOND AMENDED ANSWER TO COMPLAINT BY DEBORAH DWORKINoOo 0 Ome IW DH BF Ww eH
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AS A THIRTY-FIFTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, this answering defendant alleges that the complaint, or portions thereof, are
subject to the Doctrine of Collateral Estoppel.
AS A THIRTY-SIXTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, this answering defendant alleges that the premises mentioned in the complaint
were not used by the plaintiff in the manner in which they were intended to be used, and, as a
proximate result of said misuse, plaintiff sustained the damages alleged in the complaint, if any
there were.
AS A THIRTY-SEVENTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, this answering defendant alleges that plaintiff's acceptance of conditions found
on the property was with full knowledge of those conditions and thus constitutes a waiver of
objections, claims and causes of action.
AS A THIRTY-EIGHT, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, this answering defendant alleges that plaintiff consented to all acts of defendant.
AS A THIRTY-NINTH, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, this answering defendant alleges that plaintiffs complaint is barred by C.C.P.
§339.
AS A FORTIETH, SEPARATE, AND AFFIRMATIVE DEFENSE TO THE
COMPLAINT, this answering defendant alleges that at all times alleged herein, plaintiff did not
have a valid lease.
Dated: July 2, 2020 WILLIAMS, PINELLI & CULLEN, LLP
By:
ANTHONY F. PINELLI
WILLIAM H. COKE
Attorneys for Defendants,
John R. Skalisky and Deborah Dworkin
(incorrectly sued as Debra Skalisky)
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SECOND AMENDED ANSWER TO COMPLAINT BY DEBORAH DWORKIN11
Nn
Thomasee v. Skalisky, et al
Santa Clara County Superior Court No. 19CV353511
PROOF OF SERVICE
I am employed in the County of Santa Clara, State of California. I am over the age of
eighteen years and not a party to the within action. My business address is 1960 The Alameda,
Suite 195, San Jose, CA 95126.
On the date set forth below, I served the following documents:
SECOND AMENDED ANSWER TO COMPLAINT BY DEBORAH DWORKIN
on the interested parties to said action by the following means:
(BY MAIL) By placing a true copy thereof, enclosed in a sealed envelope with postage thereon fully prepaid, for
collection and mailing on that date following ordinary busin in the United States Mail as the
Williams, Pinelli & Cullen, San Jose, CA, addressed as shov el Tam readi miliar wi
for collection and processing of correspondence for mailing with the U.S. Postal Service, and in the ordinary
business, correspondence will be deposited with the U.S. Postal Service the same day it was placed for collection and
processing.
(BY FACSIMILE TRANSMISSION) | caused such documents to be delivered by facsimile transmission
this date to the offices of the addressee(s). to the fax number noted herein.
(BY HAND DELIVERY) | caused such envelope(s) to be delivered by hand this date to the offices of the
addressee(s).
BY EMAIL (E-Service) | caused said document(s) to be transmitted electronically to the interested parties at
x the email address(es) as stated on the attached service.
(BY OVERNIGHT DELIVERY) | caused such envelope(s) to be delivered to an overnight delivery carrier
with delivery fees provided for, addressed to the person(s) on whom it is to be served.
I declare under penalty of perjury under the laws of the State of California that the foregoing
is true and correct.
Executed on July 2, 2020 at San Jose, California.
C hasty Uhlan
CHRISTINA M. ER
NAME(S), ADDRESS(ES), FAX OR EMAIL ADDRESS(ES) OF PARTIES SERVED:
Andrew Wolff, Esq.
Law Offices of Andrew Wolff, P.C.
1615 Broadway, 4" Floor
Oakland, CA 94612
(510) 834-3300/(510) 834-3377 - fax#
andrew@awolfflaw.com
Attorneys for Plaintiff, Mark Thomasee
Proof of Service