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LEONIDOU & ROSIN
Professional Corporation
A. Robert Rosin (SBN 115245)
Michael M. Lum (SBN 215700)
777 Cuesta Drive, Suite 200
Mountain View, CA 94040
Telephone: (650) 691-2888
arrosin@alr-law.com
jaw.com
Attorneys for Defendant
Talus Construction, Inc.
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SANTA CLARA
ECONOMY TRUCKING SERVICES, INC., ) Case No. 20CV365980
)
Plaintiff, )
) TALUS CONSTRUCTION, INC.’S
vs. ) ANSWER TO ECONOMY TRUCKING
) SERVICES, INC.’S COMPLAINT
TALUS CONSTRUCTION, INC. and ) . oo.
DOES 1 TO 10. ) Unlimited Jurisdiction
; )
Defendants. }
ANSWER -- GENERAL DENIAL
Pursuant to section 431.30 of the Code of Civil Procedure, defendant Talus Construction,
Inc. (“Talus” or “Responding Party”) generally denies and puts at issue each and every material
allegation of plaintiff Economy Trucking Services, Inc.’s (“Economy”) unverified Complaint
(“Complaint”).
As separate and independent defenses, Responding Party alleges on information and
belief as follows:
AFFIRMATIVE DEFENSE
(Failure to State a Cause of Action)
1. The Complaint fails to state facts sufficient to constitute a cause of action.
1
TALUS CONSTRUCTION, INC.°S ANSWER TO ECONOMY TRUCKING SERVICES, INC.’°S COMPLAINT
SAALRDOCS\30186\3\00242790.DOCXAFFIRMATIVE DEFENSE
(Statutes of Limitation)
2 Plaintiffs claims are barred by the applicable statutes of limitations as set forth in
the Code of Civil Procedure sections 335 et seq., more particularly, but not limited to, Sections
337, 337.1, 337.15, 338, 339, 340, and 343, and Civil Code sections 9356 and 9558.
AFFIRMATIVE DEFENSE
(Unclean Hands)
3 Plaintiff's unclean hands bar the purported causes of action alleged in the
Complaint.
AFFIRMATIVE DEFENSE
(Unjust Enrichment)
4. The Complaint and each cause of action contained therein are barred by the
doctrine of unjust enrichment.
AFFIRMATIVE DEFENSE
(Waiver, Laches and Estoppel)
5. Plaintiff has knowingly engaged in conduct that reasonably induced detrimental
reliance. Plaintiff's claims are therefore barred under the doctrines of waiver, laches, and
estoppel.
AFFIRMATIVE DEFENSE
(Accord and Satisfaction/Modification of Agreement)
6. Plaintiff entered into an accord and satisfaction and written modification of the
agreement upon which it has filed suit. In that agreement, it waived the claims being pursued
herein. Plaintiff is in breach of the accord and satisfaction and written modification of the
agreement upon which it has brought suit. Accordingly, Plaintiff is barred from pursuing any
rights or remedies.
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2
TALUS CONSTRUCTION, INC.’°S ANSWER TO ECONOMY TRUCKING SERVICES, INC.’°S COMPLAINT
S:A\ALRDOCS\30186\3\00242790.DOCXoN Aw
AFFIRMATIVE DEFENSE
(Complete Performance)
the Responding Party has appropriately, completely, and fully performed and
discharged any and all obligations and legal duties arising out of the matters alleged in the
Complaint.
AFFIRMATIVE DEFENSE
(Failure to Mitigate Damages)
8. Plaintiff has failed to mitigate its purported damages and has knowingly engaged
in conduct that would have aggravated its purported damages, if any had been sustained.
AFFIRMATIVE DEFENSE
(Justification)
10. Responding Party asserts that any of the acts or omissions alleged to have been
committed by Responding Party was in fact justified as part of the regular course of business and
the fulfillment of Responding Party’s own contractual obligations.
AFFIRMATIVE DEFENSE
(Limitation of Remedy)
11. The terms of the contract bar, in whole or in part, Plaintiff's recovery for the
damages that it seeks.
AFFIRMATIVE DEFENSE
(Material Breach)
12. Plaintiff's recovery is barred because of its material breach of the contracts in
question, excusing further performance by Defendants.
AFFIRMATIVE DEFENSE
(Release)
13. Plaintiff agreed to release the claims upon which it has brought suit. Accordingly,
the claims are barred.
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TALUS CONSTRUCTION, INC.’°S ANSWER TO ECONOMY TRUCKING SERVICES, INC.’S COMPLAINT
SAALRDOCS\30186\3\00242790.DOCXAFFIRMATIVE DEFENSE
(Set Off and Recoupment)
14. Responding Party is entitled to set off against Plaintiff's claims, any and all sums
or damages that Plaintiff may owe Responding Party, including damages resulting from
Plaintiff's breach of its contractual obligations.
AFFIRMATIVE DEFENSE
(Intervention)
15. Plaintiff's damages, if any, are the result of the acts of Plaintiff or other persons or
entities, including nonparties to this action. Accordingly, liability or damages to Plaintiff, if any,
must be apportioned among all of such responsible persons or entities, including Plaintiff.
AFFIRMATIVE DEFENSE
(Failure to Fulfill Conditions)
16. Any recovery on the Complaint, or any purported cause of action alleged therein,
is barred on the ground that, as to each and every oral, implied, or other contract alleged therein,
Plaintiff has failed to fulfill a condition or conditions precedent or subsequent to the enforcement
of such contract.
AFFIRMATIVE DEFENSE
(Excuse/Failure to Perform)
17. Plaintiffs failure to perform pursuant to the agreements, if any, between the
parties excused Responding Party from performing any obligations Responding Party did not
perform, if there was any such performance due.
AFFIRMATIVE DEFENSE
(Exhaustion of Remedies)
18. Recovery is barred by Plaintiff's failure to timely and fully exhaust contractual
remedies including the obligation to mediate disputes. The filing of this general denial and
affirmative defenses is not a waiver of any right to require compliance with ADR requirements.
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TALUS CONSTRUCTION, INC.’S ANSWER TO ECONOMY TRUCKING SERVICES, INC.’S COMPLAINT
SAALRDOCS\30186\3\00242790.DOCX,AFFIRMATIVE DEFENSE
(Alternative Dispute Resolution)
19. To the extent that there is any agreement between the parties to utilize Alternate
Dispute Resolution (“ADR”) procedures to resolve any or all of the issues or disputes raised in
the complaint, Defendant expressly reserves the right to enforce those ADR provisions and does
not waive the right to enforce those ADR provisions by filing this answer. ADR procedures
include, without limitation, arbitration, mediation, or a judicial reference.
AFFIRMATIVE DEFENSE
(Consent)
20. Plaintiff consented to any and all acts of Responding Party of which the
Complaint now complains.
AFFIRMATIVE DEFENSE
(Failure to Notify)
21. Plaintiff failed to provide Responding Party with timely notice of any requested
claim and has failed to meet the statutory pre-conditions to pursuing its claims in this action.
AFFIRMATIVE DEFENSE
(Collusion)
22. Asa further, separate and affirmative defense to the Complaint and each cause of
action alleged therein, it is alleged that the conduct, actions, or failures to act of individuals or
entities in combination with other persons or entities, whether or not parties to this action,
constituted collusion and such collusion either bars or proportionally reduces any recovery by
Plaintiff in this action, and/or entitles Responding Party to recover any damages it has incurred
as a result of such conduct, actions or failures to act.
AFFIRMATIVE DEFENSE
(Misrepresentation)
23. Plaintiff falsely represented material facts upon which Responding Party relied in
entering the subject transactions, when Plaintiff knew that such representations were false and
made in order to induce Responding Party’s reliance and conduct. Responding Party was
5
TALUS CONSTRUCTION, INC.’S ANSWER TO ECONOMY TRUCKING SERVICES, INC.’S COMPLAINT
S:A\ALRDOCS\30186\3\00242790.DOCX,unaware of the falsity of Plaintiffs representations and as a result, Plaintiffs claims and
damages, if any, are barred as a result of Plaintiff's own misrepresentations and conduct.
AFFIRMATIVE DEFENSE
(Failure to Comply with Prerequisites)
23. ‘Plaintiff failed to comply with all statutory and necessary prerequisites for
asserting a claim of lien, stop payment notice or payment bond claim, and therefore is barred
from asserting such claims.
AFFIRMATIVE DEFENSE
(Undue Influence)
24. Plaintiff unduly induced Responding Party into consenting to the contract.
AFFIRMATIVE DEFENSE
(Unconscionability)
25. Certain provisions of the contract are unconscionable and unenforceable and do
not constitute grounds for Plaintiff's purported causes of action or allegations.
AFFIRMATIVE DEFENSE
(Willful Overstatement)
26. Plaintiff's claims are barred by its willful overstatement of the amount it has
sought.
AFFIRMATIVE DEFENSE
(Willfully False Claims)
27. The claims and amounts asserted by Plaintiff are willfully false, which includes
costs and damages not incurred by Plaintiff.
AFFIRMATIVE DEFENSE
(Other Defenses)
28. Responding Party reserves all rights to supplement this answer with additional
denials and/or affirmative defenses, as further facts are discovered in this litigation.
iif
II]
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TALUS CONSTRUCTION, INC.’S ANSWER TO ECONOMY TRUCKING SERVICES, INC.’°S COMPLAINT
S:\ALRDOCS\30186\3\00242790.DOCXWHEREFORE, Defendant Talus Construction, Inc. prays for judgment as follows:
is
That Plaintiff takes nothing by its Complaint and judgment is entered accordingly;
2. To the extent permitted by law for costs of suit incurred herein;
$5 For reasonable attomey’s fees to be taxed as costs; and
4. - For such other and further relief as the Court may deem just and proper.
Dated: August 5, 2020 LEONIDOU & ROSIN
Professional Corporation
By eg
Michaeh Lum
Attorneys for Defendant
Talus Construction, Inc.
7
TALUS CONSTRUCTION, INC.°S ANSWER TO ECONOMY TRUCKING SERVICES. INC “S COMPLAINT
SMLRDC
S\301 86.310
42790, DOCKOo Oo XY DW BF WwW NY
RMN NN YN NK KY NY Bee we we ew ee ee RB eR
eo DA A RF Yb YH &§ SO we I DH BF WN KF
PROOF OF SERVICE
Jam a resident of the State of California, over the age of eighteen years, and not a
party to the within action. My business address is Leonidou & Rosin, 777 Cuesta Drive, Suite
200, Mountain View, CA 94040. On August 5, 2020, I served the within documents:
TALUS CONSTRUCTION, INC.’S ANSWER TO ECONOMY TRUCKING
SERVICES, INC.’S COMPLAINT
q by placing the document(s) listed above in a sealed envelope with postage thereon|
fully prepaid, for collection and mailing following our ordinary business practice
at Mountain View, California addressed as set forth below.
IX} by electronically serving the above-referenced document(s) through One Legal,
LLC and/or File and ServeXpress, an e-filing provider for Santa Clara County
Superior Court. E-service in this action was completed on all parties listed on the
service list with the Court. This service complies with the Court’s order in this
case..
Dawn C. Sweatt, Esq.
Ellen M. Taylor, Esq.
Berliner Cohen
10 Almaden Blvd
San Jose, CA 95123
Email — ellen.taylor@berliner.com
e Attorneys for Economy Trucking Services, Inc.
I am readily familiar with the firm’s practice of collection and processing
correspondence for mailing. Under that practice it would be deposited with the U.S. postal
service on that same day with postage thereon fully prepaid in the ordinary course of business.
I declare that I am employed in the office of a member of the bar of this court at
whose direction the service was made.
I declare under penalty of perjury under the laws of the State of California that the|
above is true and correct.
Executed on August 5, 2020, at Mountain View, California.
¢ AyA—
Chellie Cardema
00242728.DOCX 1
Preview
LEONIDOU & ROSIN Professional Corporation A. Robert Rosin (SBN 115245) Michael M. Lum (SBN 215700) 777 Cuesta Drive, Suite 200 Mountain View, CA 94040 Telephone: (650) 691-2888 arrosin@alr-law.com jaw.com Attorneys for Defendant Talus Construction, Inc. IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA ECONOMY TRUCKING SERVICES, INC., ) Case No. 20CV365980 ) Plaintiff, ) ) TALUS CONSTRUCTION, INC.’S vs. ) ANSWER TO ECONOMY TRUCKING ) SERVICES, INC.’S COMPLAINT TALUS CONSTRUCTION, INC. and ) . oo. DOES 1 TO 10. ) Unlimited Jurisdiction ; ) Defendants. } ANSWER -- GENERAL DENIAL Pursuant to section 431.30 of the Code of Civil Procedure, defendant Talus Construction, Inc. (“Talus” or “Responding Party”) generally denies and puts at issue each and every material allegation of plaintiff Economy Trucking Services, Inc.’s (“Economy”) unverified Complaint (“Complaint”). As separate and independent defenses, Responding Party alleges on information and belief as follows: AFFIRMATIVE DEFENSE (Failure to State a Cause of Action) 1. The Complaint fails to state facts sufficient to constitute a cause of action. 1 TALUS CONSTRUCTION, INC.°S ANSWER TO ECONOMY TRUCKING SERVICES, INC.’°S COMPLAINT SAALRDOCS\30186\3\00242790.DOCXAFFIRMATIVE DEFENSE (Statutes of Limitation) 2 Plaintiffs claims are barred by the applicable statutes of limitations as set forth in the Code of Civil Procedure sections 335 et seq., more particularly, but not limited to, Sections 337, 337.1, 337.15, 338, 339, 340, and 343, and Civil Code sections 9356 and 9558. AFFIRMATIVE DEFENSE (Unclean Hands) 3 Plaintiff's unclean hands bar the purported causes of action alleged in the Complaint. AFFIRMATIVE DEFENSE (Unjust Enrichment) 4. The Complaint and each cause of action contained therein are barred by the doctrine of unjust enrichment. AFFIRMATIVE DEFENSE (Waiver, Laches and Estoppel) 5. Plaintiff has knowingly engaged in conduct that reasonably induced detrimental reliance. Plaintiff's claims are therefore barred under the doctrines of waiver, laches, and estoppel. AFFIRMATIVE DEFENSE (Accord and Satisfaction/Modification of Agreement) 6. Plaintiff entered into an accord and satisfaction and written modification of the agreement upon which it has filed suit. In that agreement, it waived the claims being pursued herein. Plaintiff is in breach of the accord and satisfaction and written modification of the agreement upon which it has brought suit. Accordingly, Plaintiff is barred from pursuing any rights or remedies. Mf Mit Mt 2 TALUS CONSTRUCTION, INC.’°S ANSWER TO ECONOMY TRUCKING SERVICES, INC.’°S COMPLAINT S:A\ALRDOCS\30186\3\00242790.DOCXoN Aw AFFIRMATIVE DEFENSE (Complete Performance) the Responding Party has appropriately, completely, and fully performed and discharged any and all obligations and legal duties arising out of the matters alleged in the Complaint. AFFIRMATIVE DEFENSE (Failure to Mitigate Damages) 8. Plaintiff has failed to mitigate its purported damages and has knowingly engaged in conduct that would have aggravated its purported damages, if any had been sustained. AFFIRMATIVE DEFENSE (Justification) 10. Responding Party asserts that any of the acts or omissions alleged to have been committed by Responding Party was in fact justified as part of the regular course of business and the fulfillment of Responding Party’s own contractual obligations. AFFIRMATIVE DEFENSE (Limitation of Remedy) 11. The terms of the contract bar, in whole or in part, Plaintiff's recovery for the damages that it seeks. AFFIRMATIVE DEFENSE (Material Breach) 12. Plaintiff's recovery is barred because of its material breach of the contracts in question, excusing further performance by Defendants. AFFIRMATIVE DEFENSE (Release) 13. Plaintiff agreed to release the claims upon which it has brought suit. Accordingly, the claims are barred. Ml Mf 3 TALUS CONSTRUCTION, INC.’°S ANSWER TO ECONOMY TRUCKING SERVICES, INC.’S COMPLAINT SAALRDOCS\30186\3\00242790.DOCXAFFIRMATIVE DEFENSE (Set Off and Recoupment) 14. Responding Party is entitled to set off against Plaintiff's claims, any and all sums or damages that Plaintiff may owe Responding Party, including damages resulting from Plaintiff's breach of its contractual obligations. AFFIRMATIVE DEFENSE (Intervention) 15. Plaintiff's damages, if any, are the result of the acts of Plaintiff or other persons or entities, including nonparties to this action. Accordingly, liability or damages to Plaintiff, if any, must be apportioned among all of such responsible persons or entities, including Plaintiff. AFFIRMATIVE DEFENSE (Failure to Fulfill Conditions) 16. Any recovery on the Complaint, or any purported cause of action alleged therein, is barred on the ground that, as to each and every oral, implied, or other contract alleged therein, Plaintiff has failed to fulfill a condition or conditions precedent or subsequent to the enforcement of such contract. AFFIRMATIVE DEFENSE (Excuse/Failure to Perform) 17. Plaintiffs failure to perform pursuant to the agreements, if any, between the parties excused Responding Party from performing any obligations Responding Party did not perform, if there was any such performance due. AFFIRMATIVE DEFENSE (Exhaustion of Remedies) 18. Recovery is barred by Plaintiff's failure to timely and fully exhaust contractual remedies including the obligation to mediate disputes. The filing of this general denial and affirmative defenses is not a waiver of any right to require compliance with ADR requirements. M/ Mil 4 TALUS CONSTRUCTION, INC.’S ANSWER TO ECONOMY TRUCKING SERVICES, INC.’S COMPLAINT SAALRDOCS\30186\3\00242790.DOCX,AFFIRMATIVE DEFENSE (Alternative Dispute Resolution) 19. To the extent that there is any agreement between the parties to utilize Alternate Dispute Resolution (“ADR”) procedures to resolve any or all of the issues or disputes raised in the complaint, Defendant expressly reserves the right to enforce those ADR provisions and does not waive the right to enforce those ADR provisions by filing this answer. ADR procedures include, without limitation, arbitration, mediation, or a judicial reference. AFFIRMATIVE DEFENSE (Consent) 20. Plaintiff consented to any and all acts of Responding Party of which the Complaint now complains. AFFIRMATIVE DEFENSE (Failure to Notify) 21. Plaintiff failed to provide Responding Party with timely notice of any requested claim and has failed to meet the statutory pre-conditions to pursuing its claims in this action. AFFIRMATIVE DEFENSE (Collusion) 22. Asa further, separate and affirmative defense to the Complaint and each cause of action alleged therein, it is alleged that the conduct, actions, or failures to act of individuals or entities in combination with other persons or entities, whether or not parties to this action, constituted collusion and such collusion either bars or proportionally reduces any recovery by Plaintiff in this action, and/or entitles Responding Party to recover any damages it has incurred as a result of such conduct, actions or failures to act. AFFIRMATIVE DEFENSE (Misrepresentation) 23. Plaintiff falsely represented material facts upon which Responding Party relied in entering the subject transactions, when Plaintiff knew that such representations were false and made in order to induce Responding Party’s reliance and conduct. Responding Party was 5 TALUS CONSTRUCTION, INC.’S ANSWER TO ECONOMY TRUCKING SERVICES, INC.’S COMPLAINT S:A\ALRDOCS\30186\3\00242790.DOCX,unaware of the falsity of Plaintiffs representations and as a result, Plaintiffs claims and damages, if any, are barred as a result of Plaintiff's own misrepresentations and conduct. AFFIRMATIVE DEFENSE (Failure to Comply with Prerequisites) 23. ‘Plaintiff failed to comply with all statutory and necessary prerequisites for asserting a claim of lien, stop payment notice or payment bond claim, and therefore is barred from asserting such claims. AFFIRMATIVE DEFENSE (Undue Influence) 24. Plaintiff unduly induced Responding Party into consenting to the contract. AFFIRMATIVE DEFENSE (Unconscionability) 25. Certain provisions of the contract are unconscionable and unenforceable and do not constitute grounds for Plaintiff's purported causes of action or allegations. AFFIRMATIVE DEFENSE (Willful Overstatement) 26. Plaintiff's claims are barred by its willful overstatement of the amount it has sought. AFFIRMATIVE DEFENSE (Willfully False Claims) 27. The claims and amounts asserted by Plaintiff are willfully false, which includes costs and damages not incurred by Plaintiff. AFFIRMATIVE DEFENSE (Other Defenses) 28. Responding Party reserves all rights to supplement this answer with additional denials and/or affirmative defenses, as further facts are discovered in this litigation. iif II] 6 TALUS CONSTRUCTION, INC.’S ANSWER TO ECONOMY TRUCKING SERVICES, INC.’°S COMPLAINT S:\ALRDOCS\30186\3\00242790.DOCXWHEREFORE, Defendant Talus Construction, Inc. prays for judgment as follows: is That Plaintiff takes nothing by its Complaint and judgment is entered accordingly; 2. To the extent permitted by law for costs of suit incurred herein; $5 For reasonable attomey’s fees to be taxed as costs; and 4. - For such other and further relief as the Court may deem just and proper. Dated: August 5, 2020 LEONIDOU & ROSIN Professional Corporation By eg Michaeh Lum Attorneys for Defendant Talus Construction, Inc. 7 TALUS CONSTRUCTION, INC.°S ANSWER TO ECONOMY TRUCKING SERVICES. INC “S COMPLAINT SMLRDC S\301 86.310 42790, DOCKOo Oo XY DW BF WwW NY RMN NN YN NK KY NY Bee we we ew ee ee RB eR eo DA A RF Yb YH &§ SO we I DH BF WN KF PROOF OF SERVICE Jam a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is Leonidou & Rosin, 777 Cuesta Drive, Suite 200, Mountain View, CA 94040. On August 5, 2020, I served the within documents: TALUS CONSTRUCTION, INC.’S ANSWER TO ECONOMY TRUCKING SERVICES, INC.’S COMPLAINT q by placing the document(s) listed above in a sealed envelope with postage thereon| fully prepaid, for collection and mailing following our ordinary business practice at Mountain View, California addressed as set forth below. IX} by electronically serving the above-referenced document(s) through One Legal, LLC and/or File and ServeXpress, an e-filing provider for Santa Clara County Superior Court. E-service in this action was completed on all parties listed on the service list with the Court. This service complies with the Court’s order in this case.. Dawn C. Sweatt, Esq. Ellen M. Taylor, Esq. Berliner Cohen 10 Almaden Blvd San Jose, CA 95123 Email — ellen.taylor@berliner.com e Attorneys for Economy Trucking Services, Inc. I am readily familiar with the firm’s practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. postal service on that same day with postage thereon fully prepaid in the ordinary course of business. I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. I declare under penalty of perjury under the laws of the State of California that the| above is true and correct. Executed on August 5, 2020, at Mountain View, California. ¢ AyA— Chellie Cardema 00242728.DOCX 1