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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
"” Document Scanning Lead Sheat
Jut-15-2009 10:45 am
Case Number: CGC-08-479247
Filing Date: Jul-15-2009 10:43
Juke Box: 001 Image: 02555328
ANSWER
WAYNE DERMAN VS. M.KARKORI CONSTRUCTION, INC., A PURPORATED et al
001002555328
Instructions:
Please place this sheet on top of the document to he scanned,_
wo om KN DA UH h® WY N
€ ORIGINAL ©
Richard 8. Diestel, No, 095059
Karl LF. Runft, No. 262163
BLEDSOE, CATHCART, DIESTEL, PEDERSEN & gery. 15 AML 28
TREPPA, LLP
601 California Street, 16th Floor
San Francisco, California 94108-2805 BA
Telephone: tas) 981-5411 .
Facsimile: (415) 981-0352 ee oy
Attorneys for Cross-Defendant WAYNE DERMAN, an
individual
" SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
WAYNE DERMAN, an individual, No. CGC 08-479247
Plaintiff, ANSWER OF WAYNE DERMAN
TO FIRST AMENDED CROSS-
v. COMPLAINT OF M. KARKORI
CONSTRUCTION, INC.
M. KARKORI CONSTRUCTION, INC., a
iforni ion: Complaint Filed: August 28, 2008
purported California corporation; MOSTAFA First Amended Cross-Complaint Filed:
> , October 1, 2008
Defendants.
M. KARKORI CONSTRUCTION, INC., a
California Corporation
Cross-Complainant,
%
v.
WAYNE DDERMAN, an individual, First
Tennessee Bank, N.A., doing business as
First Horizon Home Loans aka First
Horizon Construction Lending, and Does 1
through 1000, inclusive
Cross-Defendants.
ANSWER OF WAYNE DERMAN TO FIRST AMENDED CROSS-COMPLAINT OF M. KARKORI CONSTRUCTION, INC,oO S&C ND NH FF YW NH
COMES NOW Plaintiff and Cross-Nefendant WAYNE DERMAN, an i:
(“Cross-Defendant”) answering the unverified First Amended Cross-Complaint (“Cross-
Complaint”) of Defendant and Cross-Complainant M. KARKORI CONSTRUCT TON, INC.
(“Cross-Complainant”), a Califomia corporation, for breach of contract, quantum meruit, civil
penalties, petition to compel arbitration, foreclosure on mechanics lien and declaratory relief as
follows:
GENERAL DENIAL
Pursuant to Code of Civil Procedure section 431 .30(d), Cross-Defendant cenerally denies
each of the allegations of the Cross-Complaint, and further denies that Cross-Complainant has
been damaged or injured in any amount or sum, or at all, by reason of any act or omission on the
part of Cross-Defendant.
Cross-Defendant further alleges as follows:
1 AS A FIRST, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-
Complaint and each cause of action alleged therein, this answering Cross-Defendant alleges that
the Cross-Complaint fails to state facts sufficient to constitute a cause of action against this
answering Cross-Defendant, or at all.
2. AS A SECOND, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-
Complaint and each cause of action alleged therein, this answering Cross-Defendant alleges that
Cross-Complainant’s claims are barred by the applicable statute of limitations including, but not
limited to, those set forth in Code of Civil Procedure sections 335, 335.1, 338 and 340.
3. AS A THIRD, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-
Complaint and each cause of action alleged therein, this answering Cross-Defendant alleges that
Cross-Complainant is barred from relief by the doctrine of unclean hands.
4, AS A FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-
Complaint and each cause of action alleged therein, this answering Cross-Defendant alleges that
Cross-Complainant is barred from relief by the doctrine of latches.
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ANSWER OF WAYNE DERMAN TO FIRST AMENDED CROSS-COMPLAINT OF M. KARKORI CONSTRUCTION, INC.wm oN Dn Fs WH =
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5. ASAFIFTH, SEPARATE AND
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AATIVE DEFENSE to the Cross-
Complaint and each cause of action alleged therein, this answering Cross-Defendant alleges that
Cross-Complainant is barred from relief by the doctrine of estoppel.
6. AS A SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-
Complaint and each cause of action alleged therein, this answering Cross-Defendant alleges that
Cross-Complainant was negligent in and about the matters and activities alleged in this Cross-
Complaint, that such negligence contributed to and was the proximate cause of Cross-
Complainant’s alleged damages, if any, and that, if Cross-Complainant is entitled to recover
damages against Cross-Defendant, Cross-Defendant prays that said recovery be diminished by
reason of Cross-Complainant’s actions in proportion to the degree of fault attributable to Cross-
Complainant.
7. AS A SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-
Complaint and each cause of action alleged therein, this answering Cross-Defendant alleges that
the injuries and damages complained of by Cross-Complainant, if any there were, were either
wholly or in part directly and proximately caused by the negligence or other wrongful acts or
omissions of persons or entities other than this answering Cross-Defendant and said negligence
comparatively reduces the proportion of negligence and corresponding liability of this answering
Cross-Defendant.
8. AS AN EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-
Complaint and each cause of action alleged therein, this answering Cross-Defendant alleges he
exercised due care and diligence in all of the matters alleged in the Cross-Complaint, and no act
or omission by Cross-Defendant was the proximate cause of any damage, injury or loss to Cross-
Complainant,
9. AS A NINTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-
Complaint and each cause of action alleged therein, this answering Cross-Defendant alleges that
as a result of the acts, conduct, and/or omissions of Cross-Complainant, Cross-Defendant is
released from liability as to each cause of action presented in the Cross-Complaint.
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ANSWER OF WAYNE DERMAN TO FIRST AMENDED CROSS-COMPLAINT OF M. KARKORI CONSTRUCTION, INC.wo oN DH Ft YH —
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10. AS A TENTH, SEPARATE AND AFFIRMATIVE DEFENSE. to the Cross-
Complaint and each cause of action alleged therein, this answering Cross-Defendant contends that
if liability is assessed against him, pursuant to Civil Code sections 1430 et seq., Cross-Defendant
shall be liable only for the amount of non-economic damages allocated to him in direct proportion
to the percentage of fault assessed against him by the trier of fact, and requests that a separate
judgment be rendered against him for that amount. But in setting forth these affirmative defenses,
Cross-Defendant makes no admission that he is liable to Cross-Complainant in any amount or in
any proportion, and makes no admission that Cross-Complainant has been damaged in any sum or
sums, or at all,
Ii. AS AN ELEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE to the
Cross-Complaint and each cause of action alleged therein, this answering Cross-Defendant
alleges that Cross-Complainant had express knowledge of the risks and hazards set forth in the
Cross-Complaint as well as the magnitude of the risks and hazards and, therefore, knowingly and
willingly assumed those risks.
12. ASA TWELTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-
Complaint and each cause of action alleged therein, this answering Cross-Defendant alleges that
Cross-Complainant failed to exercise reasonable care and diligence to avoid loss and to minimize
and mitigate his damages, if any there were, and that this failure to mitigate damages alone
aggravated any damages or injuries, if any, to Cross-Complainant, and therefore precludes or
reduces recovery against this answering Cross-Defendant.
13. ASA THIRTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE to the
Cross-Complaint and each cause of action alleged therein, this answering Cross-Defendant
alleges Cross-Complainant’s Cross-Complaint is vaguc, ambiguous and unccrtain.
14. AS A FOURTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE to the
Cross-Complaint and each cause of action alleged therein, this answering Cross-Defendant
alleges that Cross-Complainant acknowledged, ratified, consented to and acquiesced in the
alleged acts or omission, if any, of Cross-Defendant, thus barring Cross-Complainant from any
$5 Cross-Complain
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TOSS-Compiaint,
ANSWER OF WAYNE DERMAN TO FIRST AMENDED CROSS-COMPLAINT OF M. KARKORI CONSTRUCTION, INC,oOU eS ANH hh WY
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15. AS A FIFTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE to the
Cross-Complaint, Cross-Defendant alleges that should Cross-Complainant recover from this
or in part, from all persons or entities whose negligence or fault proximately contributed to Cross-
Complainant's damages, if any there were.
16. AS A SIXTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE to the
Cross-Complaint and each cause of action alleged therein, this answering Cross-Defendant
alleges that Cross-Complainant or others modified, altered, abused, or misused the work. services.
conduct caused and contributed to the loss, injuries or damage alleged.
17. AS A SEVENTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE to the
Cross-Complaint and each cause of action alleged therein, this answering Cross-Defendant
alleges that Cross-Complainant is barred from any relief against Cross-Defendant because Cross-
Complainant failed to give Cross-Defendant reasonable notice of the breaches of contract or other
wrongful conduct alleged.
18. AS AN EIGHTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE to the
Cross-Complaint and each cause of action alleged therein, this answering Cross-Defendant
alleges that the Home Improvement Agreement provides as follows:
Arbitration of disputes. Any controversy or claim arising out of or related
to this contract, or the breach thereof, shall be settled by arbitration in
accordance with the construction industry arbitration rules of the American
Arbitration Association, and Judgment upon the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof.
Claims within the monetary limit of the small claims court shall be litigated
in such court at the request of either party, so long as both parties limit their
right to recovery to the jurisdiction of the small claims court.
Any claim filed in small claims court shall not be deemed to be a waiver of
the right to arbitrate, and if a counter claim in excess of the jurisdiction of
the small claims court is filed in the municipal or superior court, then the
party filing small claims court may demand arbitration pursuant to this
paragraph.
NOTICE: By initialing in the space helow you are agreeing to have any
dispute arising out of the matters included in the Arbitration of Disputes
provision decided my [sic] neutral arbitration as provided by California law
and you are giving up any rights you might possess to have the dispute
equipment, or materials that are alleged to have been provided by Cross-Defendant, and such
ANSWER OF WAYNE DERMAN TO FIRST AMENDED CROSS-COMPLAINT OF M. KARKORI CONSTRUCTION, INC,wo oN DH SF WH —
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litigated in a court or jury trial. By initialing in the space below, you are
giving up judicial rights to discovery and anneal, submit to arbitration after
agreeing to this provision, you may be compelled to arbitrate under the
authority of the Business and Professions code or other applicable laws.
Your agreement to this arbitration provision is voluntary.
We have read and understand the foregoing and agree to submit disputes
arising. out of the matters included in the Arbitration of Disputes to neutral
This provision requires that Cross-Complainant and Cross-Defendant arbitrate the controversy
that is at issue in this action, Both Cross-Complainant and Cross-Defendant agreed to arbitration
by initialing the above provision. Cross-Defendant has not waived arbitration but Cross-
Complainant has made no attempt to submit the matter to arbitration and the matter has not been
arbitrated.
19. AS ANINETEENTH SEPARATE AND AFFIRMATIVE DEEFNSE to the
Cross-Complaint and each cause of action alleged therein, this answering Cross-Defendant
alleges that Cross-Complainant has failed to sue the proper and necessary parties.
20. ASA TWENTIETH SEPARATE AND AFFIRMATIVE DEEFNSE to the
Cross-Complaint and each cause of action alleged therein, this answering Cross-Defendant denies
that Cross-Complainant has suffered any injury whatsoever as a proximate result of the acts of
Cross-Defendant.
21. ASA TWENTY-FIRST SEPARATE AND AFFIRMATIVE DEEFNSE to the
Cross-Complaint and each cause of action alleged therein, this answering Cross-Defendant
alleges that pursuant to contract, Cross-Complainant failed to meet its duty of good faith and fair
dealing,
22. AS A TWENTY-SECOND SEPARATE AND AFFIRMATIVE DEEFNSE to
the Cross-Complaint and each cause of action alleged therein, this answering Cross-Defendant
alleges that each cause of action is barred and no cause of action is stated because of mutual
and/or unilateral mistake of the parties.
23. ASA TWENTY-THIRD SEPARATE AND AFFIRMATIVE DEEFNSE to
the Cross-Complaint and each cause of action alleged therein, this answering Cross-Defendant
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ANSWER OF WAYNE DERMAN TO FIRST AMENDED CROSS-COMPLAINT OF M. KARKORI CONSTRUCTION, INC,Oo RNY AH EWN
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alleges that Cross-Complainant negligently misrepresented his words, conduct and actions, such
misrepresentations were the true cause of any alleged damage to Cross-Complainant.
24, ASA TWENTY-FOURTH SEPARATE AND AFFIRMATIVE DEEFNSE to
the Cross-Complaint and each cause of action alleged therein, this answering Cross-Defendant
alleges that Cross-Complainant’s damages, if any, are entitled to legal and/or equitable offset.
25. AS A TWENTY-FIFTI SEPARATE AND AFFIRMATIVE DEEFNSE to the
Cross- Complaint and each cause of action alleged therein, this answering Cross-Defendant
alleves that the Cross-Complaint and each cause of action therein are barred because any recovery|
from Cross-Defendant would result in Cross-Complainant’s unjust enrichment.
26. ASA TWENTY-SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE to
the Cross-Complaint and each cause of action alleged therein, this answering Cross-Defendant
alleges he presently has insufficient knowledge or information on which to form a belief as to
whether he may have additional, as yet unstated, defenses available. This answering Cross-
Defendant reserves the right to assert additional affirmative defenses in the event discovery
indicates that additional affirmative defenses are appropriate.
27. ASA TWENTY-SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE
to the Cross-complaint all or any claims alleged by Cross-Complainant are barred by parol
evidence.
28. ASA TWENTY-EIGHTI, SEPARATE AND AFFIRMATIVE DEFENSE to
the Cross-complaint and each cause of action alleged therein, this answering Cross-Defendant
alleges he was truthful in all statements of fact regarding Cross-Complainant.
Mt
it
-6-
ANSWER OF WAYNE DERMAN TO FIRST AMENDED CROSS-COMPLAINT OF M, KARKORI CONSTRUCTION, INC,€ C
WHEREFORE, this answering Cross-Defendant prays that Cross-Complainant take
nothing by the Cross-Complaint and that this answering Cross-Defendant have a judgment for his
costs of suit incurred herein, including reasonable attorney fees, and for such other and further
relief as the Court deems proper.
Dated: July 13, 2009 BLEDSOE, CATHCART, DIESTEL,
PEDERSEN & TREPPA, LLP. J
Oo ef ND WH fF WN
7.
ANSWER OF WAYNE DERMAN TO FIRST AMENDED CROSS-COMPLAINT OF M, KARKORI CONSTRUCTION, INC.| Cc C
! i PROOF OF SERVICE
2 I, the undersigned, hereby declare that I am over the age of eighteen years and not a party to
the within action. My business address is 601 California Street, 16th Floor, San Francisco, CA
3 | 94108-2805. On the date indicated below, I caused to be scrved the following document(s):
4 ANSWER OF WAYNE DERMAN TO FIRST AMENDED CROSS-
5 COMPLAINT OF M. KARKORI CONSTRUCTION, INC.
6 Upon the following at the address(es) stated below:
XXX _ BY MAIL by placing the document(s) listed above in a sealed envelope, with postage
7 thereon fully prepaid, in the United States mail at San Francisco, California addressed as
’ ent forth hein
af set forth below,
j BY E-MAIL OR ELECFRONIC TRANSMISSION by causing the documents to be
9 sent to the persons at the e-mail addresses set forth below, I did not receive, within a
reasonable time after the transmission, any electronic message or other indication that the
10 transmission was unsuccessful.
i BY FEDERAL EXPRESS by causing each such envelope to be deposited ina
box or other facility regularly maintained by Federal Express, an express service
12 carrier, in an envelope or package designated by Federal Express with delivery
B fees paid or provided for, to the addresses set forth below.
BY FACSIMILE by transmitting via facsimile the document(s) listed above to the fax
14 number(s) set forth below on this date before 5:00 p.m.
15 | Jeffrey HH. Belote Attomey for Plaintiff Wayne Derman, an
Carroll, Burdick & McDonough LLP individual
16 | 44 Montgomery Street, Suite 400 Telephone: (415) 989-5900
V San Francisco, CA 94104-4606 Facsimile: (415) 989-0932
George William Wolff Attomey for Defendants M. Karkori
18 | The Law Offices of George W. Wolff Construction, Inc., a California Corporation
655 Montgomery Street, Suite 1050 and Mostafa Karkori, an individual
19 | P.O. Box 26749 Telephone: (415) 788-1881
20 San Francisco, CA 94126-6749 Facsimile: (415) 788-0880
21 | Craig S. Jones Attorney for Cross-Complainants M. Karkori
Archer Norris Construction, Inc., a California Corporation
22 | 2033 North Main Street, Suite 800 and Mostafa Karkori, an individual (co-
, { P.O, Box 8035 counscl)
23 | Walnut Creek, CA 94596 Telephone: (925) 930-6600
24 Facsimile: (925) 930-6620
I declare under penally of perjury under the laws of the State of California that the
25 | foregoing is truc and correct, and that this declaration was executed on July 15, 2009, at
San Francisco, California.
26
27 |
28
| PROOF OF SERVICESUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Jul14-2009 3:44 pm
Case Number: CGC-09-487371
Filing Date: Jul-14-2009 3:42
Juke Box: 001 Image: 02554546
ANSWER
MARK LONICH VS. RAYMOND WONG et al
001002554546
Instructions:
Please place this sheet on top of the document to be scanned.€ €
1
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3
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PETER MALLON, State Bar # 124758 : 500
LAW OFFICES OF STEVEN D. HILLYARD a
A Professional Corporation 2009 JUL Th Pit &: 26
345 California Street, Suite 1770 eo.
San Francisco, California 94104 BERS VL
Telephone: (415) 334-6880
Facsimile: (415) 334-6967 ay:
Attorneys for Defendant
RAYMOND WONG
' -
$ | Tie STATE OF CALIFORNIA
9 FOR THE COUNTY OF SAN FRANCISCO
10 UNLIMITED JURISDICTION
u
12|}MARK LONICH, CASE NO. CGC-09-487371
13 Plaintiff, ANSWER TO UNVERIFIED
COMPLAINT BY DEFENDANT
14 v. RAYMOND WONG
15 || RAYMOND WONG; and DOES I through X,
inclusive,
16
Defendants,
18 || TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD:
19 COMES NOW, defendant RAYMOND WONG, and answering plaintiff's Complaint
20 || admits, denies, and alleges as follows:
21 1. Under the provisions of Section 431.30(d) of the Califomia Code of Civil
22 1| Procedure, this answering defendant denies each, and every and all allegations in said unverified
23] complaint and the whole thereof, and denies that plaintiff sustained damages in the sum or sums
24 }/ alleged, er in any other sum, or at all.
25 2. Further answering plaintiff's Complaint, this answering defendant denies that
26 || plaintiff has sustained any damages or losses, by reason of acts or omissions of this answering
27 || defendant, or any of his servants, agents, or employees.
28 ||///
ANSWER TO UNVERIFIED COMPLAINT.€ €
FIRST AFFIRMATIVE DEFENSE
3. Plaintiff's Complaint, and each and every cause of action thereof, fails to state facts
sufficient to constitute a cause of action against this answering defendant.
SECOND AFFIRMATIVE DEFENSE
4, Any injury, damage or loss sustained by plaintiff, if such occurred, was
proximately caused and contributed to by plaintiff's negligence in that he did not exercise ordinary
contributed to the happening of the injuries and damages alleged.
THIRD AFFIRMATIVE DEFENSE
5. This answering defendant is informed and believes and thereon alleges that if
plaintiff sustained any injury or damages, such injury or damages were solely caused or
contributed to by the wrongful conduct of other defendants and/or entities or persons other than
this answering defendant. To the extent that plaintiff's injuries or damages were so caused, this
answering defendant shall be entitled to complete indemnity or comparative equitable
indemnity/contribution from said third parties.
FOURTH AFFIRMATIVE DEFENSE
6. This answering defendant is informed and believes and based upon such
information and belief alleges that the negligence or fault, if any, of this answering defendant, was
not a substantial factor in bringing about the plaintiff's alleged injuries or damages and, therefore,
was not a contributing cause thereof, but was superseded by the negligence or fault of others,
whose negligence and fault were the independent, intervening and proximate cause of any injury
or damage suffered by plaintiff herein, and that, thereby, the plaintiff has no right to recovery
against this answering defendant.
FIFTH AFFIRMATIVE DEFENSE
7. The act, or omission to act, of this answering defendant (which allegation is made
for purposes of this pleading only, and shall not constitute an admission), was not a substantial
ANSWER TO UNVERIFIED COMPLAINT€ C
i | factor in bringing about the plaintiff's alleged injuries and damages, and, therefore. was not the
2 || proximate cause of any injury or damage suffered by plaintiff.
3 SIXTH AFFIRMATIVE DEFENSE
4 8. To the extent that any injury, damage or loss sustained by plaintiff was proximately
5 || caused by his failure to mitigate damages by failing to exercise reasonable care in caring for such
6|linjury, damage or loss, thereby preventing the aggravation, such failure bars or diminishes any
Ti recovery herein hy nlaintiff,
SEVENTH AFFIRMATIVE DEtENSY
9 9. At the time and place alleged in the subject complaint, plaintiff knowingly and
10 || voluntarily assumed the risk of the conduct, events and matters alleged in the subject complaint,
11 |/ and any injury or damage sustained by plaintiff was the sole, exclusive and proximate result of a
12 I risk so assumed, thereby barring or reducing plaintiff's recovery herein.
13 EIGHTH AFFIRMATIVE DEFENSE
14 10. If this defendant is responsible for plaintiff's damages, which responsibility is
15 || expressly denied, this defendant shall be liable to plaintiff only for the amount of non-economic
16 || damages allocated to this defendant in direct proportion to this defendant’s percentage of fault, if
17 || any. (California Civil Code, Section 1431, et. seq.)
18 NINTH AFFIRMATIVE DEFENSE
19 Il. Plaintiff has failed to set out his claims with sufficient particularity to permit
20 |) defendant to raise all appropriate defenses and, thus, defendant reserves the right to add additional
21 || defenses as the factual bases for these claims becomes known.
22 WHEREFORE, this answering defendant prays as follows:
23 1 That Plaintiff take nothing by way of his Complaint on file herein;
24 2. That this answering Defendant be awarded her costs of suit incurred herein;
25 3. ‘That if liability is assessed upon this answering Defendant, the liability attributed to
26 || this Defendant be limited in direct proportion to the percentage of fault actually attributable to
27}| Defendant, ifany; and
28/11
ANSWER TO UNVERIFIED COMPLAINT| € C
|
4, For such other and further relief as the Court deems just and proper.
2||DATED: July 14, 2009 LAW OFFICES OF STEVEN D. HILLYARD, APC
3
4 BY:
PETER MALLON
5 Attomeys for Defendant
RAYMOND WONG
6
ANSWER TO UNVERIFIED COMPLAINT1 | PROOROFSERVICE —
2 || STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO
3 I am employed in the county of aforesaid; 1 am over the age of eighteen years and not a
party to the within entitled action; my business address is 345 California Street, Suite 1770, San
4}| Francisco, California 94104.
5 On the date below, I served the following document(s) described as ANSWER TO
UNVERIFIED COMPLAINT BY DEFENDANT RAYMOND WONG on the interested
6 || party(ies) in this action by placing thereof enclosed in sealed envelopes and/or packages
addressed as follows:
7
i Joseph J Babich Attomeys for Plaintiff
8 Daniei R. Dei Rio MARK LONICH
Breyer, Babich, Buccola, Callaham &
9 Wood LLP
20 Bicentennial Circle
10 Sacramento, CA 95826
Tel.: (916) 379-3500
1 Fax: (916) 379-3599
12 David A, Krausz Attorneys for Plaintiff
Law Offices of Davie A. Krausz, PC MARK LONICH
13 2740 Van Ness Avenue, Suite 300
San Francisco, CA 94109-1463
14 Tel: (415) 567-5000
6 Fax: (415) 202-0394
& BY MAIL: I am “readily familiar" with the firm’s practice of collection and processing
16 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 at San Francisco, California in
17 the ordinary course of business. I am aware that on motion of the party served, service is
presumed invalid if postal cancellation date or postage meter date is more than one day
18 after date of deposit for mailing in affidavit.
yo BY OVERNIGHT DELIVERY: I served such envelope or package to be delivered on
the same day to an authorized courier or driver authorized by the overnight service carrier
20 to receive documents, in an envelope or package designated by the overnight service
carrier.
21
Qo BY FACSIMILE: I served said document(s) to be transmitted by facsimile pursuant to
22 Rule 2008 of the California Rules of Court. The telephone number of the sending
facsimile machine was (415) 334-6967. The name(s) and facsimile machine telephone
23 number(s) of the person(s) served are set forth in the service list. A transmission report
was properly issued by the sending facsimile machine, and the transmission was reported
24 as complete and without error.
2310 BY HAND DELIVERY: I caused such envelope(s) to be delivered by hand to the office
of the addressee(s).
26
Oo PERSONAL DELIVERY
27
STATE: I declare under ponalty of perjury under the laws of the State of California that
28 the foregoing is true and correct.
ANSWER TO UNVERIFIED COMPLAINTaA wu & WwW Nv
€ €
FEDERAL: I declare that [ 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 United States of America that the foregoing is true and correct.
Exccuted on July 14, 2009, at San Francisco, California.
So Renren:
Karen L. Merick
ANSWER TO UNVERIFIED COMPLAINT
Preview
SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO "” Document Scanning Lead Sheat Jut-15-2009 10:45 am Case Number: CGC-08-479247 Filing Date: Jul-15-2009 10:43 Juke Box: 001 Image: 02555328 ANSWER WAYNE DERMAN VS. M.KARKORI CONSTRUCTION, INC., A PURPORATED et al 001002555328 Instructions: Please place this sheet on top of the document to he scanned,_ wo om KN DA UH h® WY N € ORIGINAL © Richard 8. Diestel, No, 095059 Karl LF. Runft, No. 262163 BLEDSOE, CATHCART, DIESTEL, PEDERSEN & gery. 15 AML 28 TREPPA, LLP 601 California Street, 16th Floor San Francisco, California 94108-2805 BA Telephone: tas) 981-5411 . Facsimile: (415) 981-0352 ee oy Attorneys for Cross-Defendant WAYNE DERMAN, an individual " SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO WAYNE DERMAN, an individual, No. CGC 08-479247 Plaintiff, ANSWER OF WAYNE DERMAN TO FIRST AMENDED CROSS- v. COMPLAINT OF M. KARKORI CONSTRUCTION, INC. M. KARKORI CONSTRUCTION, INC., a iforni ion: Complaint Filed: August 28, 2008 purported California corporation; MOSTAFA First Amended Cross-Complaint Filed: > , October 1, 2008 Defendants. M. KARKORI CONSTRUCTION, INC., a California Corporation Cross-Complainant, % v. WAYNE DDERMAN, an individual, First Tennessee Bank, N.A., doing business as First Horizon Home Loans aka First Horizon Construction Lending, and Does 1 through 1000, inclusive Cross-Defendants. ANSWER OF WAYNE DERMAN TO FIRST AMENDED CROSS-COMPLAINT OF M. KARKORI CONSTRUCTION, INC,oO S&C ND NH FF YW NH COMES NOW Plaintiff and Cross-Nefendant WAYNE DERMAN, an i: (“Cross-Defendant”) answering the unverified First Amended Cross-Complaint (“Cross- Complaint”) of Defendant and Cross-Complainant M. KARKORI CONSTRUCT TON, INC. (“Cross-Complainant”), a Califomia corporation, for breach of contract, quantum meruit, civil penalties, petition to compel arbitration, foreclosure on mechanics lien and declaratory relief as follows: GENERAL DENIAL Pursuant to Code of Civil Procedure section 431 .30(d), Cross-Defendant cenerally denies each of the allegations of the Cross-Complaint, and further denies that Cross-Complainant has been damaged or injured in any amount or sum, or at all, by reason of any act or omission on the part of Cross-Defendant. Cross-Defendant further alleges as follows: 1 AS A FIRST, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross- Complaint and each cause of action alleged therein, this answering Cross-Defendant alleges that the Cross-Complaint fails to state facts sufficient to constitute a cause of action against this answering Cross-Defendant, or at all. 2. AS A SECOND, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross- Complaint and each cause of action alleged therein, this answering Cross-Defendant alleges that Cross-Complainant’s claims are barred by the applicable statute of limitations including, but not limited to, those set forth in Code of Civil Procedure sections 335, 335.1, 338 and 340. 3. AS A THIRD, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross- Complaint and each cause of action alleged therein, this answering Cross-Defendant alleges that Cross-Complainant is barred from relief by the doctrine of unclean hands. 4, AS A FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross- Complaint and each cause of action alleged therein, this answering Cross-Defendant alleges that Cross-Complainant is barred from relief by the doctrine of latches. -l- ANSWER OF WAYNE DERMAN TO FIRST AMENDED CROSS-COMPLAINT OF M. KARKORI CONSTRUCTION, INC.wm oN Dn Fs WH = w - wR eee ee BESsesxgzetaaaurtronas 23 5. ASAFIFTH, SEPARATE AND ¢ c AATIVE DEFENSE to the Cross- Complaint and each cause of action alleged therein, this answering Cross-Defendant alleges that Cross-Complainant is barred from relief by the doctrine of estoppel. 6. AS A SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross- Complaint and each cause of action alleged therein, this answering Cross-Defendant alleges that Cross-Complainant was negligent in and about the matters and activities alleged in this Cross- Complaint, that such negligence contributed to and was the proximate cause of Cross- Complainant’s alleged damages, if any, and that, if Cross-Complainant is entitled to recover damages against Cross-Defendant, Cross-Defendant prays that said recovery be diminished by reason of Cross-Complainant’s actions in proportion to the degree of fault attributable to Cross- Complainant. 7. AS A SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross- Complaint and each cause of action alleged therein, this answering Cross-Defendant alleges that the injuries and damages complained of by Cross-Complainant, if any there were, were either wholly or in part directly and proximately caused by the negligence or other wrongful acts or omissions of persons or entities other than this answering Cross-Defendant and said negligence comparatively reduces the proportion of negligence and corresponding liability of this answering Cross-Defendant. 8. AS AN EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross- Complaint and each cause of action alleged therein, this answering Cross-Defendant alleges he exercised due care and diligence in all of the matters alleged in the Cross-Complaint, and no act or omission by Cross-Defendant was the proximate cause of any damage, injury or loss to Cross- Complainant, 9. AS A NINTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross- Complaint and each cause of action alleged therein, this answering Cross-Defendant alleges that as a result of the acts, conduct, and/or omissions of Cross-Complainant, Cross-Defendant is released from liability as to each cause of action presented in the Cross-Complaint. 2- ANSWER OF WAYNE DERMAN TO FIRST AMENDED CROSS-COMPLAINT OF M. KARKORI CONSTRUCTION, INC.wo oN DH Ft YH — BWM BW KD Rm ae ee BwWwN = SO eA A UH FF WH =H SB 25 € C 10. AS A TENTH, SEPARATE AND AFFIRMATIVE DEFENSE. to the Cross- Complaint and each cause of action alleged therein, this answering Cross-Defendant contends that if liability is assessed against him, pursuant to Civil Code sections 1430 et seq., Cross-Defendant shall be liable only for the amount of non-economic damages allocated to him in direct proportion to the percentage of fault assessed against him by the trier of fact, and requests that a separate judgment be rendered against him for that amount. But in setting forth these affirmative defenses, Cross-Defendant makes no admission that he is liable to Cross-Complainant in any amount or in any proportion, and makes no admission that Cross-Complainant has been damaged in any sum or sums, or at all, Ii. AS AN ELEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-Complaint and each cause of action alleged therein, this answering Cross-Defendant alleges that Cross-Complainant had express knowledge of the risks and hazards set forth in the Cross-Complaint as well as the magnitude of the risks and hazards and, therefore, knowingly and willingly assumed those risks. 12. ASA TWELTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross- Complaint and each cause of action alleged therein, this answering Cross-Defendant alleges that Cross-Complainant failed to exercise reasonable care and diligence to avoid loss and to minimize and mitigate his damages, if any there were, and that this failure to mitigate damages alone aggravated any damages or injuries, if any, to Cross-Complainant, and therefore precludes or reduces recovery against this answering Cross-Defendant. 13. ASA THIRTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-Complaint and each cause of action alleged therein, this answering Cross-Defendant alleges Cross-Complainant’s Cross-Complaint is vaguc, ambiguous and unccrtain. 14. AS A FOURTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-Complaint and each cause of action alleged therein, this answering Cross-Defendant alleges that Cross-Complainant acknowledged, ratified, consented to and acquiesced in the alleged acts or omission, if any, of Cross-Defendant, thus barring Cross-Complainant from any $5 Cross-Complain © OSs ‘ TOSS-Compiaint, ANSWER OF WAYNE DERMAN TO FIRST AMENDED CROSS-COMPLAINT OF M. KARKORI CONSTRUCTION, INC,oOU eS ANH hh WY € C 15. AS A FIFTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-Complaint, Cross-Defendant alleges that should Cross-Complainant recover from this or in part, from all persons or entities whose negligence or fault proximately contributed to Cross- Complainant's damages, if any there were. 16. AS A SIXTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-Complaint and each cause of action alleged therein, this answering Cross-Defendant alleges that Cross-Complainant or others modified, altered, abused, or misused the work. services. conduct caused and contributed to the loss, injuries or damage alleged. 17. AS A SEVENTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-Complaint and each cause of action alleged therein, this answering Cross-Defendant alleges that Cross-Complainant is barred from any relief against Cross-Defendant because Cross- Complainant failed to give Cross-Defendant reasonable notice of the breaches of contract or other wrongful conduct alleged. 18. AS AN EIGHTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-Complaint and each cause of action alleged therein, this answering Cross-Defendant alleges that the Home Improvement Agreement provides as follows: Arbitration of disputes. Any controversy or claim arising out of or related to this contract, or the breach thereof, shall be settled by arbitration in accordance with the construction industry arbitration rules of the American Arbitration Association, and Judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Claims within the monetary limit of the small claims court shall be litigated in such court at the request of either party, so long as both parties limit their right to recovery to the jurisdiction of the small claims court. Any claim filed in small claims court shall not be deemed to be a waiver of the right to arbitrate, and if a counter claim in excess of the jurisdiction of the small claims court is filed in the municipal or superior court, then the party filing small claims court may demand arbitration pursuant to this paragraph. NOTICE: By initialing in the space helow you are agreeing to have any dispute arising out of the matters included in the Arbitration of Disputes provision decided my [sic] neutral arbitration as provided by California law and you are giving up any rights you might possess to have the dispute equipment, or materials that are alleged to have been provided by Cross-Defendant, and such ANSWER OF WAYNE DERMAN TO FIRST AMENDED CROSS-COMPLAINT OF M. KARKORI CONSTRUCTION, INC,wo oN DH SF WH — RON Ne Roe oO OBO OH DUH FF WHY - & 23 € C litigated in a court or jury trial. By initialing in the space below, you are giving up judicial rights to discovery and anneal, submit to arbitration after agreeing to this provision, you may be compelled to arbitrate under the authority of the Business and Professions code or other applicable laws. Your agreement to this arbitration provision is voluntary. We have read and understand the foregoing and agree to submit disputes arising. out of the matters included in the Arbitration of Disputes to neutral This provision requires that Cross-Complainant and Cross-Defendant arbitrate the controversy that is at issue in this action, Both Cross-Complainant and Cross-Defendant agreed to arbitration by initialing the above provision. Cross-Defendant has not waived arbitration but Cross- Complainant has made no attempt to submit the matter to arbitration and the matter has not been arbitrated. 19. AS ANINETEENTH SEPARATE AND AFFIRMATIVE DEEFNSE to the Cross-Complaint and each cause of action alleged therein, this answering Cross-Defendant alleges that Cross-Complainant has failed to sue the proper and necessary parties. 20. ASA TWENTIETH SEPARATE AND AFFIRMATIVE DEEFNSE to the Cross-Complaint and each cause of action alleged therein, this answering Cross-Defendant denies that Cross-Complainant has suffered any injury whatsoever as a proximate result of the acts of Cross-Defendant. 21. ASA TWENTY-FIRST SEPARATE AND AFFIRMATIVE DEEFNSE to the Cross-Complaint and each cause of action alleged therein, this answering Cross-Defendant alleges that pursuant to contract, Cross-Complainant failed to meet its duty of good faith and fair dealing, 22. AS A TWENTY-SECOND SEPARATE AND AFFIRMATIVE DEEFNSE to the Cross-Complaint and each cause of action alleged therein, this answering Cross-Defendant alleges that each cause of action is barred and no cause of action is stated because of mutual and/or unilateral mistake of the parties. 23. ASA TWENTY-THIRD SEPARATE AND AFFIRMATIVE DEEFNSE to the Cross-Complaint and each cause of action alleged therein, this answering Cross-Defendant -5- ANSWER OF WAYNE DERMAN TO FIRST AMENDED CROSS-COMPLAINT OF M. KARKORI CONSTRUCTION, INC,Oo RNY AH EWN ye eee ee RPBSe 3B AAaREBHRES € € alleges that Cross-Complainant negligently misrepresented his words, conduct and actions, such misrepresentations were the true cause of any alleged damage to Cross-Complainant. 24, ASA TWENTY-FOURTH SEPARATE AND AFFIRMATIVE DEEFNSE to the Cross-Complaint and each cause of action alleged therein, this answering Cross-Defendant alleges that Cross-Complainant’s damages, if any, are entitled to legal and/or equitable offset. 25. AS A TWENTY-FIFTI SEPARATE AND AFFIRMATIVE DEEFNSE to the Cross- Complaint and each cause of action alleged therein, this answering Cross-Defendant alleves that the Cross-Complaint and each cause of action therein are barred because any recovery| from Cross-Defendant would result in Cross-Complainant’s unjust enrichment. 26. ASA TWENTY-SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-Complaint and each cause of action alleged therein, this answering Cross-Defendant alleges he presently has insufficient knowledge or information on which to form a belief as to whether he may have additional, as yet unstated, defenses available. This answering Cross- Defendant reserves the right to assert additional affirmative defenses in the event discovery indicates that additional affirmative defenses are appropriate. 27. ASA TWENTY-SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-complaint all or any claims alleged by Cross-Complainant are barred by parol evidence. 28. ASA TWENTY-EIGHTI, SEPARATE AND AFFIRMATIVE DEFENSE to the Cross-complaint and each cause of action alleged therein, this answering Cross-Defendant alleges he was truthful in all statements of fact regarding Cross-Complainant. Mt it -6- ANSWER OF WAYNE DERMAN TO FIRST AMENDED CROSS-COMPLAINT OF M, KARKORI CONSTRUCTION, INC,€ C WHEREFORE, this answering Cross-Defendant prays that Cross-Complainant take nothing by the Cross-Complaint and that this answering Cross-Defendant have a judgment for his costs of suit incurred herein, including reasonable attorney fees, and for such other and further relief as the Court deems proper. Dated: July 13, 2009 BLEDSOE, CATHCART, DIESTEL, PEDERSEN & TREPPA, LLP. J Oo ef ND WH fF WN 7. ANSWER OF WAYNE DERMAN TO FIRST AMENDED CROSS-COMPLAINT OF M, KARKORI CONSTRUCTION, INC.| Cc C ! i PROOF OF SERVICE 2 I, the undersigned, hereby declare that I am over the age of eighteen years and not a party to the within action. My business address is 601 California Street, 16th Floor, San Francisco, CA 3 | 94108-2805. On the date indicated below, I caused to be scrved the following document(s): 4 ANSWER OF WAYNE DERMAN TO FIRST AMENDED CROSS- 5 COMPLAINT OF M. KARKORI CONSTRUCTION, INC. 6 Upon the following at the address(es) stated below: XXX _ BY MAIL by placing the document(s) listed above in a sealed envelope, with postage 7 thereon fully prepaid, in the United States mail at San Francisco, California addressed as ’ ent forth hein af set forth below, j BY E-MAIL OR ELECFRONIC TRANSMISSION by causing the documents to be 9 sent to the persons at the e-mail addresses set forth below, I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the 10 transmission was unsuccessful. i BY FEDERAL EXPRESS by causing each such envelope to be deposited ina box or other facility regularly maintained by Federal Express, an express service 12 carrier, in an envelope or package designated by Federal Express with delivery B fees paid or provided for, to the addresses set forth below. BY FACSIMILE by transmitting via facsimile the document(s) listed above to the fax 14 number(s) set forth below on this date before 5:00 p.m. 15 | Jeffrey HH. Belote Attomey for Plaintiff Wayne Derman, an Carroll, Burdick & McDonough LLP individual 16 | 44 Montgomery Street, Suite 400 Telephone: (415) 989-5900 V San Francisco, CA 94104-4606 Facsimile: (415) 989-0932 George William Wolff Attomey for Defendants M. Karkori 18 | The Law Offices of George W. Wolff Construction, Inc., a California Corporation 655 Montgomery Street, Suite 1050 and Mostafa Karkori, an individual 19 | P.O. Box 26749 Telephone: (415) 788-1881 20 San Francisco, CA 94126-6749 Facsimile: (415) 788-0880 21 | Craig S. Jones Attorney for Cross-Complainants M. Karkori Archer Norris Construction, Inc., a California Corporation 22 | 2033 North Main Street, Suite 800 and Mostafa Karkori, an individual (co- , { P.O, Box 8035 counscl) 23 | Walnut Creek, CA 94596 Telephone: (925) 930-6600 24 Facsimile: (925) 930-6620 I declare under penally of perjury under the laws of the State of California that the 25 | foregoing is truc and correct, and that this declaration was executed on July 15, 2009, at San Francisco, California. 26 27 | 28 | PROOF OF SERVICESUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Jul14-2009 3:44 pm Case Number: CGC-09-487371 Filing Date: Jul-14-2009 3:42 Juke Box: 001 Image: 02554546 ANSWER MARK LONICH VS. RAYMOND WONG et al 001002554546 Instructions: Please place this sheet on top of the document to be scanned.€ € 1 2 3 4 5 6 7 | PETER MALLON, State Bar # 124758 : 500 LAW OFFICES OF STEVEN D. HILLYARD a A Professional Corporation 2009 JUL Th Pit &: 26 345 California Street, Suite 1770 eo. San Francisco, California 94104 BERS VL Telephone: (415) 334-6880 Facsimile: (415) 334-6967 ay: Attorneys for Defendant RAYMOND WONG ' - $ | Tie STATE OF CALIFORNIA 9 FOR THE COUNTY OF SAN FRANCISCO 10 UNLIMITED JURISDICTION u 12|}MARK LONICH, CASE NO. CGC-09-487371 13 Plaintiff, ANSWER TO UNVERIFIED COMPLAINT BY DEFENDANT 14 v. RAYMOND WONG 15 || RAYMOND WONG; and DOES I through X, inclusive, 16 Defendants, 18 || TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: 19 COMES NOW, defendant RAYMOND WONG, and answering plaintiff's Complaint 20 || admits, denies, and alleges as follows: 21 1. Under the provisions of Section 431.30(d) of the Califomia Code of Civil 22 1| Procedure, this answering defendant denies each, and every and all allegations in said unverified 23] complaint and the whole thereof, and denies that plaintiff sustained damages in the sum or sums 24 }/ alleged, er in any other sum, or at all. 25 2. Further answering plaintiff's Complaint, this answering defendant denies that 26 || plaintiff has sustained any damages or losses, by reason of acts or omissions of this answering 27 || defendant, or any of his servants, agents, or employees. 28 ||/// ANSWER TO UNVERIFIED COMPLAINT.€ € FIRST AFFIRMATIVE DEFENSE 3. Plaintiff's Complaint, and each and every cause of action thereof, fails to state facts sufficient to constitute a cause of action against this answering defendant. SECOND AFFIRMATIVE DEFENSE 4, Any injury, damage or loss sustained by plaintiff, if such occurred, was proximately caused and contributed to by plaintiff's negligence in that he did not exercise ordinary contributed to the happening of the injuries and damages alleged. THIRD AFFIRMATIVE DEFENSE 5. This answering defendant is informed and believes and thereon alleges that if plaintiff sustained any injury or damages, such injury or damages were solely caused or contributed to by the wrongful conduct of other defendants and/or entities or persons other than this answering defendant. To the extent that plaintiff's injuries or damages were so caused, this answering defendant shall be entitled to complete indemnity or comparative equitable indemnity/contribution from said third parties. FOURTH AFFIRMATIVE DEFENSE 6. This answering defendant is informed and believes and based upon such information and belief alleges that the negligence or fault, if any, of this answering defendant, was not a substantial factor in bringing about the plaintiff's alleged injuries or damages and, therefore, was not a contributing cause thereof, but was superseded by the negligence or fault of others, whose negligence and fault were the independent, intervening and proximate cause of any injury or damage suffered by plaintiff herein, and that, thereby, the plaintiff has no right to recovery against this answering defendant. FIFTH AFFIRMATIVE DEFENSE 7. The act, or omission to act, of this answering defendant (which allegation is made for purposes of this pleading only, and shall not constitute an admission), was not a substantial ANSWER TO UNVERIFIED COMPLAINT€ C i | factor in bringing about the plaintiff's alleged injuries and damages, and, therefore. was not the 2 || proximate cause of any injury or damage suffered by plaintiff. 3 SIXTH AFFIRMATIVE DEFENSE 4 8. To the extent that any injury, damage or loss sustained by plaintiff was proximately 5 || caused by his failure to mitigate damages by failing to exercise reasonable care in caring for such 6|linjury, damage or loss, thereby preventing the aggravation, such failure bars or diminishes any Ti recovery herein hy nlaintiff, SEVENTH AFFIRMATIVE DEtENSY 9 9. At the time and place alleged in the subject complaint, plaintiff knowingly and 10 || voluntarily assumed the risk of the conduct, events and matters alleged in the subject complaint, 11 |/ and any injury or damage sustained by plaintiff was the sole, exclusive and proximate result of a 12 I risk so assumed, thereby barring or reducing plaintiff's recovery herein. 13 EIGHTH AFFIRMATIVE DEFENSE 14 10. If this defendant is responsible for plaintiff's damages, which responsibility is 15 || expressly denied, this defendant shall be liable to plaintiff only for the amount of non-economic 16 || damages allocated to this defendant in direct proportion to this defendant’s percentage of fault, if 17 || any. (California Civil Code, Section 1431, et. seq.) 18 NINTH AFFIRMATIVE DEFENSE 19 Il. Plaintiff has failed to set out his claims with sufficient particularity to permit 20 |) defendant to raise all appropriate defenses and, thus, defendant reserves the right to add additional 21 || defenses as the factual bases for these claims becomes known. 22 WHEREFORE, this answering defendant prays as follows: 23 1 That Plaintiff take nothing by way of his Complaint on file herein; 24 2. That this answering Defendant be awarded her costs of suit incurred herein; 25 3. ‘That if liability is assessed upon this answering Defendant, the liability attributed to 26 || this Defendant be limited in direct proportion to the percentage of fault actually attributable to 27}| Defendant, ifany; and 28/11 ANSWER TO UNVERIFIED COMPLAINT| € C | 4, For such other and further relief as the Court deems just and proper. 2||DATED: July 14, 2009 LAW OFFICES OF STEVEN D. HILLYARD, APC 3 4 BY: PETER MALLON 5 Attomeys for Defendant RAYMOND WONG 6 ANSWER TO UNVERIFIED COMPLAINT1 | PROOROFSERVICE — 2 || STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO 3 I am employed in the county of aforesaid; 1 am over the age of eighteen years and not a party to the within entitled action; my business address is 345 California Street, Suite 1770, San 4}| Francisco, California 94104. 5 On the date below, I served the following document(s) described as ANSWER TO UNVERIFIED COMPLAINT BY DEFENDANT RAYMOND WONG on the interested 6 || party(ies) in this action by placing thereof enclosed in sealed envelopes and/or packages addressed as follows: 7 i Joseph J Babich Attomeys for Plaintiff 8 Daniei R. Dei Rio MARK LONICH Breyer, Babich, Buccola, Callaham & 9 Wood LLP 20 Bicentennial Circle 10 Sacramento, CA 95826 Tel.: (916) 379-3500 1 Fax: (916) 379-3599 12 David A, Krausz Attorneys for Plaintiff Law Offices of Davie A. Krausz, PC MARK LONICH 13 2740 Van Ness Avenue, Suite 300 San Francisco, CA 94109-1463 14 Tel: (415) 567-5000 6 Fax: (415) 202-0394 & BY MAIL: I am “readily familiar" with the firm’s practice of collection and processing 16 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 at San Francisco, California in 17 the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day 18 after date of deposit for mailing in affidavit. yo BY OVERNIGHT DELIVERY: I served such envelope or package to be delivered on the same day to an authorized courier or driver authorized by the overnight service carrier 20 to receive documents, in an envelope or package designated by the overnight service carrier. 21 Qo BY FACSIMILE: I served said document(s) to be transmitted by facsimile pursuant to 22 Rule 2008 of the California Rules of Court. The telephone number of the sending facsimile machine was (415) 334-6967. The name(s) and facsimile machine telephone 23 number(s) of the person(s) served are set forth in the service list. A transmission report was properly issued by the sending facsimile machine, and the transmission was reported 24 as complete and without error. 2310 BY HAND DELIVERY: I caused such envelope(s) to be delivered by hand to the office of the addressee(s). 26 Oo PERSONAL DELIVERY 27 STATE: I declare under ponalty of perjury under the laws of the State of California that 28 the foregoing is true and correct. ANSWER TO UNVERIFIED COMPLAINTaA wu & WwW Nv € € FEDERAL: I declare that [ 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 United States of America that the foregoing is true and correct. Exccuted on July 14, 2009, at San Francisco, California. So Renren: Karen L. Merick ANSWER TO UNVERIFIED COMPLAINT