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WAN
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Aug-15-2008 4:01 pm
Case Number: CUD-07-624462
Filing Date: Aug-1 5-2008 4:01
Juke Box: 001 Image: 02222235
ANSWER
CATHERINE CONLIN VS. TIMOTHY MCCABE et al
001002222235
Instructions:
Please place this sheet on top of the document to be scanned.oo NY A HW ® YN
SSeS
Cc Cc
Peter J. Van Zandt — SBN 152321
Brian S. Whittemore - SBN 241631
BLEDSOE, CATHCART, DIESTEL, PEDERSEN & TREPIY ocead
601 California Street, 16 Floor
Court a E.
San Francisco, CA 94108 aan Francisco
Telephone: (415) 981-5411
Facsimile: (415) 981-0352 “ne 15 2008
DARKLI, Clerk
Attorneys for Defendants MICHAEL A. KALINA, mice BOE UINA
JOANNE LESKOVAR, and J & M ASSOCIATES ot Bemay Cer
SUPERIOR COURT - STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION
CATHERINE CONLIN, No, CUD-07-624462
Plaintiff,
v.
“ DEFENDANT MICHELLE KALINA’S
TIMOTHY MC CABE, an individual; ANSWER TO VERIFIED FIRST
MICHAEL A. KALINA, an individual, AMENDED COMPLAINT
MICHELLE L. KALINA, an individual;
JOANN LESKOVAR, an individual; } &
M ASSOCIATES, a business of unknown
form and DOES 1-10, inclusive; ook
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known also as MIKE KALINA; )
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Defendants. )
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1 Defendant Michelle Kalina (“Defendant”) denies all of the allegations, generally and
BY FAX
1 Amended Complaint Filed: July 1, 2008
specifically, contained in the First Amended Complaint (“Complaint”) and each cause of action
as they apply to this appearing Defendant; and specifically denies that the Defendant is liable to
the Plaintiff under the theories or in the manner set forth in the Complaint; denies that the
Plaintiff was injured or damaged as alleged in the Complaint or as a result of any conduct of
Defendant.
2. Michelle Kalina denies each and every, all and singular, generally and specifically, those
allegations contained in paragraphs of the Complaint on file herein, except as stated herein.
oa
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DEFENDANT MICHELLE KALINA’S ANSWER TO VERIFIED FIRST AMENDED COMPLAINT-_
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3. Specifically, as to Paragraph 1 of the Complaint, Defendant lacks information or belief
and on that basis denies. :
4. Defendant admits Paragraphs 2, 3, and 4 of the Complaint.
5. Defendant lacks information or belief as to the allegations of Paragraph 5 of the
Complaint and on that basis denies.
6. Defendant lacks information or belief as to the allegations of Paragraph 6 of the
Complaint and on that basis denies.
7. Defendant lacks information or belief as to the allegations of Paragraph 7 of the
Complaint and on that basis denies.
8. Defendant admits the allegations of Paragraph 8.
9, Defendant denies that McCabe is his agent, on information and belief Defendant denies
that McCabe is Michelle Kalina’s agent, Defendant admits that McCabe is the master tenant.
10. Defendant denies that she demanded or received any additional security deposit from Ms.
Contin, Defendant lacks information or beliefs to the balance of the allegations of Paragraph 10
of the Complaint and on that basis denies.
11. Defendant lacks information or belief.as to the allegations of Paragraph 11 of the
Complaint and on that basis denies
12. Defendant lacks information or belief as to the allegations of Paragraph 12 of the
Complaint and on that basis denies.
13. Defendant lacks information or belief as to the allegations of Paragraph 13 of the
Complaint and on that basis denies.
14. Defendant admits that Ms. Conlin made telephone calls to him to complaint about Mr.
McCabe but denies the balance of the allegations of Paragraph 14.
15. | Oninformation and belief, Defendant admits that Ms. Conlin filed a petition with the San
Francisco Rent Board, but denies the balance of the allegations of Paragraph 15.
16. Defendant lacks information or belief as to the allegations of Paragraph 16 of the
Complaint and on that basis denies,
17, Defendant lacks information or beliefas to the allegations of Paragraph 17of the
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DEFENDANT MICHELLE KALINA’S ANSWER TO VERIFIED FIRST AMENDED COMPLAINT
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Complaint and on that basis dthies.
18. Defendant realleges paragraphs 3 through 17.
19. Oninformation and belief, Defendant denies the allegations of Paragraph 19.
20. Defendant denies that she did not comply with the applicable provisions of the
Ordinance, that she disposed Ms. Contin of her possessory interest in any property, Defendant
lacks information or belief as to the balance of the allegations of Paragraph 20 of the Complaint
and on that basis denies.
21. Defendant denies that she did not comply with the applicable provisions of the
Ordinance, Defendant lacks information or belief as to the balance of the allegations of
Paragraph 21 of the Complaint and on that basis denies.
22. Defendant lacks information or belief as to the allegations of Paragraph 22 of the
Complaint and on that basis denies.
23. Defendant realleges and incorporates by reference his responses to Paragraph |
through 22.
24. Defendant denies that she entered into any lease with Ms. Conlin, that Mr. McCabe was
his authorized agent at any time, Defendant admits that Mr. McCabe was the Master Tenant,
Defendant lacks information or belief as to the balance of the allegations of Paragraph 24.
25. Defendant lacks information or belief as to the allegations of Paragraph 25 and on that
basis denies.
26. Defendant denies that she breached any lease with Ms, Conlin, Defendant lacks
information or belief as to the balance of the allegations of Paragraph 29 and on that basis denies
the balance of the allegations of Paragraph 26.
27. Defendant lacks information or belief as to the allegations of Paragraph 27 of the
Complaint and on that basis denies.
28. Defendant realleges paragraphs 3 through 27.
29. Defendant admits.
30. Defendant denies that she took possession of Ms, Conlin’s rental unit,
31. Defendant lacks information or belief as to the allegations of Paragraph 31 of the
' 3
DEFENDANT MICHELLE KALINA’S ANSWER TO VERIFIED FIRST AMENDED COMPLAINTCc. C
Complaint and on that basis denies:
32. Defendant realleges patagraphs 3 through 31,
33. Defendant denies that she did any of the acts described in Paragraph 33 of plaintiff's
Complaint. ;
34. Defendant denies Pasiraph 34 of plaintiff's Complaint.
35, Defendant lacks information or belief as to the allegations of Paragraph 35 of the
Complaint and on that basis denies.
36. Defendant realleges Paragraphs 3 through 35.
37, Defendant denies she received any money from Ms. Conlin and lacks information or
belief as to the balance of the allegations of Paragraph 37 and on that basis denies,
38. Defendant denies she received any money from Ms. Conlin and lacks information or
belief as to the balance of the allegations of Paragraph 38 and on that basis denies.
39. Defendant lacks information or belief as to the allegations of Paragraph 39 and on that
basis denies, save that she did not provide an itemized statement to Ms. Conlin.
40. Defendant lacks information or belief as to the allegations of Paragraph 40 on that basis
denies, save that she did not rovide an itemized statement to Ms. Conlin.
41, Defendant lacks information or belief as to the allegations of Paragraph 41 and on that
basis denies.
42, Defendant realleges paragraphs 3 through 41,
43. Defendant lacks information or belief as to the allegations of Paragraph 43 and on that
basis denies.
44, Defendant lacks information or belief as to the allegations of Paragraph 44 and on that
basis denies. .
45. Defendant lacks inforination or belief as to the allegations of Paragraph 45 and on that
basis denies.
46. Defendant lacks information or beliefas to the allegations of Paragraph 46 and on that
basis denies.
47. Defendant realleges pafagraphs 3 through 46.
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DEFENDANT MICHELLE KALINA’S ANSWER TO VERIFIED FIRST AMENDED COMPLAINTCw aoa nN AW FY N
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PpNRepRBRERS SBA AH E HN TA SO
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48. Defendant lacks information or belief as to the allegations of Paragraph 48 and on that
basis denies.
49. Defendant lacks information or belief as to the allegations of Paragraph 49 and on that
basis denies. .
50. Defendant denies that Mr. McCabe was his authorized agent at any time. Defendant
admits that Mr. McCabe was the Master Tenant lacks information or belief as to the remaining
allegations of Paragraph 50 and on that basis denies.
51. Defendant lacks information of belief as to the allegations of Paragraph 5! and on that
basis denies. “
52.
53, Defendant realleges paragraphs 3 through 51.
54. Defendant lacks information or belief as to the allegations of Paragraph 54 and on that
basis denies.
55, Defendant lacks information or belief as to the allegations of Paragraph 55 and on that
basis denies.
56. Defendant lacks information or belief as to the allegations of Paragraph 56 and on that
basis denies.
57, Defendant realleges paragraphs 3 through 56.
58. Defendant denies the aegatons in Paragraph 58.
59, Defendant lacks information or belief as to the allegations of Paragraph 59 and on that
basis denies.
60. Defendant lacks information or belief'as to the allegations of Paragraph 60 and on that
basis denies.
61. Defendant lacks information or belief as to the allegations of Paragraph 61 and on that
basis denies. :
62. Defendant tacks information or belief as to the allegations of Paragraph 62 and on that
basis denies.
63. Defendant lacks information or belief as to the allegations of Paragraph 63 and on that
" 5
DEFENDANT MICHELLE KALINA'S ANSWER TO VERIFIED FIRST AMENDED COMPLAINT
whey ma1 basis denies.
2 64. Defendantdenies. _
3 65, Defendant lacks information orbelief as to the allegations of Paragraph 65 and on that
4 basis denies.
5 66. Defendant realleges paragraph 3 through 65.
6 67. Defendant lacks information or belief as to the allegations of Paragraph 67 and on that
7 basis denies. .
8 68. Defendant lacks information or belief as to the allegations of Paragraph 68 and on that
9 basis denies.
10 69, Defendant lacks information or belief'as to the allegations of Paragraph 69 and on that
11 |} basis denies. °
12 || 70. Defendant lacks inforthation ot belief as to the allegations of Paragraph 70 and on that
13 basis denies.
14 71. Defendant lacks information or belief 'as to the allegations of Paragraph 71 and on that
15 |} basis denies.
16 72. Defendant lacks information or belief as to the allegations of Paragraph 72 and on that
17 || basis denies. OO
18 73. Defendant lacks information or belief as to the allegations of Paragraph 73 and on that
basis denies. he .
74, Defendant lacks information or belief as to the allegations of Paragraph 74 and on that
basis denies.
75. Defendant lacks inforrstion or belief as to the allegations of Paragraph 75 and on that
basis denies. ; :
76. Defendant lacks information or belief as to the allegations of Paragraph 76 and on that
basis denies.
77. Defendant lacks information or belief as to the allegations of Paragraph 77 and on that
basis denies.
78, Defendant realleges paragraphs 3 through 77.
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DEFENDANT MICHELLE KALINA’S ANSWER TO VERIFIED FIRST AMENDED COMPLAINTCc Cc
79. Defendant admits that Ms. Conlin telephoned him to complaint about Ms. Contin, but
denies the balance of the allegations on information and belief.
80. Defendant admits that Ms. Conlin filed a tenant petition on November 15, 2007 with the
San Francisco Rent Board, but denies that it was a wrongful eviction claim.
81, Defendant lacks information or belief as to the allegations of Paragraph 81 and on that
basis denies.
82, Defendant lacks information or belief as to the allegations of Paragraph 82 and on that
basis denies.
83, Defendant lacks information or belief as to the allegations of Paragraph 83 and on that
basis denies.
34, Defendant lacks information or belief as to the allegations of Paragraph 84 and on that
basis denies. .
85, Defendant lacks information or belief as to the allegations of Paragraph 85 and on that
basis denies. .
Met '
86, Defendant Jacks information ot belief as to the allegations of Paragraph 86 and on that
basis denies. ,
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
Plaintiff's alleges cause of action is barred by the provisions of subdivision a of Civil
Code Section 1624 in that it violates the statute of frauds.
SECOND AFFIRMATIVE DEFENSE
Plaintiff recovery of non-economic damages based upon any part of the Complaint is
limited to the percentage of fault attributable to Defendant as provided in the Fair Responsibility
Act of 1986, California Civil Code §§ 1431-1431.5 and/or that any fault attributable to Plaintiffs
and other bars and/or proportionately reduces any recovery of Plaintiff against Defendant.
THIRD AFFIRMATIVE DEFENSE
Plaintiff herself was négligent in and about the matters set forth in the complaint and said
negligence proximately caused or contributed to the injuries or damages complained of and
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DEFENDANT MICHELLE KALINA’S ANSWER TO VERIFIED FIRST AMENDED COMPLAINTCc Cc
reduces her recovery in proposition to her own negligence.
FOURTH AFFIRMATIVE DEFENSE
Plaintiff had knowledge of the risks and hazards set forth in the Complaint, as well as the
magnitude of the risks and hazards, and thereafter knowingly and willingly assumed those risks.
FIFTH AFFIRMATIVE DEFENSE
Plaintiff's alleged injures, ifany, were aggravated by the Plaintiff failure to use
reasonable diligence to mitigate them, and to the extent of the Plaintiff's failure to mitigate, any
damages awarded should be reduced.
SIXTH AFFIRMATIVE DEFENSE
Defendant alleges that the action and all causes of action are barred by the statute of
limitations, including, but not limited to, those set forth in California Code of Civil Procedure §§
337(1) and (2), 338(a)-(4), 339(1), 340(1)-(3), and 343.
SEVENTH AFFIRMATIVE DEFENSE
Plaintiff has waived through her conduct her right to maintain the action filed in this case.
EIGHTH ABFIRMATIVE DEFENSE
Plaintiff substantially and materially breached her obligation complained of prior to
commencement of this action} which conduct extinguished the right to maintain the instant
action.
NINTH AFFIRMATIVE DEFENSE
Plaintiff, prior to commencement of this action, and for a valuable consideration, and
under mutual terms and conditions, waived and forever discharged her right to maintain any
action as set forth in the Cross-Complaint.
TENTH AFFIRMATIVE DEFENSE
Plaintiff has waived and are estopped to assert any claim or claims against Defendants in
that Plaintiff and/or others consented or are deemed to have consented to the alleged conduct
complained of herein. :
ELEVENTIL AFFIRMATIVE DEFENSE
Plaintiff in this case are guilty of “unclean hands” in the matters set forth in the
: - 8
DEFENDANT MICHELLE KALINA’S ANSWER TO VERIFIED FIRST AMENDED COMPLAINTCc u Cc
Complaint, which conduct extinguishes the right to equitable relief in this action.
TWELFTH AFFIRMATIVE DEFENSE
Plaintiff has expressly and/or impliedly ratified and/or waived some of all of those things
they now complaint of and for which they seek damages.
THIRTEENTH AFFIRMATIVE DEFENSE
Plaintiff unreasonably delayed to the detriment of the Defendant and the Complaint and
all of its causes of action are barred as to Plaintiff.
FOURTEENTH AFFIRMATIVE DEFENSE
Plaintiff has not suffered any damages as @ result of any actions taken by Defendant and
Plaintiff is therefore barred from asserting any cause of action against Defendant.
FIFTEENTH AFFIRMATIVE DEFENSE
Plaintiff procured by the fraud and misrepresentation the contract/obligation which is the
subject of this Jawsuit thus voiding the obligations of Defendant. :
SIXTEENTH AFFIRMATIVE DEFENSE
Any and all acts, occurrences and damages alleged or referred to in the Complaint were
proximately caused by the bad faith of Plaintiff and/or others in that Plaintiff and/or others failed
to deal promptly, fairly, honestly andreasonably with Defendant and others; therefore, the
comparative bad faith of Plaintiff and/or others reduces Plaintiff right to recover by the amount
which her bad faith contributed to the damages alleged.
SEVENTEENTH AFFIRMATIVE DEFENSE
All damage or injury caysed to Plaintiff was incurred through the willful misconduct of
Plaintiff or others; and Defendant is therefore not liable for any such damages or injury.
FIGHTEENTH AFFIRMATIVE DEFENSE
Some or all of the acts of which Plaintiff complains are protected by the First Amendment
of the Constitution of the Untied States.
NINETEENTH AFFIRMATIVE DEFENSE
Defendant presently has insufficient knowledge or information upon which to forma
belief as to whether it may has additional, as yet unstated, affirmative defenses available.
val 9
DEFENDANT MICHELLE KALINA'S ANSWER TO VERIFIED FIRST AMENDED COMPLAINTCc Cc
Defendant reserves the right to assert additional affirmative defenses in the event discovery
indicates they would be appropriate.
Dated: August 15, 2008 4 , BLEDSOE, CATHCART, DIESTEL,
PEDERSEN & TREPPA, LLP
By
Peter J. Van Zandt
Brian S, Whittemore
Attomey for Defendants
MICHAEL A. KALINA, MICHELLE L.
KALINA, JOANNE LESKOVAR, and J
& MASSOCIATES
10
DEFENDANT MICHELLE KALINA’S ANSWER TO VERIFIED FIRST AMENDED COMPLAINT. s :
"pug 15 2008 8 asan €>rss (0) 477-1048 p-1
VERIFICAT [ON
L, Michelle Kelina, declare under penalty of perjury that I have read the foregoing
Answer to First Amended Complaint and know the contents thereof and that it is true of my
own knowledge and to the best of my ability except those matters which are based on
informetion and belief.
Dated: August 15, 2008pate Cc
1 PROOF OF SERVICE
2 I, the undersigned, hereby declare that I am over the age of eighteen years and not a party
3 to the within action. My business address is 601 California Street, 16th Floor, San Francisco,
4 California, 94108-2805. On the date indicated below, 1 served the following document(s):
5
DEFENDANT MICHELLE KALINA’S ANSWER TO VERIFIED FIRST AMENDED
6 . COMPLAINT
7 upon the following at the address(es) stated below:
8 Michael Heath, Esq. Bye Andrew Dimitriou, Esq.
9 Law Offices of Michael seat my Dimitriou & Associates
P.O. Box 616 180 Montgomery Street, Suite 2200
10 |] Novato, CA 94948-0616 * , San Francisco, CA 94104
Fax: (415)931-4117 Fax: (415) 434-1155
AW
R Attorney for Plaintiff Catherine Conlin Attorney for Defendants
Shauna Matlin, Esq. ,
13 Matlin & Associations
14 1690 Broadway Street, Suite 612.
San Francisco, CA 94109.
15 || Fax: 15) 440-1943 v
16 || Attorney for Defendant Timothy McCabe
17 || xxxX_BY MAIL by deposititig true and correct copies in sealed envelopes in the United States
18 mail in accordance with the usual mailing practice of this firm.
BY PERSONAL SERVICE in accordance with ordinary business practices during
ordinary business hours." =: : ,
____ BY FAXat number listed above.
___BY FEDERAL EXPRESS overnight delivery for delivery the following business day.
declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct, and that this declaration was executed on August 15, 2008, at San
Francisco, California.
chee L. Martens
PROOF OF SERVICE
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WAN SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Aug-15-2008 4:01 pm Case Number: CUD-07-624462 Filing Date: Aug-1 5-2008 4:01 Juke Box: 001 Image: 02222235 ANSWER CATHERINE CONLIN VS. TIMOTHY MCCABE et al 001002222235 Instructions: Please place this sheet on top of the document to be scanned.oo NY A HW ® YN SSeS Cc Cc Peter J. Van Zandt — SBN 152321 Brian S. Whittemore - SBN 241631 BLEDSOE, CATHCART, DIESTEL, PEDERSEN & TREPIY ocead 601 California Street, 16 Floor Court a E. San Francisco, CA 94108 aan Francisco Telephone: (415) 981-5411 Facsimile: (415) 981-0352 “ne 15 2008 DARKLI, Clerk Attorneys for Defendants MICHAEL A. KALINA, mice BOE UINA JOANNE LESKOVAR, and J & M ASSOCIATES ot Bemay Cer SUPERIOR COURT - STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION CATHERINE CONLIN, No, CUD-07-624462 Plaintiff, v. “ DEFENDANT MICHELLE KALINA’S TIMOTHY MC CABE, an individual; ANSWER TO VERIFIED FIRST MICHAEL A. KALINA, an individual, AMENDED COMPLAINT MICHELLE L. KALINA, an individual; JOANN LESKOVAR, an individual; } & M ASSOCIATES, a business of unknown form and DOES 1-10, inclusive; ook ) ) ) ) ) } known also as MIKE KALINA; ) ) ) ) ) ) Defendants. ) ) 1 Defendant Michelle Kalina (“Defendant”) denies all of the allegations, generally and BY FAX 1 Amended Complaint Filed: July 1, 2008 specifically, contained in the First Amended Complaint (“Complaint”) and each cause of action as they apply to this appearing Defendant; and specifically denies that the Defendant is liable to the Plaintiff under the theories or in the manner set forth in the Complaint; denies that the Plaintiff was injured or damaged as alleged in the Complaint or as a result of any conduct of Defendant. 2. Michelle Kalina denies each and every, all and singular, generally and specifically, those allegations contained in paragraphs of the Complaint on file herein, except as stated herein. oa 1 DEFENDANT MICHELLE KALINA’S ANSWER TO VERIFIED FIRST AMENDED COMPLAINT-_ oo NU A HN FW ND Cc Cc 3. Specifically, as to Paragraph 1 of the Complaint, Defendant lacks information or belief and on that basis denies. : 4. Defendant admits Paragraphs 2, 3, and 4 of the Complaint. 5. Defendant lacks information or belief as to the allegations of Paragraph 5 of the Complaint and on that basis denies. 6. Defendant lacks information or belief as to the allegations of Paragraph 6 of the Complaint and on that basis denies. 7. Defendant lacks information or belief as to the allegations of Paragraph 7 of the Complaint and on that basis denies. 8. Defendant admits the allegations of Paragraph 8. 9, Defendant denies that McCabe is his agent, on information and belief Defendant denies that McCabe is Michelle Kalina’s agent, Defendant admits that McCabe is the master tenant. 10. Defendant denies that she demanded or received any additional security deposit from Ms. Contin, Defendant lacks information or beliefs to the balance of the allegations of Paragraph 10 of the Complaint and on that basis denies. 11. Defendant lacks information or belief.as to the allegations of Paragraph 11 of the Complaint and on that basis denies 12. Defendant lacks information or belief as to the allegations of Paragraph 12 of the Complaint and on that basis denies. 13. Defendant lacks information or belief as to the allegations of Paragraph 13 of the Complaint and on that basis denies. 14. Defendant admits that Ms. Conlin made telephone calls to him to complaint about Mr. McCabe but denies the balance of the allegations of Paragraph 14. 15. | Oninformation and belief, Defendant admits that Ms. Conlin filed a petition with the San Francisco Rent Board, but denies the balance of the allegations of Paragraph 15. 16. Defendant lacks information or belief as to the allegations of Paragraph 16 of the Complaint and on that basis denies, 17, Defendant lacks information or beliefas to the allegations of Paragraph 17of the 2 DEFENDANT MICHELLE KALINA’S ANSWER TO VERIFIED FIRST AMENDED COMPLAINT eeC Cc Complaint and on that basis dthies. 18. Defendant realleges paragraphs 3 through 17. 19. Oninformation and belief, Defendant denies the allegations of Paragraph 19. 20. Defendant denies that she did not comply with the applicable provisions of the Ordinance, that she disposed Ms. Contin of her possessory interest in any property, Defendant lacks information or belief as to the balance of the allegations of Paragraph 20 of the Complaint and on that basis denies. 21. Defendant denies that she did not comply with the applicable provisions of the Ordinance, Defendant lacks information or belief as to the balance of the allegations of Paragraph 21 of the Complaint and on that basis denies. 22. Defendant lacks information or belief as to the allegations of Paragraph 22 of the Complaint and on that basis denies. 23. Defendant realleges and incorporates by reference his responses to Paragraph | through 22. 24. Defendant denies that she entered into any lease with Ms. Conlin, that Mr. McCabe was his authorized agent at any time, Defendant admits that Mr. McCabe was the Master Tenant, Defendant lacks information or belief as to the balance of the allegations of Paragraph 24. 25. Defendant lacks information or belief as to the allegations of Paragraph 25 and on that basis denies. 26. Defendant denies that she breached any lease with Ms, Conlin, Defendant lacks information or belief as to the balance of the allegations of Paragraph 29 and on that basis denies the balance of the allegations of Paragraph 26. 27. Defendant lacks information or belief as to the allegations of Paragraph 27 of the Complaint and on that basis denies. 28. Defendant realleges paragraphs 3 through 27. 29. Defendant admits. 30. Defendant denies that she took possession of Ms, Conlin’s rental unit, 31. Defendant lacks information or belief as to the allegations of Paragraph 31 of the ' 3 DEFENDANT MICHELLE KALINA’S ANSWER TO VERIFIED FIRST AMENDED COMPLAINTCc. C Complaint and on that basis denies: 32. Defendant realleges patagraphs 3 through 31, 33. Defendant denies that she did any of the acts described in Paragraph 33 of plaintiff's Complaint. ; 34. Defendant denies Pasiraph 34 of plaintiff's Complaint. 35, Defendant lacks information or belief as to the allegations of Paragraph 35 of the Complaint and on that basis denies. 36. Defendant realleges Paragraphs 3 through 35. 37, Defendant denies she received any money from Ms. Conlin and lacks information or belief as to the balance of the allegations of Paragraph 37 and on that basis denies, 38. Defendant denies she received any money from Ms. Conlin and lacks information or belief as to the balance of the allegations of Paragraph 38 and on that basis denies. 39. Defendant lacks information or belief as to the allegations of Paragraph 39 and on that basis denies, save that she did not provide an itemized statement to Ms. Conlin. 40. Defendant lacks information or belief as to the allegations of Paragraph 40 on that basis denies, save that she did not rovide an itemized statement to Ms. Conlin. 41, Defendant lacks information or belief as to the allegations of Paragraph 41 and on that basis denies. 42, Defendant realleges paragraphs 3 through 41, 43. Defendant lacks information or belief as to the allegations of Paragraph 43 and on that basis denies. 44, Defendant lacks information or belief as to the allegations of Paragraph 44 and on that basis denies. . 45. Defendant lacks inforination or belief as to the allegations of Paragraph 45 and on that basis denies. 46. Defendant lacks information or beliefas to the allegations of Paragraph 46 and on that basis denies. 47. Defendant realleges pafagraphs 3 through 46. . 4 DEFENDANT MICHELLE KALINA’S ANSWER TO VERIFIED FIRST AMENDED COMPLAINTCw aoa nN AW FY N N em PpNRepRBRERS SBA AH E HN TA SO Cc C 48. Defendant lacks information or belief as to the allegations of Paragraph 48 and on that basis denies. 49. Defendant lacks information or belief as to the allegations of Paragraph 49 and on that basis denies. . 50. Defendant denies that Mr. McCabe was his authorized agent at any time. Defendant admits that Mr. McCabe was the Master Tenant lacks information or belief as to the remaining allegations of Paragraph 50 and on that basis denies. 51. Defendant lacks information of belief as to the allegations of Paragraph 5! and on that basis denies. “ 52. 53, Defendant realleges paragraphs 3 through 51. 54. Defendant lacks information or belief as to the allegations of Paragraph 54 and on that basis denies. 55, Defendant lacks information or belief as to the allegations of Paragraph 55 and on that basis denies. 56. Defendant lacks information or belief as to the allegations of Paragraph 56 and on that basis denies. 57, Defendant realleges paragraphs 3 through 56. 58. Defendant denies the aegatons in Paragraph 58. 59, Defendant lacks information or belief as to the allegations of Paragraph 59 and on that basis denies. 60. Defendant lacks information or belief'as to the allegations of Paragraph 60 and on that basis denies. 61. Defendant lacks information or belief as to the allegations of Paragraph 61 and on that basis denies. : 62. Defendant tacks information or belief as to the allegations of Paragraph 62 and on that basis denies. 63. Defendant lacks information or belief as to the allegations of Paragraph 63 and on that " 5 DEFENDANT MICHELLE KALINA'S ANSWER TO VERIFIED FIRST AMENDED COMPLAINT whey ma1 basis denies. 2 64. Defendantdenies. _ 3 65, Defendant lacks information orbelief as to the allegations of Paragraph 65 and on that 4 basis denies. 5 66. Defendant realleges paragraph 3 through 65. 6 67. Defendant lacks information or belief as to the allegations of Paragraph 67 and on that 7 basis denies. . 8 68. Defendant lacks information or belief as to the allegations of Paragraph 68 and on that 9 basis denies. 10 69, Defendant lacks information or belief'as to the allegations of Paragraph 69 and on that 11 |} basis denies. ° 12 || 70. Defendant lacks inforthation ot belief as to the allegations of Paragraph 70 and on that 13 basis denies. 14 71. Defendant lacks information or belief 'as to the allegations of Paragraph 71 and on that 15 |} basis denies. 16 72. Defendant lacks information or belief as to the allegations of Paragraph 72 and on that 17 || basis denies. OO 18 73. Defendant lacks information or belief as to the allegations of Paragraph 73 and on that basis denies. he . 74, Defendant lacks information or belief as to the allegations of Paragraph 74 and on that basis denies. 75. Defendant lacks inforrstion or belief as to the allegations of Paragraph 75 and on that basis denies. ; : 76. Defendant lacks information or belief as to the allegations of Paragraph 76 and on that basis denies. 77. Defendant lacks information or belief as to the allegations of Paragraph 77 and on that basis denies. 78, Defendant realleges paragraphs 3 through 77. 6 DEFENDANT MICHELLE KALINA’S ANSWER TO VERIFIED FIRST AMENDED COMPLAINTCc Cc 79. Defendant admits that Ms. Conlin telephoned him to complaint about Ms. Contin, but denies the balance of the allegations on information and belief. 80. Defendant admits that Ms. Conlin filed a tenant petition on November 15, 2007 with the San Francisco Rent Board, but denies that it was a wrongful eviction claim. 81, Defendant lacks information or belief as to the allegations of Paragraph 81 and on that basis denies. 82, Defendant lacks information or belief as to the allegations of Paragraph 82 and on that basis denies. 83, Defendant lacks information or belief as to the allegations of Paragraph 83 and on that basis denies. 34, Defendant lacks information or belief as to the allegations of Paragraph 84 and on that basis denies. . 85, Defendant lacks information or belief as to the allegations of Paragraph 85 and on that basis denies. . Met ' 86, Defendant Jacks information ot belief as to the allegations of Paragraph 86 and on that basis denies. , AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE Plaintiff's alleges cause of action is barred by the provisions of subdivision a of Civil Code Section 1624 in that it violates the statute of frauds. SECOND AFFIRMATIVE DEFENSE Plaintiff recovery of non-economic damages based upon any part of the Complaint is limited to the percentage of fault attributable to Defendant as provided in the Fair Responsibility Act of 1986, California Civil Code §§ 1431-1431.5 and/or that any fault attributable to Plaintiffs and other bars and/or proportionately reduces any recovery of Plaintiff against Defendant. THIRD AFFIRMATIVE DEFENSE Plaintiff herself was négligent in and about the matters set forth in the complaint and said negligence proximately caused or contributed to the injuries or damages complained of and 7 DEFENDANT MICHELLE KALINA’S ANSWER TO VERIFIED FIRST AMENDED COMPLAINTCc Cc reduces her recovery in proposition to her own negligence. FOURTH AFFIRMATIVE DEFENSE Plaintiff had knowledge of the risks and hazards set forth in the Complaint, as well as the magnitude of the risks and hazards, and thereafter knowingly and willingly assumed those risks. FIFTH AFFIRMATIVE DEFENSE Plaintiff's alleged injures, ifany, were aggravated by the Plaintiff failure to use reasonable diligence to mitigate them, and to the extent of the Plaintiff's failure to mitigate, any damages awarded should be reduced. SIXTH AFFIRMATIVE DEFENSE Defendant alleges that the action and all causes of action are barred by the statute of limitations, including, but not limited to, those set forth in California Code of Civil Procedure §§ 337(1) and (2), 338(a)-(4), 339(1), 340(1)-(3), and 343. SEVENTH AFFIRMATIVE DEFENSE Plaintiff has waived through her conduct her right to maintain the action filed in this case. EIGHTH ABFIRMATIVE DEFENSE Plaintiff substantially and materially breached her obligation complained of prior to commencement of this action} which conduct extinguished the right to maintain the instant action. NINTH AFFIRMATIVE DEFENSE Plaintiff, prior to commencement of this action, and for a valuable consideration, and under mutual terms and conditions, waived and forever discharged her right to maintain any action as set forth in the Cross-Complaint. TENTH AFFIRMATIVE DEFENSE Plaintiff has waived and are estopped to assert any claim or claims against Defendants in that Plaintiff and/or others consented or are deemed to have consented to the alleged conduct complained of herein. : ELEVENTIL AFFIRMATIVE DEFENSE Plaintiff in this case are guilty of “unclean hands” in the matters set forth in the : - 8 DEFENDANT MICHELLE KALINA’S ANSWER TO VERIFIED FIRST AMENDED COMPLAINTCc u Cc Complaint, which conduct extinguishes the right to equitable relief in this action. TWELFTH AFFIRMATIVE DEFENSE Plaintiff has expressly and/or impliedly ratified and/or waived some of all of those things they now complaint of and for which they seek damages. THIRTEENTH AFFIRMATIVE DEFENSE Plaintiff unreasonably delayed to the detriment of the Defendant and the Complaint and all of its causes of action are barred as to Plaintiff. FOURTEENTH AFFIRMATIVE DEFENSE Plaintiff has not suffered any damages as @ result of any actions taken by Defendant and Plaintiff is therefore barred from asserting any cause of action against Defendant. FIFTEENTH AFFIRMATIVE DEFENSE Plaintiff procured by the fraud and misrepresentation the contract/obligation which is the subject of this Jawsuit thus voiding the obligations of Defendant. : SIXTEENTH AFFIRMATIVE DEFENSE Any and all acts, occurrences and damages alleged or referred to in the Complaint were proximately caused by the bad faith of Plaintiff and/or others in that Plaintiff and/or others failed to deal promptly, fairly, honestly andreasonably with Defendant and others; therefore, the comparative bad faith of Plaintiff and/or others reduces Plaintiff right to recover by the amount which her bad faith contributed to the damages alleged. SEVENTEENTH AFFIRMATIVE DEFENSE All damage or injury caysed to Plaintiff was incurred through the willful misconduct of Plaintiff or others; and Defendant is therefore not liable for any such damages or injury. FIGHTEENTH AFFIRMATIVE DEFENSE Some or all of the acts of which Plaintiff complains are protected by the First Amendment of the Constitution of the Untied States. NINETEENTH AFFIRMATIVE DEFENSE Defendant presently has insufficient knowledge or information upon which to forma belief as to whether it may has additional, as yet unstated, affirmative defenses available. val 9 DEFENDANT MICHELLE KALINA'S ANSWER TO VERIFIED FIRST AMENDED COMPLAINTCc Cc Defendant reserves the right to assert additional affirmative defenses in the event discovery indicates they would be appropriate. Dated: August 15, 2008 4 , BLEDSOE, CATHCART, DIESTEL, PEDERSEN & TREPPA, LLP By Peter J. Van Zandt Brian S, Whittemore Attomey for Defendants MICHAEL A. KALINA, MICHELLE L. KALINA, JOANNE LESKOVAR, and J & MASSOCIATES 10 DEFENDANT MICHELLE KALINA’S ANSWER TO VERIFIED FIRST AMENDED COMPLAINT. s : "pug 15 2008 8 asan €>rss (0) 477-1048 p-1 VERIFICAT [ON L, Michelle Kelina, declare under penalty of perjury that I have read the foregoing Answer to First Amended Complaint and know the contents thereof and that it is true of my own knowledge and to the best of my ability except those matters which are based on informetion and belief. Dated: August 15, 2008pate Cc 1 PROOF OF SERVICE 2 I, the undersigned, hereby declare that I am over the age of eighteen years and not a party 3 to the within action. My business address is 601 California Street, 16th Floor, San Francisco, 4 California, 94108-2805. On the date indicated below, 1 served the following document(s): 5 DEFENDANT MICHELLE KALINA’S ANSWER TO VERIFIED FIRST AMENDED 6 . COMPLAINT 7 upon the following at the address(es) stated below: 8 Michael Heath, Esq. Bye Andrew Dimitriou, Esq. 9 Law Offices of Michael seat my Dimitriou & Associates P.O. Box 616 180 Montgomery Street, Suite 2200 10 |] Novato, CA 94948-0616 * , San Francisco, CA 94104 Fax: (415)931-4117 Fax: (415) 434-1155 AW R Attorney for Plaintiff Catherine Conlin Attorney for Defendants Shauna Matlin, Esq. , 13 Matlin & Associations 14 1690 Broadway Street, Suite 612. San Francisco, CA 94109. 15 || Fax: 15) 440-1943 v 16 || Attorney for Defendant Timothy McCabe 17 || xxxX_BY MAIL by deposititig true and correct copies in sealed envelopes in the United States 18 mail in accordance with the usual mailing practice of this firm. BY PERSONAL SERVICE in accordance with ordinary business practices during ordinary business hours." =: : , ____ BY FAXat number listed above. ___BY FEDERAL EXPRESS overnight delivery for delivery the following business day. declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, and that this declaration was executed on August 15, 2008, at San Francisco, California. chee L. Martens PROOF OF SERVICE