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Electronically
DAVID P. NEMECEK, JR. (State Bar N0. 194402)
davidgézfortreSSJawfiom by Superior Cour! of Callfcrnla, Cnu nry of San Matefl
THE FORTRESS LAW FIRM, INC. fl“ 12/1 2/201 9
555 California Street, Suite 4925 By Ant hung Be [igi
{5.1!
San Francisco, CA 94104 DIP“! lerk
Telephone: (41 5) 659- 1 946
Facsimile: (415) 723-7370
Attorneys for Plaintiffs and Cross—Defendants
BOOTUP VENTURES, LLC and BOOSTCARE dba
BOOTUP WORLD and Cross—Defendants MARCO
TEN VAANHOLT AND MUKUL AGARWAL
OOQQ SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN MATEO
\O
UNLIMITED JURISDICTION
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BOOTUP VENTURES, LLC and Case No. 18CIV06232
12 BOOSTCARE dba BOOTUP WORLD,
ANSWER BY BOOTUP VENTURES, LLC,
13 BOOSTCARE DBA BOOTUP WORLD,
Plaintiffs, MARCO TEN VAANHOLT AND MUKUL
14 AGARWAL TO CROSS-COMPLAINT FILED
v. BY TARUN GAUR, JINIGRAM, LLC, AND
15 DIAL2BUY.COM, LLC
TARUN GAUR, TRINGAPPS INC.,
16 JINIGRAM, LLC, DIAL2BUY.COM, LLC, Action Filed: November 19, 2018
RAVI KUMAR aka SHAWN KUMAR and Trial Date: None
17 DOES 1-20,
18 Defendants.
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20 AND RELATED CROSS—COMPLAINT.
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Plaintiffs and Cross-Defendants BootUp Ventures, LLC and Boostcare dba BootUp World
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and Cross—Defendants Marco ten Vaanholt and Mukul Agarwal (collectively “Cross—Defendants”)
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collectively answer the Cross—Complaint filed by Defendants and Cross—Complainants Tarun
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Gaur, Jinigram, LLC and Dial2Buy.com, LLC (collectively “Cross—Cornplainants”) as follows:
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GENERAL DENIAL
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Cross-Defendants deny each and every, alland singular, generally and specifically, the
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ANSWER BY BOOTUP VENTURES, LLC, BOOSTCARE DBA BOOTUP WORLD, MARCO TEN VAANHOLT
AND MUKUL AGARWAL TO CROSS-COMPLAINT
allegations contained in the Cross—Complaint, and each and every part thereof. Cross-Defendants
deny that Cross-Complainants have been injured 0r damaged in any sum, 0r otherwise, 0r at all.
AFFIRMATIVE DEFENSES
By way 0f separate and affirmative defenses t0 each and every allegation in the Cross-
Complaint, Cross—Defendants allege as follows:
FIRST AFFIRMATIVE DEFENSE
(Failure t0 State a Cause 0f Action)
The Cross—Complaint, and each cause 0f action alleged therein, fails t0 state facts
sufficient to constitute a cause of action against the answering Cross—Defendants.
10 SECOND AFFIRMATIVE DEFENSE
(Lack 0f Causation)
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Cross—Defendants’ conduct was not the cause in fact nor the proximate cause of any
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injury, loss, 0r damage alleged by Cross—Complainants.
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THIRD AFFIRMATIVE DEFENSE
14 (Failure to Mitigate)
15 Cross—Complainants had a duty t0 take reasonable steps t0 avoid and/or mitigate their
16 alleged damages. Cross-Complainants failed t0 take such steps, delayed unreasonably in doing
17 so, 0r took steps Which compounded the alleged damages. Had Cross-Complainants timely and
18 diligently taken reasonable steps t0 avoid and/or mitigate the alleged damages, such damages
19 would have been reduced 0r avoided; and that by failing t0 mitigate damages, Cross-
20 Complainants are barred in Whole 0r in part from recovering any damages.
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FOURTH AFFIRMATIVE DEFENSE
22 (Waiver)
Cross—Defendants allege that allsums due t0 Cross-Complainants from the transactions at
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issue have been waived by Cross—Complainants. Cross—Complainants have waived their right to
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bring this action. Furthermore, Cross—Complainants, by their words, conduct and actions, made a
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knowing intentional and voluntary waiver 0f any and allclaims, further obligations, and liabilities
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as t0 any and allmatters raised in their Cross—Complaint barring any recovery against Cross-
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Defendants.
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ANSWER BY BOOTUP VENTURES, LLC, BOOSTCARE DBA BOOTUP WORLD, MARCO TEN VAANHOLT
AND MUKUL AGARWAL TO CROSS-COMPLAINT
FIFTH AFFIRMATIVE DEFENSE
(Unclean Hands)
Cross—Complainants come to this Court with unclean hands and therefore their Cross-
Complaint isbarred by the doctrine of unclean hands.
SIXTH AFFIRMATIVE DEFENSE
(Estoppel)
Cross—Complainants are estopped, by reason 0f their conduct, acts, and/or omissions, t0
assert any causes of action and/or from recovering any damages against Cross—Defendants.
SEVENTH AFFIRMATIVE DEFENSE
10 (Intervening Cause)
11 Cross—Defendants are informed and believe, and on such basis allege, that superseding
12 intervening causes brought about and contributed to any damages suffered by Cross-
13 Complainants and any damages should accordingly be abated or reduced as a result of such
14 superseding intervening causes.
15 EIGHTH AFFIRMATIVE DEFENSE
(Fault 0f Cross-Complainants)
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Cross—Complainants did not exercise ordinary care, caution or prudence to avoid the
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damage complained 0f and that such damage, if any, was directly and approximately caused by
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the fault, carelessness, and negligence of Cross—Complainants.
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NINTH AFFIRMATIVE DEFENSE
20 (Fault 0f Others)
21 The injuries and damages complained of by Cross—Complainants are the fault of other
22 Cross—Defendants named in this action and/or 0f others not named as Cross-Defendants in this
23 action.
24 TENTH AFFIRMATIVE DEFENSE
(Consent and Ratification)
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The Cross—Complaint and the purported causes 0f action against Cross—Defendants are
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barred because Cross—Complainants consented to and ratified all the alleged acts 0r omissions of
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Cross—Complainants by reasons of their knowledge, conduct, and statements.
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ANSWER BY BOOTUP VENTURES, LLC, BOOSTCARE DBA BOOTUP WORLD, MARCO TEN VAANHOLT
AND MUKUL AGARWAL TO CROSS-COMPLAINT
ELEVENTH AFFIRMATIVE DEFENSE
(Impossibility)
Cross—Defendants’ alleged duties as claimed in the Cross—Complaint, ifany so existed,
have been excused by the doctrine 0f impossibility in that the performance of said obligation is
and has been rendered impossible and/or commercially impracticable.
TWELFTH AFFIRMATIVE DEFENSE
(Frustration)
The purpose 0f the agreements alleged in the Cross—Complaint has been frustrated as a
matter of law.
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THIRTEENTH AFFIRMATIVE DEFENSE
11 (Contribution)
12 Should the Cross—Defendants be found liable t0 Cross—Complainants, which liability is
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expressly denied, Cross—Defendants are entitled t0 have any award against them abated, reduced
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or eliminated to the extent that the negligence, carelessness, fault, 0r defects caused by the
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remaining parties in this action 0r by other persons, corporations, or business entities contributed
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t0 Cross—Complainants’ damages, if any.
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FOURTEENTH AFFIRMATIVE DEFENSE
19 (Performance Excused)
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Assuming for the sake 0f argument that Cross—Defendants owed any obligation t0 which
full performance has not been rendered, which Cross—Defendants expressly deny, performance 0f
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22 said obligation has been excused by the acts and omissions 0f Cross-Complainants or their agents,
excluding these Cross—Defendants.
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24 FIFTEENTH AFFIRMATIVE DEFENSE
(Statute 0f Limitations)
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This action is barred by the statutes of limitation in the Code 0f Civil Procedure, including
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but not limited to Code of Civil Procedure sections 337, 338, 339, 340 and 343 and each pertinent
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subsection.
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ANSWER BY BOOTUP VENTURES, LLC, BOOSTCARE DBA BOOTUP WORLD, MARCO TEN VAANHOLT
AND MUKUL AGARWAL TO CROSS-COMPLAINT
SIXTEENTH AFFIRMATIVE DEFENSE
(Failure t0 Join Indispensable Parties)
Cross—Complainants have failed t0 join one 0r more indispensable parties to this action.
SEVENTEENTH AFFIRMATIVE DEFENSE
(Laches)
Cross-Complainants are barred from obtaining any recovery in this action by the doctrine
of laches.
EIGHTEENTH AFFIRMATIVE DEFENSE
(Setoff)
Without conceding that any act of Cross—Defendants caused damage to Cross—
10 Complainants, Cross-Defendants are entitled to setoff any judgment that may be entered against
11 them as t0 all funds previously paid t0 Cross—Complainants and all obligations 0f Cross-
12 Complainants owing t0 Cross—Defendants.
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NINTEENTH AFFIRMATIVE DEFENSE
(Consent and Ratification)
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The Cross—Complaint and the causes 0f action alleged therein against Cross—Defendants
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are barred because Cross-Complainants consented t0 and ratified all 0f the alleged acts 0r
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omissions 0f Cross—Defendants by reasons of their knowledge, conduct, and statements.
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Cross-Defendants presently have insufficient knowledge 0r information on Which t0 form
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a belief as t0 whether Cross—Defendants may have additional, as yet unstated, defenses available.
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Cross—Defendants reserve the right t0 assert additional defenses in the event discovery indicates
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that they would be appropriate.
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WHEREFORE, Cross—Defendants pray as follows:
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1. That Cross—Complainants take nothing from Cross—Defendants by way of their
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Cross—Complaint;
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2. That Cross—Defendants be awarded judgment in this action;
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3. That Cross—Defendants be awarded costs 0f suit incurred herein; and
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4. That Cross—Defendants be awarded any other and further relief as the Court deems
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proper.
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ANSWER BY BOOTUP VENTURES, LLC, BOOSTCARE DBA BOOTUP WORLD, MARCO TEN VAANHOLT
AND MUKUL AGARWAL TO CROSS-COMPLAINT
Dated: December 11, 2019 THE FORTRESS LAW FIRM, INC.
Ul-hUJN
*DNJMWi}
DAVID P. NEMECEK, JR.
Attorneys for Plaintiffs and Cross—Defendants BOOTUP
VENTURES, LLC and BOOSTCARE dba BOOTUP
WORLD and Cross-Defendants MARCO TEN
KOOOQQ VAANHOLT AND MUKUL AGARWAL
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ANSWER BY BOOTUP VENTURES, LLC, BOOSTCARE DBA BOOTUP WORLD, MARCO TEN VAANHOLT
AND MUKUL AGARWAL TO CROSS-COMPLAINT
Preview
Electronically DAVID P. NEMECEK, JR. (State Bar N0. 194402) davidgézfortreSSJawfiom by Superior Cour! of Callfcrnla, Cnu nry of San Matefl THE FORTRESS LAW FIRM, INC. fl“ 12/1 2/201 9 555 California Street, Suite 4925 By Ant hung Be [igi {5.1! San Francisco, CA 94104 DIP“! lerk Telephone: (41 5) 659- 1 946 Facsimile: (415) 723-7370 Attorneys for Plaintiffs and Cross—Defendants BOOTUP VENTURES, LLC and BOOSTCARE dba BOOTUP WORLD and Cross—Defendants MARCO TEN VAANHOLT AND MUKUL AGARWAL OOQQ SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO \O UNLIMITED JURISDICTION 10 11 BOOTUP VENTURES, LLC and Case No. 18CIV06232 12 BOOSTCARE dba BOOTUP WORLD, ANSWER BY BOOTUP VENTURES, LLC, 13 BOOSTCARE DBA BOOTUP WORLD, Plaintiffs, MARCO TEN VAANHOLT AND MUKUL 14 AGARWAL TO CROSS-COMPLAINT FILED v. BY TARUN GAUR, JINIGRAM, LLC, AND 15 DIAL2BUY.COM, LLC TARUN GAUR, TRINGAPPS INC., 16 JINIGRAM, LLC, DIAL2BUY.COM, LLC, Action Filed: November 19, 2018 RAVI KUMAR aka SHAWN KUMAR and Trial Date: None 17 DOES 1-20, 18 Defendants. 19 20 AND RELATED CROSS—COMPLAINT. 21 22 Plaintiffs and Cross-Defendants BootUp Ventures, LLC and Boostcare dba BootUp World 23 and Cross—Defendants Marco ten Vaanholt and Mukul Agarwal (collectively “Cross—Defendants”) 24 collectively answer the Cross—Complaint filed by Defendants and Cross—Complainants Tarun 25 Gaur, Jinigram, LLC and Dial2Buy.com, LLC (collectively “Cross—Cornplainants”) as follows: 26 GENERAL DENIAL 27 Cross-Defendants deny each and every, alland singular, generally and specifically, the 28 ANSWER BY BOOTUP VENTURES, LLC, BOOSTCARE DBA BOOTUP WORLD, MARCO TEN VAANHOLT AND MUKUL AGARWAL TO CROSS-COMPLAINT allegations contained in the Cross—Complaint, and each and every part thereof. Cross-Defendants deny that Cross-Complainants have been injured 0r damaged in any sum, 0r otherwise, 0r at all. AFFIRMATIVE DEFENSES By way 0f separate and affirmative defenses t0 each and every allegation in the Cross- Complaint, Cross—Defendants allege as follows: FIRST AFFIRMATIVE DEFENSE (Failure t0 State a Cause 0f Action) The Cross—Complaint, and each cause 0f action alleged therein, fails t0 state facts sufficient to constitute a cause of action against the answering Cross—Defendants. 10 SECOND AFFIRMATIVE DEFENSE (Lack 0f Causation) 11 Cross—Defendants’ conduct was not the cause in fact nor the proximate cause of any 12 injury, loss, 0r damage alleged by Cross—Complainants. 13 THIRD AFFIRMATIVE DEFENSE 14 (Failure to Mitigate) 15 Cross—Complainants had a duty t0 take reasonable steps t0 avoid and/or mitigate their 16 alleged damages. Cross-Complainants failed t0 take such steps, delayed unreasonably in doing 17 so, 0r took steps Which compounded the alleged damages. Had Cross-Complainants timely and 18 diligently taken reasonable steps t0 avoid and/or mitigate the alleged damages, such damages 19 would have been reduced 0r avoided; and that by failing t0 mitigate damages, Cross- 20 Complainants are barred in Whole 0r in part from recovering any damages. 21 FOURTH AFFIRMATIVE DEFENSE 22 (Waiver) Cross—Defendants allege that allsums due t0 Cross-Complainants from the transactions at 23 issue have been waived by Cross—Complainants. Cross—Complainants have waived their right to 24 bring this action. Furthermore, Cross—Complainants, by their words, conduct and actions, made a 25 knowing intentional and voluntary waiver 0f any and allclaims, further obligations, and liabilities 26 as t0 any and allmatters raised in their Cross—Complaint barring any recovery against Cross- 27 Defendants. 28 2 ANSWER BY BOOTUP VENTURES, LLC, BOOSTCARE DBA BOOTUP WORLD, MARCO TEN VAANHOLT AND MUKUL AGARWAL TO CROSS-COMPLAINT FIFTH AFFIRMATIVE DEFENSE (Unclean Hands) Cross—Complainants come to this Court with unclean hands and therefore their Cross- Complaint isbarred by the doctrine of unclean hands. SIXTH AFFIRMATIVE DEFENSE (Estoppel) Cross—Complainants are estopped, by reason 0f their conduct, acts, and/or omissions, t0 assert any causes of action and/or from recovering any damages against Cross—Defendants. SEVENTH AFFIRMATIVE DEFENSE 10 (Intervening Cause) 11 Cross—Defendants are informed and believe, and on such basis allege, that superseding 12 intervening causes brought about and contributed to any damages suffered by Cross- 13 Complainants and any damages should accordingly be abated or reduced as a result of such 14 superseding intervening causes. 15 EIGHTH AFFIRMATIVE DEFENSE (Fault 0f Cross-Complainants) 16 Cross—Complainants did not exercise ordinary care, caution or prudence to avoid the 17 damage complained 0f and that such damage, if any, was directly and approximately caused by 18 the fault, carelessness, and negligence of Cross—Complainants. 19 NINTH AFFIRMATIVE DEFENSE 20 (Fault 0f Others) 21 The injuries and damages complained of by Cross—Complainants are the fault of other 22 Cross—Defendants named in this action and/or 0f others not named as Cross-Defendants in this 23 action. 24 TENTH AFFIRMATIVE DEFENSE (Consent and Ratification) 25 The Cross—Complaint and the purported causes 0f action against Cross—Defendants are 26 barred because Cross—Complainants consented to and ratified all the alleged acts 0r omissions of 27 Cross—Complainants by reasons of their knowledge, conduct, and statements. 28 3 ANSWER BY BOOTUP VENTURES, LLC, BOOSTCARE DBA BOOTUP WORLD, MARCO TEN VAANHOLT AND MUKUL AGARWAL TO CROSS-COMPLAINT ELEVENTH AFFIRMATIVE DEFENSE (Impossibility) Cross—Defendants’ alleged duties as claimed in the Cross—Complaint, ifany so existed, have been excused by the doctrine 0f impossibility in that the performance of said obligation is and has been rendered impossible and/or commercially impracticable. TWELFTH AFFIRMATIVE DEFENSE (Frustration) The purpose 0f the agreements alleged in the Cross—Complaint has been frustrated as a matter of law. 10 THIRTEENTH AFFIRMATIVE DEFENSE 11 (Contribution) 12 Should the Cross—Defendants be found liable t0 Cross—Complainants, which liability is 13 expressly denied, Cross—Defendants are entitled t0 have any award against them abated, reduced 14 or eliminated to the extent that the negligence, carelessness, fault, 0r defects caused by the 15 remaining parties in this action 0r by other persons, corporations, or business entities contributed 16 t0 Cross—Complainants’ damages, if any. 17 18 FOURTEENTH AFFIRMATIVE DEFENSE 19 (Performance Excused) 20 Assuming for the sake 0f argument that Cross—Defendants owed any obligation t0 which full performance has not been rendered, which Cross—Defendants expressly deny, performance 0f 21 22 said obligation has been excused by the acts and omissions 0f Cross-Complainants or their agents, excluding these Cross—Defendants. 23 24 FIFTEENTH AFFIRMATIVE DEFENSE (Statute 0f Limitations) 25 This action is barred by the statutes of limitation in the Code 0f Civil Procedure, including 26 but not limited to Code of Civil Procedure sections 337, 338, 339, 340 and 343 and each pertinent 27 subsection. 28 4 ANSWER BY BOOTUP VENTURES, LLC, BOOSTCARE DBA BOOTUP WORLD, MARCO TEN VAANHOLT AND MUKUL AGARWAL TO CROSS-COMPLAINT SIXTEENTH AFFIRMATIVE DEFENSE (Failure t0 Join Indispensable Parties) Cross—Complainants have failed t0 join one 0r more indispensable parties to this action. SEVENTEENTH AFFIRMATIVE DEFENSE (Laches) Cross-Complainants are barred from obtaining any recovery in this action by the doctrine of laches. EIGHTEENTH AFFIRMATIVE DEFENSE (Setoff) Without conceding that any act of Cross—Defendants caused damage to Cross— 10 Complainants, Cross-Defendants are entitled to setoff any judgment that may be entered against 11 them as t0 all funds previously paid t0 Cross—Complainants and all obligations 0f Cross- 12 Complainants owing t0 Cross—Defendants. 13 NINTEENTH AFFIRMATIVE DEFENSE (Consent and Ratification) 14 The Cross—Complaint and the causes 0f action alleged therein against Cross—Defendants 15 are barred because Cross-Complainants consented t0 and ratified all 0f the alleged acts 0r 16 omissions 0f Cross—Defendants by reasons of their knowledge, conduct, and statements. 17 Cross-Defendants presently have insufficient knowledge 0r information on Which t0 form 18 a belief as t0 whether Cross—Defendants may have additional, as yet unstated, defenses available. 19 Cross—Defendants reserve the right t0 assert additional defenses in the event discovery indicates 20 that they would be appropriate. 21 WHEREFORE, Cross—Defendants pray as follows: 22 1. That Cross—Complainants take nothing from Cross—Defendants by way of their 23 Cross—Complaint; 24 2. That Cross—Defendants be awarded judgment in this action; 25 3. That Cross—Defendants be awarded costs 0f suit incurred herein; and 26 4. That Cross—Defendants be awarded any other and further relief as the Court deems 27 proper. 28 5 ANSWER BY BOOTUP VENTURES, LLC, BOOSTCARE DBA BOOTUP WORLD, MARCO TEN VAANHOLT AND MUKUL AGARWAL TO CROSS-COMPLAINT Dated: December 11, 2019 THE FORTRESS LAW FIRM, INC. Ul-hUJN *DNJMWi} DAVID P. NEMECEK, JR. Attorneys for Plaintiffs and Cross—Defendants BOOTUP VENTURES, LLC and BOOSTCARE dba BOOTUP WORLD and Cross-Defendants MARCO TEN KOOOQQ VAANHOLT AND MUKUL AGARWAL 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 ANSWER BY BOOTUP VENTURES, LLC, BOOSTCARE DBA BOOTUP WORLD, MARCO TEN VAANHOLT AND MUKUL AGARWAL TO CROSS-COMPLAINT