Preview
Ruben/A. Castellén (SBN 154610)
1
Anna‘L. Le,May (SEN 258312) FILEE
2 CASTELLON
&' FUNDERBURK LLP‘ SAN MATEO COUNTY
811 Wilshire Boulevard, Suite 102-5
3 Los Angeles, California 90017
Telephone: (213) 623—75 15
4 Facsimile: (213) 532-3984
5 Attorneys for Defendant, "BRIAN GRAHAM NEWTON
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7
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8 SUPERIOR COURT OF THE STATE OF CALIFORNIA SE,
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IN AND FOR THE COUNTY OF SAN NIATEO
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11 RADIN 00.1, A CALIFORNIA LIMITED Case No. 17CIV0061,9 32’
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PARTNERSHIP,
12 JUDGE:
EDE g
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DEPARTMENT: 51- ‘_'_“
13 ‘
Plaintiff,
Complaint Filed: Febmaiy 10, 2017
14 V. Trial Date: Not Set
15 GLORIA TSUYAJI YAMAUCHI, _
DEFENDANT BRIAN GRAHAM
PATRICIA CAMPBELL, BRIAN \
NEWTON’S ANSWER TO RADIN Cox’s '
16 GRAHAM NEWTON, THOMAS GAVIN UNVERIFIED COMPLAINT; REQUEST
NEWTON, and DOES l throughQO, FOR JURY TRIAL
17 inclusive,
1 g Defendants.
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21 Defendant BRIAN GRAHAM NEWTON (hereinafter “‘Defendant”)§ hereby answers the
22 Complaint filed on ‘Febmar'y 10, 2017 by‘Plaintiff RADIN CO. (hereinafter “Plaintift").
GENERAL DENIAL
Hal 23
24 Pursuant‘to California Code of Civil Procedure, Section 431.30, Defendant denies
25 generally and specifically each and every cause of action and every allegation contained in
26 Plaintiff sunverified Complaint and further, generally and specifically denies that Plaintiff has
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sustained any damage or injury or is entitled to any relief or recovery whatsoever.
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DEFENDANT BRIAN GRAHAM NEWTONiS ANSWER TO RADIN CO.’S UNVERIFIED COMPLAINT;
REQUEST 'FOR 1U RY TRIAL
y.—
Further answering-the Complaint, and the wholethereof, including the cause of aetion
contained. therein, Defendant .denies that Plaintiff has or will sustain, any injury, damage; or less,
including buttnot. limited to attorneys" fees, costs, and/pr expensesi if any, by reason of any act or
omission, fault or negligence on- the paitof Defendant, its‘agent'sxseivants and‘einploy'e’es, or any
of them.
FIRST AFFIRMATIVE DEFENSE
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(Failure to State a Claim)
‘1. As a separate and affirmative defense to the Complaint, Defendant alleges that the
Complaint and the cause of action therein fails to sufficiently state a claim againSt Defendant upon
which relief can be granted.
SECOND AFFIRMATIV E DEFENSE
(Uncertain Complaint)
2. TheCompl‘aint', and the cause of action alleged therein, is not pled With‘s'ufiiCie'nt
particularity to provide notice to Defendant of the claims, rendering the Complaint uncertain.
THIRD AFFIRMATIVE DEFENSE
(Laék of Standing)
3. As aiseparate and affirmative defense to the Complaint, Defendant alleges that Plaintiff
lacks, standing to allege a cause of action against Defendant, and lacks standing to allege a cause of
action ‘on behalf of any other person, entity, or thild party.
FOURTH .AFFIRMATIVE DEFENSE
(Laches and Due Diligence)
4. As a-sep‘arate and affninative-defense to the Complaint, Defendant alleges that any
pros‘pectivérééovery herein is barred by the equitable doctrine of laches by virtue of' Plaintiff‘s
unreasonable delay in commencing this action.
FIFTH AFFIRMATIVE~ DEFENSE
(Unclean Hands)
5. Asa separate and affirmative defense to the Complaint, Defendant alleges that'any
prospective recovery hereinis ban‘ed by the equitable doctrine of unclean hands.
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DEFENDANT BRIAN GRAHAM NEWTON’S ANSWER TO. RADIN C038 .UNVERIFIED COMPLAINT;
REQUEST FOR JURY TRIAL
p...‘ ,SXXTH AFFIRMATIVE DEFENSE
(Waiver)
6.. As aseparate and affirmative defense to the Complaint, Defendant alleges that Plaintiff is
barred from assertingany claims-or causes of action stated in the Complaint by rea'Son of its
eonductWhich-constitutes a waiver of any such purported cause 'of action or claims.
SEVENTH AFFIRMATIVE DEFENSE
(Estoppel)
7. As a separate and affirmative defense to the Complaint, Defendant alleges that any
prospective recovery herein is barred by the equitable doctrine of estoppeh
i
EIGHTH AFFIRMA‘TIVE DEFENSE
(Statute ofLimitations)
8. Asa separate and affirmative defense to the Complaint, Defendant alleges that Plaintiff 5
claims‘,‘ demands, and causeof action are forever barred by the applicable statute of limitations,
including butnot limited to California Code of Civil Procedure sections 312, 337, 337.1, 338, and
339.
NINTHAF F IRMATIVE DEFENSE
(Failure to Mitigate)
9,, As atseparate‘and affirmatiVe defense to the Complaint, Defendant alleges that at all times
herein, Plaintiff has failed to mitigate, reduce, or otherwise avoid “all Off Some portion of the alleged
damages, if any,- thus barring any recovery herein.
TENTH AFFIRMATIVE DEFENSE
(Setoff Due to Defendant’sDamages)
10. As a separate and affirmative defense to the Complaint, Defendant alleges that damages
suffered by Plaintiff, if any, are set off/by an equal 0r greater ainount of damages suffered by
Defendant as a result of Plaintiff 5 acts er Omissions.
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DEFENDANT BRIAN GRAHAM NEW TON’S ANSWER .TO RADIN C038 ,UNVERIFIED COMPLAINT;
REQUEST FOR JU RY'TR'I AL
ELEVENTH AFFIRMATIVEI DEFENSE:
N (Setoff Due to Collateral Source)
.1 1. As ar‘separate and affiimat’ive defense to the Complaint, Defendant alleges that if Plaintiff
4x2»
is found to be entitled to recover costs or damages against Defendant, which entitlement
Defendant denies, such recovery must be reduced by any and all amounts previously or“ otherwise
obtained by Plaintiff whether by direct payment, offset, or otherwise for the alleged damages, if
any;
"TWELF'I'H AFFIRM’ATIVE DEFENSE
(Negligence ofPlaintiff)
12. As aseparate «and affirmative defense to the Complaint, Defendant alleges that any and all
events and happenings in 'connection with the incidents and matters referred to in the Complaint,
and the resulting injuries or damages, if any, referred to therein were solely and proximately
caused and'contributed to by the negligence and carelessness ofPlaintiff; in that Plaintiff failed to
exercise ordinary care and Caution that individuals; or the employees or agents of an ordinarily
prudent'company (‘or other legalientity) would have eXercised in the same o‘rsimilar
circumstances.
THIRTEENTH AFFIRMATIVE DEFENSE“
(Negligence of (Third Parties)
13.} As a separate and 7affirmative defense to the Complaint, Defendant alleges that Plaintiffs
injuries and damages: if any, Were proximately Causedand contributed to by the negligence of
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third parties other than Defendant.
FOURTEEN TH AFFIRNIATI‘VE DEFENSE :
(Complaint Brought Without Reasonable Cause)
14. As‘ a separate and 'affinna‘tiVe defense to. the Complaint, Defendant is informed and
believes and on that basis alleges that the Complaint was brought without reasonable cause and
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with a good faith belief that there was a juStifiable controversy under the facts or law which
warranted the filing of the Complaint against Defendant. Plaintiff should therefore be responsible
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DEFENDANT BRIAN GRAHAM NEWTON’S-ANSWER ro RADIN coxs UNVERIFIED COMPLAINT;
REQUEST FOR JURY TRIAL
for all reasonable defense costs, including attomey fees; incurred by Defendant, pursuant to, Code
of Civil Procedure §4§ 128.5; 103 8,_-and other laws cfthis State that provide for such jrecOvery.
b.) FIFTEENTH AF FIRMAT IVE DEFENSE
(Indemnity)
15. As aseparate and affirmative defense to the Complaint, Defendant alleges that if Plaintiff,
orany other entityfies), are found to be entitled to recover costs 01: damages against Defendant,
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which entitlement Defendant. denies, such recovery must be indemnified by Plaintiff or other third
parties by operation of the principles of contractual or equitable indemnity.
SIXTEENTH AFFIRMATIVE DEFENSE
(Contribution)
16. As a separate and affirmative defense to the Complaint, Defendant alleges that if Plaintiff
or any other entityfiies)‘ are found to be entitled'to recover cests or damages against Defendant,
which entitlement DEFENDANT denies, “such recovery niust be reduced to that degree of the
responsibility and liability for the resulting damages attribhtable‘ to Plaintiff or any other party’s
contribution of the damages inCurred, if any.
"SEVENTEENTH AFFIRMATIVE DEFENSE
(Uncertainty o? Damages)
l7. As a ’separatea‘nd affirmative defense to the, Complaint, DEFENDANT allegesany
recovery is barred because the; damages alleged are too uncertain, speculative, and impossible to
be deteimined.
EIGHTEENTH AFFIRMATIVE DEFENSE
(Destruction of Evidence/Damages, if any)
18. As a separate and affirmative defense to the-Complaint, Defendant alleges that parties
acting upon the direCtion of Plaintiff or others, destroyed or negligently or intentionally failed to
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secure, preserve or maintain evidence of'their-alleged damages thus ‘prejudici’ng Defendant and
depriving Defendant of any opportunity to determine or verify any amount claimed as damage
herein, :as well. as deprivingDefendant of the ability to inspect and/or test any item comprising the
‘3q
DEFENDANT BRIAN GRAHAM NEWTON‘S ANSWER TO RADlN C038 UNVE'RIFIED COMPLAINT;
REQUEST FOR JURY TRIAL
alleged damages herein. Such conduct constitutes intentional and/or negligent spoliation of
evidence, thereby barring or diminishing Plaintiffs recovery‘herein.
U) NINETEENTH AFFIRMATIVE DEFENSE
(Failure to Take Advantage of Corrective Opportunities)
NORM-Ft
19; Asa separate and affirmative defense to the Complaint, Defendant alleges the Complaint,
and each purported claim therein, is barred, in whole or in part, because Plaintiff failed to take
advantage of any preventative orcorrective.opportunities provided by Defendant to avoid harm or
00 otherwise.
TWENTIETH AEFIRMATIVE DEFENSE
(Indispensable Parties)
20. Asa separate. and affirmative defense to the Complaint, Defendant alleges that Plaintiff has
failed to name necessary and indispensable parties withOut whom the matter cannot be justly and
‘
adequately adjudicated.
TWENTY-FIRST AFFIRMAT IVE DEFENSE
(Statute of frauds)
21. As a separate and affirmative defense to theComplaint, Defendant alleges that Plaintiff" 3
claims are barred by the Statute of Frauds.
TWENTY-SECOND AFFIRMATIVE. DEFENSE
{No Breach by Defendant)
22. As a steparate and affinnative defense to the Coinplai‘nt, Defendant alleges that Defendant
performed all duties under the,c011n‘act(s) other than those duties which wei'e‘prevented or
. excused, and therefore never breached the agreementCS').
TWENTYEHIRD AFFIRMATIVE DEFENSE
(Substantial, Compliance)
‘
23. As a separate. and affirmative-defense to the Complaint, Defendant alleges that Defendant
substantially complied with the contract(s), leaving only a small part of the contract(‘S) undone (if
any), and that as aresult awarding the judgment in the favor of Plaintiff would be unjust and
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DEFENDANT BRIAN GRAHAM NEWTON’S—ANSWER TO RADIN CO.’S UNVERIFIED COMPLAINT:
REQUEST FOR JURY TRIAL
5—4
TWENTY-FOURTH AFFIRMATIVE DEFENSE
(Compliance with Laws)
24. Defendant has complied with all laws and regulations with regard to the Subject matter of
the Complaint, and is therefore not liable to Plaintiff for any darnages they may have sustained, if
any.
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TWENTY-FIFTH AFFIRMATIVE DEFENSE
(Justified C‘onduet)
i
25. The conduct of Defendant, with respect to‘the matters alleged in the Complaint, was
justified, and, by reason of the foregoing, Plaintiff is barred from anyprecovery against Defendant.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
(Patel Evidence Rule)
26. To the.extent‘that'Plaintitf (seeks recovery herein on any alleged Oral inqdifiCatiOn or
agreement, said recov'ery‘i's barred by reason of theaPa‘rol Evidence Rule.
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TWENTY—SEVENTH AFFIRMATIVE DEFENSE
(Penni‘ssible Conduct)
2.7. The conduct of Defendant,with respect to the matters alleged in the Complaint, Was
permissible, and, by'reason of the foregoing, Plaintiff is‘ barred frOm any recovery against
Defendant. ‘
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TWENTY-EIGHTH AFFIRMATIVE DEFENSE
(Actual Cause-.By'Plaintiff)
2,8. Defendant alleges that either Plaintiff and/o: Other parties were solely and «totally at fault
fer all of the matters referred to in the Complaint and, that such actions, negligence, and
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carelessness on “the. part of Plaintiff, and/or other parties amounted to One Hundred Percent
(100%) of th‘e'sol’e cause ofthe damages complained of by Plaintiff, if any, there'were.
TWENTY-NINTH AFFIRMATIVE DEFENSE
(Passive-Acts)
29. The alleged injuries, damages or'loss, if any; for which Plaintiff seeks recovery were the
[\D 00 result of causes independent of any purported acts or omissions on the part of Defendant, or any of
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DEFENDANT BRIAN GRAHAM NEWTON’S ANSWER TO RADIN CO.’S UNVERIFIED COMPLAlNT;
REQUEST FOR JURY‘TRlAL
its agents, representatiyes or empIOyees, thereby eliminating at reducing the alleged liability of
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Defendant.- Further, if Defendantis found to have been negligent Or liable in any manner, such
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negligence or liability was passive and seeondary, While the‘ negligence tar-liability of Plaintiff and
others was active and primaiy, and such active and briina‘iy'negli'genCe and liability bars, in whole
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or in part, any recovery against Defendant,
'THIRTIETH AFFIRMATIVE' DEFENSE
V
(Ade/Quate; Remedies atLaw.)
OO 30. Defendant alleges that any claims for; equitable’temedies including but not limited to
injiinctive and restitution remediesxare barred as adequate remedies, exist at law.
THIRTY—FIRST AFFIRMATIVE DEFENSE
(Unjust Enrichment)
3:1. Defendantalleges thatPl'aintiff‘is barred from‘re, action alleged in the Coinplaint'is barred, in whole or in part, because ”the .parties’ alleged
(.1! a‘greement(s) is/are unenforceable; due to the lack of definitetem'ts, lack of specificity and
ON ambiguity with; the existence of open material terms,
\I THIRTY-SIXT H AFFIRMATIVE DEFENSE
00 (No Consideration)
\O 36. As a separate and affirmiatiVe defense, Defendant alleges that (each and 'c’v’eiiy cause of
action alleged in the Complaint is barred, in, Whole or in part, because‘there was no consideration
for any alleged agreeinent(s) between the parties.
THIRTY-SEVEN TH AFFIRMAT'IVE DEFENSE
(Mistake).
37. As a separate and affirmative defense, Defendant alleges that each andeveiy cause of
action alleged in the'Complaint is batted, in whole or in part, by reason of the provisions of
sections 1'5 67, 1.5 76, 1577, and 1578, of the California Civil Code regarding mistake of fact and
law.
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THIRTY-EIGHT AFFIRMATIVE DEFENSE
(Barred-by Terms of Agreement(s))
3.8. As a'separate and affirmative defense; Defendant alleges that each and every cause of
.
aetion alleged in the Complaint is baited, in whole or in part, because of Plaintiff’s failure to
comply with the terms, conditions precedent and subsequent; limitations and exclusions contained
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‘in thetalleged agreement(s)'.
'
THIRTY-NINTH AF FIRMATIVE DEFENSE
(California’s Safe Harbor Doctrine)
39. As a separateandxaffirmative defense, Defendant'alleges that the cause of: action alleged in
the Complaint is barred, in whole or in part, under California’s safe harbor doctrine for conduct
N 00 that is permitted by the legislature,
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DEFENDANT BRIAN GRAHAM NEWTON’S ANSWER TO RADIN CO.‘S UNVERIFIED COMPLAINT;
REQUEST FOR .FURY TRIAL
‘FORTIETH AFFIRMATIVE DEFENSE
{Q (Litigation Privilege)
40! As a separate and affirmative defense, Defendant alleges that the cause of’a‘ction alleged .in
the Complaint is ban-ed; in whole grin part, under the litigation privilege.
FORTY-FIRST AFFIRMAT IVE DEFENSE
(No Damages)
41. As» agseparatei and affinnative defense, Defendant alleges that the cause offaction alleged in
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the Complaint is barred, in whole or in part, because Plaintiff has‘mot suffered any damages and
therefore is not entitled to any relief.
FORTY-SECOND AFFIRMATIVE DEFENSE
(Insufficient Kno‘wledge/Unstated Defense‘s)
42, As a separate; and affirmative defense to the Complaint, Defendant presently has
insufficientknowledge or-infonnation on which to £01111 a belief as to Whether it may have
additional, aS‘YetJunstated, defenses available. Defendant reserves herein the right to assert
additional defenses in the eyent discovery indiCateSthat they "would be appropriate.
FORTY—THIRD AFFIRMATIVE DEFENSE
(Lackjof Privity)
43. As a Separate and affirmatiVe defenseto the Complaint, the cause of action for breach of
contract is barred because Plaintiff has failed to allege the existence of an enforceable contract
between itself and Defendant.
FORTY-FORTH AFFIRMATIVE DEFENSE
(No Control over Hazardous Substances)
i
44. As a separate and affirmatiVe defense to the Complaint, Plaintiff is barred from recovery
by CERCLA§ 107 (b)(3), 42 U.S.C . § 9607(b)(3)? and the Carpenter-Presley-Tanner Hazardous
Substance Account Act ("HSAA"). , Cal; Health & Safety Code § 25323.5(b) because the actual or
threatened release ofhazardous substances alleged in the Complaint, if any, were caused solely by
theacts or omissions of persons or entities. over whom Defendant had no control, and who were
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DEFENDANT BRIAN GRAHAM NEWTON’S ANSWER TO RADIN CO.’S UNVERIFIED COMPLAIn
REQUEST FOR 11) RY TRIAL
not employees of and whose acts, or omissions did not occur in cennection With a Contractual
N relationship with Defendant;
FORTY-FIFTH AFFIRMATIVE DEFENSE
(Contribution and/or hidemnifiCationpursuantto CERCLA and ESSA)
45. As a separate and affirmative defense to the complaint, Defendant is informed and
believes and thereon alleges that if'he is liable for any portion of Plaintiff‘s alleged response costs,
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he is entitled to‘ contribution and/or'indemnificationfroni Plaintiff‘and third parties pursuant to 42
U.S.C . § 9613(0 and Cal. Health & Safety Code §-25363.
FORTY-«SIXTH AFFIRMATIVE DEFENSE
(Plaintiff is Responsible Party)
46. As a separate and affirmatiVe defense to the Cemplaint, Plaintiff cannot recover its costs-
of resp‘onse‘from Defendant pursuant 1:0542 U.S.C .§9607(a)(l) because Plaintiff itself is a
"responsible party" as the cu‘n‘en't owner of the subject property.
FORTY-SEVENTH AFFIRIVIATIVE DEFENSE
(No authority or centrol)
47. As aseparate and affirmative defense to the Complaint, Defendant is informed and
believes and thereon alleges that the damages, if any, suffered byPlaintiffwere proximately
Caused by the acts of third parties over which Defendant has no- authority or control.
FORTYJEIGHT AFFIRIVIATIVE DEFENSE
(Outside Scope of Agreement)
48. As a separate and affirmative defense Plaintiffscause of action for breach of contract is
barred b‘eCaus‘e Plaintiff has alleged a breach outside the scope of’the parties? agreemeiit(s),
FORTY-‘QINTH AFFIRMAT IVE DEFENSE
(CatchAll)
‘
49. As a separate and affirmative defense to the Complaint, Defendant reserves the right to
include any and all additional defenses not previously stated.
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DEFENDANT BRIAN GRAHAM NEWTON’S ANSWER"I’O RADIN GOES UNVERIFIED COMPLAINT;
REQUEST FOR .TiJRY TRIAL
3.. WHEREFQRE'DcfendanIPrayS, forjizéigilent as; fonows:
1. That Plaintiff take nothing What‘so‘exiér, by roason of the. Complaint ofafiy claims stated
thcrcin;
2. That’flie Complaintjand anyz'andiall‘ claims merein against Défendafit be dismissed with
prejudice;
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'3, That. if Defendant 1‘5» fOundLl/i‘eibl‘e; that, the-.degfee ’o’f‘fhe fiesponsiibflity afid liability‘for'the
resulting damages be appolfidned and that Defendant be heid liable, only for thatportion of
the total damages in proportion to its liabiiity'fo‘r the same, if any;
4. For/,reasonabi'e atto‘meyé’fefe's and cams- of‘sui’t ihCurredheréiIi; and
5. Th’agtfie Courtigramkslmh othér"and fin‘th‘éa‘lzi‘el'ief .asit'may dECrfi fist and proper.
RespQCtfiJlly submitted!
» DATED: April 18, 2.017 CASIELLéN &.FUNDERB,URK LLP
BY?
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; , -
en- A. Castcllon
Anna L. Le May
Attorneys fobDe’fendajnt‘
BRIANGRAHAM’NEWTON
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DEFENDANT BRIAN GRAHAM NEfifi’TON’S ‘AN'S WER TOTRADI'N C038 UNVERIFIED COMPLNNT‘.
REQUEST FQRJIJ R-Y TRIAL
H REQUEST FOR JURY TRIAL
Defendant BRIAN GRAHAM NEWTON rgquastjs 'tr‘igl by jury. Oil all, issues for Which,
there is: a right to trial b’yijury;
DATED: April L8? 2017 CASTELLON &.FUNDER_BURK=_ LLP
\beosnonmswiv.
By; "
Ruben A. Caste 1611
Anna L. Le :May‘,
Attorneys for Defendant
BRIAN-GRAHAM NEWTON
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DEFENDANTZBRI AN GRAHAM NEWTONES ANSWER TO RADIN (BOSS UNVERIFIED COMPLAINT;
REQUEST FOR‘ JURY TRIAL
.PROQF ”OF SERVICE
[0.01). § 1013,; C,R.C.§ 2.008, 1111.01). Rule 5]
I, Skarleht Samayoa, state:
I'am a citizen of the United States. My business address is 8.1 l Wilshire Boulevard, Suite
1025’L0s Angeles, CA 90017 I am employed in the City and County ofLos Angeles where this
‘\O:OQ\]O\Lh-ISU§,N*—‘
mailing oCc’urs. I‘afrn over the age of eighteen years and not a party to this action.- On the. date
set forth below, I caused to be Served the foregoing decument described as:
DEFENDANT BRIAN GRAHAM NEWTON’SZANSWER T0 RADIN CORS
UNVERIFIED COMPLAINT; REQUEST FOR JURY TRIAL
addressed as follows:
Stephen D; Pahl
Sonia S. Shah
PAHL &. McCAY‘
225 West SantaClara Street, Suite 1500
San Jose, CA 95113
'Tel: 408486—5100
Fax: 08386-5722
spahl@pahl-niccay.com
sshah@pahl-rnccay.corn
OXOOOflll-PUJNP—‘4O
X; BY FIRST CLASS MAIL - I am readily familiar with my firm’s practice for collection
and processing of correspondence for mailing with the United States Postal S’er’viCe, to-wit. that
correspondence will be deposited with the United StatesPostal Service this same day in the
ordinary course of business. I sealed said envelope and placed it for collection and mailing this
,date, following ordinary business practices.
BY F-ACSIMILE - .I' causedsaid document to be transmitted‘by Facsimile machine to the.
number indicated after the address(es) noted above. (As courtesy copy only)
21 BY E-MAIL - I personally set a true copy in PDF format to the e-rnail address(es) noted
above.
22
BY OVERNIGHT DELIVERY- I caused said document to be transmitted by Federal
23
Express overnight delivery on the next business day to counsel at the address(es) noted above
24 (To Counsel for Defendants, deposited on [add date here] at 811 Wilshire Blvd, Suite 1025, Los
Angeles CA 90017-2606. Los Angeles, California}
25‘
26‘ . BY PERSONAL SERVICE — First Legal Services directed to serve each envelope(s) by
hand to the offices of the addressee(s),
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PROOF OF SERVICE
I (3601n under penalty ofpjefipry under the'laws ,of thi? State of C'alifomia that the
foregol'ing‘is true and Ceect zandfllat this declaratiQn was executed this datesat Los A11,cg’c‘31“esg
California. .
April 12, 2017
Skarleht‘ Samayoa
[\J .o,
PROOF OF SERVICE
Preview
Ruben/A. Castellén (SBN 154610) 1 Anna‘L. Le,May (SEN 258312) FILEE 2 CASTELLON &' FUNDERBURK LLP‘ SAN MATEO COUNTY 811 Wilshire Boulevard, Suite 102-5 3 Los Angeles, California 90017 Telephone: (213) 623—75 15 4 Facsimile: (213) 532-3984 5 Attorneys for Defendant, "BRIAN GRAHAM NEWTON 6 7 :2 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA SE, | llllll IN AND FOR THE COUNTY OF SAN NIATEO l 9 3—; 10 lllllllllllllllllll a 11 RADIN 00.1, A CALIFORNIA LIMITED Case No. 17CIV0061,9 32’ g PARTNERSHIP, 12 JUDGE: EDE g .i e “E a" \HI DEPARTMENT: 51- ‘_'_“ 13 ‘ Plaintiff, Complaint Filed: Febmaiy 10, 2017 14 V. Trial Date: Not Set 15 GLORIA TSUYAJI YAMAUCHI, _ DEFENDANT BRIAN GRAHAM PATRICIA CAMPBELL, BRIAN \ NEWTON’S ANSWER TO RADIN Cox’s ' 16 GRAHAM NEWTON, THOMAS GAVIN UNVERIFIED COMPLAINT; REQUEST NEWTON, and DOES l throughQO, FOR JURY TRIAL 17 inclusive, 1 g Defendants. 19 20 21 Defendant BRIAN GRAHAM NEWTON (hereinafter “‘Defendant”)§ hereby answers the 22 Complaint filed on ‘Febmar'y 10, 2017 by‘Plaintiff RADIN CO. (hereinafter “Plaintift"). GENERAL DENIAL Hal 23 24 Pursuant‘to California Code of Civil Procedure, Section 431.30, Defendant denies 25 generally and specifically each and every cause of action and every allegation contained in 26 Plaintiff sunverified Complaint and further, generally and specifically denies that Plaintiff has r—* \.__._ sustained any damage or injury or is entitled to any relief or recovery whatsoever. (0] 27 /// 28 1 DEFENDANT BRIAN GRAHAM NEWTONiS ANSWER TO RADIN CO.’S UNVERIFIED COMPLAINT; REQUEST 'FOR 1U RY TRIAL y.— Further answering-the Complaint, and the wholethereof, including the cause of aetion contained. therein, Defendant .denies that Plaintiff has or will sustain, any injury, damage; or less, including buttnot. limited to attorneys" fees, costs, and/pr expensesi if any, by reason of any act or omission, fault or negligence on- the paitof Defendant, its‘agent'sxseivants and‘einploy'e’es, or any of them. FIRST AFFIRMATIVE DEFENSE \Ooqxk/I'kN (Failure to State a Claim) ‘1. As a separate and affirmative defense to the Complaint, Defendant alleges that the Complaint and the cause of action therein fails to sufficiently state a claim againSt Defendant upon which relief can be granted. SECOND AFFIRMATIV E DEFENSE (Uncertain Complaint) 2. TheCompl‘aint', and the cause of action alleged therein, is not pled With‘s'ufiiCie'nt particularity to provide notice to Defendant of the claims, rendering the Complaint uncertain. THIRD AFFIRMATIVE DEFENSE (Laék of Standing) 3. As aiseparate and affirmative defense to the Complaint, Defendant alleges that Plaintiff lacks, standing to allege a cause of action against Defendant, and lacks standing to allege a cause of action ‘on behalf of any other person, entity, or thild party. FOURTH .AFFIRMATIVE DEFENSE (Laches and Due Diligence) 4. As a-sep‘arate and affninative-defense to the Complaint, Defendant alleges that any pros‘pectivérééovery herein is barred by the equitable doctrine of laches by virtue of' Plaintiff‘s unreasonable delay in commencing this action. FIFTH AFFIRMATIVE~ DEFENSE (Unclean Hands) 5. Asa separate and affirmative defense to the Complaint, Defendant alleges that'any prospective recovery hereinis ban‘ed by the equitable doctrine of unclean hands. 2 DEFENDANT BRIAN GRAHAM NEWTON’S ANSWER TO. RADIN C038 .UNVERIFIED COMPLAINT; REQUEST FOR JURY TRIAL p...‘ ,SXXTH AFFIRMATIVE DEFENSE (Waiver) 6.. As aseparate and affirmative defense to the Complaint, Defendant alleges that Plaintiff is barred from assertingany claims-or causes of action stated in the Complaint by rea'Son of its eonductWhich-constitutes a waiver of any such purported cause 'of action or claims. SEVENTH AFFIRMATIVE DEFENSE (Estoppel) 7. As a separate and affirmative defense to the Complaint, Defendant alleges that any prospective recovery herein is barred by the equitable doctrine of estoppeh i EIGHTH AFFIRMA‘TIVE DEFENSE (Statute ofLimitations) 8. Asa separate and affirmative defense to the Complaint, Defendant alleges that Plaintiff 5 claims‘,‘ demands, and causeof action are forever barred by the applicable statute of limitations, including butnot limited to California Code of Civil Procedure sections 312, 337, 337.1, 338, and 339. NINTHAF F IRMATIVE DEFENSE (Failure to Mitigate) 9,, As atseparate‘and affirmatiVe defense to the Complaint, Defendant alleges that at all times herein, Plaintiff has failed to mitigate, reduce, or otherwise avoid “all Off Some portion of the alleged damages, if any,- thus barring any recovery herein. TENTH AFFIRMATIVE DEFENSE (Setoff Due to Defendant’sDamages) 10. As a separate and affirmative defense to the Complaint, Defendant alleges that damages suffered by Plaintiff, if any, are set off/by an equal 0r greater ainount of damages suffered by Defendant as a result of Plaintiff 5 acts er Omissions. - /// /// /'// '3 DEFENDANT BRIAN GRAHAM NEW TON’S ANSWER .TO RADIN C038 ,UNVERIFIED COMPLAINT; REQUEST FOR JU RY'TR'I AL ELEVENTH AFFIRMATIVEI DEFENSE: N (Setoff Due to Collateral Source) .1 1. As ar‘separate and affiimat’ive defense to the Complaint, Defendant alleges that if Plaintiff 4x2» is found to be entitled to recover costs or damages against Defendant, which entitlement Defendant denies, such recovery must be reduced by any and all amounts previously or“ otherwise obtained by Plaintiff whether by direct payment, offset, or otherwise for the alleged damages, if any; "TWELF'I'H AFFIRM’ATIVE DEFENSE (Negligence ofPlaintiff) 12. As aseparate «and affirmative defense to the Complaint, Defendant alleges that any and all events and happenings in 'connection with the incidents and matters referred to in the Complaint, and the resulting injuries or damages, if any, referred to therein were solely and proximately caused and'contributed to by the negligence and carelessness ofPlaintiff; in that Plaintiff failed to exercise ordinary care and Caution that individuals; or the employees or agents of an ordinarily prudent'company (‘or other legalientity) would have eXercised in the same o‘rsimilar circumstances. THIRTEENTH AFFIRMATIVE DEFENSE“ (Negligence of (Third Parties) 13.} As a separate and 7affirmative defense to the Complaint, Defendant alleges that Plaintiffs injuries and damages: if any, Were proximately Causedand contributed to by the negligence of ‘ third parties other than Defendant. FOURTEEN TH AFFIRNIATI‘VE DEFENSE : (Complaint Brought Without Reasonable Cause) 14. As‘ a separate and 'affinna‘tiVe defense to. the Complaint, Defendant is informed and believes and on that basis alleges that the Complaint was brought without reasonable cause and ' with a good faith belief that there was a juStifiable controversy under the facts or law which warranted the filing of the Complaint against Defendant. Plaintiff should therefore be responsible 4 DEFENDANT BRIAN GRAHAM NEWTON’S-ANSWER ro RADIN coxs UNVERIFIED COMPLAINT; REQUEST FOR JURY TRIAL for all reasonable defense costs, including attomey fees; incurred by Defendant, pursuant to, Code of Civil Procedure §4§ 128.5; 103 8,_-and other laws cfthis State that provide for such jrecOvery. b.) FIFTEENTH AF FIRMAT IVE DEFENSE (Indemnity) 15. As aseparate and affirmative defense to the Complaint, Defendant alleges that if Plaintiff, orany other entityfies), are found to be entitled to recover costs 01: damages against Defendant, \Ooo-QQMA which entitlement Defendant. denies, such recovery must be indemnified by Plaintiff or other third parties by operation of the principles of contractual or equitable indemnity. SIXTEENTH AFFIRMATIVE DEFENSE (Contribution) 16. As a separate and affirmative defense to the Complaint, Defendant alleges that if Plaintiff or any other entityfiies)‘ are found to be entitled'to recover cests or damages against Defendant, which entitlement DEFENDANT denies, “such recovery niust be reduced to that degree of the responsibility and liability for the resulting damages attribhtable‘ to Plaintiff or any other party’s contribution of the damages inCurred, if any. "SEVENTEENTH AFFIRMATIVE DEFENSE (Uncertainty o? Damages) l7. As a ’separatea‘nd affirmative defense to the, Complaint, DEFENDANT allegesany recovery is barred because the; damages alleged are too uncertain, speculative, and impossible to be deteimined. EIGHTEENTH AFFIRMATIVE DEFENSE (Destruction of Evidence/Damages, if any) 18. As a separate and affirmative defense to the-Complaint, Defendant alleges that parties acting upon the direCtion of Plaintiff or others, destroyed or negligently or intentionally failed to . secure, preserve or maintain evidence of'their-alleged damages thus ‘prejudici’ng Defendant and depriving Defendant of any opportunity to determine or verify any amount claimed as damage herein, :as well. as deprivingDefendant of the ability to inspect and/or test any item comprising the ‘3q DEFENDANT BRIAN GRAHAM NEWTON‘S ANSWER TO RADlN C038 UNVE'RIFIED COMPLAINT; REQUEST FOR JURY TRIAL alleged damages herein. Such conduct constitutes intentional and/or negligent spoliation of evidence, thereby barring or diminishing Plaintiffs recovery‘herein. U) NINETEENTH AFFIRMATIVE DEFENSE (Failure to Take Advantage of Corrective Opportunities) NORM-Ft 19; Asa separate and affirmative defense to the Complaint, Defendant alleges the Complaint, and each purported claim therein, is barred, in whole or in part, because Plaintiff failed to take advantage of any preventative orcorrective.opportunities provided by Defendant to avoid harm or 00 otherwise. TWENTIETH AEFIRMATIVE DEFENSE (Indispensable Parties) 20. Asa separate. and affirmative defense to the Complaint, Defendant alleges that Plaintiff has failed to name necessary and indispensable parties withOut whom the matter cannot be justly and ‘ adequately adjudicated. TWENTY-FIRST AFFIRMAT IVE DEFENSE (Statute of frauds) 21. As a separate and affirmative defense to theComplaint, Defendant alleges that Plaintiff" 3 claims are barred by the Statute of Frauds. TWENTY-SECOND AFFIRMATIVE. DEFENSE {No Breach by Defendant) 22. As a steparate and affinnative defense to the Coinplai‘nt, Defendant alleges that Defendant performed all duties under the,c011n‘act(s) other than those duties which wei'e‘prevented or . excused, and therefore never breached the agreementCS'). TWENTYEHIRD AFFIRMATIVE DEFENSE (Substantial, Compliance) ‘ 23. As a separate. and affirmative-defense to the Complaint, Defendant alleges that Defendant substantially complied with the contract(s), leaving only a small part of the contract(‘S) undone (if any), and that as aresult awarding the judgment in the favor of Plaintiff would be unjust and 6 DEFENDANT BRIAN GRAHAM NEWTON’S—ANSWER TO RADIN CO.’S UNVERIFIED COMPLAINT: REQUEST FOR JURY TRIAL 5—4 TWENTY-FOURTH AFFIRMATIVE DEFENSE (Compliance with Laws) 24. Defendant has complied with all laws and regulations with regard to the Subject matter of the Complaint, and is therefore not liable to Plaintiff for any darnages they may have sustained, if any. ‘OOOQO‘xLo-D-DJN TWENTY-FIFTH AFFIRMATIVE DEFENSE (Justified C‘onduet) i 25. The conduct of Defendant, with respect to‘the matters alleged in the Complaint, was justified, and, by reason of the foregoing, Plaintiff is barred from anyprecovery against Defendant. TWENTY-SIXTH AFFIRMATIVE DEFENSE (Patel Evidence Rule) 26. To the.extent‘that'Plaintitf (seeks recovery herein on any alleged Oral inqdifiCatiOn or agreement, said recov'ery‘i's barred by reason of theaPa‘rol Evidence Rule. «up-JHI—At—Ier—Ar—‘i—a TWENTY—SEVENTH AFFIRMATIVE DEFENSE (Penni‘ssible Conduct) 2.7. The conduct of Defendant,with respect to the matters alleged in the Complaint, Was permissible, and, by'reason of the foregoing, Plaintiff is‘ barred frOm any recovery against Defendant. ‘ {jam-Am‘mr—o‘gop‘xlvoxmgwwwo TWENTY-EIGHTH AFFIRMATIVE DEFENSE (Actual Cause-.By'Plaintiff) 2,8. Defendant alleges that either Plaintiff and/o: Other parties were solely and «totally at fault fer all of the matters referred to in the Complaint and, that such actions, negligence, and IQNN"NL\JN carelessness on “the. part of Plaintiff, and/or other parties amounted to One Hundred Percent (100%) of th‘e'sol’e cause ofthe damages complained of by Plaintiff, if any, there'were. TWENTY-NINTH AFFIRMATIVE DEFENSE (Passive-Acts) 29. The alleged injuries, damages or'loss, if any; for which Plaintiff seeks recovery were the [\D 00 result of causes independent of any purported acts or omissions on the part of Defendant, or any of 7 DEFENDANT BRIAN GRAHAM NEWTON’S ANSWER TO RADIN CO.’S UNVERIFIED COMPLAlNT; REQUEST FOR JURY‘TRlAL its agents, representatiyes or empIOyees, thereby eliminating at reducing the alleged liability of ' Defendant.- Further, if Defendantis found to have been negligent Or liable in any manner, such 1 negligence or liability was passive and seeondary, While the‘ negligence tar-liability of Plaintiff and others was active and primaiy, and such active and briina‘iy'negli'genCe and liability bars, in whole «mute-who or in part, any recovery against Defendant, 'THIRTIETH AFFIRMATIVE' DEFENSE V (Ade/Quate; Remedies atLaw.) OO 30. Defendant alleges that any claims for; equitable’temedies including but not limited to injiinctive and restitution remediesxare barred as adequate remedies, exist at law. THIRTY—FIRST AFFIRMATIVE DEFENSE (Unjust Enrichment) 3:1. Defendantalleges thatPl'aintiff‘is barred from‘re, action alleged in the Coinplaint'is barred, in whole or in part, because ”the .parties’ alleged (.1! a‘greement(s) is/are unenforceable; due to the lack of definitetem'ts, lack of specificity and ON ambiguity with; the existence of open material terms, \I THIRTY-SIXT H AFFIRMATIVE DEFENSE 00 (No Consideration) \O 36. As a separate and affirmiatiVe defense, Defendant alleges that (each and 'c’v’eiiy cause of action alleged in the Complaint is barred, in, Whole or in part, because‘there was no consideration for any alleged agreeinent(s) between the parties. THIRTY-SEVEN TH AFFIRMAT'IVE DEFENSE (Mistake). 37. As a separate and affirmative defense, Defendant alleges that each andeveiy cause of action alleged in the'Complaint is batted, in whole or in part, by reason of the provisions of sections 1'5 67, 1.5 76, 1577, and 1578, of the California Civil Code regarding mistake of fact and law. Lgfismmwoomqmmswwr—Io THIRTY-EIGHT AFFIRMATIVE DEFENSE (Barred-by Terms of Agreement(s)) 3.8. As a'separate and affirmative defense; Defendant alleges that each and every cause of . aetion alleged in the Complaint is baited, in whole or in part, because of Plaintiff’s failure to comply with the terms, conditions precedent and subsequent; limitations and exclusions contained i ‘in thetalleged agreement(s)'. ' THIRTY-NINTH AF FIRMATIVE DEFENSE (California’s Safe Harbor Doctrine) 39. As a separateandxaffirmative defense, Defendant'alleges that the cause of: action alleged in the Complaint is barred, in whole or in part, under California’s safe harbor doctrine for conduct N 00 that is permitted by the legislature, 9 DEFENDANT BRIAN GRAHAM NEWTON’S ANSWER TO RADIN CO.‘S UNVERIFIED COMPLAINT; REQUEST FOR .FURY TRIAL ‘FORTIETH AFFIRMATIVE DEFENSE {Q (Litigation Privilege) 40! As a separate and affirmative defense, Defendant alleges that the cause of’a‘ction alleged .in the Complaint is ban-ed; in whole grin part, under the litigation privilege. FORTY-FIRST AFFIRMAT IVE DEFENSE (No Damages) 41. As» agseparatei and affinnative defense, Defendant alleges that the cause offaction alleged in \DOOQOY the Complaint is barred, in whole or in part, because Plaintiff has‘mot suffered any damages and therefore is not entitled to any relief. FORTY-SECOND AFFIRMATIVE DEFENSE (Insufficient Kno‘wledge/Unstated Defense‘s) 42, As a separate; and affirmative defense to the Complaint, Defendant presently has insufficientknowledge or-infonnation on which to £01111 a belief as to Whether it may have additional, aS‘YetJunstated, defenses available. Defendant reserves herein the right to assert additional defenses in the eyent discovery indiCateSthat they "would be appropriate. FORTY—THIRD AFFIRMATIVE DEFENSE (Lackjof Privity) 43. As a Separate and affirmatiVe defenseto the Complaint, the cause of action for breach of contract is barred because Plaintiff has failed to allege the existence of an enforceable contract between itself and Defendant. FORTY-FORTH AFFIRMATIVE DEFENSE (No Control over Hazardous Substances) i 44. As a separate and affirmatiVe defense to the Complaint, Plaintiff is barred from recovery by CERCLA§ 107 (b)(3), 42 U.S.C . § 9607(b)(3)? and the Carpenter-Presley-Tanner Hazardous Substance Account Act ("HSAA"). , Cal; Health & Safety Code § 25323.5(b) because the actual or threatened release ofhazardous substances alleged in the Complaint, if any, were caused solely by theacts or omissions of persons or entities. over whom Defendant had no control, and who were 10 DEFENDANT BRIAN GRAHAM NEWTON’S ANSWER TO RADIN CO.’S UNVERIFIED COMPLAIn REQUEST FOR 11) RY TRIAL not employees of and whose acts, or omissions did not occur in cennection With a Contractual N relationship with Defendant; FORTY-FIFTH AFFIRMATIVE DEFENSE (Contribution and/or hidemnifiCationpursuantto CERCLA and ESSA) 45. As a separate and affirmative defense to the complaint, Defendant is informed and believes and thereon alleges that if'he is liable for any portion of Plaintiff‘s alleged response costs, \oeoxaoxmgsw he is entitled to‘ contribution and/or'indemnificationfroni Plaintiff‘and third parties pursuant to 42 U.S.C . § 9613(0 and Cal. Health & Safety Code §-25363. FORTY-«SIXTH AFFIRMATIVE DEFENSE (Plaintiff is Responsible Party) 46. As a separate and affirmatiVe defense to the Cemplaint, Plaintiff cannot recover its costs- of resp‘onse‘from Defendant pursuant 1:0542 U.S.C .§9607(a)(l) because Plaintiff itself is a "responsible party" as the cu‘n‘en't owner of the subject property. FORTY-SEVENTH AFFIRIVIATIVE DEFENSE (No authority or centrol) 47. As aseparate and affirmative defense to the Complaint, Defendant is informed and believes and thereon alleges that the damages, if any, suffered byPlaintiffwere proximately Caused by the acts of third parties over which Defendant has no- authority or control. FORTYJEIGHT AFFIRIVIATIVE DEFENSE (Outside Scope of Agreement) 48. As a separate and affirmative defense Plaintiffscause of action for breach of contract is barred b‘eCaus‘e Plaintiff has alleged a breach outside the scope of’the parties? agreemeiit(s), FORTY-‘QINTH AFFIRMAT IVE DEFENSE (CatchAll) ‘ 49. As a separate and affirmative defense to the Complaint, Defendant reserves the right to include any and all additional defenses not previously stated. /// /// ll DEFENDANT BRIAN GRAHAM NEWTON’S ANSWER"I’O RADIN GOES UNVERIFIED COMPLAINT; REQUEST FOR .TiJRY TRIAL 3.. WHEREFQRE'DcfendanIPrayS, forjizéigilent as; fonows: 1. That Plaintiff take nothing What‘so‘exiér, by roason of the. Complaint ofafiy claims stated thcrcin; 2. That’flie Complaintjand anyz'andiall‘ claims merein against Défendafit be dismissed with prejudice; komfilQUI-FWN '3, That. if Defendant 1‘5» fOundLl/i‘eibl‘e; that, the-.degfee ’o’f‘fhe fiesponsiibflity afid liability‘for'the resulting damages be appolfidned and that Defendant be heid liable, only for thatportion of the total damages in proportion to its liabiiity'fo‘r the same, if any; 4. For/,reasonabi'e atto‘meyé’fefe's and cams- of‘sui’t ihCurredheréiIi; and 5. Th’agtfie Courtigramkslmh othér"and fin‘th‘éa‘lzi‘el'ief .asit'may dECrfi fist and proper. RespQCtfiJlly submitted! » DATED: April 18, 2.017 CASIELLéN &.FUNDERB,URK LLP BY? ' ; , - en- A. Castcllon Anna L. Le May Attorneys fobDe’fendajnt‘ BRIANGRAHAM’NEWTON *o-z‘mmNNv—«r—rr—“rh-‘P‘r-‘HHH $1883Ew‘w’Ho.$ooo:'\1,o\~Uut-lk‘wN‘HO '12 DEFENDANT BRIAN GRAHAM NEfifi’TON’S ‘AN'S WER TOTRADI'N C038 UNVERIFIED COMPLNNT‘. REQUEST FQRJIJ R-Y TRIAL H REQUEST FOR JURY TRIAL Defendant BRIAN GRAHAM NEWTON rgquastjs 'tr‘igl by jury. Oil all, issues for Which, there is: a right to trial b’yijury; DATED: April L8? 2017 CASTELLON &.FUNDER_BURK=_ LLP \beosnonmswiv. By; " Ruben A. Caste 1611 Anna L. Le :May‘, Attorneys for Defendant BRIAN-GRAHAM NEWTON b—II—lk-l NH0 14 15: 16 17 108; 19‘ 21 2:2; 23 ‘24 26 27: 28' 13 DEFENDANTZBRI AN GRAHAM NEWTONES ANSWER TO RADIN (BOSS UNVERIFIED COMPLAINT; REQUEST FOR‘ JURY TRIAL .PROQF ”OF SERVICE [0.01). § 1013,; C,R.C.§ 2.008, 1111.01). Rule 5] I, Skarleht Samayoa, state: I'am a citizen of the United States. My business address is 8.1 l Wilshire Boulevard, Suite 1025’L0s Angeles, CA 90017 I am employed in the City and County ofLos Angeles where this ‘\O:OQ\]O\Lh-ISU§,N*—‘ mailing oCc’urs. I‘afrn over the age of eighteen years and not a party to this action.- On the. date set forth below, I caused to be Served the foregoing decument described as: DEFENDANT BRIAN GRAHAM NEWTON’SZANSWER T0 RADIN CORS UNVERIFIED COMPLAINT; REQUEST FOR JURY TRIAL addressed as follows: Stephen D; Pahl Sonia S. Shah PAHL &. McCAY‘ 225 West SantaClara Street, Suite 1500 San Jose, CA 95113 'Tel: 408486—5100 Fax: 08386-5722 spahl@pahl-niccay.com sshah@pahl-rnccay.corn OXOOOflll-PUJNP—‘4O X; BY FIRST CLASS MAIL - I am readily familiar with my firm’s practice for collection and processing of correspondence for mailing with the United States Postal S’er’viCe, to-wit. that correspondence will be deposited with the United StatesPostal Service this same day in the ordinary course of business. I sealed said envelope and placed it for collection and mailing this ,date, following ordinary business practices. BY F-ACSIMILE - .I' causedsaid document to be transmitted‘by Facsimile machine to the. number indicated after the address(es) noted above. (As courtesy copy only) 21 BY E-MAIL - I personally set a true copy in PDF format to the e-rnail address(es) noted above. 22 BY OVERNIGHT DELIVERY- I caused said document to be transmitted by Federal 23 Express overnight delivery on the next business day to counsel at the address(es) noted above 24 (To Counsel for Defendants, deposited on [add date here] at 811 Wilshire Blvd, Suite 1025, Los Angeles CA 90017-2606. Los Angeles, California} 25‘ 26‘ . BY PERSONAL SERVICE — First Legal Services directed to serve each envelope(s) by hand to the offices of the addressee(s), 27 28 PROOF OF SERVICE I (3601n under penalty ofpjefipry under the'laws ,of thi? State of C'alifomia that the foregol'ing‘is true and Ceect zandfllat this declaratiQn was executed this datesat Los A11,cg’c‘31“esg California. . April 12, 2017 Skarleht‘ Samayoa [\J .o, PROOF OF SERVICE