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Ruben A. Castellon (SBN 154610)
Anna L Le May (SBN 258312)
Ix.) CASTELLON & FUNDERBURK LLP
811 Wilshire Boulevard Suite 1025
L2: Los Angeles, California 90017
Telephone: (213) 623—751 5
Facsimile: (213) 532-3984
Attorneys for Defendant, GLORIA YAMAUCHI
\10\
811:1
SUPERIOR COURT OF THE STATE OF CALIFORNIA 5a
IN AND FOR THE COUNTY OF SAN MATEO mg.
RADIN CO., A CALIFORNIA LIMITED Case No. 17CIV00619
PARTNERSHIP,
DEFENDANT GLORLA YAMAUCHI’S
ANSWER TO RADIN C038 UNVERIFIED
Plaintiff, COMPLAINT; REQUEST FOR JURY
TRIAL
V.
Complaint Filed: May 23, 2017
GLORIA TSUYAJ I YAMAUCHI, Trial Date: Not Set
PATRICIA CAMPBELL, BRIAN
GRAHAM NEWTON, THOMAS GAVIN .
17_cn,_00519
NEWTON, and DOES 1 through 20, mm
inclusive, 991351117er/Hesponselnenial (No Fee)
II lIllIllllllllllllll ll ll!
Defendant GLORIA TSUYAKO YAMAUCHI, erroneously sued as “GLORIA TSUYAI I
YAMAUCHI” (hereinafter “Defendant”), hereby answers the Complaint filed on May 23, 2017 by
Plaintiff RADIN CO. (hereinafter “Plaintiff ’).
GENERAL DENIAL
Pursuant to California Code of Civil Procedure, Section 431.30, Defendant denies
generally and specifically each and every cause of action and every allegation contained in
Plaintiff‘s unverified Complaint and further, generally and specifieally denies that Plaintiff has
sustained any damage or injury or is entitled to any relief or recovery whatsoever.
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DEFENDANT GLORIA X’AMAUCHI‘S ANSWER TO RADIN C038 UNVERIFIED COMPLAINT; REQUEST
FOR JURY TRIAL
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Further answering the Complaint, and the whole thereof, including thecause of action
[\J contained therein, Defendant denies that Plaintiff has or will sustain any injury, damage, or loss,
D.)
including but not limited to attorneys’ fees, costs, and/or expenses, if any, by reason of any act or
omission, fault or negligence on the part of Defendant, its agents, servants and employees, or any
of them.
FIRST AFFIRMATIV E DEFENSE
\]O\
(Failure to State a Claim)
00 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 AFFIRMATIVE DEFENSE
(Uncertain Complaint)
2. The Complaint, and the cause of action alleged therein, is not pled with sufficient
particularity to provide notice to Defendant of the claims, rendering the Complaint uncertain.
THIRD AFFIRMATI’VE DEFENSE
(Lack of Standing)
3. As a separate and affinnative 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 third party.
FOURTH AFFIRMATIVE DEFENSE
(Laches and Due Diligence)
4. As a separate and affirmative defense to the Complaint, Defendant alleges that any
prospective recovery herein is barred by the equitable doctrine of laches by virtue of Plaintiff‘s
unreasonable delay in commencin g this action.
FIFTH AFFIRlVIATIVE DEFENSE
(Uncleau Hands)
5. As a separate and affirmative defense to the Complaint, Defendant alleges that any
prospective recovery herein is barred by the equitable doctrine of unclean hands.
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DEFENDANT GLORIA TSUYAJI YAMAUCHI’S ANSWER TO RADIN CO.’S UNVERIFIED COMPLAINT;
REQUEST FOR JURY TRlAL
SIXTH AFFIRMATIVE DEFENSE
(Waiver)
6. As a separate and affirmative defense to the Complaint, Defendant alleges that Plaintiff is
barred from asserting any claims or causes of action stated in the Complaint by reason of its
conduct which 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 estoppel.
EIGHTH AFFIRMATIVE DEFENSE
(Statute of Limitations)
8. As a separate and affirmative defense to the Complaint, Defendant alleges that Plaintiff 5
claims, demands, and cause of action are forever barred by the applicable statute of limitations,
including but not limited to California Code of Civil Procedure sections 312, 337, 337.1, 338, and
3‘3 9.
NINTH AFFIRMATIVE DEFENSE
(Failure to Mitigate)
9. As a separate and affirmative defense to the Complaint, Defendant alleges that at all times
herein, Plaintiff has failed to mitigate, reduce, or otherwise avoid all or some portion of the alleged
damages, if any, thus barring any recovery herein.
TENTH AFFIRMATIVE DEFENSE
(Setoff Due to Defendant’s Damages)
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 or greater amount of damages suffered by
Defendant as a result of Plaintiff’s acts or omissions.
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DEFENDANT GLORIA TSUYAJI YAMAUCHI‘S ANSWER TO RADIN CO.’S UNVERIFIED COMPLAINT;
REQUEST FOR JURY TRlAL
ELEVENTH AFFIRMATIVE DEFENSE
Ix) (Setoff Due to Collateral Source)
U) 11. Asa separate and affirmative defense to the Complaint, Defendant alleges that if Plaintiff
.1: 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
\IONUI obtained by Plaintiff whether by direct payment, offset, or otherwise for the alleged damages, if
any.
TWELF TH AFFIRMATIVE DEFENSE
(Negligence of Plaintiff)
12. As a separate 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 of Plaintiff, in that Plaintiff failed to
exercise ordinary care and caution that individuals or the employees or agents of an ordinarily
prudent company (or other legal entity) would have exercised in the same or similar
circumstances.
THIRTEENTH AFFIRMATIVE DEFENSE
(Negligence of Third Parties)
13. As a separate and affirmative defense to the Complaint, Defendant alleges that Plaintiffs
injuries and damages, if any, were proximately caused and contributed to by the negligence of
third parties other than Defendant.
FOURTEENTH AFFIRMATIVE DEFENSE
(Complaint Brought Without Reasonable Cause)
14. As a separate and affirmative 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
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DEFENDANT GLORIA TSUYAJI YAMAUCHI’S ANSWER TO RADIN COJS UNVERIFIED COMPLAINT;
REQUEST FOR JURY TRIAL
for all reasonable defense costs, including attorney fees, incurred by Defendant pursuant to Code
of Civil Procedure §§ 128.5, 1038, and other laws of this State that provide for such recovery.
FIFTEENTH AFFIRJVIATIVE DEFENSE
(Indemnity)
15. As a separate and affirmative defense to the Complaint, Defendant alleges that if Plaintiff,
or any other entity(i es), are found to be entitled to recover costs or damages against Defendant,
which entitlement Defendant denies, such recovery must be indemnified by Plaintiff or other third
parties by operation of the principles of contractual or equitable indermrity.
SIXTEENTH AFFIRMATIVE DEFENSE
(Contribution)
16. As a separate and affirmative defense to the Complaint, Defendant alleges that if Plaintiff
or any other entity(ies) are found to be entitled to recover costs or damages against Defendant,
which entitlement DEFENDANT denies, such recovery must be reduced to that degree of the
responsibility and liability for the resulting damages attributable to Plaintiff or any other party’s
contribution of the damages incurred, if any.
SEVENTEENTH AFFIRMATIVE DEFENSE
(Uncertainty of Damages)
17. As a separate and affinnative defense to the Complaint, DEFENDANT alleges any
recovery is barred because the damages alleged are too uncertain, speculative, and impossible to
be determined.
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 prejudicing Defendant and
depriving Defendant of any opportunity to determine or verify any amount claimed as damage
herein, as well as depriving Defendant of the ability to inspect and/or test any item comprising the
3.
DEFENDANT GLORIA TSUYAJI YAMAUCHI’S ANSWER TO RADIN C035 UNVERIFIED COMPLAINT;
REQUEST FOR JURY TR} AL
alleged damages herein. Such conduct constitutes intentional and/or negligent spoliation of
evidence, thereby barring or diminishing Plaintiff‘s recovery herein.
NINETEENTH AFFIRMATIVE DEFENSE
(Failure to Take Advantage of Corrective Opportunities)
19. As a 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 or corrective opportunities provided by Defendant to avoid harm or
otherwise.
TWENTIETH AFFIRMATIVE DEFENSE
(Indispensable Parties)
20. As a 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 AFFIRMATIVE DEFENSE
(Statute of Frauds)
21. As a separate and affirmative defense to the Complaint, Defendant alleges that Plaintiff 5
claims are barred by the Statute of Frauds.
TWENTY-SECOND AFFIRMATIVE DEFENSE
(No Breach by Defendant)
22. As a separate and affirmative defense to the Complaint, Defendant alleges that Defendant
performed all duties under the contract(s) other than those duties which were prevented or
excused, and therefore never breached the agreement(s).
[\2 Lu TWENTY—THIRD AF F IRNIATIVE DEFENSE
[\J 4: (Substantial Compliance)
lx) U1 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 a result awarding the judgment in the favor of Plaintiff would be unjust and
unfair.
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DEFENDANT GLORIA TSUYAJI YAMAUCH‘I'S ANSWER TO RADIN C038 UNVERIFIED COMPLAINT;
REQUEST FOR JURY TRIAL
TW’EN TY-F OURTH AFFIRMATIV E DEFENSE
I‘Q (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 damages they may have sustained, if
any.
TWENTY-FIFTH AFFKRMATIVE DEFENSE
(Justifi ed Conduct)
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 any recovery against Defendant.
TWENTY—SIXTH AFFIRMATIVE DEFENSE
(Parol Evidence Rule)
26. To the extent that Plaintiff seeks recovery herein on any alleged oral modification or
agreement, said recovery is barred by reason of the Parol Evidence Rule.
TWENTY—SEVENTH AFFIRMATIVE DEFENSE
(Permissible Conduct)
27. 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.
TWENTY—EIGHTH AFFIRlVIATIVE DEFENSE
(Actual Cause-By Plaintiff)
28. Defendant alleges that either Plaintiff and/or other parties were solely and totally at fault
for all of the matters referred to in the Complaint and that such actions, negligence, and
carelessness on the part of Plaintiff, and/or other parties amounted to One Hundred Percent
(100%) of the sole cause of the damages complained of by Plaintiff, if any, there were.
TWENTY-NINTH AFFIRMATIV E DEFENSE
(Passive Acts)
29. The alleged injuiies, damages or loss, if any, for which Plaintiff seeks recovery were the
result of causes independent of any purported acts or omissions on the part of Defendant, or any of
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DEFENDANT GLORIA TSUYAJI YAMAUCHI’S ANSWER TO RADIN CO.’S UNVERIFIED COMPLAINT;
REQUEST FOR JURY TRIAL
its agents, representatives or employees, thereby eliminating or reducing the alleged liability of
Defendant. Further, if Defendant is found to have been negligent or liable in any manner, such
negligence or liability was passive and secondary, while the negligence or liability of Plaintiff and
others was active and primary, and such active and primary negligence and liability bars, in whole
or in part, any recovery against Defendant.
THIRTIETH AFFIRMATIVE DEFENSE
(Adequate Remedies at Law)
\OOO\IO\
30. Defendant alleges that any claims for equitable remedies including but not limited to
injunctive and restitution remedies are barred as adequate remedies exist at law.
THIRTY—FIRST AFFIRMATIVE DEFENSE
(Unjust Enrichment)
3 1. Defendant alleges that Plaintiff is barred from recovery as any recovery awarded to
Plaintiff would constitute unjust enrichment.
THIRTY—S ECOND AF FIRMATIVE DEFENSE
(Incorporation of Affirmative Defenses of Other Defendants)
32. Defendant hereby adepts and incorporates by reference any and all affirmative defenses
asserted or to be asserted by any other defendant in this proceeding to the extent that such
affirmative defenses apply.
THIRTY-THIRD AFFIRMATIV E DEFENSE
(N 0 Actual Reliance)
33. Defendant is informed and believes, and thereupon alleges, that Plaintiff did not in fact rely
on any statements made by Defendant, if any.
THIRTY-FORTH AFFIRMATIVE DEFENSE
(No Justifiable Reliance)
34. Defendant is informed and believes, and thereupon alleges, that Plaintiff did not justifiably
rely on any statements made by Defendant, if any.
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DEFENDANT GLORIA TSUYAJI YAMAUCI-il‘S ANSWER TO RADlN CO.'S UNVERIFIED COMPLAINT;
REQUEST FOR JURY TRIAL
THIRTY-FIETH AF FIRMATIVE DEFENSE
[U (Ambiguity/Indefinite Terms)
35. As a separate and affirmative defense, Defendant alleges that each and every cause of
action alleged in the Complaint is barred, in Whole or in part, because the parties’ alleged
agreement(s) is/are unenforceable due to the lack of definite terms, lack of specificity and
ambiguity with the existence of open material terms.
THIRTY-SIXTH AFFIRMATIVE DEFENSE
(No Consideration)
36. As a separate and affinnative defense, Defendant alleges that each and every cause of
10 action alleged in the Complaint is barred, in whole or in part, because there was no Consideration
ll for any alleged agreement(s) between the parties.
12 T HIRTY-SEVENTH AFFIRMATIV E DEFENSE
(Mistake)
37. As a separate and affinnative defense, Defendant alleges that each and every cause of
action alleged in the Complaint is barred, in Whole or in part, by reason of the provisions of
sections 1567, 1576, 15 77, and 1578 of the California Civil Code regarding mistake of fact and
law.
THIRTY-EIGHT AF FIRMATIVE DEFENSE
(Barred by Terms of Agreement(s))
38. As a separate and affirmative defense, Defendant alleges that each and every cause of
action alleged in the Complaint is barred, in whole or in part, because of Plaintis failure to
comply with the terms, conditions precedent and subsequent, limitations and exclusions contained
in the alleged agreement(s).
THIRTY~NINTH AFFIRMATIVE DEFENSE
(California’s Safe Harbor Doctrine)
39. As a separate and affirmative 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
that is permitted by the legislature.
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DEFENDANT GLORIA TSU‘I’AJI YAMAUCHI‘S ANSWER TO RADIN CD’S UNVERIFIED COMPLAINT;
REQUEST FOR JURY TRIAL
FORTIETH AFFIRMATIVE DEFENSE
(\J (Litigation Privilege)
U.) 40. As a separate and affirmative defense, Defendant alleges that the cause of action alleged in
the Complaint is barred, in whole or in part, under the litigation privilege.
U] F0 RTY—FIRST AFFIRMATIVE DEFENSE
(N0 Damages)
41. As a separate and affirmative defense, Defendant alleges that the cause of action alleged in
the Complaint is barred: in whole or in part, because Plaintiff has not suffered any damages and
therefore is not entitled to any relief.
FORTY—SECOND AFFIRMATIVE DEFENSE
(Insufficient Knowledge/Unstated Defenses)
42. As a separate and affirmative defense to the Complaint, Defendant presently has
insufficient knowledge or information on which to form a belief as to whether it may have
additional, as yet unstated, defenses available. Defendant reserves herein the fight to assert
additional defenses in the event discovery indicates that they would be appropriate.
FORTY—THIRD AFFIRMATIVE DEFENSE
(Lack of Privity)
43. As a separate and affirmative defense to 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.
F ORTY—FORTH AFFIRMATIV E DEFENSE
(No Control over Hazardous Substances)
44. As a separate and affirmative defense to the Complaint, Plaintiff is barred from recovery
by CERCLA § 107(1))(3), 42 U.S.C . § 9607(b)(3), and the Carpenter-Presley-Taimer Hazardous |
l
'
Substance Account Act ("HSAA") , Cal. Health & Safety Code §25323.5(b) because the actual or
threatened release of hazardous substances alleged in the Complaint, if any, were caused solely by
the acts or omissions of persons or entities over whom Defendant had no control, and who were
l0
DEFENDANT GLORIA TSUYAJI YAMAUCHI‘S ANSWER TO RADIN COCS UNVERIFIED COMPLAINT;
REQUEST FOR JURY TRIAL
not employees of and whose acts or omissions did not occur in connection with a contractual
relationship with Defendant.
Lu FORTY—FIFTH AFFIRMATIV E DEFENSE
.p‘
(Contribution and/0r Indemnification pursuant to CERCLA and HS SA)
45. As a separate and affirmative defense to the Complaint, Defendant is informed and
\ICAUI believes and thereon alleges that if he is liable for any portion of Plaintiff‘s alleged response costs,
he is entitled to contribution and/or indemnification from Plaintiff and third parties pursuant to 42
U.S.C .
§ 9613(t) and Cal. Health & Safety Code § 25363.
FORTY—SIXTH AFFIRIVLATIVE DEFENSE
(Plaintiff is Responsible Party)
46. As a separate and affirmative defense to the Complaint, Plaintiff cannot recover its costs
-
of response from Defendant pursuant to 42 U.S.C .§9607(a)(l) because Plaintiff itself is a
"responsible party" as the cun'ent owner of the subject property.
FORTY—SEVENTH AFFIRMAT’IVE DEFENSE
(No authority or control)
47. As a separate and affirmative defense to the Complaint, Defendant is informed and
believes and thereon alleges that the damages, if any, suffered by Plaintiff were proximately
caused by the acts of third parties over which Defendant has no authority or control.
FORTY-EIGHT AF FIRMATIVE DEFENSE
(Outside Scope of Agreement)
48. As a separate and affirmative defense, Plaintiff‘s cause of action for breach of contract is
barred because Plaintiff has alleged a breach outside the scope of the parties’ agreement(s).
FORTY—NINTH AFFIRMATIVE DEFENSE
(Catch All)
49. As a separate and affinnative defense to the Complaint, Defendant reserves the right to
include any and all additional defenses not previously stated.
///
///
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DEFENDANT GLORIA TSUYAJ‘I YAMAUCHI’S ANSWER TO RADIN COFS UNVERlFlED COMPLAINT;
REQUEST FOR JURY TRIAL
WHEREFORE Defendant prays for judgment as follows:
1. That Plaintiff take nothing whatsoever by reason of the Complaint or any claims stated
Lu therein;
4; [Q That the Complaint and any and all claims therein against Defendant be dismissed with
prejudice;
\JQUI That if Defendant is found liable, that the degree of the responsibility and liability for the
resulting damages be apportioned and that Defendant be held liable only for that portion of
the total damages in proportion to its liability for the same, if any;
For reasonable attorneys’ fees and costs of suit incurred herein; and
That the Court grant such other and further relief as it may deem just and proper.
Respectfiilly submitted,
DATED: August 21, 2017 CASTELLON & FUNDERBURK LLP
By3i,\/"2
2/0}
RubK’LYX Castellon
Anna L. Le May
Attorneys for Defendant
GLORIA TSUYAJI YAMAUCHI
12
DEFENDANT GLORIA TSUYAJl YAMAUCHFS ANSWER TO RADIN CO.’S UNVERlFlED COMPLAINT;
REQUEST FOR JURY TRIAL
REQUEST FOR JURY TRIAL
[J Defendant GLORIA TSUYAJ I YAMAUCHI requests trial by jury on all issues for which
there is a right to trial by jmy.
Respectfully submitted,
DATED: August 21, 2017 CASTELLON & FUNDERBURK LLP
funk,“ 1/ If I»
L
Ruben A. Castellon k“
Anna L. Le May
Attorneys for Defendant,
.
GLORIA TSUYAH YAMAUCHI
l3
DEFENDANT GLORIA TSUYAJI YAMAUCHI’S ANSWER TO RADIN C035 UNVERIFIED COMPLAINT;
REQUEST FOR JURY TRiAL
PROOF or SERVICE
[C.C.P. § 1013, C.R.C.§ 2008, F.R.C.P. Rule 5}
I, Skarleht Samayoai state:
I am a citizen of the United States. My business address is 811 Wilshire Boulevard, Suite
1025 Los Angeles, CA 90017 1 am employed in the City and County of Los Angeles where this
\OOONO'NLJI-hmwu—é
mailing occurs. I am 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 document described as:
DEFENDANT GLORIA TSUYAJI YAMAUCHI’S ANSWER TO RADIN CO.’S
UNVERIFIED COMPLAINT; REQUEST FOR JURY TRIAL
On the following person(s) in this action by FIRST CLASS MAIL addressed as follows:
Stephen D. Pahl
Sonia S. Shah
PAHL & McCAY
225 West Santa Clara Street, Suite 1500
San Jose, CA 95113
Tel: 408-286-5100
Fax: 08—286—5722
spahl@pahl-mccay.corn
sshah@pahl-mccay.com
NNNNND—‘l—‘t—ih—‘r—‘r—‘h—lk—‘HH
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 Service, to-wit, that
correspondence will be deposited with the United States Postal 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 FACSIMILE I —
caused said document to be transmitted by Facsimile machine to the
number indicated after the address(es) noted above. (As courtesy copy only.)
BY E—MAIL - I personally set a true copy in PDF format to the e—mail address(es) noted
above.
BY OVERNIGHT DELIVERY I caused said document to be transmitted by Federal
-
Express overnight delivery on the next business day to counsel at the address(es) noted above.
(To Counsel for Defendants, deposited on [add date here] at 811 Wilshire Blvd, Suite 1025, Los
Angeles, CA 90017-2606. Los Angeles, California)
. BY PERSONAL SERVICE — First Legal Services directed to serve each envelope(s) by
hand to the offices of the addressee(s).
PROOF OF SERVICE
I declare under penalty of perj ury under the laws of the State of California that the
foregoing is true and correct and that this declaration was executed this date at Los Angeles ’
California.
August21,2017
Skarleht Samayoa
<
“QMAWI‘Qe—‘OGOOflom-PWNH
y—tr—xr—Ir—Ib—ti—Ir—Ap—a
18
PROOF OF SERVICE
Preview
Ruben A. Castellon (SBN 154610) Anna L Le May (SBN 258312) Ix.) CASTELLON & FUNDERBURK LLP 811 Wilshire Boulevard Suite 1025 L2: Los Angeles, California 90017 Telephone: (213) 623—751 5 Facsimile: (213) 532-3984 Attorneys for Defendant, GLORIA YAMAUCHI \10\ 811:1 SUPERIOR COURT OF THE STATE OF CALIFORNIA 5a IN AND FOR THE COUNTY OF SAN MATEO mg. RADIN CO., A CALIFORNIA LIMITED Case No. 17CIV00619 PARTNERSHIP, DEFENDANT GLORLA YAMAUCHI’S ANSWER TO RADIN C038 UNVERIFIED Plaintiff, COMPLAINT; REQUEST FOR JURY TRIAL V. Complaint Filed: May 23, 2017 GLORIA TSUYAJ I YAMAUCHI, Trial Date: Not Set PATRICIA CAMPBELL, BRIAN GRAHAM NEWTON, THOMAS GAVIN . 17_cn,_00519 NEWTON, and DOES 1 through 20, mm inclusive, 991351117er/Hesponselnenial (No Fee) II lIllIllllllllllllll ll ll! Defendant GLORIA TSUYAKO YAMAUCHI, erroneously sued as “GLORIA TSUYAI I YAMAUCHI” (hereinafter “Defendant”), hereby answers the Complaint filed on May 23, 2017 by Plaintiff RADIN CO. (hereinafter “Plaintiff ’). GENERAL DENIAL Pursuant to California Code of Civil Procedure, Section 431.30, Defendant denies generally and specifically each and every cause of action and every allegation contained in Plaintiff‘s unverified Complaint and further, generally and specifieally denies that Plaintiff has sustained any damage or injury or is entitled to any relief or recovery whatsoever. I DEFENDANT GLORIA X’AMAUCHI‘S ANSWER TO RADIN C038 UNVERIFIED COMPLAINT; REQUEST FOR JURY TRIAL 17 5 1 ”a mum Wm mg; :EN aéagga Further answering the Complaint, and the whole thereof, including thecause of action [\J contained therein, Defendant denies that Plaintiff has or will sustain any injury, damage, or loss, D.) including but not limited to attorneys’ fees, costs, and/or expenses, if any, by reason of any act or omission, fault or negligence on the part of Defendant, its agents, servants and employees, or any of them. FIRST AFFIRMATIV E DEFENSE \]O\ (Failure to State a Claim) 00 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 AFFIRMATIVE DEFENSE (Uncertain Complaint) 2. The Complaint, and the cause of action alleged therein, is not pled with sufficient particularity to provide notice to Defendant of the claims, rendering the Complaint uncertain. THIRD AFFIRMATI’VE DEFENSE (Lack of Standing) 3. As a separate and affinnative 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 third party. FOURTH AFFIRMATIVE DEFENSE (Laches and Due Diligence) 4. As a separate and affirmative defense to the Complaint, Defendant alleges that any prospective recovery herein is barred by the equitable doctrine of laches by virtue of Plaintiff‘s unreasonable delay in commencin g this action. FIFTH AFFIRlVIATIVE DEFENSE (Uncleau Hands) 5. As a separate and affirmative defense to the Complaint, Defendant alleges that any prospective recovery herein is barred by the equitable doctrine of unclean hands. 2 DEFENDANT GLORIA TSUYAJI YAMAUCHI’S ANSWER TO RADIN CO.’S UNVERIFIED COMPLAINT; REQUEST FOR JURY TRlAL SIXTH AFFIRMATIVE DEFENSE (Waiver) 6. As a separate and affirmative defense to the Complaint, Defendant alleges that Plaintiff is barred from asserting any claims or causes of action stated in the Complaint by reason of its conduct which 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 estoppel. EIGHTH AFFIRMATIVE DEFENSE (Statute of Limitations) 8. As a separate and affirmative defense to the Complaint, Defendant alleges that Plaintiff 5 claims, demands, and cause of action are forever barred by the applicable statute of limitations, including but not limited to California Code of Civil Procedure sections 312, 337, 337.1, 338, and 3‘3 9. NINTH AFFIRMATIVE DEFENSE (Failure to Mitigate) 9. As a separate and affirmative defense to the Complaint, Defendant alleges that at all times herein, Plaintiff has failed to mitigate, reduce, or otherwise avoid all or some portion of the alleged damages, if any, thus barring any recovery herein. TENTH AFFIRMATIVE DEFENSE (Setoff Due to Defendant’s Damages) 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 or greater amount of damages suffered by Defendant as a result of Plaintiff’s acts or omissions. /// /// /// 3 DEFENDANT GLORIA TSUYAJI YAMAUCHI‘S ANSWER TO RADIN CO.’S UNVERIFIED COMPLAINT; REQUEST FOR JURY TRlAL ELEVENTH AFFIRMATIVE DEFENSE Ix) (Setoff Due to Collateral Source) U) 11. Asa separate and affirmative defense to the Complaint, Defendant alleges that if Plaintiff .1: 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 \IONUI obtained by Plaintiff whether by direct payment, offset, or otherwise for the alleged damages, if any. TWELF TH AFFIRMATIVE DEFENSE (Negligence of Plaintiff) 12. As a separate 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 of Plaintiff, in that Plaintiff failed to exercise ordinary care and caution that individuals or the employees or agents of an ordinarily prudent company (or other legal entity) would have exercised in the same or similar circumstances. THIRTEENTH AFFIRMATIVE DEFENSE (Negligence of Third Parties) 13. As a separate and affirmative defense to the Complaint, Defendant alleges that Plaintiffs injuries and damages, if any, were proximately caused and contributed to by the negligence of third parties other than Defendant. FOURTEENTH AFFIRMATIVE DEFENSE (Complaint Brought Without Reasonable Cause) 14. As a separate and affirmative 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 GLORIA TSUYAJI YAMAUCHI’S ANSWER TO RADIN COJS UNVERIFIED COMPLAINT; REQUEST FOR JURY TRIAL for all reasonable defense costs, including attorney fees, incurred by Defendant pursuant to Code of Civil Procedure §§ 128.5, 1038, and other laws of this State that provide for such recovery. FIFTEENTH AFFIRJVIATIVE DEFENSE (Indemnity) 15. As a separate and affirmative defense to the Complaint, Defendant alleges that if Plaintiff, or any other entity(i es), are found to be entitled to recover costs or damages against Defendant, which entitlement Defendant denies, such recovery must be indemnified by Plaintiff or other third parties by operation of the principles of contractual or equitable indermrity. SIXTEENTH AFFIRMATIVE DEFENSE (Contribution) 16. As a separate and affirmative defense to the Complaint, Defendant alleges that if Plaintiff or any other entity(ies) are found to be entitled to recover costs or damages against Defendant, which entitlement DEFENDANT denies, such recovery must be reduced to that degree of the responsibility and liability for the resulting damages attributable to Plaintiff or any other party’s contribution of the damages incurred, if any. SEVENTEENTH AFFIRMATIVE DEFENSE (Uncertainty of Damages) 17. As a separate and affinnative defense to the Complaint, DEFENDANT alleges any recovery is barred because the damages alleged are too uncertain, speculative, and impossible to be determined. 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 prejudicing Defendant and depriving Defendant of any opportunity to determine or verify any amount claimed as damage herein, as well as depriving Defendant of the ability to inspect and/or test any item comprising the 3. DEFENDANT GLORIA TSUYAJI YAMAUCHI’S ANSWER TO RADIN C035 UNVERIFIED COMPLAINT; REQUEST FOR JURY TR} AL alleged damages herein. Such conduct constitutes intentional and/or negligent spoliation of evidence, thereby barring or diminishing Plaintiff‘s recovery herein. NINETEENTH AFFIRMATIVE DEFENSE (Failure to Take Advantage of Corrective Opportunities) 19. As a 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 or corrective opportunities provided by Defendant to avoid harm or otherwise. TWENTIETH AFFIRMATIVE DEFENSE (Indispensable Parties) 20. As a 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 AFFIRMATIVE DEFENSE (Statute of Frauds) 21. As a separate and affirmative defense to the Complaint, Defendant alleges that Plaintiff 5 claims are barred by the Statute of Frauds. TWENTY-SECOND AFFIRMATIVE DEFENSE (No Breach by Defendant) 22. As a separate and affirmative defense to the Complaint, Defendant alleges that Defendant performed all duties under the contract(s) other than those duties which were prevented or excused, and therefore never breached the agreement(s). [\2 Lu TWENTY—THIRD AF F IRNIATIVE DEFENSE [\J 4: (Substantial Compliance) lx) U1 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 a result awarding the judgment in the favor of Plaintiff would be unjust and unfair. 6 DEFENDANT GLORIA TSUYAJI YAMAUCH‘I'S ANSWER TO RADIN C038 UNVERIFIED COMPLAINT; REQUEST FOR JURY TRIAL TW’EN TY-F OURTH AFFIRMATIV E DEFENSE I‘Q (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 damages they may have sustained, if any. TWENTY-FIFTH AFFKRMATIVE DEFENSE (Justifi ed Conduct) 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 any recovery against Defendant. TWENTY—SIXTH AFFIRMATIVE DEFENSE (Parol Evidence Rule) 26. To the extent that Plaintiff seeks recovery herein on any alleged oral modification or agreement, said recovery is barred by reason of the Parol Evidence Rule. TWENTY—SEVENTH AFFIRMATIVE DEFENSE (Permissible Conduct) 27. 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. TWENTY—EIGHTH AFFIRlVIATIVE DEFENSE (Actual Cause-By Plaintiff) 28. Defendant alleges that either Plaintiff and/or other parties were solely and totally at fault for all of the matters referred to in the Complaint and that such actions, negligence, and carelessness on the part of Plaintiff, and/or other parties amounted to One Hundred Percent (100%) of the sole cause of the damages complained of by Plaintiff, if any, there were. TWENTY-NINTH AFFIRMATIV E DEFENSE (Passive Acts) 29. The alleged injuiies, damages or loss, if any, for which Plaintiff seeks recovery were the result of causes independent of any purported acts or omissions on the part of Defendant, or any of 7 DEFENDANT GLORIA TSUYAJI YAMAUCHI’S ANSWER TO RADIN CO.’S UNVERIFIED COMPLAINT; REQUEST FOR JURY TRIAL its agents, representatives or employees, thereby eliminating or reducing the alleged liability of Defendant. Further, if Defendant is found to have been negligent or liable in any manner, such negligence or liability was passive and secondary, while the negligence or liability of Plaintiff and others was active and primary, and such active and primary negligence and liability bars, in whole or in part, any recovery against Defendant. THIRTIETH AFFIRMATIVE DEFENSE (Adequate Remedies at Law) \OOO\IO\ 30. Defendant alleges that any claims for equitable remedies including but not limited to injunctive and restitution remedies are barred as adequate remedies exist at law. THIRTY—FIRST AFFIRMATIVE DEFENSE (Unjust Enrichment) 3 1. Defendant alleges that Plaintiff is barred from recovery as any recovery awarded to Plaintiff would constitute unjust enrichment. THIRTY—S ECOND AF FIRMATIVE DEFENSE (Incorporation of Affirmative Defenses of Other Defendants) 32. Defendant hereby adepts and incorporates by reference any and all affirmative defenses asserted or to be asserted by any other defendant in this proceeding to the extent that such affirmative defenses apply. THIRTY-THIRD AFFIRMATIV E DEFENSE (N 0 Actual Reliance) 33. Defendant is informed and believes, and thereupon alleges, that Plaintiff did not in fact rely on any statements made by Defendant, if any. THIRTY-FORTH AFFIRMATIVE DEFENSE (No Justifiable Reliance) 34. Defendant is informed and believes, and thereupon alleges, that Plaintiff did not justifiably rely on any statements made by Defendant, if any. /// /// 8 DEFENDANT GLORIA TSUYAJI YAMAUCI-il‘S ANSWER TO RADlN CO.'S UNVERIFIED COMPLAINT; REQUEST FOR JURY TRIAL THIRTY-FIETH AF FIRMATIVE DEFENSE [U (Ambiguity/Indefinite Terms) 35. As a separate and affirmative defense, Defendant alleges that each and every cause of action alleged in the Complaint is barred, in Whole or in part, because the parties’ alleged agreement(s) is/are unenforceable due to the lack of definite terms, lack of specificity and ambiguity with the existence of open material terms. THIRTY-SIXTH AFFIRMATIVE DEFENSE (No Consideration) 36. As a separate and affinnative defense, Defendant alleges that each and every cause of 10 action alleged in the Complaint is barred, in whole or in part, because there was no Consideration ll for any alleged agreement(s) between the parties. 12 T HIRTY-SEVENTH AFFIRMATIV E DEFENSE (Mistake) 37. As a separate and affinnative defense, Defendant alleges that each and every cause of action alleged in the Complaint is barred, in Whole or in part, by reason of the provisions of sections 1567, 1576, 15 77, and 1578 of the California Civil Code regarding mistake of fact and law. THIRTY-EIGHT AF FIRMATIVE DEFENSE (Barred by Terms of Agreement(s)) 38. As a separate and affirmative defense, Defendant alleges that each and every cause of action alleged in the Complaint is barred, in whole or in part, because of Plaintis failure to comply with the terms, conditions precedent and subsequent, limitations and exclusions contained in the alleged agreement(s). THIRTY~NINTH AFFIRMATIVE DEFENSE (California’s Safe Harbor Doctrine) 39. As a separate and affirmative 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 that is permitted by the legislature. 9 DEFENDANT GLORIA TSU‘I’AJI YAMAUCHI‘S ANSWER TO RADIN CD’S UNVERIFIED COMPLAINT; REQUEST FOR JURY TRIAL FORTIETH AFFIRMATIVE DEFENSE (\J (Litigation Privilege) U.) 40. As a separate and affirmative defense, Defendant alleges that the cause of action alleged in the Complaint is barred, in whole or in part, under the litigation privilege. U] F0 RTY—FIRST AFFIRMATIVE DEFENSE (N0 Damages) 41. As a separate and affirmative defense, Defendant alleges that the cause of action alleged in the Complaint is barred: in whole or in part, because Plaintiff has not suffered any damages and therefore is not entitled to any relief. FORTY—SECOND AFFIRMATIVE DEFENSE (Insufficient Knowledge/Unstated Defenses) 42. As a separate and affirmative defense to the Complaint, Defendant presently has insufficient knowledge or information on which to form a belief as to whether it may have additional, as yet unstated, defenses available. Defendant reserves herein the fight to assert additional defenses in the event discovery indicates that they would be appropriate. FORTY—THIRD AFFIRMATIVE DEFENSE (Lack of Privity) 43. As a separate and affirmative defense to 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. F ORTY—FORTH AFFIRMATIV E DEFENSE (No Control over Hazardous Substances) 44. As a separate and affirmative defense to the Complaint, Plaintiff is barred from recovery by CERCLA § 107(1))(3), 42 U.S.C . § 9607(b)(3), and the Carpenter-Presley-Taimer Hazardous | l ' Substance Account Act ("HSAA") , Cal. Health & Safety Code §25323.5(b) because the actual or threatened release of hazardous substances alleged in the Complaint, if any, were caused solely by the acts or omissions of persons or entities over whom Defendant had no control, and who were l0 DEFENDANT GLORIA TSUYAJI YAMAUCHI‘S ANSWER TO RADIN COCS UNVERIFIED COMPLAINT; REQUEST FOR JURY TRIAL not employees of and whose acts or omissions did not occur in connection with a contractual relationship with Defendant. Lu FORTY—FIFTH AFFIRMATIV E DEFENSE .p‘ (Contribution and/0r Indemnification pursuant to CERCLA and HS SA) 45. As a separate and affirmative defense to the Complaint, Defendant is informed and \ICAUI believes and thereon alleges that if he is liable for any portion of Plaintiff‘s alleged response costs, he is entitled to contribution and/or indemnification from Plaintiff and third parties pursuant to 42 U.S.C . § 9613(t) and Cal. Health & Safety Code § 25363. FORTY—SIXTH AFFIRIVLATIVE DEFENSE (Plaintiff is Responsible Party) 46. As a separate and affirmative defense to the Complaint, Plaintiff cannot recover its costs - of response from Defendant pursuant to 42 U.S.C .§9607(a)(l) because Plaintiff itself is a "responsible party" as the cun'ent owner of the subject property. FORTY—SEVENTH AFFIRMAT’IVE DEFENSE (No authority or control) 47. As a separate and affirmative defense to the Complaint, Defendant is informed and believes and thereon alleges that the damages, if any, suffered by Plaintiff were proximately caused by the acts of third parties over which Defendant has no authority or control. FORTY-EIGHT AF FIRMATIVE DEFENSE (Outside Scope of Agreement) 48. As a separate and affirmative defense, Plaintiff‘s cause of action for breach of contract is barred because Plaintiff has alleged a breach outside the scope of the parties’ agreement(s). FORTY—NINTH AFFIRMATIVE DEFENSE (Catch All) 49. As a separate and affinnative defense to the Complaint, Defendant reserves the right to include any and all additional defenses not previously stated. /// /// ll DEFENDANT GLORIA TSUYAJ‘I YAMAUCHI’S ANSWER TO RADIN COFS UNVERlFlED COMPLAINT; REQUEST FOR JURY TRIAL WHEREFORE Defendant prays for judgment as follows: 1. That Plaintiff take nothing whatsoever by reason of the Complaint or any claims stated Lu therein; 4; [Q That the Complaint and any and all claims therein against Defendant be dismissed with prejudice; \JQUI That if Defendant is found liable, that the degree of the responsibility and liability for the resulting damages be apportioned and that Defendant be held liable only for that portion of the total damages in proportion to its liability for the same, if any; For reasonable attorneys’ fees and costs of suit incurred herein; and That the Court grant such other and further relief as it may deem just and proper. Respectfiilly submitted, DATED: August 21, 2017 CASTELLON & FUNDERBURK LLP By3i,\/"2 2/0} RubK’LYX Castellon Anna L. Le May Attorneys for Defendant GLORIA TSUYAJI YAMAUCHI 12 DEFENDANT GLORIA TSUYAJl YAMAUCHFS ANSWER TO RADIN CO.’S UNVERlFlED COMPLAINT; REQUEST FOR JURY TRIAL REQUEST FOR JURY TRIAL [J Defendant GLORIA TSUYAJ I YAMAUCHI requests trial by jury on all issues for which there is a right to trial by jmy. Respectfully submitted, DATED: August 21, 2017 CASTELLON & FUNDERBURK LLP funk,“ 1/ If I» L Ruben A. Castellon k“ Anna L. Le May Attorneys for Defendant, . GLORIA TSUYAH YAMAUCHI l3 DEFENDANT GLORIA TSUYAJI YAMAUCHI’S ANSWER TO RADIN C035 UNVERIFIED COMPLAINT; REQUEST FOR JURY TRiAL PROOF or SERVICE [C.C.P. § 1013, C.R.C.§ 2008, F.R.C.P. Rule 5} I, Skarleht Samayoai state: I am a citizen of the United States. My business address is 811 Wilshire Boulevard, Suite 1025 Los Angeles, CA 90017 1 am employed in the City and County of Los Angeles where this \OOONO'NLJI-hmwu—é mailing occurs. I am 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 document described as: DEFENDANT GLORIA TSUYAJI YAMAUCHI’S ANSWER TO RADIN CO.’S UNVERIFIED COMPLAINT; REQUEST FOR JURY TRIAL On the following person(s) in this action by FIRST CLASS MAIL addressed as follows: Stephen D. Pahl Sonia S. Shah PAHL & McCAY 225 West Santa Clara Street, Suite 1500 San Jose, CA 95113 Tel: 408-286-5100 Fax: 08—286—5722 spahl@pahl-mccay.corn sshah@pahl-mccay.com NNNNND—‘l—‘t—ih—‘r—‘r—‘h—lk—‘HH 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 Service, to-wit, that correspondence will be deposited with the United States Postal 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 FACSIMILE I — caused said document to be transmitted by Facsimile machine to the number indicated after the address(es) noted above. (As courtesy copy only.) BY E—MAIL - I personally set a true copy in PDF format to the e—mail address(es) noted above. BY OVERNIGHT DELIVERY I caused said document to be transmitted by Federal - Express overnight delivery on the next business day to counsel at the address(es) noted above. (To Counsel for Defendants, deposited on [add date here] at 811 Wilshire Blvd, Suite 1025, Los Angeles, CA 90017-2606. Los Angeles, California) . BY PERSONAL SERVICE — First Legal Services directed to serve each envelope(s) by hand to the offices of the addressee(s). PROOF OF SERVICE I declare under penalty of perj ury under the laws of the State of California that the foregoing is true and correct and that this declaration was executed this date at Los Angeles ’ California. August21,2017 Skarleht Samayoa < “QMAWI‘Qe—‘OGOOflom-PWNH y—tr—xr—Ir—Ib—ti—Ir—Ap—a 18 PROOF OF SERVICE