Preview
LAWRENCE E. SKIDMORE (SBN 137587)
FILED
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ARONOWITZ, SKIDMORE & LYON
200 Auburn Folsom Road, Suite 305 R COURT OF CALIFORNIA
HO
Auburn, CA 95603 SUPER COUNTY OF PLACER
Phone: (530) 823-9736
WD
Fax: (530) 823-5241 MAY 24 2019
BP
MICHAEL
JAKE CHATTERS
A.J. NANGANO (SBN 133999) EXECUTIVE OF & CLERK
LAW OFFICES OF MICHAEL A.J.
WN
NANGANO By: E. Ca uty
133 No. Altadena Drive, Suite 403
Pasadena, CA 91107
Phone: (626) 796-9998
ND
Fax: (626) 796-9992
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Attorney for Defendants
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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IN AND FOR THE COUNTY OF PLACER
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ES CIRC UNION INTERNATIONAL, ) Case No. S-CV 0042080
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Plaintiff, )
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VS.
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ERIK LUDWICK, an individual AND )
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DEFENDANTS’ ANSWER TO
Beneficiary of The Anything Trust dated ) UNVERIFIED COMPLAINT
October 12, 2007; THE ANYTHING )
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TRUST DATED OCTOBER 12, 2017; )
PAUL D. BOOTH, in his capacity as Trustee )
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of The Anything Trust Dated October 12, )
2007; and Does 1 through 50, inclusive, )
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Defendants. )
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DEFENDANTS’ ANSWER TO UNVERIFIED COMPLAINT
— 1. Under the provisions of Section 431.30(d) of the California Code of Civil Procedure,
Defendants:
LPB
a) ERIK LUDWICK, individually and as Trustor, Beneficiary and current Trustee
WD
of
The Anything Trust dated October 12, 2007;
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b) THE ANYTHING TRUST DATED
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OCTOBER 12,2017 (hereinafter simply “The
Anything Trust’); and
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c) PAUL D. BOOTH, in his capacity as the
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former Trustee of The Anything Trust
(hereinafter sometimes collectively
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referred to as ‘DEFENDANTS”) deny each and every allegation
in the Complaint, and the whole thereof including
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each and every purported cause of action
allegedly set forth therein. DEFENDANTS further deny that PLAINTIFF PACIFIC UNION
Ss
meme
INTERNATIONAL, INC., (hereinafter simply “PLAINTIFF”) isentitled to the relief requested
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in the Complaint, or to any other relief whatsoever.
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2. This action allegedly arises from the fact that DEFENDANT The Anything Trust
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entered into a real estate brokerage agreement with PARTNERS TRUST REAL ESTATE, an
unincorporated real estate sales entity with itsprinciple office located at9378 Wilshire Blvd. Suite
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200, Beverly Hills CA. (hereinafter simply “PARTNERS TRUST”) for the sale of real property
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located in Los Angeles County (hereinafter simply the “Toyopa Property.”) Subsequently,
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PLAINTIFF acquired PARTNERS TRUST.
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3. PLAINTIFF is now claiming entitlement to the sales commission with respect to the
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sale of the Subject Property; even though itnever had either:
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(a) a written broker’s agreement with DEFENDANT The Anything Trust; or
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(b) any direct involvement in the sales transaction.
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NO
FIRST AFFIRMATIVE DEFENSE
NO
(Failure to State Cause of Action)
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4. The Complaint, and each and every purported cause of action therein, fails to state
NO
facts sufficient to constitute a cause of action against this answering DEFENDANT.
SS
//
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DEFENDANTS’ ANSWER TO UNVERIFIED COMPLAINT
SECOND AFFIRMATIVE DEFENSE
—
(Lack of Caopacity to Sue)
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Ss. PLAINTIFF lacks the legalcapacity to sue as required under California Code of Civil
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Procedure (“CCP”) §430.10(b).
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THIRD AFFIRMATIVE DEFENSE
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(Statute of Limitations)
ON
6. The Complaint, and each and every cause of action set forth therein, is barred by the
Statute of Limitations applicable to each such cause of action.
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FOURTH AFFIRMATIVE DEFENSE
—|
(Statute of Frauds)
NY
7. PLAINTIFF has not pled, and cannot plead, the existence of a written “employment”
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agreement between PLAINTIFF and DEFENDANTS, or any of them. California Civil Code
FF
§1624(a)(4) specifies that:
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“The following contracts are invalid, unless they, or some note or
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memorandum thereof, are in writing and subscribed by the party to be charged or by
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the party's agent:
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(4) An agreement authorizing oremploying an agent, broker, or any
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other person to purchase or sellreal estate, . .. orto procure, introduce, or find
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a purchaser or seller of real estate .. .for compensation or a commission.”
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a) Since Civil Code §1624(a) isapplicable toboth (1) the collection by the agent
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or broker of his ‘compensation or a commission’ and (2) the enforcement by the principal of
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the broker's agreement; and
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b) Since PLAINTIFF has not pled, and cannot plead, the existence of such a
NHN
NO
contract between PLAINTIFF and DEFENDANTS, or any of them; and
NO
NO
Cc) PLAINTIFF is prohibited, as a matter of law, from claiming any
HNO
on
““compensation or a commission” and/or otherwise enforcing the alleged “broker's
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DEFENDANTS’ ANSWER TO UNVERIFIED COMPLAINT
agreement” between Partners Trust, on the one hand, and DEFENDANTS, or any of them,
oclUlUNUOUCUMOCOUUNSN
on the other.
ON
FIFTH AFFIRMATIVE DEFENSE
(Lack of Jurisdiction)
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8. PLAINTIFF alleges thatthis Court has Jurisdiction over this matter, notwithstanding
the fact that the Toyopa Property (the sale of which gave rise to this alleged action) and allparties,
documents and witnesses related to thisaction, are located in Los Angeles County. PLAINTIFF’s
assertion that this Court has jurisdiction over thismatter is based solely on the fact that the former
Trustee of The Anything Trust lived in Placer County. However, since PAUL D. BOOTH isno
longer the trustee of The Anything Trust, and since he has been sued solely and exclusively inhis
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alleged capacity as “Trustee,” this Court lacks any basis forjurisdiction over this matter.
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SIXTH AFFIRMATIVE DEFENSE
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(Breach of Fiduciary Duty)
9, As the “listing agent” for the subject Los Angeles County Property, PLAINTIFF and
itsalleged agents (including, in particular, PARTNERS TRUST and MADISON HILDEBRAND) had
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a fiduciary duty of the highest level to PLAINTIFF’s alleged client The Anything Trust, and its
beneficiaries. Notwithstanding this fiduciary duty, and inbreach thereof, HILDEBRAND proceeded
to engage in a series of actions which were designed to enrich HILDEBRAND personally at the
CFC
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expense of PLAINTIFF — in an amount totaling hundreds of thousands of dollars.
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DN
NO
BOS
SEVENTH AFFIRMATIVE DEFENSE
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(Breach of California Civil Code §2079.16)
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10. In acting in a“dual agent” capacity, PLAINTIFF and itsalleged agents (including, in
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particular, PARTNERS TRUST and MADISON HILDEBRAND) had a fiduciary duty of the highest
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level to PLAINTIFF under Civil Code §2079.16. Notwithstanding this fiduciary duty, and in breach
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thereof, HILDEBRAND proceeded to engage in a series of actions which were designed to enrich
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DEFENDANTS’ ANSWER TO UNVERIFIED COMPLAINT
= HILDEBRAND personally at the expense of PLAINTIFF — in an amount totaling hundreds of
thousands of dollars.
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EIGHTH AFFIRMATIVE DEFENSE
(Failure to Comply with California
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Civil Code §2079.16)
11. PLAINTIFF
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and itsalleged agents (including, in particular, PARTNERS TRUST and
MADISON HILDEBRAND) failed to comply with the “notice”
NY
and “approval” provisions of Civil Code
§2079.16
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including, but not limited to, obtaining the written permission of PLAINTIFF for the
change in listing agent from PARTNERS
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TRUST to PLAINTIFF.
NINTH AFFIRMATIVE DEFENSE
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(PLAINTIFF’s Violation of Business & Professions Code §10032)
12. DEFENDANTS are informed and believe, and based upon such information and
belief allege, that PLAINTIFF’s agent HILDEBRAND has, on multiple occasions, failed to disclose
material facts to DEFENDANTS so as toconvince DEFENDANTS to sell the Toyopa Property to
the buyer, and in the manner, most financially advantageous to HILDEBRAND, rather than in a
manner and/or to the buyer which would have been most advantageous to DEFENDANTS. Had
the DEFENDANTS known the facts which HILDEBRAND failed to disclose, they would not have
ROO
agreed to sell the Toyopa Property to the buyer and at the price to which they agreed. PLAINTIFF,
as the self-alleged “Broker” for PARTNERS TRUST and/or HILDEBRAND is, therefore, liable for
such lack of disclosure and other violations of Business & Professions Code §10032.
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TENTH AFFIRMATIVE DEFENSE
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(PLAINTIFF’s Violation of Business & Professions Code § 10136 et seq.)
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13. | DEFENDANTS are informed and believe, and based upon such information and
NO
belief allege, that PLAINTIFF has failed to comply with the requirements of California Business
& Professions Code §10136, 10137 and/or 10138. PLAINTIFF, as the self-alleged “Broker” for
PARTNERS TRUST and/or HILDEBRAND, isjointly liable for such lack of disclosure and other
5
DEFENDANTS’ ANSWER TO UNVERIFIED COMPLAINT
violations of Business & Professions Code §10136, 10137 and/or 10138; and, therefore, that
—
PLAINTIFF is not entitled to the payment of any commission whatsoever.
NY
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ELEVENTH AFFIRMATIVE DEFENSE
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(PLAINTIFF’s Fraudulent Conduct)
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14. The Complaint, and each and every cause of action set forth therein, is barred in whole
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or in part by reason of the inequitable conduct and/or unclean hands of PLAINTIFF’s agent
NY
HILDEBRAND, including but not limited to PLAINTIFF’s damages from HILDEBRAND intentionally
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false and misleading actions and statements which were designed to enrich HILDEBRAND personally
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at the expense of PLAINTIFF -— in an amount totaling hundred of thousands of dollars.
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TWELFTH AFFIRMATIVE DEFENSE
NY
(Misrepresentation By PLAINTIFF)
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15. To the extent that any duty referred to in the Complaint exists relative to these
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answering DEFENDANTS, or any of them, the creation of any such duty was wrongfully induced
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by reason of the intentional, affirmative, reckless and/or negligent misrepresentations and failures
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to disclose material facts on the part of PLAINTIFF including, inparticular, by PLAINTIFF’s agent
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HILDEBRAND. In particular, DEFENDANTS are informed and believe, and based upon such
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information and belief allege, that HILDEBRAND has made a series of material misrepresentations
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to DEFENDANTS so as to convince DEFENDANTS to sellthe Toyopa Property to the buyer, and
DOD
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in the manner, most financially advantageous to HILDEBRAND, rather than in a manner and/or to the
NO
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buyer which would have been most financially advantageous to DEFENDANTS.
NHN
NO
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NO
THIRTEENTH AFFIRMATIVE DEFENSE
BR
NO
(PLAINTIFF’s Failure to Disclose Material Facts)
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NO
16. | DEFENDANTS are informed and believe, and based upon such information and
NO
NO
belief allege, that PLAINTIFF’s agent HILDEBRAND has, on multiple occasions, failed to disclose
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material facts to DEFENDANTS so as to convince DEFENDANTS to sell the Toyopa Property to
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DEFENDANTS’ ANSWER TO UNVERIFIED COMPLAINT
the buyer, and in the manner, most financially advantageous to HILDEBRAND, rather than in a
manner and/or to the buyer which would have been most advantageous to DEFENDANTS. Had
NY
the DEFENDANTS known the facts which HILDEBRAND failed to disclose, they would not have
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agreed to sell the Toyopa Property to the buyer and at the price to which they agreed.
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FOURTEENTH AFFIRMATIVE DEFENSE
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(Estoppel and Waiver)
ON
17. The Complaint, and each and every cause of action set forth therein, is barred by the
doctrines of estoppel and waiver. In particular, PLAINTIFF is estopped from claiming a
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commission on the sale of the Toyopa Property by virtue of the fraudulent, unethical and illegal
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conduct of its agent HILDEBRAND.
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FIFTEENTH AFFIRMATIVE DEFENSE
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(Duty Discharged)
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18. | These answering DEFENDANTS are informed and believe, and based upon such
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information and belief allege, that any purported duty which they may have to PLAINTIFF, either
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as alleged in the Complaint or otherwise, has already been fully performed by and on behalf of
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DEFENDANTS, and each of them.
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SIXTEENTH AFFIRMATIVE DEFENSE
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(Excuse of Performance)
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19. Atall times material herein, DEFENDANTS have acted reasonably and in good faith
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toward PLAINTIFF based upon all relevant facts and circumstances known to them atthe time they
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so acted, and have further performed all terms, conditions, covenants and promises to be performed
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on their part pursuant to any alleged agreement and/or right referenced in the Complaint, except
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where such performance was excused, discharged or prevented by PLAINTIFF and /or
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PLAINTIFF’s agent HILDEBRAND.
NO
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DEFENDANTS’ ANSWER TO UNVERIFIED COMPLAINT
SEVENTEENTH AFFIRMATIVE DEFENSE
(Failure to Mitigate)
20. PLAINTIFF has failed to mitigate its losses or damages, if any. Therefore, these
damages, ifany, should be barred or reduced by the amount of such damages that PLAINTIFF could
have avoided by the exercise of precaution.
EIGHTEENTH AFFIRMATIVE DEFENSE
(Laches)
21. The Complaint, and each and every cause of action set forth therein, is barred by the
doctrine of laches.
NINTEENTH AFFIRMATIVE DEFENSE
(Additional Affirmative Defenses)
Ze. These answering DEFENDANTS. allege that they may have other separate and
additional defenses of which they are not currently aware, and hereby reserve the right toassert them
by amendment to this Answer as discovery continues
WHEREFORE, DEFENDANTS pray forjudgment as follows:
1. That PLAINTIFF take nothing by his Complaint herein and that the Complaint be
dismissed:
2 For costs of suit and litigation expenses incurred herein, including reasonable
attorneys fees; and
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For such other and further reliefas the Court shall deem just and proper.
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DATED: May23. 2019 MICHAEL A.J. NANGANO, A LAW CORPORATION
B MALAI Oe
~ MICHAEL A.J. NANGANO
Attorneys for DEFENDANTS
Facsimile signature as original
§ RC Rule 2.30570)
DEFENDANTS’ ANSWER TO UNVERIFIED COMPLAINT
PROOF OF SERVICE
Iam employed in the County of Los Angeles, State of California. | am over the age of 18
and not a party to the within action. My business address is 133 N. Altadena Drive, Suite 403,
Pasadena, CA 91107.
On May 24, 2019, I served the following document(s) described as:
ANSWER TO COMPLAINT
on allinterested parties in this action by placing [X]atrue copy [ ]the original thereof enclosed
in sealed envelopes addressed as follows:
SEE ATTACHED MAILING LIST
(BY FACSIMILE) The facsimile machine I used complied with Rule 2003(3) and no error
was reported by the machine. Pursuant to Rule 2008(e)(4), | caused the machine to print a
10 record of the transmission.
LL (BY MAIL, 1013a, 2015.5 C.C.P.) |am readily familiar with the firm's practice for
collection and processing correspondence for mailing. Under that practice, this document
12 will be deposited with the U.S. Postal Service on this date with postage thereon fully prepaid
at Los Angeles, California in the ordinary course of business. | am aware that on motion of
13 the party served, service is presumed invalid ifpostal cancellation date or postage meter date
is more than one day after date ofdeposit for mailing in affidavit.
14
Iserved the above referenced document(s)
l] (BY OVERNIGHT DELIVERY/COURIER)
and for delivery marked for next day delivery in
15 enclosed in a sealed package, for collection
the ordinary course of business, addressed to the office of the addressee(s) listed above or on
16 attached sheet.
17 (BY E-MAIL) I transmitted acopy of the foregoing document(s) via e-mail to the
addressee(s). Courtesy copy
18
of perjury under the laws of the State of Californiathat the
[X] (STATE) I declare under penalty
19 above istrue and correct.
20 Executed on May 24, 2019, at Pasadena, California.
CCe
21. fo -
22 Patrigizn-nde Signature as original
Pursuant to C.R.C. Rule 2.305(d)
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PROOF OF SERVICE
F&F MAILING LIST
Pacific Union International, Inc. v. Ludwick, et al.
NO
Case No. SCV0042080
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Shannon B. Jones, Esq.
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Lindsey Morgan, Esq.
Shannon B. Jones Law Group, Inc.
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208 W. El Pintado Road
Danville, CA 94526
HD
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Lawrence E. Skidmore, Esq.
Aronowitz Skidmore Lyon
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A Professional Law Corporation
200 Auburn Folsom Road, Suite 305
Auburn, CA 95603
10 (via email)
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12
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LS
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2D
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2
PROOF OF SERVICE
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LAWRENCE E. SKIDMORE (SBN 137587) FILED = ARONOWITZ, SKIDMORE & LYON 200 Auburn Folsom Road, Suite 305 R COURT OF CALIFORNIA HO Auburn, CA 95603 SUPER COUNTY OF PLACER Phone: (530) 823-9736 WD Fax: (530) 823-5241 MAY 24 2019 BP MICHAEL JAKE CHATTERS A.J. NANGANO (SBN 133999) EXECUTIVE OF & CLERK LAW OFFICES OF MICHAEL A.J. WN NANGANO By: E. Ca uty 133 No. Altadena Drive, Suite 403 Pasadena, CA 91107 Phone: (626) 796-9998 ND Fax: (626) 796-9992 oO Attorney for Defendants So OO meee KF SUPERIOR COURT OF THE STATE OF CALIFORNIA NO IN AND FOR THE COUNTY OF PLACER WD BF DN mm ES CIRC UNION INTERNATIONAL, ) Case No. S-CV 0042080 C., ) ) ON wm Plaintiff, ) ) VS. CO ) ) Rw ERIK LUDWICK, an individual AND ) TD DEFENDANTS’ ANSWER TO Beneficiary of The Anything Trust dated ) UNVERIFIED COMPLAINT October 12, 2007; THE ANYTHING ) FKF§ NO TRUST DATED OCTOBER 12, 2017; ) PAUL D. BOOTH, in his capacity as Trustee ) Nn NO of The Anything Trust Dated October 12, ) 2007; and Does 1 through 50, inclusive, ) NO Ww ) ) FP KO Defendants. ) ) UN DO ) ) KN NO DN aon NO l DEFENDANTS’ ANSWER TO UNVERIFIED COMPLAINT — 1. Under the provisions of Section 431.30(d) of the California Code of Civil Procedure, Defendants: LPB a) ERIK LUDWICK, individually and as Trustor, Beneficiary and current Trustee WD of The Anything Trust dated October 12, 2007; BR b) THE ANYTHING TRUST DATED NH OCTOBER 12,2017 (hereinafter simply “The Anything Trust’); and DO c) PAUL D. BOOTH, in his capacity as the YN former Trustee of The Anything Trust (hereinafter sometimes collectively Oo referred to as ‘DEFENDANTS”) deny each and every allegation in the Complaint, and the whole thereof including So each and every purported cause of action allegedly set forth therein. DEFENDANTS further deny that PLAINTIFF PACIFIC UNION Ss meme INTERNATIONAL, INC., (hereinafter simply “PLAINTIFF”) isentitled to the relief requested Ss in the Complaint, or to any other relief whatsoever. SB 2. This action allegedly arises from the fact that DEFENDANT The Anything Trust ke entered into a real estate brokerage agreement with PARTNERS TRUST REAL ESTATE, an unincorporated real estate sales entity with itsprinciple office located at9378 Wilshire Blvd. Suite ak me 200, Beverly Hills CA. (hereinafter simply “PARTNERS TRUST”) for the sale of real property a located in Los Angeles County (hereinafter simply the “Toyopa Property.”) Subsequently, SG wm PLAINTIFF acquired PARTNERS TRUST. ke 3. PLAINTIFF is now claiming entitlement to the sales commission with respect to the Be sale of the Subject Property; even though itnever had either: RO HEE (a) a written broker’s agreement with DEFENDANT The Anything Trust; or NO (b) any direct involvement in the sales transaction. DY ekReReeaeBE NO FIRST AFFIRMATIVE DEFENSE NO (Failure to State Cause of Action) PO 4. The Complaint, and each and every purported cause of action therein, fails to state NO facts sufficient to constitute a cause of action against this answering DEFENDANT. SS // 2 DEFENDANTS’ ANSWER TO UNVERIFIED COMPLAINT SECOND AFFIRMATIVE DEFENSE — (Lack of Caopacity to Sue) HPO Ss. PLAINTIFF lacks the legalcapacity to sue as required under California Code of Civil WY Procedure (“CCP”) §430.10(b). BP NH THIRD AFFIRMATIVE DEFENSE Dn (Statute of Limitations) ON 6. The Complaint, and each and every cause of action set forth therein, is barred by the Statute of Limitations applicable to each such cause of action. oO OC FOURTH AFFIRMATIVE DEFENSE —| (Statute of Frauds) NY 7. PLAINTIFF has not pled, and cannot plead, the existence of a written “employment” WY agreement between PLAINTIFF and DEFENDANTS, or any of them. California Civil Code FF §1624(a)(4) specifies that: DOH “The following contracts are invalid, unless they, or some note or wm memorandum thereof, are in writing and subscribed by the party to be charged or by N the party's agent: me (4) An agreement authorizing oremploying an agent, broker, or any Oo other person to purchase or sellreal estate, . .. orto procure, introduce, or find HNO Oo a purchaser or seller of real estate .. .for compensation or a commission.” KH RN a) Since Civil Code §1624(a) isapplicable toboth (1) the collection by the agent NY NN or broker of his ‘compensation or a commission’ and (2) the enforcement by the principal of We HN the broker's agreement; and Se HN b) Since PLAINTIFF has not pled, and cannot plead, the existence of such a NHN NO contract between PLAINTIFF and DEFENDANTS, or any of them; and NO NO Cc) PLAINTIFF is prohibited, as a matter of law, from claiming any HNO on ““compensation or a commission” and/or otherwise enforcing the alleged “broker's NM 3 DEFENDANTS’ ANSWER TO UNVERIFIED COMPLAINT agreement” between Partners Trust, on the one hand, and DEFENDANTS, or any of them, oclUlUNUOUCUMOCOUUNSN on the other. ON FIFTH AFFIRMATIVE DEFENSE (Lack of Jurisdiction) UNO 8. PLAINTIFF alleges thatthis Court has Jurisdiction over this matter, notwithstanding the fact that the Toyopa Property (the sale of which gave rise to this alleged action) and allparties, documents and witnesses related to thisaction, are located in Los Angeles County. PLAINTIFF’s assertion that this Court has jurisdiction over thismatter is based solely on the fact that the former Trustee of The Anything Trust lived in Placer County. However, since PAUL D. BOOTH isno longer the trustee of The Anything Trust, and since he has been sued solely and exclusively inhis |= alleged capacity as “Trustee,” this Court lacks any basis forjurisdiction over this matter. BN SIXTH AFFIRMATIVE DEFENSE AanR (Breach of Fiduciary Duty) 9, As the “listing agent” for the subject Los Angeles County Property, PLAINTIFF and itsalleged agents (including, in particular, PARTNERS TRUST and MADISON HILDEBRAND) had wm CHR a fiduciary duty of the highest level to PLAINTIFF’s alleged client The Anything Trust, and its beneficiaries. Notwithstanding this fiduciary duty, and inbreach thereof, HILDEBRAND proceeded to engage in a series of actions which were designed to enrich HILDEBRAND personally at the CFC DN expense of PLAINTIFF — in an amount totaling hundreds of thousands of dollars. =F DN NO BOS SEVENTH AFFIRMATIVE DEFENSE KN (Breach of California Civil Code §2079.16) HN RRR 10. In acting in a“dual agent” capacity, PLAINTIFF and itsalleged agents (including, in NH particular, PARTNERS TRUST and MADISON HILDEBRAND) had a fiduciary duty of the highest wm level to PLAINTIFF under Civil Code §2079.16. Notwithstanding this fiduciary duty, and in breach Bs thereof, HILDEBRAND proceeded to engage in a series of actions which were designed to enrich 4 DEFENDANTS’ ANSWER TO UNVERIFIED COMPLAINT = HILDEBRAND personally at the expense of PLAINTIFF — in an amount totaling hundreds of thousands of dollars. YH WW BP EIGHTH AFFIRMATIVE DEFENSE (Failure to Comply with California NW Civil Code §2079.16) 11. PLAINTIFF DH and itsalleged agents (including, in particular, PARTNERS TRUST and MADISON HILDEBRAND) failed to comply with the “notice” NY and “approval” provisions of Civil Code §2079.16 Oo including, but not limited to, obtaining the written permission of PLAINTIFF for the change in listing agent from PARTNERS So TRUST to PLAINTIFF. NINTH AFFIRMATIVE DEFENSE Ome (PLAINTIFF’s Violation of Business & Professions Code §10032) 12. DEFENDANTS are informed and believe, and based upon such information and belief allege, that PLAINTIFF’s agent HILDEBRAND has, on multiple occasions, failed to disclose material facts to DEFENDANTS so as toconvince DEFENDANTS to sell the Toyopa Property to the buyer, and in the manner, most financially advantageous to HILDEBRAND, rather than in a manner and/or to the buyer which would have been most advantageous to DEFENDANTS. Had the DEFENDANTS known the facts which HILDEBRAND failed to disclose, they would not have ROO agreed to sell the Toyopa Property to the buyer and at the price to which they agreed. PLAINTIFF, as the self-alleged “Broker” for PARTNERS TRUST and/or HILDEBRAND is, therefore, liable for such lack of disclosure and other violations of Business & Professions Code §10032. RN RO TENTH AFFIRMATIVE DEFENSE BRO (PLAINTIFF’s Violation of Business & Professions Code § 10136 et seq.) RN 13. | DEFENDANTS are informed and believe, and based upon such information and NO belief allege, that PLAINTIFF has failed to comply with the requirements of California Business & Professions Code §10136, 10137 and/or 10138. PLAINTIFF, as the self-alleged “Broker” for PARTNERS TRUST and/or HILDEBRAND, isjointly liable for such lack of disclosure and other 5 DEFENDANTS’ ANSWER TO UNVERIFIED COMPLAINT violations of Business & Professions Code §10136, 10137 and/or 10138; and, therefore, that — PLAINTIFF is not entitled to the payment of any commission whatsoever. NY WY ELEVENTH AFFIRMATIVE DEFENSE Ff (PLAINTIFF’s Fraudulent Conduct) On 14. The Complaint, and each and every cause of action set forth therein, is barred in whole DH or in part by reason of the inequitable conduct and/or unclean hands of PLAINTIFF’s agent NY HILDEBRAND, including but not limited to PLAINTIFF’s damages from HILDEBRAND intentionally Oo false and misleading actions and statements which were designed to enrich HILDEBRAND personally Co at the expense of PLAINTIFF -— in an amount totaling hundred of thousands of dollars. O&O Eel | TWELFTH AFFIRMATIVE DEFENSE NY (Misrepresentation By PLAINTIFF) WD Ee 15. To the extent that any duty referred to in the Complaint exists relative to these FP Ee answering DEFENDANTS, or any of them, the creation of any such duty was wrongfully induced Ee DA by reason of the intentional, affirmative, reckless and/or negligent misrepresentations and failures Be to disclose material facts on the part of PLAINTIFF including, inparticular, by PLAINTIFF’s agent IND rr HILDEBRAND. In particular, DEFENDANTS are informed and believe, and based upon such Oo information and belief allege, that HILDEBRAND has made a series of material misrepresentations OO wr to DEFENDANTS so as to convince DEFENDANTS to sellthe Toyopa Property to the buyer, and DOD DN in the manner, most financially advantageous to HILDEBRAND, rather than in a manner and/or to the NO | buyer which would have been most financially advantageous to DEFENDANTS. NHN NO WY NO THIRTEENTH AFFIRMATIVE DEFENSE BR NO (PLAINTIFF’s Failure to Disclose Material Facts) nN NO 16. | DEFENDANTS are informed and believe, and based upon such information and NO NO belief allege, that PLAINTIFF’s agent HILDEBRAND has, on multiple occasions, failed to disclose who oN material facts to DEFENDANTS so as to convince DEFENDANTS to sell the Toyopa Property to Mo 6 DEFENDANTS’ ANSWER TO UNVERIFIED COMPLAINT the buyer, and in the manner, most financially advantageous to HILDEBRAND, rather than in a manner and/or to the buyer which would have been most advantageous to DEFENDANTS. Had NY the DEFENDANTS known the facts which HILDEBRAND failed to disclose, they would not have Ww agreed to sell the Toyopa Property to the buyer and at the price to which they agreed. FP UH FOURTEENTH AFFIRMATIVE DEFENSE Dn (Estoppel and Waiver) ON 17. The Complaint, and each and every cause of action set forth therein, is barred by the doctrines of estoppel and waiver. In particular, PLAINTIFF is estopped from claiming a Oo commission on the sale of the Toyopa Property by virtue of the fraudulent, unethical and illegal O&O conduct of its agent HILDEBRAND. | Ee NY FIFTEENTH AFFIRMATIVE DEFENSE ere W (Duty Discharged) Ff EF 18. | These answering DEFENDANTS are informed and believe, and based upon such ee DH information and belief allege, that any purported duty which they may have to PLAINTIFF, either eee as alleged in the Complaint or otherwise, has already been fully performed by and on behalf of ONY DEFENDANTS, and each of them. OO Ne SIXTEENTH AFFIRMATIVE DEFENSE CO (Excuse of Performance) K|§ YN 19. Atall times material herein, DEFENDANTS have acted reasonably and in good faith NY NN toward PLAINTIFF based upon all relevant facts and circumstances known to them atthe time they WH N so acted, and have further performed all terms, conditions, covenants and promises to be performed Be NN on their part pursuant to any alleged agreement and/or right referenced in the Complaint, except ON HN where such performance was excused, discharged or prevented by PLAINTIFF and /or OKO NH PLAINTIFF’s agent HILDEBRAND. NO oN I Oo 7 DEFENDANTS’ ANSWER TO UNVERIFIED COMPLAINT SEVENTEENTH AFFIRMATIVE DEFENSE (Failure to Mitigate) 20. PLAINTIFF has failed to mitigate its losses or damages, if any. Therefore, these damages, ifany, should be barred or reduced by the amount of such damages that PLAINTIFF could have avoided by the exercise of precaution. EIGHTEENTH AFFIRMATIVE DEFENSE (Laches) 21. The Complaint, and each and every cause of action set forth therein, is barred by the doctrine of laches. NINTEENTH AFFIRMATIVE DEFENSE (Additional Affirmative Defenses) Ze. These answering DEFENDANTS. allege that they may have other separate and additional defenses of which they are not currently aware, and hereby reserve the right toassert them by amendment to this Answer as discovery continues WHEREFORE, DEFENDANTS pray forjudgment as follows: 1. That PLAINTIFF take nothing by his Complaint herein and that the Complaint be dismissed: 2 For costs of suit and litigation expenses incurred herein, including reasonable attorneys fees; and tw Nm For such other and further reliefas the Court shall deem just and proper. WwW No uo DATED: May23. 2019 MICHAEL A.J. NANGANO, A LAW CORPORATION B MALAI Oe ~ MICHAEL A.J. NANGANO Attorneys for DEFENDANTS Facsimile signature as original § RC Rule 2.30570) DEFENDANTS’ ANSWER TO UNVERIFIED COMPLAINT PROOF OF SERVICE Iam employed in the County of Los Angeles, State of California. | am over the age of 18 and not a party to the within action. My business address is 133 N. Altadena Drive, Suite 403, Pasadena, CA 91107. On May 24, 2019, I served the following document(s) described as: ANSWER TO COMPLAINT on allinterested parties in this action by placing [X]atrue copy [ ]the original thereof enclosed in sealed envelopes addressed as follows: SEE ATTACHED MAILING LIST (BY FACSIMILE) The facsimile machine I used complied with Rule 2003(3) and no error was reported by the machine. Pursuant to Rule 2008(e)(4), | caused the machine to print a 10 record of the transmission. LL (BY MAIL, 1013a, 2015.5 C.C.P.) |am readily familiar with the firm's practice for collection and processing correspondence for mailing. Under that practice, this document 12 will be deposited with the U.S. Postal Service on this date with postage thereon fully prepaid at Los Angeles, California in the ordinary course of business. | am aware that on motion of 13 the party served, service is presumed invalid ifpostal cancellation date or postage meter date is more than one day after date ofdeposit for mailing in affidavit. 14 Iserved the above referenced document(s) l] (BY OVERNIGHT DELIVERY/COURIER) and for delivery marked for next day delivery in 15 enclosed in a sealed package, for collection the ordinary course of business, addressed to the office of the addressee(s) listed above or on 16 attached sheet. 17 (BY E-MAIL) I transmitted acopy of the foregoing document(s) via e-mail to the addressee(s). Courtesy copy 18 of perjury under the laws of the State of Californiathat the [X] (STATE) I declare under penalty 19 above istrue and correct. 20 Executed on May 24, 2019, at Pasadena, California. CCe 21. fo - 22 Patrigizn-nde Signature as original Pursuant to C.R.C. Rule 2.305(d) 23 24 26 27 28 3 4 PROOF OF SERVICE F&F MAILING LIST Pacific Union International, Inc. v. Ludwick, et al. NO Case No. SCV0042080 WwW Shannon B. Jones, Esq. wf Lindsey Morgan, Esq. Shannon B. Jones Law Group, Inc. WwW 208 W. El Pintado Road Danville, CA 94526 HD Y Lawrence E. Skidmore, Esq. Aronowitz Skidmore Lyon oO A Professional Law Corporation 200 Auburn Folsom Road, Suite 305 Auburn, CA 95603 10 (via email) 11 12 13 14 LS 16 17 18 19 20 21 22 23 24 2D 26 27 28 2 PROOF OF SERVICE