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1 KENNETH S. KATZOFF (SBN 103490)
NICOLE C. CAMPBELL (SBN 325516)
2 Katzoff & Riggs LLP
1500 Park Avenue, Suite 300
3 Emeryville, CA 94608
Tel. (510) 597-1990
4 kkatzoff@katzoffriggs.com
ncampbell@katzoffriggs.com
5 08/25/2020
CHRISTIAN N. BROWN (SBN 233147)
Elevation Law
6 855 N. Lake Blvd., # 1
P.O. Box 5008
7 Tahoe City, CA 96145
Tel. (530) 584-2900
8 chris@elevationlawfirm.com
9 Attorneys for Plaintiffs JENNIFER LUCERO and
JAMES D. OLSON
10
KATZOFF & RIGGS LLP
SUPERIOR COURT OF CALIFORNIA, COUNTY OF PLACER
1500 PARK AVE., SUITE 300
EMERYVILLE, CA 94608
11
(510) 597-1990
UNLIMITED CIVIL JURISDICTION
12
JENNIFER LUCERO, an individual, and ) Case No. S-CV-0045037
JAMES D. OLSON, an individual, )
13 ) ANSWER TO CROSS-COMPLAINT
Plaintiffs, ) OF DEFENDANTS MATTHEW
14 ) THOMAS DUDLEY AND ALICE T.
v. ) KWAN
15 )
)
16 )
MATTHEW THOMAS DUDLEY, et al. )
17 )
Defendants. )
18 ____________________________________ )
)
19 AND RELATED CROSS-ACTION )
)
_____________________________________ )
20
21
22
________________________________________________________________
1
ANSWER TO CROSS-COMPLAINT OF MATTHEW THOMAS DUDLEY AND ALICE T. KWAN
1 Plaintiffs and Cross-Defendants JENNIFER LUCERO and JAMES D. OLSON
2 (“Cross-Defendants”) answers the unverified Cross-Complaint filed against them by
3 Defendants and Cross-Complainants MATTHEW THOMAS DUDLEY AND ALICE T.
4 KWAN (“Cross-Complainants”) as follows:
5 1. In answering paragraph 1 of the Cross-Complaint, Cross-Defendants admit
6 only that Cross-Complainants have correctly identified the real property at 2133 Serene
7 Road, Soda Springs, California (the “Property.”)
8 2. Cross-Defendants admit the allegations of paragraphs 2 and 3 of the
9 Cross-Complaint. Cross-Defendants own an undivided fifty percent interest (50%) as
10 community property with a right of survivorship in the fee title to the Property, and as
KATZOFF & RIGGS LLP
1500 PARK AVE., SUITE 300
EMERYVILLE, CA 94608
11 tenants in common with Cross-Complainants.
(510) 597-1990
12
FIRST CAUSE OF ACTION
13 (Contribution and Accounting)
14 3. Cross-Defendants incorporate by reference each of the admissions,
15 allegations, and denials in paragraphs 1 through 2 of this Answer set forth above.
16 4. Cross-Defendants allege that paragraph 4 of the Cross-Complaint does not
17 contain any substantive allegation to admit or deny.
18 5. In answering paragraph 5 of the Cross-Complaint, Cross-Defendants admit
19 that Cross-Defendants and Cross-Complainants are tenants in common with each other.
20 6. In answering paragraph 6 of the Cross-Complaint, Cross-Defendants agree
21 that the Property should be partitioned by sale with division of the proceeds.
22 7. In answering paragraphs 7 and 8 of the Cross-Complaint, Cross-Defendants
deny all allegations in these paragraphs.
________________________________________________________________
2
ANSWER TO CROSS-COMPLAINT OF MATTHEW THOMAS DUDLEY AND ALICE T. KWAN
1 8. In answering paragraph 9 of the Cross-Complaint, Cross-Defendants admit
2 only that the parties maintain a checking account for the purpose of funding expenditures
3 related to the Property.
4 9. In answering paragraphs 10 and 11 of the Cross-Complaint,
5 Cross-Defendants deny all allegations in these paragraphs.
6 10. In answering paragraph 12 of the Cross-Complaint, Cross-Defendants agree
7 the Court should order an accounting according to the principles of equity to determine the
8 charges and credits upon Cross-Defendants’ and Cross-Complainants’ interests in the
9 Property and order allowance, contribution, or other compensatory adjustments before the
10 proceeds of the sale of the Property are divided between Cross-Defendants and
KATZOFF & RIGGS LLP
1500 PARK AVE., SUITE 300
EMERYVILLE, CA 94608
11 Cross-Complainants.
(510) 597-1990
12
SECOND CAUSE OF ACTION
13 (Money Had and Received)
11. Cross-Defendants incorporate by reference each of the admissions,
14
allegations, and denials in paragraphs 1 through 10 of this Answer set forth above.
15
12. Cross-Defendants allege that paragraph 13 of the Cross-Complaint does not
16
contain any substantive allegation to admit or deny.
17
13. In answering paragraphs 14 and 15 of the Cross-Complaint,
18
Cross-Defendants deny all allegations in these paragraphs.
19
20
21
22
________________________________________________________________
3
ANSWER TO CROSS-COMPLAINT OF MATTHEW THOMAS DUDLEY AND ALICE T. KWAN
1 THIRD CAUSE OF ACTION
(Account Stated/Open Book Account
2
14. Cross-Defendants incorporate by reference each of the admissions,
3
allegations, and denials in paragraphs 1 through 13 of this Answer set forth above.
4
15. Cross-Defendants allege that paragraph 16 of the Cross-Complaint does not
5
contain any substantive allegation to admit or deny.
6
16. In answering paragraphs 17, 18, 19 and 20 of the Cross-Complaint,
7
Cross-Defendants deny all allegations in these paragraphs.
8
AFFIRMATIVE DEFENSES
9
FIRST AFFIRMATIVE DEFENSE
10
KATZOFF & RIGGS LLP
1500 PARK AVE., SUITE 300
(Failure to State a Cause of Action)
EMERYVILLE, CA 94608
11
(510) 597-1990
Cross-Defendants allege that the Cross-Complaint and each of its causes of action
12 are barred by Cross-Complainants’ failure to state a cause of action against
13 Cross-Defendants.
SECOND AFFIRMATIVE DEFENSE
14
(Offset)
15
Cross-Defendants allege that the Cross-Complaint, in whole or in part, is subject to
16 set off due to amounts owed by Cross-Complainants to Cross-Defendants or for which
17 Cross-Defendants otherwise have a right to recover from Cross-Complainants.
THIRD AFFIRMATIVE DEFENSE
18
(Statute of Frauds)
19
The Cross-Complaint is barred, in whole or in part, by the provisions of California
20 Civil Code § 1624.
21
22
________________________________________________________________
4
ANSWER TO CROSS-COMPLAINT OF MATTHEW THOMAS DUDLEY AND ALICE T. KWAN
1
FOURTH AFFIRMATIVE DEFENSE
2 (Failure to Mitigate)
3 Cross-Defendants allege that the Cross-Complaint and each of its causes of action is
barred because if Cross-Complainants have sustained, or will sustain, any of the injuries,
4
losses or damages described in the Cross-Complaint, which Cross-Defendants deny, then
5
such injuries, losses, or damages were caused solely, or in part, by the failure of
6 Cross-Complainants to take reasonable steps available to them to mitigate such damages,
7 and to the extent that any such injuries, losses, or damages proven by Cross-Complainants
were caused by Cross-Complainants’ own failure to take reasonably available steps to
8
mitigate such damages, they shall not be recoverable against Cross-Defendants.
9
FIFTH AFFIRMATIVE DEFENSE
10
KATZOFF & RIGGS LLP
1500 PARK AVE., SUITE 300
(Unclean Hands)
EMERYVILLE, CA 94608
11
(510) 597-1990
Cross-Defendants allege that the Cross-Complaint and each of its causes of action is
12 barred in whole or in part by reason of Cross-Complainants’ inequitable conduct or unclean
13 hands, and the Court should not give Cross-Complainants relief based upon the facts
alleged.
14
SIXTH AFFIRMATIVE DEFENSE
15
(Estoppel)
16 Cross-Defendants allege that the Cross-Complaint and each of its causes of action is
17 barred by the doctrine of estoppel.
SEVENTH AFFIRMATIVE DEFENSE
18
(No Agreement)
19
Cross-Defendants allege that the Cross-Complaint and each cause of action thereof
20 is barred because no valid agreement was formed between Cross-Complainants and
21 Cross-Defendants to pay or reimburse monies to Cross-Complainants for goods or services
related to the Property and thus, there was no meeting of the minds.
22
________________________________________________________________
5
ANSWER TO CROSS-COMPLAINT OF MATTHEW THOMAS DUDLEY AND ALICE T. KWAN
1
EIGHTH AFFIRMATIVE DEFENSE
2 (Waiver)
3 Cross-Defendants allege that the Cross-Complaint and each of its causes of action is
barred because Cross-Complainants have knowingly and voluntarily waived of any
4
purported obligations or liabilities of Cross-Defendants, if any there were.
5
NINTH AFFIRMATIVE DEFENSE
6 (Release)
7 Cross-Defendants allege that the Cross-Complaint and each of its causes of action is
barred by virtue of the doctrine of release.
8
TENTH AFFIRMATIVE DEFENSE
9
(Failure of Condition)
10 Cross-Defendants allege that the Cross-Complaint and each cause of action thereof
KATZOFF & RIGGS LLP
1500 PARK AVE., SUITE 300
EMERYVILLE, CA 94608
11 is barred because there was a failure of a condition precedent, condition subsequent, or
(510) 597-1990
concurrent condition to any purported agreement to pay or reimburse monies to
12
Cross-Complainants for goods or services related to the Property, or any related promise,
13
the existence of which agreement or promise Cross-Defendants deny.
14 ELEVENTH AFFIRMATIVE DEFENSE
15 (Statute of Limitations)
Cross-Defendants allege that Cross-Complaint and each cause of action thereof is
16
barred by the Statute of Limitations, Code of Civil Procedure §§ 318, 320, 321, 322, 325,
17
338, 339(1), and 343.
18 TWELFTH AFFIRMATIVE DEFENSE
19 (Doctrine of Laches)
Cross-Complainants have been guilty of unreasonable delay in commencing and in
20
prosecuting the subject civil action, to the irreparable prejudice of Cross-Defendants, and
21
as a result, the Cross-Complaint, and each alleged cause of action herein, is barred by the
22 doctrine of laches.
________________________________________________________________
6
ANSWER TO CROSS-COMPLAINT OF MATTHEW THOMAS DUDLEY AND ALICE T. KWAN
1
THIRTEENTH AFFIRMATIVE DEFENSE
2 (Breach)
3 Cross-Defendants allege that the Cross-Complaint and each cause of action thereof
is barred because of a material breach by Cross-Complainants of any purported agreement
4
to pay or reimburse monies to Cross-Complainant for goods or services related to the
5
Property, the existence of which agreement or promise Cross-Defendants deny.
6 FOURTEENTH AFFIRMATIVE DEFENSE
7 (Reservation of Additional Defenses)
Cross-Defendants allege that because the Cross-Complaint herein is couched in
8
conclusionary terms, Cross-Defendants cannot fully anticipate all affirmative defenses that
9
may be applicable in this action. Accordingly, the right to assert additional affirmative
10 defenses, if and to the extent that such affirmative defenses are applicable, is hereby expressly
KATZOFF & RIGGS LLP
1500 PARK AVE., SUITE 300
EMERYVILLE, CA 94608
11 reserved. Further, Cross-Defendants presently have insufficient information or belief
(510) 597-1990
concerning the subject matter of the Cross-Complaint to know whether or not there may be
12
additional affirmative defenses available. In the event that discovery or investigation reveals
13
additional such affirmative defenses, Cross-Defendants expressly reserve herein the right to
14 assert the same.
PRAYER FOR RELIEF
15
WHEREFORE, Cross-Defendants pray for judgment against Cross-Complaint as
16
follows:
17
1. That the Cross-Complaint, and each and every cause of action therein, be
18
dismissed with prejudice;
19
2. That judgment be rendered in favor of Cross-Defendants
20
3. That Cross-Complainants take nothing and obtain no relief by reason of the
21
Cross-Complaint;
22
________________________________________________________________
7
ANSWER TO CROSS-COMPLAINT OF MATTHEW THOMAS DUDLEY AND ALICE T. KWAN
1 4. For a decree ordering a final accounting according to the principles of equity
2 for all charges upon the Cross-Complainants’ and Cross-Defendants’ interests before the
3 proceeds of the sale of the Property are divided between Cross-Complainants and
4 Cross-Defendants;
5 5. That the Court deny an request for attorneys’ fees or costs made by
6 Cross-Complainants, and provide for an equitable award of reasonable attorneys’ fees
7 incurred or paid by Cross-Defendants in the defense and prosecution of this action
8 according to proof provided to the Court, regarding Cross-Defendants’ actions for the
9 common benefit of all parties and that Cross-Complainants’ actions are not for the common
10 good of the co-owners but were instead to further their private benefit;
KATZOFF & RIGGS LLP
1500 PARK AVE., SUITE 300
EMERYVILLE, CA 94608
11 6. For the costs of suit incurred herein, including attorneys’ fees and costs to the
(510) 597-1990
12 extent allowed by law; and
13 7. For such other and further relief as the Court deems proper.
14 Dated: August 25, 2020
15 KATZOFF & RIGGS LLP
16 /s/ Nicole C. Campbell
_____________________________
17 By: NICOLE C. CAMPBELL
18
Attorneys for Plaintiffs JENNIFER LUCERO
19 and JAMES D. OLSON
20
21
22
________________________________________________________________
8
ANSWER TO CROSS-COMPLAINT OF MATTHEW THOMAS DUDLEY AND ALICE T. KWAN
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